STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEONARDO RODRIGUEZ, )

)

Petitioner, )

)

vs. ) Case No. 98-1916

)

FRANK T. BROGAN, )

as Commissioner of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 28, 1998, with the parties appearing by video teleconference from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings at Tallahassee, Florida.

APPEARANCES

For Petitioner: Leonardo Jose Rodriguez, pro se

51 Southwest 59th Court Miami, Florida 33144

For Respondent: Charles T. Whitelock, Esquire

Jana Gold Taylor, Esquire Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to a educator's certificate to teach in the State of Florida.

PRELIMINARY STATEMENT

This case began on March 26, 1998, when Petitioner was

notified by the Commissioner of Education that his application for a Florida Teacher's Certificate had been denied. The basis for denial was alleged to be the applicant's commission of an act for which the Education Practices Commission would be authorized to revoke a teaching certificate. More specifically, as stated in the Notice of Reasons entered on March 26, 1998, the Respondent alleged Petitioner had exposed himself and had been arrested and charged with indecent exposure, a criminal act. The Notice of Reasons alleged the applicant was therefore not of good moral character and that he was guilty of gross immorality or an act involving moral turpitude.

Petitioner disputed the allegations of the Notice of Reasons and timely requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on April 21, 1998.

At the hearing Petitioner testified in his own behalf.

Petitioner's Exhibits numbered 28, 29, and 30 have been admitted into evidence. As to the remainder of Petitioner's exhibits, Respondent's objection on the basis of hearsay is sustained.

While relevance alone would not preclude the admissibility of the exhibits (the other objection raised by Respondent), upon review of the proposed exhibits it is concluded the documents are inadmissible.

The Respondent presented testimony from Robert Perez, a detective with Miami-Dade Police; and Roger Reguera, a Miami-Dade

police officer. Respondent's Exhibits numbered 1, 2, 5, 7, 8, and 9 were also admitted into evidence.

The transcript of the proceeding was filed on November 30, 1998. Thereafter the parties filed proposed recommended orders which have been fully considered in the preparation of this order.

FINDINGS OF FACT

1. Petitioner, Leonardo Jose Rodriguez, is an applicant for a teacher's certificate.

2. On December 14, 1994, Petitioner was arrested and charged with exposure of sexual organs in violation of Section 800.03, Florida Statutes. Such statute provides:

   It is unlawful to expose or exhibit one's sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. Violation of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s.

   775.083. A mother's breastfeeding of her baby does not under any circumstance violate this section.

3. On the date specified, Petitioner was parked in a public lot adjacent to an adult book store. Although seated in the driver's side of his vehicle with the windows up, Petitioner and his conduct were in plain view to the public.

4. Two Miami-Dade police officers on routine patrol observed Petitioner's parked vehicle. They noted that Petitioner had his pants down, displayed his erect penis, and appeared to be

   masturbating.

   
   

5. After observing Petitioner for several minutes, they approached the vehicle, interrupted Petitioner's conduct, and placed him under arrest for exposure of sexual organs.

6. Thereafter, Petitioner agreed to a pretrial diversion program wherein he attended classes and paid monies attendant to the program. When Petitioner successfully completed the program, the criminal case against him was nolle prossed.

7. Although he admitted the criminal charges had been filed against him, and the subsequent course of resolution, Petitioner maintains he did not commit the underlying conduct giving rise to such charges. Moreover, Petitioner claims the two police officers fabricated the entire criminal charge. Here, Petitioner's testimony has been rejected as unpersuasive.

8. Petitioner filed for a Florida educator's certificate in July 1995.

9. On March 26, 1998, Petitioner was advised that his application had been denied. The Notice of Reasons for the denial cited the conduct set forth above and concluded Petitioner is not of good moral character. No witnesses testified on behalf of Petitioner regarding his moral character.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

11. Section 231.17, Florida Statutes, provides, in pertinent part:

    1. TEMPORARY CERTIFICATE.–

       
       

       * * * *

       
       

       (c) To qualify for a temporary certificate, the applicant must:

       
       

       * * *

       
       

       6. Be of good moral character.

       
       

       * * *

    2. PROFESSIONAL CERTIFICATE.–The department shall issue a professional certificate for a period not to exceed 5 years to any applicant who meets the requirements for a temporary certificate

       
       

       * * *

       
       

       1. DENIAL OF CERTIFICATE.–

          1. The Department of Education may deny an applicant a certificate if the department possesses evidence satisfactory to it that the applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate.

          2. The decision of the Department of Education is subject to review by the Education Practices Commission upon the filing of a written request from the applicant within 20 days after receipt of the notice of denial.

             
             

       2. STATE BOARD RULES.–The State Board of Education shall adopt rules as necessary to implement this section.

       
       

12. Rule 6B-1.001, Florida Administrative Code, which sets forth the Code of Ethics for the education profession, provides, in pertinent part:

    (3) Aware of the importance of maintaining

    the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

13. Rule 6B-4.009, Florida Administrative Code, provides, in part:

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    
    

    * * *

    
    

    (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    * * *

    
    

    (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

14. In this case the Petitioner bears the burden of proof to establish he is entitled to the certification sought. In this regard Petitioner must establish he is of good moral character as that it the only reason specified for the denial of his certification.

15. Teachers are held to the highest ethical standards.

Good moral character demands that conduct be not so base as to offend the public conscience. In this matter the testimony of the witnesses could not be more conflicting. Petitioner denies the conduct which two credible police officers have sworn they observed. The police officers' account of the incident is deemed persuasive in this case. Petitioner has offered no credible explanation for the events complained of nor other evidence of his good moral character. Accordingly, Petitioner has failed to meet his burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying Petitioner's application for certification.

DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida.

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999.

COPIES FURNISHED:

Kathleen Richards, Executive Director Education Practices Commission Florida Education Center

Department of Education

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399

Jerry W. Whitmore, Program Director Education Practices Commission Florida Education Center

Department of Education

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Charles T. Whitelock, Esquire Jana Gold Taylor, Esquire Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

Leonardo J. Rodriguez

51 Southwest 59th Court Miami, Florida 33144

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-001916

Orders for Case No: 98-001916