STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANITRA GRANT, )

)

Petitioner, )

)

vs. ) Case No. 06-5297

)

JEANINE BLOMBERG, ) as COMMISSIONER OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 15, 2007, in Miami, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dedrick Straghn, Esquire

26 Southwest 5th Avenue Delray Beach, Florida 33444

For Respondent: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUE

Whether the Petitioner's application for a temporary Florida's Educator's Certificate should be granted or denied for the reasons set forth in the Amended Notice of Reasons filed March 8, 2007.

PRELIMINARY STATEMENT

In a letter dated February 17, 2005, John L. Winn, then Commissioner of Education ("Commissioner"), notified Anitra Grant that her application for a Florida Educator's Certificate had been denied pursuant to Section 1012.56(10), Florida Statutes (2005), on the grounds that, as set forth in the Notice of Reasons accompanying the letter, she had "committed an act or acts or . . . a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate." In the eight-count Notice of Reasons transmitted with the February 17, 2005, letter, Commissioner Winn charged as follows:

1. Count 1: Ms. Grant was 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";

2. Count 2: Ms. Grant was in violation of

   
   

   Section 1012.56(10)(a), Florida Statutes, which allows the Department of Education 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";

3. Count 3: Ms. Grant was 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";

4. Count 4: Ms. Grant was in violation of

   
   

   "Section 1012.795(1)(f), Florida Statutes, in that she has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board";

5. Count 5: Ms. Grant was 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";

6. Count 6: Ms. Grant was "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";

7. Count 7: Ms. Grant was "in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code,1 in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement"; and

8. Count 8: Ms. Grant was "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 with an individual's performance of professional or work responsibilities or with the orderly processes or education of 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 violations were based on allegations that, on or about October 24, 2001, Ms. Grant improperly disciplined a sixth-grade student and directed profanity at the student; that, on or about October 25, 2001, she refused to allow three students entrance into her classroom because they were late even though she had been directed by an assistant principal to do so; that she left the school campus and left her students unattended; that she directed profanity at a teacher and an assistant principal as she was leaving campus; that she failed to report to work on October 26 and 29, 2001; and that she failed to inform school administrators that she would not report for work on those days.

Ms. Grant timely disputed the charges and requested an administrative hearing. The Commissioner transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, after several continuances, the final hearing was held on May 15, 2007.

Prior to the hearing, the Commissioner requested leave to amend the Notice of Reasons. The request was granted in an

Order dated March 16, 2007, and the Amended Notice of Reasons filed March 8, 2007, was accepted as the charging document in this case. Neither the factual basis for the charges nor the charges themselves were altered in the Amended Notice of Reasons; the only amendment was an expanded recitation of the possible sanctions that could be imposed were Ms. Grant to be found guilty of the charges on which the denial of her license was based.2

At the hearing, the Commissioner presented her evidence first and presented the testimony of Detective Derrick Gordon, Robert Perez, Lena Sierra, Edward G. Robinson, Mariana M. Gonzalez, and Lourdes Delgado. Respondent's Exhibits 1 through 6, 16 and 17, 21 and 22, 24, and 27 were offered and received into evidence. Ms. Grant testified in her own behalf and presented the testimony of Michelle McCray; Petitioner's Exhibits 1 through 3 were offered and received into evidence.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on June 15, 2007, and, after having been granted an extension of time, the parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:3

1. The Commissioner is the state agent responsible for investigating and prosecuting complaints against teachers. See

   § 1012.796(6), Fla. Stat. (2007).4 The Education Practices Commission is the state agency responsible for imposing discipline on teachers, including the denial of an application for an educator's certificate. See § 1012.796(7)(a), Fla. Stat.

2. Ms. Grant was employed as a teacher by the Miami-Dade County School Board during the 2000-2001 and 2001-2002 school years. Ms. Grant did not teach in the Miami-Dade County public school system subsequent to October 25, 2001.

3. Ms. Grant held a temporary teaching certificate under which she taught at all times material to this proceeding. Ms. Grant is currently not employed but is taking college courses.

