STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

CARL MOORE,

Respondent.

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) Case No. 04-2393PL

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on October 11, 2004, in Orlando, Florida.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett, Foster & Gwartney

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: Carl Moore, pro se

910 South Park Court Kissimmee, Florida 34741

STATEMENT OF THE ISSUE

Whether the Florida Educator Certificate held by Respondent, Carl Moore, should be disciplined for conduct alleged in the Administrative Complaint filed in this case by

Petitioner, Jim Horne, in his capacity as Commissioner of Education.

PRELIMINARY STATEMENT

On May 24, 2004, Petitioner, Jim Horne, as Commissioner of Education, filed an Administrative Complaint against Respondent, Carl Moore. The Administrative Complaint alleged that Respondent had been guilty of gross immorality or had committed act(s) involving moral turpitude in violation of Subsection 1012.795(1)(c), Florida Statutes (2004). In addition, it was alleged that Respondent had violated Subsection 1012.795(1)(i), Florida Statutes, by violating the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education. Finally, the Administrative Complaint alleged that Respondent had violated Florida Administrative Code Rule 6B-1.006(5)(m) for failing to self-report any arrest/charges involving the abuse of a child or the sale and/or possession of a controlled substance within 48 hours. On

June 16, 2004, Respondent notified Petitioner that he desired to have a formal hearing on the alleged charges.

The case was received by the Division of Administrative Hearings on July 12, 2004. On the same day, an Initial Order was sent to both parties. On August 3, 2004, a Notice of Hearing was entered, scheduling the case for final hearing on September 9, 2004, in Kissimmee, Florida. The case was

continued as a result of a hurricane. It was rescheduled for October 11, 2004, in Orlando, Florida.

The case was presented as rescheduled. Petitioner presented four witnesses: Anna Rose Harrison, Orange County Deputy Sheriff Don Doyle, David W. Harrison, and Respondent. Petitioner presented one exhibit, the Incident Report, which was marked as Petitioner's Exhibit 1. Respondent testified on his own behalf and offered one exhibit, the Charging Affidavit, which was marked Respondent's Exhibit 1.

The Transcript of Proceedings was filed with the Clerk of the Division of Administrative Hearings on October 22, 2004. On November 16, 2004, Respondent requested a 20-day extension of time to file his proposed recommended order. The time for filing proposed recommended orders was extended until

December 1, 2004. Petitioner filed his Proposed Recommended Order on November 12, 2004. Respondent filed his Proposed Recommended Order on December 1, 2004. Both Proposed Recommended Orders were thoughtfully considered.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent held Florida Educator Certificate No. 822030, covering the area of music. This certificate is valid through June 30, 2003. Respondent was employed at Neptune Middle School, Osceola County, Florida.

2. On July 20, 2004, A.H., who was 17 years old at the time of the alleged incident, was in a hot tub at the Marriott Hotel, in Orlando, Florida.

3. While she sat in the hot tub, she was approached by a young man in a white shirt and khaki trousers who stated "it would be nicer if the jets to the hot tub were on," or words to that effect. A.H. agreed, and the young man walked over to the control panel and attempted to activate the jets.

4. The young man appeared to be unable to activate the jets and walked away from the area. A.H. then got out of the hot tub and attempted to activate the jets herself.

5. As she attempted to activate the jets, the young man approached A.H. and grabbed her right breast. After removing his hand from A.H.'s breast, the young man stated "those are nice."

6. A.H. retreated from the young man, shocked by his actions, and asked why he had touched her. She then began calling for help; the young man walked away.

7. The lighting and proximity of the young man to her allowed A.H. to get a good look at her assailant.

8. A.H. then called her father, who was at the hotel with her, on her cell phone. Her father joined her in the area contiguous to the pool area and called for assistance.

9. A.H. and her father returned to the pool area. A.H. observed the attacker on the other side of the pool and alerted her father who shouted at the attacker. The attacker immediately fled the pool area. Hotel security was, however, able to maintain observation of the attacker.

10. As a result, hotel security officers were able to block the attacker's path of exit from a parking lot resulting in the attacker's automobile crashing into a tree. After the attacker was taken into custody by the hotel security officers, he was identified as Carl Moore, the Respondent herein.

11. Orange County Sheriff's Department deputies arrived shortly thereafter and took charge. A.H. was brought to the parking lot where she observed Respondent and identified him as her assailant.

12. After further investigating the incident, Deputy Sheriff Don Doyle placed Respondent under arrest, charged him with battery, and transported him to jail.

13. Respondent acknowledged that he did not report the arrest to the Osceola County School Board within 48 hours as required.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this

    case pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2004).

15. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Evans Packing Co. v.

    Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989).

16. Subsection 1012.795(1), Florida Statutes (2004), authorizes the Education Practices Commission to suspend, revoke or otherwise penalize a teaching certificate provided it can be shown that the holder of the certificate:

    (c) Has been guilty of gross immorality or an act involving moral turpitude.

    
    

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    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules.

    
    

17. Florida Administrative Code Rule 6B-1.006(1), (2), and (5) reads in pertinent part:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's

       certificate, or the other penalties as provided by law.

       
       

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       (5) Obligation to the profession of education requires that the individual:

       
       

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       (m) Shall self-report within forty-eight

       (48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance.

       
       

18. The following definitions, found in Florida Administrative Code Rule 6B-4.009, are instructive in defining the terms found in Subsection 1012.795(1)(c), Florida Statutes (2004):

    (2) 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.

    
    

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    (6) Moral Turpitude is defined as 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 statutes fixes the moral turpitude.

19. Petitioner has demonstrated by clear and convincing evidence that Respondent battered A.H. by grabbing her breast, that he was arrested for battery, and that he failed to report the arrest to the Osceola County School Board as required. In his attack on A.H., Respondent demonstrated grossly immoral conduct and committed an act of moral turpitude.

20. Additionally, Respondent violated the Principles of Professional Conduct for the Education Profession by failing to self-report his arrest. Respondent offers that he was unaware of A.H.'s age and that battery is not child abuse. Neither of these arguments is accepted as credible.

21. Subsection 827.01(2), Florida Statutes (2004), defines "Child" as meaning "any person under the age of 18 years."

22. Subsections 827.03(1)(a) and (b), Florida Statutes (2004), define "child abuse" as:

1. Intentional infliction of physical or mental injury upon a child;

2. An intentional act that could reasonably be expected to result in physical or mental injury to a child; . . .

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding respondent guilty of violating Subsections 1012.795(1)(c) and (i), Florida Statutes (2004), and Florida Administrative Code

Rule 6B-1.006(5)(m) and revoking Respondent's Florida Educator Certificate No. 822030.

DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 15th day of December, 2004.

COPIES FURNISHED:

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

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

Edward T. Bauer, Esquire Brooks, Leboeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

Carl Moore

910 South Park Court Kissimmee, Florida 34741

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

325 West Gaines Street, Suite 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

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: 04-002393PL

Orders for Case No: 04-002393PL