STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

DANIEL AYERS,

Respondent.

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) Case No. 03-0123PL

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RECOMMENDED ORDER

A formal hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on February 26, 2003, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent's educator's certification should be sanctioned for alleged gross immorality or an act involving moral turpitude, and other offenses in violation of

Section 231.2615(1)(c), (e), (f) and (2), Florida Statutes.

PRELIMINARY STATEMENT

Following an investigation by the Department of Education, Petitioner filed an Amended Administrative Complaint against Respondent on April 9, 2002. Respondent did not deny the allegations when he filed an Election of Rights, but sought an informal hearing. This matter was referred to a teacher panel of the Education Practices Commission on December 6, 2002, in Tampa, Florida. Petitioner was present and ready to proceed.

Respondent did not appear but filed a written document wherein he disputed certain factual allegations contained in the Amended Administrative Complaint. The matter was then withdrawn from the agenda and referred to the Division of Administrative Hearings on January 6, 2003, and was set for hearing.

Petitioner timely filed its witness and exhibit list. Respondent did not take part in discovery. The final hearing was held on February 26, 2003.

The Amended Administrative Complaint alleged four statutory violation counts. Count one stated the misconduct alleged was in "violation of Section 231.2615(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude." Count two stated the misconduct alleged was in "violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or other criminal charge, other than a

minor traffic violation." Count three stated the misconduct alleged was in "violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board." Count four stated that Section 231.2615(2), Florida Statutes, provides that the plea of guilty in any court or a decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate.

At the hearing, Respondent failed to appear. Diligent search and inquiry was made as to Respondent's whereabouts; however, Respondent could not be located. Petitioner had notified the Administrative Law Judge's office on the previous day that he was aware of the hearing but would not be attending or presenting any evidence. Petitioner called two witnesses to testify and six of Petitioner's exhibits were admitted in evidence.

A Transcript of the hearing was filed on March 28, 2003.

Petitioner filed his Proposed Recommended Order on April 3, 2003. Respondent has not filed any proposals as of the date of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Daniel Ayers, holds Florida Educator Certificate number 735644, which was valid through June 30, 2005.

2. At all times relevant hereto Respondent was employed as a second grade teacher at Gulfport Elementary School in the Pinellas County School District during the relevant school year.

3. On July 5, 2000, at about 8:15 p.m., Respondent entered the public restroom at Lake Seminole Park, Pinellas County Florida, where he was observed by Deputy James Brueckner of the Pinellas County Sheriff's Office. It is a well-used park, and people were present that evening. It was still light at that time, and Lake Seminole Park was being used by families and children. The playground is close to the northeast corner of the restroom Respondent entered.

4. Respondent approached a urinal, and, after facing it for about 30 seconds, he went to the back wall where it was possible for him to observe, through the openings, anybody approaching the restroom. At that point, Respondent had his penis in his hands and was masturbating by holding his penis and fondling it. He then replaced his penis in his pants through the fly, pulled down his shorts, and began moving his hand up and down on his penis in a rapid motion.

5. Deputy Brueckner, who was inside the restroom, removed his badge and identified himself to Respondent. He told Petitioner that he was a detective and showed him the badge. He told Respondent that he was under arrest, but that he should be calm. They would go out to his vehicle to do the paperwork.

   Respondent made a move towards the door, as if he was going to run. Deputy Brueckner grabbed him, and Respondent shoved the deputy and fled. Deputy Brueckner pursued Respondent and caught him. Respondent swatted the deputy several times. Two other deputies came to Deputy Brueckner's assistance, and Respondent was subdued.

6. Respondent was charged with indecent exposure of sexual organs (a misdemeanor) and with resisting arrest with violence (a felony). He subsequently entered a plea of No Contest to the charge of indecent exposure of sexual organs and to the reduced charge of resisting arrest without violence in Pinellas County Circuit Court. He was adjudicated guilty on both charges by the court and placed on probation.

