STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY SIMMONS, )

)

Petitioner, )

)

vs. ) Case No. 08-3618

)

JOHN L. WINN, AS COMMISSIONER OF ) *Amended As To

EDUCATION ) Recommendation Only

)

Respondent. )

)

*AMENDED RECOMMENDED ORDER

As previously scheduled, the final hearing was held by video teleconference between Lauderdale Lakes and Tallahassee, Florida, on May 20, 2009, before Eleanor M. Hunter, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Matthew E. Haynes, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305 Brandon, Florida 33511

For Respondent: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices Commission should deny Petitioner's application for a teaching

certificate on the grounds that she lacks good moral character, has committed act(s) for which such a certificate could be revoked, and is guilty of gross immorality or an act of moral turpitude based on a plea of guilty to a felony and a judgment against her in a civil proceeding.

PRELIMINARY STATEMENT

On April 28, 2003, the Florida Department of Education received an Application for Florida Educator's Certificate Number 910106, filed by Petitioner. The application was denied by Respondent and, by filing an Amended Election of Rights, Petitioner challenged that decision.

On June 30, 2006, the case initially was referred to the Division of Administrative Hearings (DOAH), assigned DOAH Case No. 06-2323, and set for hearing. As the parties jointly requested on August 29, 2006, the hearing was canceled and jurisdiction relinquished to the Education Practices Commission (EPC) for consideration of a settlement agreement.

On December 12, 2007, this case was referred to DOAH again and assigned Case Number 07-5658. The Amended Notice of Reasons for the denial of the application was identical to that filed in DOAH Case No. 06-2326. On December 21, 2007, as the parties jointly requested, jurisdiction was again relinquished to the EPC to allow a review of extensive documents from prior civil and criminal proceedings.

On July 21, 2008, the case was again referred to DOAH and assigned DOAH Case No. 08-3618. On January 16, 2009, Respondent filed a Motion to Relinquish Jurisdiction (Motion) to the EPC in Absence of Disputed Material Facts. In a response filed February 17, 2009, Petitioner alleged that disputed facts include evidence that her fear of her ex-husband caused the actions that led to her guilty plea, and that her plea was procured as a result of threats, coercion, or fraud; and that she did not understand her rights during the criminal proceedings. Petitioner also noted that a judgment in a civil case is evidence, but not conclusive on the issue of good moral character, citing Palamara v. Department of Business and

Professional Regulation, 855 So. 2d 706 (Fla. 4th DCA 2003). The Motion was denied and the final hearing was held on May 20, 2009.

At the hearing, Respondent presented the testimony of Glenn Bukata, Mark Shapiro, and Marian Lambeth. Respondent's

Exhibits 1 through 7, 8D, 9D, 9E, 9G, 10C, 10D, 12, 13 and 14 were received into evidence. Petitioner presented the testimony of Jeffrey Jackson, Sheila Henry, and herself. Petitioner's Exhibits 1 through 8 were received into evidence. The Transcript of the hearing was filed June 8, 2009. Following the entry of two Orders Granting Extensions of Time to file proposed recommended orders, Proposed Recommended Orders were received

from Petitioner on August 4, 2009, and from Respondent on August 5, 2009.

FINDINGS OF FACT

1. Petitioner Shirley McCallum Simmons is academically certified to be an exceptional student education (ESE) teacher and a non-native English speaking language students (ESAU) mathematics teacher. She teaches at Royal Palm Beach High School. Ms. Simmons' April 28, 2003, application for Florida Educator's Certificate Number 910106 (a permanent teaching certificate) was denied.

2. Respondent, as Commissioner of Education and head of the Department of Education (DOE), recommends to the EPC that it deny Ms. Simmons' application for a permanent teaching certificate based on a finding that she lacks good moral character.

3. The Amended Notice of Reasons for the denial of the application is as follows:

   1. On or about January 6 or 7, 1998, Applicant engaged in a conspiracy with others to obtain a passport through the use of false and fictitious statements. As part of this conspiracy, Applicant knowingly and unlawfully provided a false affidavit to the United States Department of State concerning her relationship to and the identity of an applicant for a passport. Applicant was indicted and charged with: Count 1, Conspiracy to Commit Passport Fraud; Count 2 (Count 5 of Indictment), Making False Statement in an Application for a Passport;

      and Count 3 (Count 6 of Indictment), False Statements. On or about January 28, 1998, Applicant pled guilty to Count 1. The other counts were dismissed. The court adjudicated Applicant guilty. Among other sanctions, the court placed Applicant on probation for 2 years and ordered her to pay a fine of $100.00.

      
      

   2. On or about April 1, 1997, the Applicant married Raymond Douchard, an individual she had only known briefly. Shortly thereafter, the Applicant applied for four (4) insurance policies on her husband's life totaling One Million Two Hundred Thousand Dollars ($1,200,000.00) in coverage. The policies became effective April 9, 1997, April 11, 1997, June 28, 1997 and July 1, 1997. On or about July 6, 1997, Applicant's husband was murdered as a result of a gun shot wound to his head. His body was discovered in a trunk of a vehicle parked behind a business entity in Broward County named Flanagan Lounge.

