STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, as Commissioner ) of Education,1 )

)

Petitioner, )

)

vs. ) Case No. 04-0664PL

)

CARL D'AGOSTINO, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, for decision based upon the deposition testimony of Respondent and documentary evidence filed by the parties.

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Carl D'Agostino, committed the offense alleged in an Administrative Complaint issued by Petitioner, and dated February 13, 2002, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated February 13, 2002, then Florida Commissioner of Education, Charlie Crist (hereinafter referred to as the "Commissioner"), charged Carl D'Agostino with having violated Section 1012.795(1)(c), Florida

Statutes (2003).2 Mr. D'Agostino timely disputed the factual allegations in the Administrative Complaint by executing an Election of Rights form in which he elected the "Settlement Option." By selecting the Settlement Option, Mr. D'Agostino requested an opportunity to negotiate a settlement of the charges against him and, if that effort failed, a "Formal" hearing on the charges.

When efforts at settlement failed, Mr. D'Agostino's request for hearing was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct an evidentiary hearing. The matter was designated DOAH Case No. 04-0664PL and was assigned to the undersigned.

By Notice of Hearing entered March 9, 2004, the final hearing of this case was scheduled to commence May 6, 2004. On April 22, 2004, the Commissioner filed a Motion to Relinquish Jurisdiction to EPC in Absence of Disputed Material Facts. The deposition testimony of Mr. D'Agostino, taken April 16, 2004, was filed in support of the Motion. Mr. D'Agostino filed a Memorandum in Opposition to Motion to Relinquish Jurisdiction. Mr. D'Agostino, while not admitting the allegations of fact contained in paragraphs 3, 4, and 5 of the Administrative Complaint and, therefore, that no formal administrative hearing was necessary to resolve this matter, argued that the ultimate fact to be decided in this case, whether Mr. D'Agostino's

conduct constituted "gross immorality" or "acts involving moral turpitude," were not resolved by Mr. D'Agostino's admissions.

On or about April 28, 2004, a motion hearing was conducted by telephone to consider the Commissioner's Motion and

Mr. D'Agostino's response. After hearing argument from the parties, the Motion was denied. The final hearing, however, was cancelled and the parties were informed that a recommended order would be entered based upon the deposition testimony of

Mr. D'Agostino, which includes Petitioner's Exhibit 1, and any other stipulated evidence filed by the parties on or before May 10, 2004. The parties were also given until May 31, 2004, to file proposed recommended orders. These decisions were memorialized by an Order entered April 29, 2004.

On May 10, 2004, Mr. D'Agostino filed a Notice of Filing Exhibits. Respondent's Exhibit 1, a composite exhibit, was filed with the Notice. That exhibit is hereby admitted.

On May 26, 2004, Mr. D'Agostino filed Respondent's Proposed Recommended Order. The Commissioner filed Petitioner's Proposed Recommended Order on June 1, 2004. The post-hearing submittals of the parties have been fully considered.

FINDINGS OF FACT

1. The Department of Education, which the Commissioner was the head of at the times material to this case, is the state agency charged with the responsibility to investigate and

   prosecute complaints of violations of Section 1012.795, Florida Statutes (2003), against teachers holding Florida Educator's Certificates. §§ 20.15 and 1012.796(1), Fla. Stat.

2. The Education Practices Commission (hereinafter referred to as the "EPC") is charged with the responsibility of imposing discipline for any violation proscribed in Section 1012.795, Florida Statutes. § 1012.795(1), Fla. Stat.

3. Carl D'Agostino holds Florida Educator's Certificate No. 311777, valid through June 30, 2006, covering the area of history.

4. At the times material to this proceeding,

   
   

   Mr. D'Agostino was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools").

   Mr. D'Agostino's most recent position with M-D Public Schools was at North Miami Senior High School.

