STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03-1596PL

)

VICKIE M. HANNON,1/ )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Notice was provided and on July 23, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the City Hall, 151 Southeast Osceola Avenue, Ocala, Florida. The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 279 Austell, Georgia 30168

For Respondent: Vickie M. Hannon, pro se

4021 County Road 105

Oxford, Florida 34484 STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 812381, based upon the allegations in the Administrative Complaint, Case No. 001-

1695-A, before the State of Florida, Education Practices Commission?

PRELIMINARY STATEMENT

On February 20, 2003, Jim Horne, as Commissioner of Education, executed the Administrative Complaint. In response, Respondent elected the option for a formal hearing. On May 1, 2003, the Division of Administrative Hearings received the case. The formal hearing ensued on the aforementioned date.

In pertinent part, the formal hearing addressed the material allegations in the Administrative Complaint concerning Respondent's conduct on or about April 12, 2001, and on or about April 20, 2002. The conduct, if proven, could lead to the conclusion that Respondent had violated Sections 1012.795(1)(c) and (i), Florida Statutes.

Petitioner presented the testimony of Steve Smolensky and David Edward Gater, Deputies with the Citrus County, Florida, Sheriff's Office. Cindy Davidson and Valerie Baumgardner were also presented as witnesses for the Petitioner. Respondent testified in her own behalf; and Respondent's Exhibit numbered

1 was admitted.

On August 26, 2003, a hearing transcript was filed with the Division of Administrative Hearings.

Petitioner filed a proposed recommended order which has been considered in preparing the recommended order.

On September 4, 2003, Respondent filed correspondence directed to the undersigned. By its terms the correspondence attempted to supplement the hearing record. This is not allowed. The information within the correspondence has not been considered in preparing the recommended order. In addition, notice of ex-parte communication pertaining to the September 4, 2003, correspondence has been established in writing in this case. Section 120.66(2), Florida Statutes.

All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. Respondent holds Florida Educator's Certificate No. 812381.

2. As of April 11, 2001, Respondent taught at Dunnellon High School where her daughter was enrolled as a student. Her daughter is Valarie Baumgardner.

3. On April 11, 2001, Respondent and her daughter, Valarie Baumgardner were at home. The daughter was on the telephone talking to her former boyfriend. The topic of their discussion was sex. This discussion was overheard by Respondent. As a consequence, Respondent made unflattering remarks to her daughter, to include calling the daughter a

   "slut." The television was on in the room where the daughter and Respondent were located at the moment. Respondent took the remote control device for the television and started hitting her daughter on the leg with it. Respondent had been drinking, so much so, that the daughter believed that Respondent was drunk.

4. Eventually, the daughter hung the telephone up and asked her mother what the mother was doing; Respondent did not answer. Respondent pushed her daughter a few times and started kicking her, slapping her and scratching her face. Respondent hit her daughter with a chair. Respondent pushed the daughter into the wall. The daughter fought back by grabbing her mother's hair, putting the mother on the ground and placing her knee on her mother to control the other combatant. The daughter suffered bruises in addition to the scratch on her face as a result of the altercation. The outcome of the physical confrontation left the daughter's eye bleeding in the corner. At one point in the exchange, Respondent had a cigarette and ashes from the cigarette burned the daughter on her arm.

5. The daughter telephoned a friend to come to her aid.

   
   

   The friend's mother drove to the home where the altercation took place accompanied by the daughter's friend. Those persons took Respondent's daughter away from the home.

6. The daughter, the daughter's friend, and the friend's mother went to a nearby home where a law enforcement official resided. The law enforcement official decided to contact the police about the matter.

7. At the time of the incident Ms. Baumgartner was 16 years old.

8. Respondent also called for law enforcement to be dispatched as a result of her encounter with the daughter. Deputy Steven Smolensky of the Citrus County Sheriff's Office responded to that call. He first went to the home where

   Ms. Baumgardner had been taken, having been told that

   
   

   Ms. Baumgardner was a possible suspect. When he arrived at that location, Deputy Baumgardner observed Ms. Baumgardner's injuries. Ms. Baumgardner told Deputy Smolensky that Respondent had caused those injuries. He observed redness around Ms. Baumgardner's left eye. She had two or three scratches going down the inside of her left elbow. A bruise was observed around the right knee, and there were little red dots in the left wrist area which Deputy Smolensky surmised had been caused by a cigarette. Ms. Baumgardner commented that those red dots were the result of Respondent's actions.

9. Following the interview with Ms. Baumgardner, Deputy Smolensky contacted Respondent. Upon observing Respondent, he believed that she was extremely intoxicated by virtue of the

   smell about her person, her slurred speech, her wandering around her residence and her talking incoherently.

10. Sometime during the investigation Respondent told Deputy Smolensky that her daughter was a "bitch" and that she was an "asshole" for trying to get Respondent in trouble.

11. Deputy Smolensky did not observe any injuries to Respondent.

12. Deputy Smolensky arrested Respondent for child abuse. Respondent replied that the deputy could not arrest her because she was a school teacher. Deputy Smolensky told Respondent that the Respondent "was in fact under arrest." Respondent sat on the floor, crossed her legs, crossed her arms and refused to get up. Respondent was instructed several times to get up. She finally complied. She was placed in handcuffs and put in a patrol vehicle. On the way to jail Respondent became violent to the extent of kicking the metal divider between the front and the back of the car in which she was being transported; screaming for Deputy Smolensky to hurry up and kill her; and kicking the floor board of the car. Respondent told Deputy Smolensky that he had caused her to lose everything, her job, her house, and her dog.

