STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, as Commissioner of Education,

Petitioner,

vs.

JOY L. BISHOP,

Respondent.

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) Case No. 03-4094PL

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on behalf of the Division of Administrative Hearings (DOAH) on January 21, 2004, in Bradenton, Florida, and on April 26, 2004, by telephone conference.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: Nina Ashenafi, Esquire

FEA/United

118 North Monroe Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what

penalty, if any, should Petitioner impose on Respondent's teaching certificate.

PRELIMINARY STATEMENT

On May 7, 2003, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of five witnesses and submitted seven exhibits for admission into evidence. Respondent presented the testimony of eight witnesses, including Respondent, and submitted seven exhibits.

The identity of witnesses and exhibits and the rulings regarding each are reported in the four-volume Transcript of the hearing filed with DOAH on February 19 and May 13, 2004. The ALJ granted Respondent's uncontested motion for an extension of time to file proposed recommended orders (PROs). Petitioner and Respondent filed their PROs on June 2 and 8, 2004, respectively.

FINDINGS OF FACT

1. Respondent is authorized to teach English, the mentally handicapped, and psychology in Florida pursuant to Florida Educator's Certificate No. 435635. The certificate is valid through June 30, 2008.

2. Respondent was an outstanding teacher for the Manatee County School District (the District) for approximately 21

   years. The District employed Respondent as a language arts teacher at Manatee High School (Manatee) in 2000.

3. On November 4, 2000, Respondent drove a white Dodge van approximately 30 miles an hour on the wrong side of U.S. Highway

   41 (Highway 41) toward a deputy sheriff who was directing traffic during an annual festival. The deputy was off duty, but was in uniform and wore an orange vest.

4. Highway 41 contains six lanes where the deputy was directing traffic. Three northbound and three southbound lanes are divided by a landscaped median with a turning ramp. Oncoming vehicles pulled off the road to avoid the van. The left front tire of the van was flat.

5. The deputy attempted to stop Respondent by waiving his arms, jumping up and down, and yelling and screaming for Respondent to stop. Respondent drove past the deputy, and the deputy pushed off the front window of the vehicle.

6. The deputy's vehicle was approximately 15 feet away with blue lights and strobe lights already operating. The deputy drove his vehicle after Respondent with the siren on.

7. Respondent stopped the van approximately 1.4 miles from the location where she drove past the deputy. Respondent pulled into a parking lot of a chain restaurant.

8. The deputy arrested Respondent for aggravated assault on a police officer and fleeing to elude a police officer.

   Respondent subsequently pled guilty to both charges. The court withheld adjudication and sentenced Respondent to six months of community control, 25 hours of community service, imposed fines and costs, and placed Respondent on probation for one year.

   Respondent satisfactorily completed her sentence, paid her fines, and completed her probation.

9. On November 10, 2000, Respondent was under the influence of alcohol at Manatee as students were arriving for school. Administrators at Manatee gave Respondent a Breathalyzer test. The test disclosed a positive reading

   of .23. The legal limit is .07.

   
   

10. The District suspended Respondent without pay on November 10, 2000. Respondent resigned from her teaching position with the District on November 16, 2000.

11. The acts committed by Respondent on November 4 and 10, 2000, constitute neither gross immorality nor moral turpitude within the meaning of Section 1012.795(1)(c), Florida Statutes (2003). The acts were not base, depraved, dishonest, or unprincipled. They were related to alcohol addiction and a long-term illness of Respondent's mother.

12. Respondent did not violate Section 1012.795(1)(e), Florida Statutes (2003). Respondent was not convicted of a criminal charge. The court withheld adjudication. Petitioner acknowledges in its PRO that Petitioner could find no authority

    to support a conclusion that the withholding of adjudication is a conviction for the purpose of this alleged violation.

13. Respondent did not violate Section 1012.795(1)(f), Florida Statutes (2003). The evidence is less than clear and convincing that the acts committed by Respondent seriously reduced her effectiveness as a teacher. The traffic incident occurred away from school. The second incident occurred before school began and did not harm students or their parents.

14. Respondent was an outstanding teacher prior to her resignation. She resigned her position before her condition had any effect in the classroom.

15. Respondent violated Section 1012.795(1)(i), Florida Statutes (2003), by committing acts prohibited by Principles of Professional Conduct for the Education Profession. Respondent violated Section 1012.795(2), Florida Statutes (2003), by pleading guilty to the criminal charges against her.

16. Three aggravating factors support a significant penalty against Respondent's teaching certificate. First, the offenses on November 4 and 10, 2000, were severe within the meaning of Florida Administrative Code Rule 6B-11.007(3)(a). (References to rules are to rules promulgated in the Florida Administrative Code on February 27, 1994.) Second, both offenses created a danger to the public within the meaning of Florida Administrative Code Rule 6B-11.007(3)(b). Third, the

    offense on November 10, 2000, was a repetition of an alcohol- related problem. The District had previously transferred Respondent from another school to Manatee in an effort to help Respondent with problems associated with alcohol addiction.

