STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANA SANTANA, )

)

Petitioner, )

)

vs. ) Case No. 05-1302

) JOHN L. WINN, AS COMMISSIONER ) OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.569, Florida Statutes,1 and Section 120.57(1), Florida Statutes, on July 18, 2005, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Ana Santana, pro se

9522 Southwest 151st Court Miami, Florida 33196-1214

For Respondent: Charles T. Whitelock, Esquire

Whitelock and Associates, P.A.

300 Southwest 13th Street

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUE

Whether Petitioner's application for certification should be denied for the reasons set forth in the Notice of Reasons.

PRELIMINARY STATEMENT

By letter dated February 17, 2005, from the Commissioner of Education (Commissioner), Petitioner was notified of the Department of Education's (Department's) intention to deny, for the reasons set forth in the Notice of Reasons that accompanied the letter, her application for a Florida Educator's Certificate. The accompanying Notice of Reasons read as follows:

ANA SANTANA . . . having filed her application for a Florida Educator's Certificate before the Department of Education; and

The Department of Education having reviewed the application in accordance with Sections 1012.56, 1012.795 and 1012.796, Florida

Statutes, has determined that ANA SANTANA is not entitled to the issuance of a Florida Educator's Certificate, accordingly;

The Department of Education files and serves upon the applicant, ANA SANTANA, its Notice of Reasons for its denial in accordance with the provisions of Section 120.60, Florida Statutes, and as grounds therefor[], alleges:

On or about April 17, 2004, Applicant violated standardized testing procedures when she took the General Knowledge Test for her Educator's Certificate. Applicant attempted to cheat on the essay exam by referring to a complete essay she had in her possession when she entered the room. In a letter dated April 26, 2004, the Department of Education informed Applicant that her exam was invalidated because she cheated.

The Department of Education charges:

STATUTE VIOLATIONS

COUNT 1: The Applicant is in violation of Section 1012.56(2)(e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character.

COUNT 2: The Applicant is in violation of Section 1012.56(10)(a), Florida Statutes, which provides that the Department of Education may to deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate.

COUNT 3: The Applicant is in violation of Section 1012.795(1)(a), Florida Statutes, in that she obtained or attempted to obtain the teaching certificate by fraudulent means.

COUNT 4: The Applicant is in violation of Section 1012.795(1)(c), Florida Statutes, in that she has been guilty of gross immorality or an act involving moral turpitude.

COUNT 5: The Applicant is in violation of Section 1012.795(1)(i), Florida Statutes, in that she has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

RULES VIOLATIONS

COUNT 6: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(5)(a), Florida Administrative Code, in that Applicant has failed to maintain honesty in all professional dealings.

WHEREFORE, the undersigned concludes that ANA SANTANA has committed an act or acts or

that a situation exists for which the Education Practices Commission would be authorized to revoke an educator's certificate. It is therefore respectfully recommended that the Education Practices Commission affirm the Department of Education's denial of the issuance of a teaching certificate to the Applicant based upon the reasons set forth herein, in accordance with the Explanation of Rights form which is attached to and made a part of this Notice of Reasons.

On or about April 6, 2005, Petitioner submitted an executed Election of Rights form through which she "dispute[d] the allegations of the Notice Reasons" and "request[ed] a Formal Hearing before a Hearing Officer [sic] of the Division of Administrative Hearings." On April 12, 2005, the matter was referred to DOAH for the assignment of a DOAH administrative law judge to conduct the hearing Petitioner had requested.

As noted above, the hearing was held on July 18, 2005.2 Four witnesses testified at the hearing: Annette Lorenzo, Gladys Manrique, Juan Mesa, and Petitioner. In addition, a total of 11 exhibits (Respondent's Exhibits 1, 2, and 4 through

1. were offered and received into evidence.

   
   

   At the close of the evidentiary portion of the hearing on July 18, 2005, the undersigned, on the record, advised that proposed recommended orders had to be filed with DOAH no later than 20 days from the date of the filing with DOAH of the hearing transcript.

   The hearing Transcript (consisting on one volume) was filed with DOAH on July 28, 2005.

   The Department filed its Proposed Recommended Order on August 22, 2005. To date, Petitioner has not filed any post- hearing submittal.

   FINDINGS OF FACT

   
   

   Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

   1. Petitioner is an applicant for a Florida Educator's Certificate.

   2. On April 17, 2004, at the Kendall campus of Miami-Dade Community College (College), Petitioner sat for the general knowledge portion of the certification examination (Test), which included an essay question.

