STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH CROWDER,

Petitioner,

vs.

JOHN WINN, AS COMMISSIONER OF EDUCATION,

Respondent.

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) Case No. 05-4006

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RECOMMENDED ORDER

Pursuant to notice a final hearing was held in this case on January 24, 2006, in Tampa, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth Crowder, pro se

503 East Jackson Street, Apartment 157 Tampa, Florida 33602

For Respondent: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the

Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.

PRELIMINARY STATEMENT

By letter and Notice of Reasons dated July 22, 2005, Respondent notified Petitioner that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Notice of Reasons cited seven statutory violations and four rule violations as grounds for the denial:

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)[sic], Florida Statutes, which provides that 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.[1]

Count 3: The Applicant is in violation of Section 1012.795(1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude.

Count 4: The Applicant is in violation of Section 1012.795(1)(d), Florida Statutes, in that he has had a teaching certificate revoked in another state.

Count 5: The Applicant is in violation of Section 1012.795(1)(e), Florida Statutes, in that he has been convicted of a misdemeanor,

felony, or other criminal charge, other than a minor traffic violation.

Count 6: The Applicant is in violation of Section 1012.795(1)(i), Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

Count 7: The Applicant is in violation of Section 1012.795(2), Florida Statutes, which provides that the plea of guilty in any court or the decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate.

Count 8: The Applicant is in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety.

Count 9: The Applicant is in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement.

Count 10: The Applicant is in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage.

Count 11: The Applicant is in violation of Rule 6B-1.006(5)(d), Florida Administrative Code, in that Applicant has engaged in harassment or discriminatory conduct which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment; and further,

failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.

The factual allegations underlying the alleged statutory violations are as follows:

In 2000 or 2001, the court adjudicated Applicant guilty of Disorderly Conduct stemming from domestic violence.

During 2000 and 2001, Applicant engaged in inappropriate sexual contact with three female students and one female teacher.

On or about May 14, 2002, the Board of Education for the State of Ohio revoked Applicant's middle school teaching certificate and denied his pending application for a temporary certificate. The Board's action was based on Applicant's conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students

and one female teacher during 2000 and 2001.

The letter accompanying the Notice of Reasons advised Petitioner of his right to appeal the denial. Petitioner filed an Election of Rights form, dated August 24, 2005, seeking to discuss settlement of the case; and if settlement of the case was not achieved, to have a formal hearing. By letter dated October 19, 2005, the request for hearing was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a hearing and prepare a recommended order. Pursuant to an amended notice issued on

November 22, 2005, the hearing was scheduled for hearing January 24, 2006, and was held as noted above.

At hearing, Petitioner testified on his own behalf and offered and had one exhibit received into evidence.2 Respondent called no witnesses but had three exhibits admitted into evidence. Respondent's Exhibit 1 is the certified copy of Judgment and Sentence on Disorderly Conduct charge from the Franklin County Municipal County Court, Columbus, Ohio, Case No.: 2000-26112. Respondent's Exhibit 2 consists of the certified copy of the Recommended Order of the Ohio Hearing Examiner; the Ohio State Board of Education's Resolution revoking Petitioner's Ohio Educator's Certificate; and the appellate decision from the Court of Common Pleas, related to the Resolution revoking Petitioner's Ohio Educator's Certificate. Respondent's Exhibit 3 is the official copy of the two-volume transcript of the March 11 and 14, 2003, administrative proceeding in Ohio.

The Transcript of the hearing was filed on February 3, 2006. At the conclusion of the hearing, by agreement of the parties, proposed recommended orders were to be filed 15 days after the Transcript was filed. Petitioner did not file a proposed recommended order. Respondent filed a Proposed Recommended Order on February 20, 2006, which has been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence.

2. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf.

3. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School.

4. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High

   School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3

5. During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class.

6. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class.

7. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5

8. In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science.

9. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher.

10. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the

    student refused to comply with Petitioner's request and reported the alleged incident to school officials.

11. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in

    January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday.

12. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident.

13. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on

    or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker.

14. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him.

15. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug.

16. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her.

17. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio

    administrative proceeding or the instant administrative hearing to establish this charge.

18. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven.

19. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams.

20. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter

    stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible.

21. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students.

22. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001.

23. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained:

    During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment.

    
    

24. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence.

25. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris

    testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together.

    According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip.

26. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving.

27. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter.

28. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip

    had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes.

29. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing.

30. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect."

    Petitioner then testified that "I don't really recall . . . that's what I vaguely recall."

31. Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner.

32. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that

    Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified.

33. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident.

34. As a result of the October 7, 2000, incident,

    
    

    Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of

    disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution.

35. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate.

36. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched

    Ms. Williams, and committed an act of violence against

    
    

    Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate.

37. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002.

38. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching

    certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001."

39. Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7

40. The testimony of Ms. Harris, Ms. Williams, Ms.

    
    

    Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9

41. Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs

    the student to conceal the fact that he engaged in such conduct.

