STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR THERRIEN, JR.,

Petitioner,

vs.

JIM HORNE, AS COMMISSIONER OF EDUCATION,

Respondent.

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) Case No. 03-1600

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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 August 5, 2003, in Tampa, Florida.

APPEARANCES

For Petitioner: Arthur Therrien, Jr., pro se

2114 Village Avenue South Tampa, Florida 33612

For Respondent: Bruce Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731 STATEMENT OF THE ISSUE

Whether Petitioner should be granted an educator's certification although he allegedly engaged in inappropriate conduct on May 8, 2002, in violation of Section 1012.795(1)(c), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed an application for a Florida Educator's Certificate before the Department of Education (Department). Following an investigation, the Department filed a Notice of Reasons against Petitioner on February 20, 2003, and denied his application. Respondent denied the allegations and filed an Election of Rights, seeking a formal hearing. This matter was referred to the Division of Administrative Hearings on April 25, 2003. Discovery ensued, and following a continuance granted at the request of the parties, the final hearing was held on August 5, 2003.

The Notice of Reasons alleged one statutory violation count. Count one stated the misconduct alleged was in "violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude."

At the hearing, Petitioner testified in his own behalf and called one witness. Respondent called four witnesses. Three of Respondent's exhibits were admitted, consisting of court orders and a newspaper report. At the hearing, Petitioner alleged that he had been issued a permanent teacher's certificate by the Department. Petitioner was given a reasonable amount of time to submit documentation to that effect following the hearing. As

of the issuance of this Recommended Order, no documentation concerning that assertion has been received.

A Transcript of the hearing was filed on September 4, 2003.

Petitioner has not filed his proposed recommended order as of the date of this Recommended Order. Respondent filed his proposals on September 16, 2003. All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. On or about May 8, 2002, Deputy Kevin Mason of the Hillsborough County Sheriff's Office stopped a person named David Cheesman for consuming alcohol within 500 feet of a bar, which is prohibited by local ordinance. Deputy Mason "patted down" Cheesman and discovered he was in possession of pills he recognized as clonazepam. Cheesman informed the deputy he had received the pills from Petitioner who was standing nearby.

2. Petitioner had, in fact, given the clonazepam pills to Cheesman.

3. Petitioner had a prescription for the pills. His psychiatrist had just lowered the dosage from 2 mg to 0.5 mg. However, Petitioner had five of the 2 mg pills left. It was those five pills he gave to Cheesman.

4. Petitioner knew the pills were antiseizure and antistress medication, since they had been prescribed by his

   psychiatrist. Petitioner knew the pills could not be purchased without a prescription.

5. Petitioner was arrested for delivery of a controlled substance, a felony, and also for drinking within 500 feet of a bar, a misdemeanor. The delivery of a controlled substance charge was eventually dropped in criminal court, and Petitioner pled nolo contendere to the misdemeanor.

6. At the time of his arrest, Petitioner was employed as a teacher in the Hillsborough School District working under a temporary certificate.

7. Petitioner's arrest was reported in a local newspaper.

   
   

8. As a result of his arrest, Petitioner was suspended without pay, pending further investigation.

9. Petitioner's contract of employment with the Hillsborough School District was not renewed as of July 31, 2002.

10. Teachers in Hillsborough are expected by the public to hold themselves as upstanding citizens, and the delivery of controlled substances and drinking within 500 feet of a bar is not acceptable conduct.

11. Petitioner's inappropriate conduct on May 8, 2002, was an act involving moral turpitude.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 1012.795.

13. The burden of proof is on Petitioner to establish by a preponderance of the evidence he is qualified to hold a teaching certificate. The burden of proof is on Respondent to establish the disputed facts set forth in the Notice of Reasons by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

14. Respondent can deny a teacher seeking an educator's certificate when the teacher commits an act which would justify the revocation of a certificate. Section 1012.56(10)(a). A teaching certificate may be revoked for committing an act of moral turpitude or of gross immorality. Section 1012.795(1)(c).

15. Clonazepam is a controlled substance under Section 893.03(4)(j).

16. Petitioner is guilty of committing an act of gross immorality or of moral turpitude when he knowingly gave a controlled substance to Chessman on May 8, 2002.

17. A crime involving moral turpitude is defined as one evidenced by baseness, vileness, 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. See Rule 6B-4.009(6), Florida Administrative Code. The same definition could be used for an act involving gross immorality. It has also been defined as "the idea of baseness or depravity in the private social relations or duties owed by a man to man," or "to society, and anything done contrary to justice, honesty, principle, or good morals," State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611 146 So. 660, 661 (Fla. 1933).

18. The only factual dispute was whether Petitioner actually knew the drugs he gave to Cheesman were a "controlled" substance. In light of his admission that he knew he needed a prescription for them, that the pills he gave away were too powerful for his own medical condition, and that he had knowledge of the effects of the drug, his denial of such knowledge is not credible.

RECOMMENDATION

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

RECOMMENDED that a final order be issued finding that Petitioner did violate the provisions of Section 1012.795(1)(c). It is further

RECOMMENDED that a final order be issued denying the issuance of a teaching certificate to Petitioner; that Petitioner be prohibited from reapplying for a period of one year; and that should Petitioner reapply, the certificate be issued subject to such conditions as the Education Practices Commission may specify.

DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida.

S

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 19th day of September, 2003.

COPIES FURNISHED:

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

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

Bruce Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731

Arthur Therrien, Jr. 2114 Village Avenue South Tampa, Florida 33612

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

Tallahassee, Florida 32399-0400

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

325 West Gaines Street, Suite 224-E 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: 03-001600

Orders for Case No: 03-001600