   3. In advance of the Test, Petitioner was informed in writing of, among other things, the following:

      In its continuing effort to assure fairness and equity in examination administration conditions, the Florida Department of Education is putting into written form those activities that have been, and continue to be, regarded as cheating by, or on behalf of, an examinee. The specific items represent cheating activities encountered throughout the history of the Department's assessment programs, but do not preclude the Department from appropriate action in cases of cheating that do not fall under a specific item. These guidelines are applicable to the Florida Teacher Certification Examinations program . . . .

      Section 1 defines those behaviors that constitute cheating. Section 2 lists materials, equipment and other aids that examinees are prohibited from using during the examination. . . .

      
      

      Section 1: Cheating

      
      

      Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following:

      
      

      * * *

      
      

      c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions.

      
      

      * * *

      
      

      f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2.

      
      

      * * * Section 2: Prohibited Aids

      The following aids are prohibited during examination administration: . . . papers of any kind, including scratch paper; . . .

      
      

      * * *

      
      

   4. Annette Lorenzo, a College employee, was the "room supervisor" in the room in which Petitioner took the Test. Ms. Lorenzo was assisted by another College employee, Gladys Manrique, "who was "working as a proctor" in the room.

   5. When Petitioner arrived in the room the morning of the Test, she was checked in by Ms. Lorenzo, who assigned her a seat near the front of the room. Upon being told of her seat assignment, Petitioner "pointed to the last seat of the last row" and asked if she could sit there instead. Ms. Lorenzo "said, 'Okay, no problem,' and [Petitioner] went and sat down in that seat."

   6. After "checking everybody in," Ms. Lorenzo read "instructions for the exam" to the examinees (including "go[ing] through all the guidelines on what constitute[d] cheating, as well as what [was] and [was] not allowed in the room"), and, with Ms. Manrique's help, handed out the testing materials. Testing then began (at approximately 8:45 a.m.).

   7. Ms. Lorenzo and Ms. Manrique "walk[ed] around the room, up and down the aisles," to "mak[e] sure that nobody [was] cheating or using anything [prohibited]" while the test was being administered.

   8. As she was doing so, during the essay portion of the Test, Ms. Lorenzo noticed Petitioner periodically "looking into her [cupped] left hand [which was positioned on the desk in front of her, just above her answer booklet, and appeared to contain tissues] while she was writing" in the booklet with her right hand. Ms. Lorenzo observed Petitioner's engaging in this suspicious conduct for "[a]t least ten minutes." During this

      time, Ms. Lorenzo was "staring at [Petitioner], watching her very closely." When she eventually made eye contact with Ms. Lorenzo, Petitioner moved her hands towards her face and

      "made a noise like she was blowing her noise." She then closed her left hand into a fist and continued writing with her right hand.

   9. Ms. Lorenzo advised Ms. Manrique that she suspected that "something [was] going on" with Petitioner, and she asked Ms. Manrique to "take a look."

   10. Ms. Manrique observed Petitioner for approximately five minutes, after which she reported back to Ms. Lorenzo that she "believe[d] there [was] something going on as well."

   11. Ms. Lorenzo then "walked to the back of the room and stood to the right of Petitioner." From her vantage point,

       Ms. Lorenzo noticed "sticking out the bottom of [Petitioner's left] hand," which was "still in a fist," not only tissues, but "paper with some writing on it."

   12. Upon making this observation, Ms. Lorenzo asked Petitioner to show her "everything [Petitioner] had in her hand."3

   13. Petitioner's immediate response was to "[u]s[e] her right hand [to] grab[] the tissues out of her left hand," which she then quickly closed into a fist again. She gave the tissues

       she had transferred from her left to right hand to Ms. Lorenzo, explaining that she had "just tissues" and nothing else.

   14. Ms. Lorenzo, however, knew otherwise and demanded that Petitioner open her left hand. Petitioner complied, revealing the paper that Ms. Lorenzo had seen "sticking out" of the hand when it was clenched.

   15. The paper was the size of a "small note [pad] sheet." It was crumpled from being held tightly by Petitioner. On the paper was a complete essay that that Petitioner had written before entering the examination room. The essay was entitled, "A Place to Visit: San Antonio Park."4

   16. Ms. Lorenzo took the paper, as well as Petitioner's testing materials, including Petitioner's answer booklet, from Petitioner.

   17. In her answer booklet, Petitioner had written an essay about San Antonio Park, substantial portions of which were identical, word for word, to what was on the paper that

       Ms. Lorenzo had confiscated from Petitioner's left hand.