7. Respondent admitted to Michael Bessette, an administrator in the office of professional standards, Pinellas County School District, that he was the person arrested and charged as a result of the incident on July 5, 2000. In Bessette's expert opinion, the public would not tolerate the type of behavior exhibited by Respondent on July 5, 2000, at Lake Seminole Park. Respondent's effectiveness as a teacher was seriously reduced to the point where the school district had to remove him from teaching duties. In Bessette's opinion Respondent engaged in conduct that constitutes gross immorality

   and would not be tolerated under state or local ethical standards.

8. Respondent resigned his teaching position with the Pinellas County School District on April 25, 2001, following his conviction.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings had jurisdiction of the parties to and the subject matter of these proceedings. Sections 120.569 and 120.57(1), Florida Statutes, and Section 231.262(5), Florida Statutes (2001).

10. This proceeding involves disciplinary action against Respondent's teaching certificate and is therefore penal in nature. State ex rel Vining v. Florida Real Estate Commission,

    281 So. 2d 487 (Fla. 1973). The burden of proof to establish the facts upon which Petitioner seeks to discipline Respondent's teaching certificate is on Petitioner. Balino v. Dept. of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The standard of proof required in this matter is that the charges must be proved by Petitioner through the introduction of clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by clear and convincing evidence each of the allegations in the Amended

    Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. In the Amended Administrative Complaint filed against Respondent, it has been alleged that he has committed the acts prohibited by the provisions of Section 231.2615(1)(c), (e), and (f), Florida Statutes (2001). The fourth count in the Amended Administrative Complaint, citing Section 231.2615(2), Florida Statutes (2001), is not a violation but a presumption which can be applied in regard to count two of the Amended Administrative Complaint.

12. Section 231.2615(1), Florida Statutes (2001), authorizes the Education Practices Commission to suspend, revoke or otherwise penalize a teaching certificate provided it can be shown that the holder of the certificate, inter allia:

    (c) Has been guilty of gross immorality or an act involving moral turpitude.

    
    

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    1. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.

       
       

    2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

    
    

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

    (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.

    
    

14. The term "moral turpitude" is defined in Rule 6B- 4.009(6), Florida Administrative Code, as follows:

    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 statutes fixes the moral turpitude.

    
    

    Moral turpitude has also been defined by the Supreme Court of Florida as follows:

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

    State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (Fla. 1933).

15. Section 231.262, Florida Statutes (2001), reads in pertinent part:

    (7) A panel of the [Education Practices] commission shall enter a final order either

    dismissing the complaint or imposing one or more of the following penalties:

    
    

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    1. Revocation or suspension of a certificate.

       
       

    2. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.

       
       

    3. Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation.

       
       

    4. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

       
       

    5. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

    
    

16. Respondent's conduct while in the public restroom on July 5, 2000, clearly and convincingly demonstrates that Respondent engaged in gross immorality and an act of moral turpitude. In addition, following his arrest, Respondent entered a plea of No Contest to two misdemeanor counts, Exposure of Sexual Organs and Resisting Arrest without Violence, and the court adjudicated his guilt on both counts and placed him on

    probation, on April 17, 2001. Following his adjudication of guilt, Respondent resigned his position with the Pinellas County School Board. Further, Respondent's personal conduct has seriously reduced his effectiveness as an employee of the School Board.

17. Respondent did not appear at the formal hearing to offer any explanation of his conduct or any evidence in mitigation of his conduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(c), (e), and (f), Florida Statutes. It is further

RECOMMENDED that a final order be issued revoking Respondent's teaching certificate for three years, imposing a

$1,000 fine for the above violations, and that upon re- application for certification, imposing such conditions as are just and reasonable.

DONE AND ENTERED this 14th day of April, 2003, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 14th day of April, 2003.

COPIES FURNISHED:

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731

Daniel Ayers

7096 111th Street, North Seminole, Florida 33772

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400

Mary Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

Tallahassee, Florida 32399-0400

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: 03-000123PL

Orders for Case No: 03-000123PL