STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF ) EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03-2348PL

)

FITZROY D. SALESMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on October 7, 2003.

APPEARANCES

For Petitioner: Charles T. Whitelock

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Mark Herdman

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of gross immorality or an act involving moral turpitude, in violation of Section 1012.795(1)(c), Florida Statutes, by refusing to comply with repeated requests from a law enforcement officer, who then

arrested Respondent for resisting an officer without violence and disorderly intoxication.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 7, 2003, Petitioner alleged that Respondent holds Florida educator certificate 642187, covering the area of welding, and that the certificate is valid through June 30, 2007. The Administrative Complaint alleges that, on April 3, 1998, Respondent, who was under the influence of alcohol, refused to comply with repeated requests from a law enforcement officer, who then arrested Respondent for resisting an officer without violence and disorderly intoxication. The Administrative Complaint alleges that the state attorney nolle prossed the case on February 3, 1999, after Respondent completed a pretrial intervention program. The Administrative Complaint alleges that Respondent thereby violated Section 1012.795(1)(c), Florida Statutes, because he is guilty of gross immorality or an act involving moral turpitude.

At the hearing, Petitioner called two witnesses and offered into evidence two exhibits: Petitioner Exhibits 1-2, which were both admitted. Respondent called one witness and offered into evidence no exhibits.

The court reporter filed the transcript on December 8, 2003. The parties filed proposed recommended orders by December 19, 2003.

FINDINGS OF FACT

1. At all material times, Respondent has held Florida educator certificate 642187, which covers the area of welding. At the time of the alleged incident, the Miami-Dade School District employed Respondent as a welding instructor at Miami Lakes Technical School.

2. On April 3, 1998, Respondent left school at the conclusion of his work day, which was about 3:10 p.m. He drove to a nearby restaurant at a strip mall to have lunch. He arrived at the restaurant at about 3:25 p.m. He consumed his lunch inside the restaurant, which was owned by a friend.

3. About an hour after arriving at the restaurant, Respondent departed. He overheard the owner's wife telephoning the police about a disturbance in the parking area, although Respondent never saw any commotion.

4. Respondent stood outside of the restaurant talking with the restaurant owner and a couple of friends. In a few moments, a police car entered the parking lot, and two police officers exited the car.

5. One of the officers approached Respondent and his friends, who were standing just outside the restaurant. The other officer approached a small group of men, who had congregated a short distance from the restaurant. However,

   these men, who had been consuming beer, ran away at the approach of the officer.

6. As the other officer approached Respondent's group, she demanded to see identification. The owner said that he worked at the restaurant and went back inside. Respondent and his two other friends produced identification.

7. Respondent's identification was his school identification badge that he was still wearing around his neck. When the officer demanded additional identification, Respondent replied that his driver's license was in the glove compartment of his car.

8. Some disagreement between Respondent and the officer ensued over who would get the license. At some point, the officer obtained the driver's license and ran checks on all three men.

9. Possibly while the background checks were being processed, the police officer demanded to know what the three men had been talking about. Respondent refused to tell her, saying only that it had been a personal conversation and that he had rights. Eventually, the officers ordered Respondent and his friends to move from the vicinity of the restaurant. Respondent refused to do so. A heated exchange followed between the officers and Respondent, who offered his hands in a gesture of submitting to handcuffing, if the officers wanted to arrest him.

10. The officers never intended to arrest Respondent, but, given his recalcitrance, they decided to go ahead and do so. They charged him with resisting arrest without violence and disorderly intoxication. The charges were later dropped after Respondent completed an anger-management course.

11. The evidence fails to establish that Respondent had consumed any alcoholic beverages on the day of the incident.

12. Respondent's principal testified at the hearing.

    
    

    Following the incident, the principal conducted a conference for the record and required Respondent to report to his office once weekly until July and inform the principal of the disposition of the criminal case. The principal testified that Respondent is vocal, but not belligerent, although he may seem to be so to persons who do not know him. The principal also testified that Respondent's behavior did not rise to gross immorality or an act involving moral turpitude.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

14. Section 1012.795(1)(c), Florida Statutes, authorizes the Education Practices Commission to discipline the educator certificate of any person who is guilty of gross immorality or an act of moral turpitude.

15. There is no definition of either of these terms that would encompass the behavior of Respondent on April 3, 1998, when dealing with the police outside of the restaurant. Obviously, Respondent's stubborn insistence upon his rights in the face of routine police work proved unwise, but not sufficiently serious to constitute gross immorality or an act of

moral turpitude.

It is

RECOMMENDATION

RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 22nd day of December, 2003.

COPIES FURNISHED:

Kathleen Richards, Executive Director Florida Education Center

Department of Education

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

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street 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

Charles T. Whitelock Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Mark Herdman

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-002348PL

Orders for Case No: 03-002348PL