       
       

   18. Petitioner had knowingly brought this paper into the examination room with the intent to use it as an aid in answering the essay question on the general knowledge portion of the Test,5 and she carried out this intent once the Test began.6

   19. As Petitioner started to "g[e]t a little bit loud," Ms. Lorenzo escorted her from the room and took her to see Juan

       Meza, the College's testing director.7 On the way to Mr. Meza's office, Petitioner insisted that she had not cheated and "begg[ed] [Ms. Lorenzo] to let her go finish the exam."

       Ms. Lorenzo responded that Petitioner's "test [was] over for today."

   20. After Ms. Lorenzo had told Mr. Meza that she had "found [Petitioner] cheating," Mr. Meza spoke to Petitioner and told her that she could not "continue taking the test" because she had been caught cheating. Petitioner denied to Mr. Meza that she had been cheating. Mr. Meza, in turn, informed Petitioner that he would send an "irregularity report" to the Department and that the Department would "make [a] decision" as to whether she had been cheating and then "contact her to let her know what [was] going on."

   21. As promised, on or about April 19, 2004, Mr. Meza sent an "irregularity report" to the Department (along with the materials that Ms. Lorenzo had taken from Petitioner in the examination room).

   22. On April 26, 2004, the Department sent the following letter to Petitioner:

       This letter is in response to information I have received from staff at Miami Dade College, Kendall campus confirming that you failed to follow testing procedures during the administration of the General Knowledge Test on April 17, 2004. Along with the admission ticket you received for the

       examination, you received a letter that outlines the State's policy on cheating. Section 1 (c) and (f) and Section 2 state the following:

       
       

       "Section 1: Cheating

       
       

       Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following:

       
       

       c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions.

       
       

       * * *

       
       

       f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2.

       
       

       Section 2: Prohibited Aids

       
       

       The following aids are prohibited during examination administration: Timex Data Link™ wrist watch; electronic pager; cellular telephone; pocket organizer; electronic writing pen or pen-input device; any electronic device with an alphabetic keyboard; dictionary or other books; ruler; papers of any kind, including scratch paper; slide rule; protractor; compass; laptop computer; calculator watch, or calculator except those calculators provided at the test center for the following tests: Mathematics 6-12, the math portion of Middle Grades Integrated Curriculum (MGIC), Middle Grades Mathematics 5-9, Chemistry 6-12, Physics 6-12, and the

       math subtests of the General Knowledge Test."

       
       

       As a result of your failure to abide by this policy, the score on the Essay subtest of the General Knowledge Test under your name and Social Security number . . . for the April 17, 2004, test administration has been invalidated. By copy of this letter, I am also informing Professional Practices Services and the Bureau of Educator Certification of this decision.

       
       

       This decision means that you have yet to fulfill the State's requirements for a passing score on the Essay subtest of the General Knowledge Test. You are entitled to dispute this decision through legal administrative procedures. If you wish to do so, you must send a written request for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. The written request must be postmarked within twenty (20) calendar days of the date you receive this letter and submitted to the following address: . . . .

       
       

       If you fail to submit the written request within the specified time period, you will have waived the opportunity to contest the decision through administrative proceedings, and the score invalidation decision will be final, subject only to judicial review pursuant to Section 120.68, Florida Statutes.

       
       

   23. Petitioner responded by sending a letter to the Department, which read (verbatim) as follows:

       I have received your letter about the problem I had the day of test. I'm so sorry about the day.

       
       

       In 20 years of being a teacher, I never had that kind of problem. That day I had a bad cold and when I finished my test, the only

       thing that I had to do was to check it, but I was coughing badly and I took a napkin that was inside my bag on the floor, but together with the napkin came out a paper. I took both in my hand. I put my hand up, because I knew that if the teacher saw me in this moment I got in trouble, but it was too late. The teacher came to me, asked for the paper and the napkin and without I could explain anything. She took to the supervisor and explained everything to him. He told he had to follow the rules, then he had to report the incident. So I think I should have an opportunity to do my tests again.

       
       

   24. The Commissioner subsequently notified Petitioner that her application for certification was being denied because she had "attempted to cheat" on the essay portion of Test "by referring to a complete essay she had in her possession when she entered the room."

   25. This denial of Petitioner's application for certification is the subject of the instant proceeding.

       CONCLUSIONS OF LAW

       
       

   26. Section 1012.56, Florida Statutes, governs the certification of teachers in Florida. It provides, in pertinent

       part, as follows:

       
       

       * * *

       
       

       1. Eligibility criteria.--To be eligible to seek certification, a person must:

          
          

          * * *

          
          

          (e) Be of good moral character.