4. Ms. Grant's first year as a teacher was the 2000-2001 school year, and she taught in the Miami-Dade County school system at Shenandoah Middle School. Ms. Grant has a degree in mathematics, but she did not have a degree in education and had no teaching experience when she began teaching at Shenandoah Middle School. Ms. Grant's first year as a teacher was very

   difficult and stressful for her. Nonetheless, she received a satisfactory evaluation for the 2000-2001 school year.

5. Ms. Grant returned to Shenandoah Middle School for the 2001-2002 school year and taught mathematics to sixth graders.

6. On October 24, 2001, Ms. Grant was taking her class back to her classroom from lunch when several students in the line began to misbehave and engage in "horseplay." One student was tripping, kicking, and/or stepping on the feet of another student, and Ms. Grant told the student several times to stop playing around. The student continued to trip, kick, and/or step on the feet of the other student, who was getting angry. Ms. Grant saw that the two students were about to get into an altercation and that other students in the line were becoming agitated and were pushing one another. Ms. Grant decided that she needed to intervene to calm the class down and to prevent harm to the students, and she briefly grabbed either the arm or the shirt of the student who was tripping, kicking or stepping on the feet of the other student to restrain him from engaging in disruptive behavior.

7. Another incident involving Ms. Grant occurred at Shenandoah Middle School on the morning of October 25, 2001. There was a disturbance at the school and the principal, Lourdes Delgado, made an announcement requesting that the teachers keep all students inside their classrooms. Ms. Delgado sent the

   school's assistant principals to patrol the hallways and make sure all of the students were in classrooms.

8. Mariana Gonzalez, an assistant principal at Shenandoah Middle School, was on her way to the second floor of the building when she noticed several children standing in the hallway outside Ms. Grant's classroom. Ms. Gonzalez approached the children and asked why they were in the hallway. The children responded that Ms. Grant had told them to stay outside the classroom door.

9. The door to Ms. Grant's classroom was closed.

   
   

   Ms. Gonzalez knocked on the door and asked Ms. Grant to take the children inside. Ms. Grant refused because they had been a minute late to class. Ms. Gonzalez again asked Ms. Grant to take the children into the classroom, explaining that the halls had to be cleared and that she had to go upstairs and could not stay with the children. Ms. Grant again refused to allow the children inside the classroom because they had been late to class. Ms. Grant told Ms. Gonzalez that she should take the children with her. Ms. Gonzalez could not take the children, and she told them to go inside Ms. Grant's classroom and wait for her. Ms. Gonzalez observed that Ms. Grant was angry, and she told Ms. Grant that she would be back to deal with the situation. Ms. Gonzalez closed the door to Ms. Grant's classroom and left to go to the second floor.

10. When Ms. Gonzalez returned from the second floor, she went to the office and told Ms. Delgado about the problem she had had with Ms. Grant. Ms. Gonzalez and Ms. Delgado were on their way to Ms. Grant's classroom when they saw Ms. Grant walking down the hall leading out of the building to the east parking lot of the school. Ms. Grant did not address

    Ms. Gonzalez or Ms. Delgado, she just stated in a loud voice that she was "tired of this" and that she was leaving.

11. Robert Perez, a teacher at Shenandoah Middle School, encountered Ms. Grant in the school parking lot. Ms. Grant was standing in the parking lot, visibly upset. Mr. Perez noticed that a vehicle was blocking Ms. Grant's car so she could not leave the parking lot, and Ms. Grant loudly asked Mr. Perez: "Is this your fucking damn truck?" Mr. Perez responded that it was not his truck and walked away as Ms. Grant continued to speak.

12. Ms. Grant left the parking lot and went to the main lobby of the school's attendance office. Dr. Edward Robinson, an assistant principal at Shenandoah Middle School, was conducting a parent conference in his office, which was adjacent to the main lobby of the attendance office. He heard a commotion, and, when he went out into the office lobby to investigate the source of the commotion, Ms. Grant demanded that

    he make an announcement over the public address system that the vehicle blocking her car in the parking lot needed to be moved.