    
    

42. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any

    reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student.

43. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior.

44. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and

    Ms. Williams, occurred at school. The incident involving

    
    

    Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000.

45. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida.

46. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification.

47. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate.

48. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude.

49. The evidence establishes that Petitioner has had a teaching certificate revoked in another state.

50. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct.

51. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

52. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety.

53. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement.

54. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage.

55. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.

    CONCLUSIONS OF LAW

    
    

56. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. See § 120.57(1), Fla. Stat. (2005).10

57. Section 1012.56, Florida Statutes, governs the issuance of teaching certificates. In pertinent part, this statute provides as follows:

    (2) ELIGIBILITY CRITERIA B To be eligible to seek certification pursuant to this chapter, a person must:

    
    

    * * *

    
    

    (e) Be of good moral character

    
    

    * * *

    (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.

       
       

58. Pursuant to Subsection 1012.795(1), Florida Statutes, the Education Practices Commission may revoke an educator's certificate where it can be shown that the person:

    1. Has been guilty of gross immorality of an act involving moral turpitude.

       
       

    2. Has had an educator certificate sanctioned by revocation, suspension, or surrender in another state.

       
       

    3. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.

    
    

    * * *

    
    

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

    
    

    * * *

    
    

    (2) The plea of guilty in any court, the decision of guilty by any court, the forfeiture by the teaching certificateholder of a bond in any court of law, or the written acknowledgment, duly witnessed, of offenses listed in subsection (1) to the district school superintendent or a duly appointed representative of such superintendent or to the district school

    board shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificateholder that the plea of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.

    
    

59. Florida Administrative Code Rule 6B-1.006 contains the Principles of Professional Conduct and provides, in pertinent part, the following:

    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.

       
       

    3. Obligation to the student requires that the individual:

       
       

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.

          
          

          * * *

          
          

          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

          * * *

          
          

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

          * * *

          
          

          (d) Shall not engage in harassment or discriminatory conduct which unreasonably

          interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

          
          

60. The terms "gross immorality" and "moral turpitude" are not defined in the referenced statute, Section 1012.795, Florida Statutes. However, the definitions in Florida Administrative Code Rule 6B-4.009, which relate to the suspension and dismissal of teachers by school districts, are instructive.

61. Florida Administrative Code Rule 6B-4.009(2) 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.

    
    

62. Florida Administrative Code Rule 6B-4.009(6), also applicable to suspensions and dismissals of instructional personnel 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.

63. As the party seeking the certification, Petitioner has the burden of proving by a preponderance of evidence that he satisfies the statutory requirements for a teaching certificate. Dept. of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). However, Respondent has the burden of establishing, by a preponderance of the evidence, the statutory violations alleged in the Notice of Reasons to be sufficient to warrant denial of the applications. Osborne Stern & Co., 670 So. 2d at 934.

64. If the applicant fails to meet his burden of proving entitlement to certification, then the Education Practices Commission:

    [S]hall enter a final order . . . imposing one or more of the following penalties:

    
    

    (a) Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may refuse to consider that applicant's application, for a specified period of time or permanently.

    
    

    § 1012.796(7), Fla. Stat.

    
    

65. In the Notice of Reasons served on Petitioner, the Commissioner made the following allegations of fact:

    In 2000 or 2001, the court adjudicated Applicant guilty of Disorderly Conduct stemming from domestic violence.

    During 2000 and 2001, Applicant engaged in inappropriate sexual contact with three female students and one female teacher.

    
    

    On or about May 14, 2002, the Board of Education for he State of Ohio revoked Applicant's middle school teaching certificate and denied his pending application for a temporary certificate. The Board's action was based on Applicant's conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students

    and one female teacher during 2000 and 2001.

    
    

66. Based on these allegations, the Commissioner alleged that Petitioner lacks the good moral character required for certification as a teacher; that Petitioner committed acts, or a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate; that Petitioner has been guilty of gross immorality or an act involving moral turpitude; that Petitioner had a teaching certificate revoked in another state; that Petitioner has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation; and that Petitioner pled guilty or was found guilty of a misdemeanor, felony, or other criminal charge.

67. Based on the factual allegations, the Commissioner also alleged that Petitioner violated the Principles of Professional Conduct for the Education Profession. Specifically, the Commissioner alleged that Petitioner failed to

    make reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or safety; that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement; that Petitioner exploited a relationship with a student for personal gain or advantage; and that Petitioner engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly process or education or which created a hostile, intimidating, abusive, offensive or oppressive environment and failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.

68. As set forth in the Findings of Fact above, the undersigned has determined as a matter of ultimate fact that Petitioner failed to establish his good moral character by a preponderance of the evidence.

69. Further, Respondent has established by a preponderance of the evidence that the Petitioner committed an act of gross immorality or moral turpitude, in violation of Subsection 1012.795(1)(c), Florida Statutes, by lifting up the skirt and touching the buttocks of his ninth grade student, Ms. Jackson. In addition, Petitioner's domestic assault of Ms. Harris

    constitutes a further act of gross immorality or moral turpitude.