17. Numerous mitigating factors listed in Florida Administrative Code Rule 6B-11.007(3) justify a penalty less severe than the three-year revocation and probation that Petitioner proposes. The last offense occurred more than three years ago. Respondent practiced as an educator for over 21 years before the last incident, made significant contributions to students and the educational system in which she worked, and has no other disciplinary history. Fla. Admin. Code

    R. 6B-11.007(3)(d)-(f).

    
    

18. Respondent caused no actual damage to any person or property. A penalty in this case has little, if any, deterrent effect and will have a significant adverse impact on Respondent's livelihood. Respondent voluntarily resigned her position and successfully rehabilitated herself from alcohol addiction. Respondent candidly admitted actual knowledge of her offenses and their severity. Respondent pled guilty to the charges against her and voluntarily resigned her teaching position. No pecuniary gain inured to Respondent, and Respondent did not harm any student or child. Respondent is

    rehabilitated from her previous alcohol addiction. Fla. Admin. Code R. 6B-11.007(3)(g)-(k), (m), and (q)-(s).

19. The evidence does not support a period of probation.

    
    

    Respondent's alcohol addiction was related to external circumstances involving Respondent's mother who was ill and in need of constant attention in 2000. Those external circumstances no longer exist. Respondent is rehabilitated.

    CONCLUSIONS OF LAW

    
    

20. DOAH has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 120.60(5), Fla. Stat. (2003). DOAH provided adequate notice of the administrative hearing.

21. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by clear and convincing evidence that Respondent committed the acts and violations in the Administrative Complaint and the reasonableness of any proposed penalty. Department of Banking and Finance, Division of Securities and Investor Protections v. Osborne Stern and

    Company, 670 So. 2d 932, 935 (Fla. 1996). In order for evidence to be clear and convincing:

    The evidence must be of such weight that it produces in the mind of the trier of fact a firm . . . conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

22. The evidence is less than clear and convincing that the acts committed by Respondent rose to the level of gross immorality or involved acts of moral turpitude within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). Deviation from a standard of conduct is an ultimate finding of fact that is the exclusive province of the trier of fact. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See Bush v. Brogan, 725 So. 2d 1237 (Fla. 2d DCA 1999)(holding a teacher's marriage to a 16-year-old former student and subsequent plea of no contest to domestic battery does not constitute gross immorality). Disciplinary statues cited in the Administrative Complaint are penal in nature and must be strictly construed against the authorization of discipline and in favor of the person sought to be penalized. Munch v.

    Department of Business and Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).

23. Petitioner did not violate Section 1012.795(1)(e), Florida Statutes (2003). Petitioner cited no statute, rule, or case law authorizing a construction of the term "conviction" to include the withholding of adjudication of guilt.

24. The evidence is less than clear and convincing that the acts committed by Respondent have seriously reduced her

    effectiveness in violation of Subsection 1012.795(1)(f), Florida Statutes (2003). As of the date of the administrative hearing, the District's director of human resources testified that he would not object to the District's hiring Respondent in a teaching position.

25. The evidence is clear and convincing that the acts committed by Respondent violated the Principles of Professional Conduct, within the meaning of Subsection 1012.795(1)(i), Florida Statutes (2003), and violated Subsection 1012.795(2), Florida Statutes. Respondent failed to make reasonable efforts to protect students from conditions harmful to learning and pled guilty to the criminal charges against her.

26. Aggravating factors discussed in the Findings of Fact justify a significant penalty against Respondent's teaching certificate. However, several previously discussed factors mitigate against the three-year revocation and probation that Petitioner proposes.

27. Petitioner proposes revocation and probation, in relevant part, as the penalty for Respondent allegedly violating five statutory provisions. However, Respondent violated only two of those provisions.

28. Petitioner also proposes revocation and probation, in relevant part, as the penalty for Respondent's refusal to admit she was intoxicated during the traffic incident on November 4,

2000. The Administrative Complaint does not allege that Respondent was intoxicated during the traffic incident. It would violate the Administrative Procedure Act to predicate disciplinary action against Respondent on conduct never alleged in the Administrative Complaint. Cotrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c), (e), and (f), Florida Statutes (2003); guilty of violating Subsections 1012.795(1)(i) and (2), Florida Statutes; suspending Respondent's teaching certificate for one year beginning on November 10, 2000; and thereafter activating the certificate forthwith.

DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 7th day of July, 2004.

COPIES FURNISHED:

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

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

Nina Ashenafi, Esquire FEA/United

118 North Monroe Street Tallahassee, Florida 32301

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731-0131

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: 03-004094PL

Orders for Case No: 03-004094PL