13. Dr. Robinson told Ms. Grant he needed Ms. Delgado's permission to make such an announcement because it was during the instructional part of the school day. Ms. Grant insisted that he immediately get permission to make the announcement. When Dr. Robinson asked Ms. Grant to be patient, she called him an "Uncle Tom," which he found extremely offensive.

14. At this point, Dr. Robinson asked Ms. Grant to move into a private office. She refused. She remained in the main lobby of the attendance office, demanding that someone make an announcement about the vehicle blocking her car, stating that she wanted to "get out of here."

15. Ms. Grant also stated, while standing in the main lobby of the attendance office, that she was tired of the "motherfucking" school, and she also used the word "fuck" several times during her outburst, although never directed at Dr. Robinson or any individual.

16. Ms. Grant's use of profanity in the office area was overheard in part by at least one teacher, and several school employees came out of their offices to investigate the source of the commotion. Ms. Grant's voice was loud enough to be heard throughout the office area, in which there were parents and students.5

17. Dr. Robinson eventually found the person whose car was blocking Ms. Grant's, the vehicle was moved, and Ms. Grant left the school.

18. Ms. Grant left Shenandoah Middle School on October 25, 2001, without permission, and she left her classroom unattended. It was necessary to obtain an emergency substitute teacher, and Ms. Gonzalez supervised the students in Ms. Grant's classroom until a substitute was available.

19. If a teacher is not able to attend school on a particular day, school policy requires that he or she call in as early as possible to report their absence so that the school can obtain a substitute teacher to cover the absent teacher's classroom.

20. Ms. Grant did not show up at school on October 26, 2001, and she did not telephone the school to report that she would not be coming in. Ms. Grant did not show up at school on October 27, 2001, but she telephoned at around 11:00 a.m. to request six days' sick leave. It was necessary for the school to obtain emergency coverage of Ms. Grant's classroom.

21. Ms. Grant did not return to the Shenandoah Middle School campus after October 25, 2001, except to collect her personal belongings from her classroom.

22. A Preliminary Personnel Investigation was completed on December 19, 2001, regarding the incident that allegedly took

    place on October 24, 2001, during which Ms. Grant was accused of having grabbed a student's shirt and having pushed him into a wall. The investigator took the statements of witnesses and of Ms. Grant and concluded that the charges that Ms. Grant inflicted corporal punishment on a student in violation of Miami-Dade County School Board Rules 6Gx13-5D-1.07 and 6Gx13-4A-

    1.21 were substantiated.

    
    

23. A Preliminary Personnel Investigation was completed on January 14, 2002, regarding the incident that took place on October 25, 2001. The investigator took statements from witnesses and concluded that the charges that Ms. Grant left her classroom unattended and used profanity in front of Dr. Robinson and Mr. Perez in violation of Miami-Dade County School Board Rule 6Gx13-4A-1.21 were substantiated.

24. On February 7, 2002, Ms. Delgado recommended to the Miami-Dade County School Board's Regional Superintendent that Ms. Grant's employment with the Miami-Dade County School Board be terminated. Ms. Delgado had no personal knowledge of the October 24, 2001, incident and had very little personal knowledge about Ms. Grant's behavior on October 25, 2001. Consequently, Ms. Delgado based her termination recommendation on the information contained in the two Preliminary Personnel Investigation reports and the conclusions of the investigators that the charges against Ms. Grant were substantiated.

25. At its meeting on June 19, 2002, the Miami-Dade County School Board took action to suspend Ms. Grant and initiate dismissal proceedings against her. Ms. Grant did not request a hearing, and the dismissal became final.

