STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN HOWARD,

Petitioner,

vs.

JOHN L. WINN, AS COMMISSIONER OF EDUCATION,

Respondent.

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) Case No. 05-4014

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on January 19 and on May 8, 2006, at Port St. Lucie, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).1

APPEARANCES

For Petitioner: Kevin Howard, pro se

1008 Southeast Walton Lakes Drive Port St. Lucie, Florida 34952

For Respondent: Edward T. Bauer, Esquire

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

909 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Petitioner’s applications for a Florida Educator’s Certificate (teaching certificate) should be denied on the

grounds set forth in the Notice of Reasons issued by Respondent on April 20, 2005.

PRELIMINARY STATEMENT

By letter and Notice of Reasons dated April 20, 2005, Respondent notified Petitioner that it intended to deny his pending applications for teaching certificates. The Notice of Reasons alleged two set of facts. The first set of facts, pertaining to a domestic altercation, was dismissed by Respondent at the formal hearing. The second set of facts, in the second numbered paragraph of the Notice of Reasons, alleged the following:

2. Prior to October 7, 2003, Applicant willfully and knowingly provided the St. Lucie County School District (School Board) with a fraudulent educator’s certificate purportedly issued by the Department of Education. The Department has never issued Applicant a certificate. On or about October 20, 2003, the school district terminated Applicant.

Based on the factual allegations, Respondent alleged in Counts 1-9 that Petitioner had violated five separate statutes and four separate rules as follows:

Count 1 alleged a violation of Section 1012.56(2)(e), Florida Statutes (2005),[2] by failing to be of good moral character.

Count 2 alleged a violation of Section 1012.56(10(a), Florida Statutes, by committing acts which would constitute grounds for the Education Practice Commission to revoke a teaching certificate.

Count 3 alleged a violation of Section 1012.795(1)(c), Florida Statutes, by being guilty of gross immorality or of committing an act involving moral turpitude.

Count 4 alleged a violation of Section 1012.795(1)(f), Florida Statutes, by engaging in personal conduct which seriously reduces his effectiveness as an employee of the school board.

Count 5 alleged a violation of Section 1012.795(1)(j), Florida Statutes, by violating the Principles of Professional Conduct for the Education Profession.

Count 6 alleged a violation of Florida Administrative Code Rule 6B-1.006(5)(a), by failing to maintain honesty in all professional dealings.

Count 7 alleged a violation of Florida Administrative Code Rule 6B-1.006(5)(g), by misrepresenting his professional qualifications.

Count 8 alleged a violation of Florida Administrative Code Rule 6B-1.006(5)(h), by submitting fraudulent information on a document in connection with professional activities.

Count 9 alleged a violation of Florida Administrative Code Rule 6B-1.006(5)(i) by making a fraudulent statement or by failing to disclose a material fact in one’s own or another’s application for a professional position.

Petitioner timely challenged Respondent’s proposed denial of his application on the stated grounds, the matter was referred to DOAH, and this proceeding followed.

At the final hearing, Petitioner testified on his own behalf and presented one exhibit, which was admitted into evidence. Respondent presented the testimony of Toni Thompson (a human resources analyst employed by the School Board) and Veronica White (a program specialist employed by the Florida Department of Education’s Bureau Educators’ Certification).

Respondent offered three exhibits, each of which was admitted into evidence. In addition, Respondent filed the deposition of Michelle Brooks (an assistant high school principal employed by the School Board).

A Transcript of the proceedings conducted January 19, 2006, was filed on February 7, 2006. A Transcript of the proceedings conducted May 8, 2006, was filed on May 22, 2006. Respondent filed a Proposed Recommended Order, which has been duly- considered by the undersigned in the preparation of this Recommended Order. Petitioner did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. At times relevant to this proceeding, Petitioner was employed as a behavioral specialist by Tri-County, an entity that provided certain employees to the School Board.

2. Pursuant to his employment with Tri-County during the 2003-04 school year, Petitioner worked at Port St. Lucie High School (PSLHS) in a classroom for students who had been

   identified by the School Board’s Exceptional Student Education (ESE) Program as being severely emotionally disturbed (SED).