          * * *

          
          

          (g) Demonstrate mastery of general knowledge, pursuant to subsection (3).

          
          

          * * *

          
          

       2. Mastery of general knowledge.-- Acceptable means of demonstrating mastery of general knowledge are:

          
          

          1. Achievement of passing scores on basic skills examination required by state board rule;

             
             

             * * *

             
             

             (11) Denial of certificate.--

             
             

             1. The Department of Education may deny an applicant a certificate if the department possesses evidence satisfactory to it that the applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate.

                
                

             2. The decision of the department is subject to review by the Education Practices Commission upon the filing of a written request from the applicant within 20 days after receipt of the notice of denial.

             
             

             * * *

             
             

   27. "Good moral character," as required by Section 1012.56(2)(e), Florida Statutes, is "not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of

       trust and confidence."8 Zemour, Inc. v. State Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A person demonstrates a lack of "good moral character" when she engages in "acts and conduct which would cause a reasonable [person] to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re:

       G. W. L., 364 So. 2d 454, 458 (Fla. 1978). Such "acts and conduct" include cheating on a certification examination. Cf. Florida Board of Bar Examiners Re: G. J. G., 709 So. 2d 1377, 1381 (Fla. 1998)("Cheating on the bar exam is a particularly egregious act of dishonesty which cannot be easily excused."); and Juneidi v. Florida Real Estate Commission, No. 94-5476, 1995 WL 1052824 *3 (Fla. DOAH 1995)(Recommended Order)("Among the acts and conduct which evidence an applicant's lack of 'good character' is cheating or attempting to cheat on a licensure examination.").

   28. The grounds upon which the Education Practices Commission is "authorized to revoke a teaching certificate" (which, according to Section 1012.56(11)(a), Florida Statutes, are also grounds justifying the denial of an application for certification) are set forth in Section 1012.795(1), Florida Statutes, which provides, in pertinent part, as follows:

       The Education Practices Commission . . . may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed

       10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; . . . provided it can be shown that the person:

       
       

       (a) Obtained or attempted to obtain an educator certificate by fraudulent means.

       
       

       * * *

       
       

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

       
       

       * * *

       
       

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

       
       

       * * *

       
       

       The Principles of Professional Conduct for the Education Profession (referenced in Section 1012.795(1)(i), Florida Statutes) are set forth in Florida Administrative Code 6B-1.006, which provides, in pertinent part, as follows:

       * * *

       
       

       1. Obligation to the profession of education requires that the individual:

          
          

          
          

          1. Shall maintain honesty in all professional dealings.

       
       

       * * *

       
       

   29. A certificate holder who is found to have attempted to cheat on the certification examination is subject to having her teaching certificate revoked by the Education Practices Commission pursuant to Section 1012.795(1)(a), (c), and (i), Florida Statutes.

   30. In acting on an application for a Florida's educator's certificate, the Department must follow the requirements of Section 120.60, Florida Statutes, Subsection (3) of which provides as follows:

       Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has requested notice of agency action. Each notice shall inform the recipient of the basis for the agency decision, shall inform the recipient of any administrative hearing pursuant to ss.

       120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, shall indicate the procedure which must be followed, and shall state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the

       certification shall be filed with the agency clerk.

       
       

   31. In the instant case, in accordance with the requirements of Section 120.60, Florida Statutes, the Department provided Petitioner with "written notice" (in the form of a Notice of Reasons) of its intention to deny Petitioner's application for certification based upon the allegation that, "on or about April 17, 2004, [Petitioner] violated standardized testing procedures when she took the General Knowledge Test for her Educator's Certificate [and] attempted to cheat on the essay exam by referring to a complete essay she had in her possession when she entered the room."

   32. Petitioner requested an administrative hearing and the Department referred the matter to DOAH for the assignment of an administrative law judge to conduct the requested hearing in accordance with Section 120.569, Florida Statutes, and Section 120.57(1), Florida Statutes.

   33. Where, as in the instant case, an applicant for a teaching certificate disputes the announced intention to deny certification based upon the applicant's alleged wrongdoing, and the applicant requests that an evidentiary hearing be held on the matter, the Commissioner (as the Executive Director of the Department9) bears the burden of proving (at the requested hearing) that the applicant committed the alleged wrongful

       act(s). See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 930, 934 (Fla. 1996)("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."); and Florida Department of Health and Rehabilitative Services v. Career Service

       Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is on the party asserting the affirmative on an issue before an administrative tribunal.").