26. In Dr. Robinson's opinion, Ms. Grant's actions on October 25, 2001, were the result of a number of stress factors that had accumulated throughout her time at Shenandoah Middle School. During both the 2000-2001 and the 2001-2002 school years, Ms. Grant asked Dr. Robinson and others for assistance on a number of occasions, but she felt that she was not given the assistance that she needed by other teachers and by administrators in learning techniques of classroom management and in dealing with the problems she had communicating with students' parents.6 Although Dr. Robinson tried to help

    Ms. Grant deal with classroom management and with irate parents, he was not the administrator responsible for the sixth grade and so was unable to spend a lot of time working with her.

27. During the year and a half that Ms. Grant taught at Shenandoah Middle School prior to October 25, 2001, neither Dr. Robinson nor Ms. Gonzalez, both assistant principals, observed Ms. Grant behaving in an unprofessional or inappropriate manner, nor had they heard any complaints of

    Ms. Grant's acting in an unprofessional or inappropriate manner towards students, fellow teachers, or parents.

28. Ms. Grant taught at a Broward County high school during the 2004-2005 school year, beginning shortly before Christmas break and continuing for the remainder of the school year. She then moved to Palm Beach County and taught at Atlantic Community High School during the 2005-2006 school year. She received an overall "Satisfactory" evaluation for the 2005- 2006 school year, and was found "acceptable" in all evaluation categories.

29. During the 2005-2006 school year, Ms. Grant acted as a mentor to a new teacher at Atlantic Community High School and provided a great deal of assistance to this teacher, even after she left the school on maternity leave. During the year she taught in the classroom next to Ms. Grant's, the new teacher did not hear any complaints about Ms. Grant from either students or teachers, and she never saw Ms. Grant behave in an unprofessional or disrespectful manner toward students, teachers, or administrators.

    Findings of Ultimate Facts7

    
    

30. The Commissioner failed to introduce any credible evidence to support the allegations in the Amended Notice of Reasons that Ms. Grant improperly disciplined a student by grabbing his shirt and pushing him into a wall, causing him to sustain minor injuries, and with having directed profanity at the student. The only evidence the Commissioner presented was

    the Preliminary Personnel Investigative report completed December 19, 2001, and the testimony of Ms. Delgado. The victim and witness statements, the statement summaries, and the conclusions of the investigator contained in the Preliminary Personnel Investigation report are hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. Ms. Delgado had no personal knowledge of the incident and relied for her recommendation of termination exclusively on the information contained in the Preliminary Personnel Investigation report and the conclusion that the charges were substantiated. The only direct evidence of this incident was presented by Ms. Grant, and this evidence establishes that Ms. Grant briefly restrained the student in order to prevent him from harming or causing harm to other students.

31. The evidence presented by the Commissioner is not sufficient to establish that Ms. Grant lacks good moral character. Ms. Grant's behavior in using profanity in front of Mr. Perez in the parking lot and in the lobby of the attendance office on October 25, 2001, was unprofessional and unacceptable, no matter how stressful she found her teaching job at Shenandoah Middle School and no matter how upset Ms. Grant was at

    Ms. Gonzalez's placing the three tardy students inside her classroom. Ample evidence was presented, however, to establish that Ms. Grant had not previously exhibited any unprofessional

    behavior while teaching at Shenandoah Middle School; that

    
    

    Ms. Grant has taught successfully in both the Broward County and Palm Beach County public school systems subsequent to the events at issue herein; and that Ms. Grant is looked upon as a mentor by at least one beginning teacher. Ms. Grant's behavior at Shenandoah Middle School on October 25, 2001, was an isolated incident and does not constitute a sufficient basis on which to find that she lacks good moral character. The totality of the evidence presented is sufficient to establish that, under the circumstances presented in this case, Ms. Grant possesses good moral character.

32. The Commissioner failed to present sufficient evidence to establish that the acts committed by Ms. Grant on October 25, 2001, constitute acts of gross immorality or of moral turpitude. Ms. Grant's behavior, while unprofessional and unacceptable in a school setting, was not so flagrantly inconsistent with the public conscience and moral standards as to be grossly immoral and did not exhibit the vileness, baseness or depravity required for acts of moral turpitude.