3. Petitioner has never been employed directly by the School Board.

4. Petitioner’s position with Tri-County did not require that he have a teaching certificate.

5. Likewise, the work Petitioner did in the SED class pursuant to the contract between Tri-County and the School Board did not require that he have a teaching certificate.

6. For reasons that were not revealed at the formal hearing, the SED teacher with whom Petitioner worked left his or her employment during the school year. As a result of the teacher’s absence, Petitioner took over the SED for a short period of time. There was no evidence that Petitioner’s continued employment was dependent on his having a teaching certificate.

7. The school administration of PSLHS was required to annually check the certification of each teacher at the school and to submit to the School Board a report listing any educator who was teaching outside of his or her certified field. This report is called an “out of field” report. For the school year 2003–04, Ms. Brooks, the assistant principal of PSLHS, was required to prepare the out-of-field report for the school.

8. Ms. Brooks initially listed Petitioner as teaching out of field. However, while preparing the out of field report, Ms. Brooks discovered what appeared to be a temporary teaching certificate bearing Petitioner’s name (the subject certificate). The subject certificate reflected that Petitioner was certified in ESE for grades K-12 for the period July 1, 2002, through

   June 30, 2005.

   
   

9. Ms. Brooks located the subject certificate in a binder that contained photocopies of teaching certificates for all of the PSLHS instructional personnel.

10. The subject certificate looked suspicious to

    
    

    Ms. Brooks because it had no certification number on it and because Petitioner’s name was written in a different font than the font that is typically used on teacher’s certificates.

11. Ms. Brooks promptly reported the suspicious certificate to Ms. Thompson at the School Board office. Ms. Thompson immediately called Ms. White at the Florida

    Department of Education (FDOE) offices in Tallahassee. Upon investigation with the FDOE, it was discovered that the subject certificate was fraudulent. The FDOE has never issued a teaching certificate to Petitioner of any kind.

12. Ms. Brooks testified that photocopies of teaching certificates are provided to the school by teachers and that as far as she knew, no one other than the teacher would have a copy

    of the teacher’s teaching certificate. It is clear from her testimony that Ms. Brooks was referring to certified teachers with properly-issued teaching certificates. It is also clear from her testimony that Ms. Brooks had no first-hand knowledge as to how or when the subject certificate was placed in the binder.

13. Petitioner testified that he did not provide the school the subject certificate. Petitioner testified that he did not know who would have provided the subject fraudulent teaching certificate to the PSLHS and offered no other explanation as to its existence.

14. The undersigned concludes that the evidence presented by Respondent is insufficient to establish that Petitioner furnished the subject certificate to the administration of PSLHS.3

15. Petitioner applied to FDOE for a teaching certificate on two occasions. Neither application has been processed to completion. On December 19, 2001, Petitioner applied for a teaching certificate in the field of athletic coaching. On December 22, 2003, Petitioner applied for a teaching certificate in the field of physical education. Those teaching certificates were never issued because Petitioner’s prior criminal history caused Professional Practices Services (PPS) to place a hold on his applications4 and because Petitioner has not provided an

    official transcript documenting his college degree.5 Those reasons were in addition to the reasons set forth in the Notice of Reasons dated April 20, 2005.

    CONCLUSIONS OF LAW

    
    

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

17. In acting on an application for a teaching certificate, FDOE must follow the requirements of Section 120.60(3), Florida Statutes, which provides as follows:

    (3) 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.

18. In accordance with the requirements of Section 120.60, Florida Statutes, FDOE provided Petitioner with written notice (in the form of a letter and a Notice of Reasons) of its intention to deny Petitioner's application for certification.

19. Petitioner requested an administrative hearing and FDOE 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.

20. Where, as here, 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, FDOE (through the Commissioner, its Executive Director) bears the burden of proving by a preponderance of the evidence 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.")