5. Mr. D'Agostino has been employed as a teacher for

   
   

   32 years and, since 1973, has been employed by M-D Public Schools. Throughout his teaching career, Mr. D'Agostino has received satisfactory performance evaluations. The Commissioner did not present evidence of prior disciplinary action against Mr. D'Agostino.

6. The Commissioner issued an Administrative Complaint against Mr. D'Agostino on February 13, 2002, alleging three incidents, which Mr. D'Agostino has admitted occurred. The

   following describes the first incident, which is hereby found to have occurred:

   On or about August 8, 1992, the Respondent was detained by a law enforcement officer in Dade County for trespassing on posted private property. Although he was twice ordered to stop by the officer, the Respondent continued walking. The Respondent made threatening gestures with his arms and told the officer to "go fuck himself."

   
   

7. Attached to his Election of Rights' form,

   
   

   Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the August 8, 1992, incident:

   Aug [sic] 8, 1992 [sic] Walking home from corner store across RR track abutting my apartment building a man started running toward me and screaming at me. In effort to avoid confrontation I attempted to flee. He tackled me, banged my head against the tracks repeatedly and made arrest. Turns out he was a federal railroad marshall and I unwittingly trespassed by crossing track instead of at street half block away.

   
   

   As the officer wears no uniform, from my view I was being attacked by a wild man. Hundreds of people from adjacent apts.

   Transverse this route daily to corner store. PTI anger control class 10 wks. Adj w/h.

8. The following describes the second incident, which is hereby found to have occurred:

   On or about February 23, 1996, the Respondent became enraged because another vehicle was parked in the Respondent's parking space. The respondent tore the windshield wipers off the vehicle and threw

   one at the owner of the vehicle, striking him in the head.

   
   

9. Attached to his Election of Rights' form,

   
   

   Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the February 23, 1996, incident:

   Feb [sic] 23, 1996 [sic] After month's [sic] of contention over neighbor's guests using my parking space leaving me nowhere to park, after months of complaining to condo board, and after months of notes to neighbor and on parked cars, I did tear of [sic] windsheild [sic] wipers and flipped them over my shoulder into bushes.

   
   

   I did not aim at anyone or anything nor was I aware of anyone in the vicinity. The person agreed this was an accident, not an assault, did not press charges.

   
   

   Restitution for damages ADJ/WH

   
   

10. The following describes the third incident, which is hereby found to have occurred:

    On or about August 22, 1998, the Respondent became involved in an argument with a neighbor over the volume of the neighbor's music. After the neighbor refused to turn his music down, the Respondent left and returned to the neighbor's home with a rifle. The Respondent cocked the weapon and stated "I will kick your ass." The Respondent told a law enforcement officer who arrived on the scene that "If he does it again, I'm going to kill him."

    
    

11. Attached to his Election of Rights' form,

    
    

    Mr. D'Agostino wrote the following explanation, which is hereby

    found to have been accurate, concerning the August 22, 1998, incident:

    August 22, 1998 [sic] I did threaten individual with a high school drill team marching rifle which does not have the capacity to chamber or fire a bullet.

    
    

    The object had the appearance of the ability to inflict harm but technically it was neither a weapon or [sic] rifle. I had to be arrested because instead of closure for 1996 incident they issued bench warrant in error. My condo president wrote a letter to judge applauding my actions and the alleged victim was evicted by the condo board for loud music, drugs, and other violations.

    
    

    Judge refused to hear case

    
    

    I have never owned or fired a gun in my life.

    
    

12. While the incidents described may evidence an anger management problem, probably exacerbated by 35 years of alcohol abuse,3 they do not constitute gross immorality or acts of moral turpitude.

13. Mr. D'Agostino's conduct was not "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." The evidence failed to prove that any of the incidents were publicized.

14. None the acts committed by Mr. D'Agostino constituted 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."

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

    1. The Burden and Standard of Proof.

       
       

16. In the Administrative Complaint, the Commissioner has sought, among other penalties, the revocation or suspension of Mr. D'Agostino's teaching certificate. Therefore, the Commissioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See

    Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).