33. The Commissioner failed to present any evidence to establish that Ms. Grant's conduct on October 25, 2001, would reduce her current or future effectiveness as a school board employee. The evidence does establish that Ms. Grant has been an effective employee of the Palm Beach County School Board,

    having received a satisfactory evaluation for the 2005-2006 school year.

34. The evidence presented by the Commissioner is not sufficient to establish that, by briefly restraining an unruly student on October 24, 2001, Ms. Grant exposed any student to unnecessary embarrassment or disparagement. Nor is the evidence presented by the Commissioner sufficient to establish that

    Ms. Grant engaged in harassment of or discriminatory conduct toward a colleague when she called Dr. Robinson an "Uncle Tom" and used profanity in front of Mr. Perez in the parking lot and in front of Dr. Robinson and other staff members in the lobby of the attendance office. Ms. Grant did not direct profanity at any individual, and her insistence that the car blocking her car in the parking lot be moved did not rise to the level of harassment. Although Dr. Robinson was deeply offended by

    Ms. Grant's calling him an "Uncle Tom," the Commissioner failed to present any evidence that Dr. Robinson considered this remark discriminatory.

35. The evidence presented by the Commissioner is sufficient to establish that, by abandoning the students in her classroom on October 25, 2001, Ms. Grant failed to make reasonable efforts to protect her students' safety.

36. The Commissioner also presented sufficient evidence, through the testimony of Ms. Delgado, to establish that

    Ms. Grant failed to report to work at Shenandoah Middle School on October 26 and 27, 2001, and was late calling in on

    October 27, 2001, and that her failure to report to work or call the school timely violated the school's procedures. Although this conduct may have provided a basis on which Ms. Grant's employment with the Miami-Dade County School Board was terminated, this conduct does not constitute a violation which would allow the revocation of a teacher's certificate.

37. Finally, it is undisputed that Ms. Grant's employment with the Miami-Dade County School Board was terminated in or about June 19, 2002.8 Ms. Grant's termination does not, however, constitute a violation for which a teacher's certificate may be revoked.

    CONCLUSIONS OF LAW

    
    

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

39. Because Ms. Grant has applied for a temporary teacher's certificate, she has the burden of proving by a preponderance of the evidence that she meets all the requirements for receiving such certificate. See Department of

    Banking & Fin. v. Osborne Stern, 670 So. 2d 932, 934 (Fla. 1996)("[W]hile the burden of producing evidence may shift

    between the parties in an application dispute proceeding, the burden of persuasion remains upon the applicant to prove her entitlement to the license."); § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute . . . ."). The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v.

    State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) quoting

    
    

    Bourjaily v. United States, 483 U.S. 171, 175 (1987)). Count 1: Good moral character

40. Based on the factual allegations in the Amended Notice of Reasons, the Commissioner charged that Ms. Grant did not meet the standard in Section 1012.56(2)(e), Florida Statutes,9 that an applicant for certification as an educator in Florida "[b]e of good moral character."

41. "Good moral character" has been defined by the court in Zemour, Inc. v. State Div. of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977), as follows:

    Moral character, . . . means 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. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character.

    
    

    The court in Zemour also indicated that the lack of good moral character can be shown by "repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period of time." See also Bachynsky v.

    State, Dep't of Professional Regulation, Bd. of Medical Examiners, 471 So. 2d 1305, 1311 (Fla. 1st DCA 1985)("[A]n isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character.")

42. Based on the findings of fact herein and the legal standard stated above, Ms. Grant has sustained her burden of proving by a preponderance of the evidence that she possesses good moral character. Section 1012.56(2)(e), Florida Statutes, therefore, does not bar the approval of her application for a temporary teacher's certificate.

    Count 2: Offenses for which a teaching certificate may be revoked.