   34. At the administrative hearing held at Petitioner's request in the instant case, the Commissioner clearly and convincingly established (primarily through the presentation of the credible eyewitness testimony of Ms. Lorenzo and

       Ms. Manrique, along with Respondent's Exhibit 11 (the essay Petitioner wrote in her answer booklet) and Respondent's Exhibit

       12 (the "paper with writing on it" that Ms. Lorenzo confiscated from Petitioner in the examination room, which contained an essay remarkably similar to the essay in Petitioner's answer booklet)) that Petitioner "attempted to cheat" on the essay portion of the Test, as alleged in the Notice of Reasons.10

   35. Petitioner's having done so is a legitimate basis for denying her application for certification pursuant to Section 1012.56, Florida Statutes.

   36. In its Proposed Recommended Order, the Commissioner asks that the undersigned recommend that Petitioner's application for certification be "permanently" denied (that is, that she not only be denied certification, but that she be barred forever from reapplying) or, in the alternative, the undersigned recommend:

       (1) an appropriate penalty to include the temporary denial of [Petitioner's] application for a teaching certificate for a period of no less than ten (10) years, followed by a period of probation for three

       (3) years; (2) . . . any other penalty provided by law in accordance with Section 1012.56, Florida Statutes; (3) . . . a letter of reprimand to [Petitioner].

       
       

       None of these penalties, however, may be imposed on Petitioner in the instant case inasmuch as Petitioner was never given notice that she was at risk of suffering, in this matter, anything other than the mere denial of her application. See Williams v. Turlington, 498 So. 2d 468 (Fla. 3d DCA 1986)("Since Williams was not given notice by either the complaint or later proceedings that he was at risk of having his license permanently revoked, the Commission's imposition of the non- prayed-for relief of permanent revocation, even if justified by the evidence, was error.").

   37. In view of the foregoing, the Education Practices Commission should simply sustain the denial of Petitioner's

application for certification and take no further action against her.11

RECOMMENDATION

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

RECOMMENDED that the Education Practices Commission enter a final order sustaining the denial of Petitioner's application for certification.

DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 30th day of August, 2005.

ENDNOTES

1/ All references to Florida Statutes herein are to the current version of Florida Statutes.

2/ The hearing was originally scheduled for June 30, 2005, but was continued at Respondent's request.

3/ In not confronting Petitioner sooner, Ms. Lorenzo was acting in accordance with the College's test administration procedures, which required a "room supervisor," before making any accusations of cheating against an examinee, to "confirm [through further personal observations] that the [suspected examinee was actually] cheating as well as have the other person in the room witness it."

4/ San Antonio Park is a tourist destination in Cuba.

5/ It is not entirely clear from the record how Petitioner was able to accurately anticipate what essay question would be on the Test. What is clear, however, beyond any reasonable doubt, is that Petitioner cheated on the essay portion of the Test by "referring to a complete essay she had in her possession when she entered the [examination] room," as alleged in the Notice of Reasons.

6/ The undersigned rejects as unworthy of belief Petitioner's testimony to the contrary.

7/ Ms. Manrique remained in the examination room to supervise the remaining examinees.

8/ It has been said that:

A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.

Tomerlin v. Dade County School Board, 318 So. 2d 159,

160 (Fla. 1st DCA 1975).

9/ See Section 20.15(2), Florida Statutes ("The Commissioner of Education is appointed by the State Board of Education and serves as the Executive Director of the Department of Education.").

10/ Petitioner's claim that she brought Respondent's Exhibit 12 into the examination room by "accident" and that she did not refer to it while taking the Test is, in a word, unbelievable.

11/ If and when Petitioner reapplies for certification, she should be prepared to show that she has been rehabilitated, which, no doubt, will be a formidable task given the serious nature of her transgression and her lack of candor in this proceeding. If she is unable to make such a showing, she can reasonably expect that her application will again be denied.

COPIES FURNISHED:

Ana Santana

9522 Southwest 151st Court Miami, Florida 33196-1214

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

300 Southwest 13th Street

Fort Lauderdale, Florida 33316

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 Gaines Street

Tallahassee, Florida 32399-0400

Kathleen Richards, Executive Director Education Practices Commission Florida Education Center

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

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

Florida Education Center

325 West Gaines Street, Room 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: 05-001302

Orders for Case No: 05-001302