17. Clear and Convincing evidence has been defined as evidence which:

    requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight

    that it produces in the mind of the trier of fact a firm belief or 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).

    
    

18. Any ground proven in support of the Commissioner's assertion that Mr. D'Agostino's teaching certificate should be revoked or suspended must be specifically alleged in the Administrative Complaint. See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).

    1. The EPC's Authority to Discipline Teaching Certificates; The Charges Against Mr. D'Agostino.

       
       

19. Section 1012.795(1), Florida Statutes, gives the EPC the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute.

20. The Commissioner has alleged in Count 1 of the Administrative Complaint that Mr. D'Agostino has committed the prohibited acts of Section 1012.795(1)(c), Florida Statutes.

21. The acts alleged in the Administrative Complaint that the Commissioner has alleged support the conclusion that

    Mr. D'Agostino's teaching certificate should be disciplined are

    quoted in paragraphs 6, 8, and 10, supra. Those acts have been admitted to by Mr. D'Agostino.

    1. Gross Immorality and Acts Involving Moral Turpitude; Section 1012.795(1)(c), Florida Statutes.

    
    

22. Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude."

23. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Rule 6B-4.009, Florida Administrative Code, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. See

    Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992).

    
    

24. Rule 6B-4.009(2), Florida Administrative Code, defines "immorality" as follows:

    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.

    
    

25. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality":

    The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981).

    
    

    Frank T. Brogan v. Eston Mansfiled, DOAH Case No. 96-0286 (EPC Final Order 1996).

26. Rule 6B-4.009(6), Florida Administrative Code, defines "moral turpitude" 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 statute fixes the moral turpitude.

    
    

27. The court in State ex rel. Tullidge v. Hollingsworth,

    
    

    146 So. 660, 661 (1933), observed that 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.

    
    

28. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes, it must be remembered

    that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981).

29. The acts committed by Mr. D'Agostino were not sufficiently egregious to constitute gross immorality or acts involving moral turpitude. Mr. D'Agostino's conduct, while evidencing an anger management problem at the time they occurred, does not constitute act that was "serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards" or an act of "inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society."

RECOMMENDATION

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

RECOMMENDED that a final order be entered dismissing the Administrative Complaint.

DONE AND ENTERED this 28th day of June, 2004, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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 28th day of June, 2004.

ENDNOTES

1/ Charlie Crist is now the Attorney General of Florida. Jim Horne is presently Commissioner of Education.

2/ Because the events at issue in this case occurred in 1992, 1996, and 1998, the authority of the Department of Education in this matter is actually found in Chapter 231, Florida Statutes (1991, 1995, and 1997). The Administrative Complaint issued against Mr. D'Agostino cited Section 231.2615(1)(c), Florida Statutes, as the statute violated by him. Chapter 231, Florida Statutes, was, however, repealed and reenacted in relevant part as Chapter 1012, Florida Statutes. See Ch. 2002-387, Laws of Fla. 2002, prior to the filing of this matter with the Division of Administrative Hearings. Section 231.2615(1)(c), Florida Statutes, was reenacted verbatim in Section 1012.795(1)(c), Florida Statutes.

In their proposed orders, the parties have cited Section 1012.795(1)(c), Florida Statutes (2003), as the statutory violation alleged committed by Mr. D'Agostino. Therefore, to achieve consistency, all references to statutes will be to Chapter 1012, Florida Statutes (2003), rather than Chapter 231, Florida Statutes (1997), unless otherwise specified.

3/ Mr. D'Agostino is a recovering alcoholic. During the times at issue in this proceeding, Mr. D'Agostino drank everyday. He has not, however, had a drink of alcohol since March 3, 2002.

COPIES FURNISHED:

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

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

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

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

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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 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: 04-000664PL

Orders for Case No: 04-000664PL