    
    

43. Section 1012.56(11)(a), Florida Statutes,10 provides that "[t]he 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." The Commissioner has included this as a separate count in the Amended Notice of Reasons, but it is clear on the face of the statute that this is not a separate ground for denial of an application for a teaching certificate. Rather, the statute incorporates the violations set forth in Section 1012.795, Florida Statutes, for which disciplinary action may be taken against a teacher and provides the Commissioner with the legal authority to preliminarily deny Ms. Grant's application if she proves that Ms. Grant committed the violations set forth in Counts 3, 4, and 5.

44. Although the burden of proving entitlement to a license or certificate always rests with the applicant, an agency must prove by a preponderance of the evidence that the applicant committed the violations on which the decision to deny the application is based when the agency bases its decision on acts that would support the revocation or suspension of a license or certificate or that would justify the imposition of disciplinary sanctions. See Department of Banking & Fin. v. Osborne Stern, 670 So. 2d 932, 934 (Fla. 1996)("[T]he Department had the burden of presenting evidence that appellants [applicants] violated certain statutes and were thus unfit for registration."); § 120.57(1)(j), Fla. Stat. ("Findings of fact

    shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute . . . .") Therefore, the Commissioner bears the burden of proving that Ms. Grant committed the statutory and rule violations set forth in the Amended Notice of Reasons.

    Count 3: Gross immorality and acts of moral turpitude

    
    

45. Based on the factual allegations in the Amended Notice of Reasons, the Commissioner charged Ms. Grant in Count 3 with violating Section 1012.795(1)(c), Florida Statutes, which provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude." Section 1012.795(1)(c) does not contain a definition of gross immorality or of moral turpitude.

46. "Immorality" is, however, defined in Florida Administrative Code Rule 6B-4.009(2) as "conduct that is inconsistent with the standards of public conscience and good morals."11 "Gross immorality," by its terms, must involve conduct more offensive than immoral conduct. "Gross immorality" has been defined as follows:

    [t]he term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission

    v. Knox, 3 FALR 1373-A (Department of Education 1981).

    
    

    Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Sept. 27, 1996). Taking these two definitions together, then, it can be said that "gross immorality," as that term is used in Section 1012.795(1)(c), Florida Statutes, involves conduct that is serious and flagrantly inconsistent with the public conscience and proper moral standards.

47. "Moral turpitude" has been defined in Florida Administrative Code Rule 6B-4.009(6) as a:

    [c]rime 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 fellowman or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

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

    
    

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

    
    

    involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

49. In Adams v. Professional Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1975), the court concluded that "[b]y

    virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community."

50. Even holding Ms. Grant to the high moral standard applicable to teachers, based on the findings of fact herein and the legal standards stated above, the Commissioner has failed to prove by a preponderance of the evidence that Ms. Grant's conduct on October 24, 2001, or on October 25, 2001, involved acts of gross immorality or of moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes.

    Count 4: Conduct that seriously reduces effectiveness as an employee of school board

    
    

51. Based on the factual allegations in the Amended Notice of Reasons, the Commissioner charged Ms. Grant in Count 4 with violating Section 1012.795(1)(f), Florida Statutes, which provides that a teacher may be disciplined if "[u]pon investigation, [the teacher] has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board." It is apparent from the Legislature's use of the present tense that this statutory provision applies to personal conduct that impairs a teacher's current and, in the context of an application for a teacher's certificate, future ability to be an effective employee of a school board.

52. The Commissioner has failed to offer any evidence establishing that Ms. Grant's conduct in October 2001, when she was teaching in the Miami-Dade County public school system, would reduce her current or future effectiveness as an employee of a school board. In addition, Ms. Grant's behavior on October 24 and 25, 2001, while unprofessional and unacceptable from a teacher, was not so seriously deficient as to permit an inference that her effectiveness as an employee of a school board would be seriously reduced. See, e.g., Purvis v. Marion County School Board, 766 So. 2d 492, 497-98 (Fla. 5th DCA 2000)(An educator's impaired effectiveness under Florida Administrative Code Rule 6B-4.009(2) may be inferred from the nature and seriousness of the conduct and that no direct evidence of impaired effectiveness is necessary.). Based on the findings of fact herein, therefore, the Commissioner has failed to prove that Ms. Grant's conduct in October 2001, constituted a violation of Section 1012.795(1)(f), Florida Statutes.