70. Respondent has also established by a preponderance of the evidence that Petitioner has had his teaching certificate revoked in another state, contrary to Subsection 1012.795(1)(d), Florida Statutes.

71. Further, Respondent has established by a preponderance of the evidence that Petitioner pled guilty and was convicted of disorderly conduct, which stemmed from the domestic violence incident involving Ms. Harris, in violation of Subsection 1012.795(1)(e), Florida Statutes.

72. Likewise, Respondent has established by a preponderance of the evidence a violation of Subsection 1012.795(1)(i), Florida Statutes, in that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Specifically, Respondent has demonstrated a violation of Florida Administrative Code Rule 6(b)-1.006(3)(a), in that Petitioner failed to protect his student, Ms. Jackson, from conditions harmful to learning or to the student's mental or physical health when he fondled her buttocks.

73. In addition, Petitioner's fondling of Ms. Jackson constitutes a violation of Florida Administrative Code

    Rule 6B-1.006(3)(e), in that he intentionally exposed

    
    

    Ms. Jackson to unnecessary embarrassment or disparagement.

    
    

74. Petitioner's conduct with Ms. Jackson also establishes a violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Petitioner exploited a relationship with a student for personal gain or advantage. Specifically, Petitioner took advantage of his position as Ms. Jackson's teacher to lure her into a supply room and fondle her. See Castor v. Westerfield, 1993 WL 943721 (Fla. Div. Admin. Hrgs. 1993).

75. Finally, Respondent has established by a preponderance of the evidence that Respondent's conduct with respect to

    Ms. Jackson and Ms. Williams violated Florida Administrative Code Rule 6B-1.006(5)(d), in that Petitioner engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment, and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.

76. The standard of conduct to which prospective teachers are held is high:

    A school teacher holds a position of great trust. We entrust the custody of our children to the teacher to educate and

    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. Date County School Board, 318 So. 2d 159, 160 (Fla. 1st DCA 1975).

77. The evidence in this case demonstrates that the Petitioner has repeatedly failed to conform his behavior to standards of conduct that any reasonable person would readily acknowledge are the very least required of an applicant for a teaching certificate.

78. Petitioner's conduct, as established by the evidence in this case, served as the basis for his Ohio teaching certificate being revoked. That fact alone is reason enough to deny Petitioner's application for a teaching certificate in the

    State of Florida.

    
    

    RECOMMENDATION

    
    

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

    RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes.

    DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida.

    S

    CAROLYN S. HOLIFIELD

    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 24th day of May, 2006.

    
    

    ENDNOTES

    
    

    1/ The correct statutory cite for Count 2 is Subsection 1012.56(11)(a), Florida Statutes.

    
    

    2/ Petitioner's Exhibit 1 is a copy of his Florida Teacher's Certificate No. 635901, which was valid from July 1, 1996, through June 30, 2001.

    
    

    3/ Ms. Jackson testified that on the day she testified at the Ohio proceeding, March 11, 2002, she was seventeen.

    
    

    4/ Ms. Jackson testified that when Petitioner told her that he wanted to see her after class, it was because she was in trouble for talking.

    
    

    5/ During this proceeding, Petitioner seemed to suggest in a convoluted and evasive manner that Ms. Jackson was "jockeying" for a better grade. However, Petitioner made no mention of this at the Ohio administrative proceeding.

    
    

    6/ Based on the testimony at the Ohio proceeding, including that of Petitioner, he was employed at Yorktown Middle School, not Crestview Middle School.

    7/ Based on the opinion of the Ohio Court of Common Appeals decision, Petitioner argued that the Hearing Examiner erred in admitting hearsay evidence. (This apparently was based on the fact that two of the students who made allegations did not testify at the administrative proceeding.) The judge rejected Petitioner's/Appellant's hearsay argument, but opined that "even if the hearsay evidence is disregarded, the Hearing Examiner's recommendation and the Board's Resolution are supported by reliable, probative, and substantial evidence." (i.e. the credible testimony of Ms. Harris, Ms. Jackson, and Ms.

    Williams).

    
    

    8/ Subsection 90.803(22), Florida Statutes, provides:

    
    

    FORMER TESTIMONY.--Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s. 90.402 or s. 90.403.

    
    

    9/ Subsection 120.57(1)(c), Florida Statutes, provides:

    
    

    1. ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS INVOLVING DISPUTED ISSUES OF MATERIAL FACT.--

* * *

(c) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

10/ All references to Florida Statutes are to Florida Statutes (2005) unless otherwise indicated.

COPIES FURNISHED:

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

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

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

Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

Kenneth Crowder

503 East Jackson Street, Apartment 157 Tampa, Florida 33602

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

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

Turlington Building, Suite 224-E

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: 05-004006

Orders for Case No: 05-004006