21. In its Proposed Recommended Order, Respondent asks that the undersigned recommend that Petitioner's application for certification be denied and that he be permanently barred from re-application pursuant to Section 1012.796(7)(a), Florida Statutes. Petitioner was not given adequate notice that he was at risk of suffering anything other than the denial of his application. Respondent did not place the penalty of permanently barring Petitioner’s right to re-application at issue prior to the final hearing. Consequently, even if the findings set forth above and/or the recommendations that follow are rejected, the Final Order should not permanently bar Petitioner’s right to re-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.").

22. Petitioner is not entitled to a teaching certificate because his applications are incomplete. The recommendation that follows is limited to the grounds set forth in the Notice of Reasons.

23. Respondent attempted to prove a key element of its case by the use of circumstantial evidence. The following excerpt, from 24 Fla. Jur. 2d Evidence and Witnesses § 484, accurately states the general rule as to the sufficiency of circumstantial evidence in a civil or administrative proceeding. This was the standard used by the undersigned in making the determination that the evidence was insufficient to prove that Petitioner provided the fraudulent teaching certificate to the administration of PSLHS:

    The proper test for the sufficiency of circumstantial evidence in civil [or administrative] cases is that circumstantial evidence need not exclude every other reasonable hypothesis than the one contended for, but must outweigh all contrary inferences to such extent as to amount to a preponderance of all reasonable inferences that might be drawn from the same circumstances. . . .

    
    

24. Had Respondent proved the facts it alleged in the second numbered paragraph of the Notice of Reasons, Respondent would have established that Petitioner had committed the violations in all counts of the Notice of Reasons with the exception of Count 4. The alleged violation of Count 4 would not have been established because Petitioner was not an employee of the School Board.

25. If the PPS hold is based on the criminal history alleged in the abandoned first numbered paragraph of the Notice

    of Reasons, Respondent should no longer cite that reason as justification for its denial of Petitioner’s applications. If the PPS hold is based on other criminal history, Respondent may continue to rely on that hold as justification for its denial of Petitioner’s applications.

26. Regardless of the reason for the PPS hold, Respondent should sustain the denial of Petitioner's application for certification based on Petitioner’s failure to provide an official transcript documenting his college degree.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order deny Petitioner’s applications for teaching certificates.

DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 9th day of June, 2006.

ENDNOTES

1/ The hearing conducted January 19, 2006, was continued after one of Respondent’s witnesses suddenly became unavailable because her husband had a medical emergency.

2/ All statutory references are to Florida Statutes (2005). All references to rules are to the version of the rule published in Florida Administrative Code as of the date of this Recommended Order.

3/ In making this finding, the undersigned has considered that there was no direct evidence that Petitioner provided the fraudulent certificate to the administration of PSLHS and there was no explanation as to how Petitioner would have benefited by the subject certificate. The standard for determining the sufficiency of circumstantial evidence is set forth in the Conclusions of Law section of this Recommended Order.

Respondent argues that only Petitioner would have benefited by the fraudulent certificate and that there is no other plausible explanation for the existence of the subject certificate other than Petitioner fabricated it and provided it to the school.

Respondent’s argument, based on circumstantial evidence, is no more plausible than other arguments one may make. Two examples come to mind. First, the supposition that Petitioner’s employer provided the subject certificate to the school to beef up the credentials of its employee is no less plausible than Respondent’s argument. Equally plausible is the supposition that someone in the administration at PSLHS provided the subject certificate to hide the fact that a non-certificated person was in charge of an SED class. Without further proof, all explanations are speculative.

4/ It was not established whether the history that caused the PPS hold is based on the allegations that were abandoned by Respondent at the formal hearing.

5/ In his first application, Petitioner represented that he graduated from a Columbia State University in Louisiana. In conjunction with his second application Petitioner provided FDOE with an official transcript that purports to show his graduation

from an institution called Rockville University. According to Ms. White, FDOE does not recognize either institution as being a legitimate university with acceptable accreditation.

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

Kevin Howard

1008 Southeast Walton Lakes Drive Port St. Lucie, Florida 34952

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

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

Turlington Building, Suite 224E

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: 05-004014

Orders for Case No: 05-004014