    Count 5: Violations of the Principles of Professional Conduct for the Education Profession

    
    

53. Based on the factual allegations in the Amended Notice of Reasons, the Commissioner charged Ms. Grant in Count 5 with violating Section 1012.795(1)(i), Florida Statutes, which provides that a teacher may be disciplined if he or she "[h]as violated the Principles of Professional Conduct for the

    Education Profession prescribed by State Board of Education rules." The Commissioner has included this as a separate count in the Amended Notice of Reasons, but it is clear on the face of the statute that this is not a separate ground for denial of an application for a teaching certificate. Rather, the statute incorporates the provisions of Florida Administrative Code

    Rule 6B-1.006 applicable to educators in Florida and provides the Commissioner with the legal authority to preliminarily deny Ms. Grant's application if she proves that Ms. Grant committed the violations set forth in Counts 6, 7, and 8.

    Counts 6, 7 and 8: Violations of the Principles of Professional Conduct for the Education Profession

    
    

54. Based on the factual allegations in the Amended Notice of Reasons, the Commissioner charged Ms. Grant in Counts 6, 7, and 8 with having violated Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and 6B-1.006(5)(d), which provide as follows:

    1. 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.

          
          

55. Based on the findings of fact herein, the Commissioner has failed to prove by a preponderance of the evidence that

    Ms. Grant violated Florida Administrative Code Rule 6B- 1.006(3)(e) or (5)(d).

56. Based on the findings of fact herein, the Commissioner has proven by preponderance of the evidence that, by abandoning her students in the classroom on October 25, 2001, Ms. Grant violated Florida Administrative Code Rule 6B-1.006(3)(a).

    Ms. Grant not only failed to make reasonable efforts to protect her students' safety, she was responsible for creating an unsafe environment in the classroom by walking out with no notice to the administration of Shenandoah Middle School. Because she has proven a violation of Florida Administrative Code Rule 6B-

    1.006(3)(a), the Commissioner has also proven a violation of Section 1012.795(1)(i), Florida Statutes.

57. Section 1012.56(11)(a), Florida Statutes, gives the Department of Education the discretion to deny an application for certification if "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." Under the circumstances of this case, in which the Commissioner has proven only one of the grounds on which she based her preliminary decision to deny Ms. Grant's application for a temporary educator's certificate, the Education Practices Commission should exercise its discretion and grant Ms. Grant's application. Because of the seriousness of her abandonment of her classroom on October 25, 2001, however, the Education Practices Commission should immediately place her on probation. See § 1012.796(7)(d), Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission should enter a final order granting the application of Anitra Grant for a temporary educator's certificate and placing her on probation for a period of two years under such terms and conditions as the Education Practices Commission deems appropriate.

DONE AND ENTERED this 30th day of August, 2007, in Tallahassee, Leon County, Florida.

S

PATRICIA M. HART

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, 2007.

ENDNOTES

1/ The Amended Notice of Reasons refers to the incorrect subsection of Florida Administrative Code Rule 6B-1.006(3).

The reference should be to Florida Administrative Code Rule 6B- 1.006(3)(e) rather than Florida Administrative Code Rule 6B- 1.006(3)(c). This correction shall be made throughout this Recommended Order.

2/ The Motion to Amend Notice of Reasons also included a notice that Mr. Winn was no longer serving as the Florida Commissioner of Education and that Jeanine Blomberg should be substituted as Interim Commissioner of Education. This change is reflected in the style of the case.