13. Once at the sheriff's office jail facility, Respondent refused to get out of the patrol car and had to be removed forcibly. She physically braced herself in the car to

    keep from being removed from the car. She was pulled from the car through the efforts of Deputy Smolensky and officers at the jail where she had been taken. At the time Respondent was screaming and spitting at the jailers and lightly kicked one of the jail officers. Respondent was placed in the drunk tank at the jail and for a while banged on the door and screamed.

    Eventually she calmed down.

    
    

14. As Ms. Baumgardner established, the incident between Respondent and her made the front page of a number of newspapers. Persons at school were aware of the incident to include teachers and the Vice-Principal. Respondent agrees that the event was "in all the newspapers."

15. Teachers and other people approached

    
    

    Ms. Baumgardner. Ms. Baumgardner perceived that "nobody looked at me the same anymore" after the incident. After the incident Ms. Baumgardner did not want to go back to the school and asked to be removed from the school where Respondent was employed and the daughter attended.

16. Following the incident with her daughter, Respondent moved from her home and took residence in a home where Cindy Davidson resided.

17. In April 20, 2002, Respondent and Ms. Davidson had a physical altercation after Respondent had accused Ms. Davidson of stealing or killing her dog. During this fight

    Ms. Davidson was bitten on the hand by Respondent. As a result of their encounter, Ms. Davidson called for assistance from law enforcement. Deputy David Edward Gater of the Citrus County Sheriff's Office was dispatched to the scene.

18. After the deputy had interviewed Ms. Davidson, Respondent, who had left the residence where the altercation occurred, returned to the home a couple of hours later. Deputy Gater went back to the residence and made contact with Respondent. He did not observe any injuries to Respondent as a result of the altercation with Ms. Davidson. He sensed a

    small odor of alcohol about Respondent's person. Respondent's eyes were glazed over and she had a slight slur to her speech. On the whole, Deputy Gater believed that Respondent was intoxicated. He arrested Respondent for one count of battery and took her to the Citrus County Detention Center.

19. The altercations on April 11, 2001, and April 20, 2002, that have been described did not lead to criminal law convictions.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in accordance with Sections 120.569, 120.57(1) and 1012.796(6).

21. Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and

    convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The definition of clear and convincing evidence is found in the case Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

22. Although the April 11, 2001 incident took place when Section 231.2615(1)(c) and (i), Florida Statutes (2001) was in effect, the substantive provisions in that section are now found at Section 1012.795(1)(c) and (i). With this change, jurisdiction has been retained over the allegations in the Administrative Complaint. Solloway v. Department of Professional Regulation, 421 So. 2d 573 (Fla. 3rd DCA 1982).

23. The consequence of any violation of counts alleged in the Administrative Complaint is described at Section 1012.795(1), where it states:

    1012.795 Education Practices Commission; authority to discipline.--

    
    

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person; . . . or may impose any other penalty provided by law, provided it can be shown that the person:

       . . .

       
       

24. In relation the encounters on April 11, 2001, and April 20, 2002, that have been described in the fact finding, Count 1 to the Administrative Complaint accuses the Respondent of violating Section 1012.795(1)(c), in that Respondent has been guilty of gross immorality or an act involving moral turpitude.

25. As the court has held, "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams vs. Professional Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981). As a teacher, it is not necessary that Respondent "be charged with or convicted of a crime in order to be subject to revocation of a certificate based on conduct reflecting gross immorality or moral turpitude." Walton v. Turlington, 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984).

26. To understand the meaning of "gross immorality" or "moral turpitude", resort is made to provisions within Chapter 6B-4, Florida Administrative Code, defining terms for the benefit of district school systems in disciplining instructional staff.

27. Rule 6B.4009(2), Florida Administrative Code, defines immorality as:

    [C]onduct that is inconsistent with 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.

    
    

    For the conduct to be considered grossly immoral, it would need to be a form of immorality that is obvious and inexcusable.

28. In connection with the discipline to be imposed by the district school system for its instructional staff "moral turpitude" is defined at Rule 6B-4.009(6), Florida Administrative Code, as a:

    [C]rime 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 fellowman or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

    Again, it is not necessary that a crime be committed in order to demonstrate moral turpitude.

29. When measured against these definitions, Respondent's conduct on April 11, 2001 and April 20, 2002, reached the level of gross immorality. Her conduct in these instances was obvious and inexcusable and certainly immoral. However, the conduct on these occasions did not reflect moral turpitude. Respondent violated Section 1012.795(1)(c), for reason of her gross immorality and not moral turpitude.

30. Count 2 to the Administrative Complaint charges Respondent with a violation of Section 1012.795(1)(i), in that Respondent is alleged to have violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Unlike other Administrative Complaints considered in the past, this administrative complaint does not explain which State Board of Education rules have been violated. Absent that explanation Respondent cannot be found to have violated Section 1012.795(1)(i).

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Count 1, dismissing Count 2, and revoking Respondent's educator's certificate for a period of two years.

DONE AND ENTERED this 26th day of September, 2003, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 26th day of September, 2003.

ENDNOTE

1/ Respondent was formerly known as Vickie B. Taylor.

COPIES FURNISHED:

Ron Weaver, Esquire Post Office Box 279 Austell, Georgia 30168

Vickie M. Hannon 4021 County Road 105

Oxford, Florida 34484

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

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

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

325 West Gaines Street, Room 224E 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: 03-001596PL

Orders for Case No: 03-001596PL