STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on June 18, 2008, in Orlando, Florida.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

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

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty, if any, should Petitioner impose on Respondent's teaching certificate.

PRELIMINARY STATEMENT

On April 3, 2006, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of two witnesses and submitted seven exhibits. Respondent did not attend the administrative hearing, nor did counsel appear for Respondent. The identity of the witnesses and exhibits and the rulings regarding each are reported in the one-volume Transcript of the hearing filed with DOAH on July 2, 2008. Petitioner filed its Proposed Recommended Order (PRO) on July 14, 2008.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent was licensed in the field of elementary education pursuant to Florida Educator's Certificate No. 865460. The certificate was valid through June 30, 2006.

2. At all times pertinent hereto, Respondent was employed as a teacher at Sadler Elementary School in the Orange County School District (the District).

3. In August 2003, S.W. enrolled as a student in the District and began attending Freedom High School. S.W. was

   18 years old.

4. During September 2003, S.W. met Respondent through Respondent’s daughter, who also attended Freedom High School. On the first day they met, Respondent provided S.W. with alcoholic beverages while S.W. was at Respondent's residence. During that same initial meeting, Respondent also initiated a sexual relationship with S.W.

5. The sexual relationship between Respondent and S.W. continued, with S.W. moving into Respondent’s apartment sometime between mid-September and early October of 2003. During their relationship, Respondent provided S.W. with alcoholic beverages approximately every other day. Respondent also used cocaine, cannabis, and other illegal substances with S.W. on multiple occasions.

6. In late October or early November 2003, S.W. dropped out of school. The decision was precipitated at the urging of Respondent, who convinced S.W. that school was a “waste of time.” Respondent was also concerned that the relationship threatened Respondent's employment as long as S.W. was a student. In January of 2004, S.W. ended his relationship with Respondent.

7. Mr. John Hawco, an employee of the District for

   
   

   27 years, served as a senior manager of employee relations during the 2003-2004 school year. Mr. Hawco received information that Respondent was involved in an inappropriate

   relationship with S.W., and an investigation ensued. The evidence obtained during the investigation included a “love note” from Respondent to S.W., as well as a letter from an apartment complex indicating that S.W. was an authorized resident in Respondent’s apartment.

8. The District placed Respondent on relief of duty.

   
   

   Respondent resigned from her teaching position on April 1, 2004.

   
   

   CONCLUSIONS OF LAW

   
   

9. DOAH has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 1012.795, Fla. Stat. (2007). DOAH provided the parties with adequate notice of the administrative hearing.

10. Petitioner bears the burden of proof. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of the proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. Subsection 1012.795(1), Florida Statutes (2003), authorizes the Education Practices Commission to suspend, revoke, or otherwise penalize a teaching certificate, provided it can be shown that the holder of the certificate:

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

    
    

    * * *

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

    
    

    * * *

    
    

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

    
    

12. Florida Administrative Code Rule 6B-1.006 states, in pertinent part, as follows:

    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.

          
          

          * * *

          
          

          (h) Shall not exploit a relationship with a student for personal gain or advantage.

          
          

13. Although “gross immorality” and “moral turpitude” are not defined in this context, guidance is found in Florida Administrative Code Rule 6B-4.009. The rule provides the basis for charges upon which dismissal action by school districts

    against instructional personnel may be pursued. Florida Administrative Code Rule 6B-4.009 provides, in pertinent part:

    1. 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.

       
       

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

    * * *

    
    

    (6) 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.

    
    

14. Moral turpitude has also been defined by the Supreme Court of Florida as follows:

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owned 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. [Citations omitted]

    
    

    State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933).

15. Petitioner demonstrated by clear and convincing evidence that Respondent is guilty of gross immorality and moral turpitude within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). Turlington v. Cooper, Case No. 83-0187 (DOAH May 20, 1983)(finding teacher guilty of gross immorality and moral turpitude, where teacher made sexual advances and provided alcoholic beverages and cannabis to a student).

16. The evidence is clear and convincing that Respondent violated Subsection 1012.795(1)(f), Florida Statutes (2003). Respondent seriously reduced her effectiveness as an employee of the school board.

17. The evidence is clear and convincing that Respondent violated Subsection 1012.795(1)(i), Florida Statutes (2003). Respondent violated the principles of professional conduct promulgated by rule.

18. The evidence is clear and convincing evidence that Respondent violated Florida Administrative Code Rule 6B- 1.006(3)(a). Respondent failed to make a reasonable effort to protect a student from conditions harmful to learning, the student’s mental health, the student's physical health or

    safety. Castor v. Guzalak, Case Number 92-6253 (DOAH June 4, 1993)(finding violation of Florida Administrative Code Rule 6B- 1.006(3)(a) where teacher allowed students to use alcohol and cannabis, and where teacher consumed alcohol in their presence). In an effort to protect her employment, Respondent encouraged

    S.W. to drop out of high school.

    
    

19. The evidence is clear and convincing that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(h). Respondent used her position as a school board employee to engage in a sexual relationship with a student.

20. Petitioner's PRO seeks permanent revocation of Respondent's teaching certificate. Revocation is appropriate under the facts of this case, and revocation is authorized by the disciplinary guidelines contained in Florida Administrative Code Rule 6B-11.007(2)(c)2, (2)(f), and (2)(i)5, as well as Subsection 1012.795(1), Florida Statutes (2007).

RECOMMENDATION

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

RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of violating Subsections 1012.795(1)(c), (f) and (i), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a) and (h) and permanently revoking Florida Educator's Certificate No. 865460.

DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 8th day of August, 2008.

COPIES FURNISHED:

Louann Hernandez

11733 Sindlesham Court

Orlando, Florida 32837

Louann Hernandez

375 Renssiaer Avenue Auburndale, Florida 33823

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

Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

Louann Hernandez

101 Booth Lane, Apartment A Kissimmee, Florida 34743

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services 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: 08-001843PL

Orders for Case No: 08-001843PL