3/ In her proposed findings of fact, the Commissioner has dwelt in detail on various inconsistencies between Ms. Grant's testimony at the hearing; the summary of her statements found in the two Preliminary Personnel Investigation reports completed by the Miami-Dade County public school system investigators; the statements of Ms. Grant in a letter she wrote to the Department of Education dated October 24, 2002; and Ms. Grant's testimony in her deposition taken March 6, 2007. The Commissioner states that "her lack of candor" is "[p]erhaps more disturbing then

[sic] the unprofessional conduct toward her colleagues and students." Respondent's Proposed Recommended Order at page 11, paragraph 44. There are no findings of fact in this Recommended Order relating to such discrepancies, however, because the discrepancies pointed out by the Commissioner on pages 11 through 15 of her Proposed Recommended Order are, for the most part, not material to this proceeding. Ms. Grant's lack of candor is not identified in the Amended Notice of Reasons as a basis for the Commissioner's preliminary decision to deny her application for a teaching certificate. The summaries of

Ms. Grant's "statements" included by the Miami-Dade County School Board investigators in the Preliminary Personnel Investigation reports are inadmissible hearsay and not statements attributable to Ms. Grant. The inconsistencies in Ms. Grant's various statements relate, for the most part, to inconsequential matters or, with respect to the deposition testimony, could be attributed to the fact that the events took place in 2001 and Ms. Grant's deposition was taken in 2007.

And, finally, the events that occurred with respect to

Ms. Grant's termination of employment in 2002 are irrelevant to this proceeding except to the extent that the Miami-Dade County School Board based its decision to terminate Ms. Grant's employment on the same conduct that formed the basis for the Commissioner's preliminary decision to deny Ms. Grant's application for a temporary teacher's certificate.

4/ All references herein to the Florida Statutes are to the 2007 edition unless otherwise noted.

5/ In her testimony at the hearing, Ms. Grant flatly denied calling Dr. Robinson an "Uncle Tom" and using profanity on October 25, 2001. Ms. Grant's testimony on this point is directly contradicted by several witnesses who personally observed her behavior. Having considered Ms. Grant's testimony and the testimony of the eye-witnesses, Ms. Grant's testimony denying that she called Dr. Robinson an "Uncle Tom" and that she used profanity on October 25, 2001, is rejected as unpersuasive.

6/ Many of the students at Shenandoah Middle School were Hispanic, and Ms. Grant does not speak Spanish.

7/ "Whether a particular action constitutes a violation of a rule [or statute] . . . 'is a factual question to be decided in the context of the alleged violation.'" McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(quoting Langston v.

Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)). See also

Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(Whether there was a deviation from the required standard of conduct is not a conclusion of law, it is an ultimate finding of fact within the fact-finding discretion of the hearing officer.) In addition, the issue of whether an applicant for a license or certificate has good moral character is a question of fact to be decided by the administrative law judge. Palamara v. Dep't of Bus. & Prof, Regulation, 855 So. 2d 706, 708 (Fla. 4th DCA 2003)("In the context of professional and occupational licensing, the question of what constitutes 'good moral character' has been held to be ordinarily a question of fact for the trier of fact.")(Citations omitted.)

8/ There is a dispute regarding whether Ms. Grant resigned as a result of the recommendation that she be terminated from her employment with the Miami-Dade County School Board or whether the Miami-Dade County School Board took action against her, but this dispute is irrelevant to resolution of the issues herein.

9/ The statutes in effect in 2007 are applicable in this proceeding because a person's entitlement to a license or certificate is determined at the time the final decision to grant or deny the application is made. See Bruner v. Board of Real Estate, 399 So. 2d 4 (Fla. 5th DCA 1981)("The agency must apply the law in effect at the time it makes its final decision.").

10/ This subsection was previously numbered subsection (10)(a).

11/ The definition of "immorality" in Florida Administrative Code Rule 6B-4.009(2) includes provisions that the conduct be "sufficiently notorious [as] to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." There is no such provision in Section 1012.5795(1)(c), Florida Statutes.

COPIES FURNISHED:

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

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

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

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Anitra Grant

706 New Lake Drive

Boynton Beach, Florida 33426

Dedrick D. Straghn, Esquire

26 Southwest 5th Avenue Delray Beach, Florida 33444

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Education 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: 06-005297

Orders for Case No: 06-005297