      
      

   3. Applicant immediately filed death claims with the insurance companies to collect on the policies. After a refusal of coverage, Applicant filed a federal lawsuit against one of the carriers, Shirley M. (Douchard) Simmons v. Valley Forge Life Insurance Co., Case Number 00-8514-CIV- HURLEY. Following a trial on the matter, a jury rendered its verdict on January 25, 2002 determining that the policy was properly rescinded on several basis, including that the Applicant had a murderous intent and the death of her husband was caused by the criminal acts of Applicant.

      
      

   4. Ms. Simmons has a bachelor's degree in social work from Florida State University, and a master's degree in educational leadership from Lynn University. She also received a certification in law enforcement from Palm Beach Community

      College, and a bachelor's degree in cosmetology from Dudley University in North Carolina.

   5. Ms. Simmons enrolled in ROTC while in college, then was commissioned as an army officer. She served in Germany until approximately 1986 or 1987.

   6. When Ms. Simmons returned to the United States and left military service, she was employed with the Palm Beach County Sheriff's Department for five to six years. To avoid working night shifts after her son was born in 1989, Ms. Simmons decided to go into business for herself.

   7. Ms. Simmons opened a salon called The Beauty Spa in 1992. At about the same time she began volunteering in public schools, received her academic certification to teach, and began work with the Palm Beach County School District.

   8. Ms. Simmons had been married and divorced twice when she met Raymond Douchard in 1995, whose name she believed was Robert Douchard. On April 1, 1997, Ms. Simmons and Mr. Douchard were married, but they never lived together. Ms. Simmons said they never lived together because he lied to her, including about his real name before they got married. He would also, according to Ms. Simmons, disappear for three or four days, telling her he was with a friend or cousin in Boca Raton. She felt there was something wrong or suspicious. Mr. Douchard was an automobile mechanic. Ms. Simmons testified that he told her

      that he was involved in stealing vehicles and sending them to Haiti.

   9. In March 1997, before they married, Mr. Douchard obtained three separate life insurance policies, each for

      $300,000, with Ms. Simmons as the beneficiary. Ms. Simmons was the owner of a fourth policy, also for $300,000.00 naming

      Mr. Douchard as the insured and Ms. Simmons the beneficiary.

      
      

      Ms. Simmons testified that the policy was intended to put her at ease because she did not trust Mr. Duchard. Although they were not married at the time, Ms. Simmons signed the Midlife application as beneficiary using the name Shirley Douchard. Her claim that it was after her marriage and that someone else back dated the application to "3/27/97" is not credible. Other policies were signed "Shirley Simmons, Fiance."

   10. Ms. Simmons said that Mr. Douchard set up appointments on March 27, 1997, with a life insurance agent who came to her salon, and prepared the applications for the policies.

       Ms. Simmons testified that she knew the policies had a two-year contestable period in the event of a death because she had similar policies on her former husbands. At least one insurance company was paid with a check drawn on the account of The Beauty Spa.

   11. On Sunday evening, July 6, 1997, at approximately 10:00 p.m., the body of Raymond Douchard was found in the trunk

       of a car parked behind a place called "Flanigan's Lounge" in Broward County. He had been shot in the head while in the trunk. The medical examiner estimated that the time of death was between 12:00 a.m. and 6:00 a.m., the morning of July 6,

       1997.

       
       

   12. Homicide detective Glenn Bukata informed Ms. Simmons

       
       

       of Mr. Douchard's death and interviewed her at The Beauty Spa and at her home on the evening of July 8, 1997. She told him that she had last seen Mr. Douchard after she beeped him and he came to The Beauty Spa between 11:00 p.m. and 12:00 a.m. the evening of Saturday, July 5, 1997. After he was with her for approximately 45 minutes, Ms. Simmons said Mr. Douchard received another page on his beeper and left.

   13. During the homicide investigation, Ms. Simmons was interviewed at least ten more times, including the longest questioning for 12 to 14 hours that lasted from 12:15 p.m. until 2:15 a.m. Detective Bukata found Ms. Simmons various statements to be evasive and contradictory. Although her stories about who might have been responsible for Mr. Douchard's death changed, Ms. Simmons never admitted that she was guilty or involved.

   14. On December 11, 1997, Ms. Simmons was married for a fourth time to Deniche Altime, a Haitian immigrant who was in the United States illegally. Ms. Simmons took Mr. Altime to the passport office in Miami to apply for a passport, where he used

       her nephew's name and identification. Ms. Simmons initially testified that she only signed the United States Department of State Affidavit Identifying Witness, in support of the passport application claiming to be Mr. Altime's aunt, who had known him for 20 years. At the hearing, she conceded that, in addition to her signature, the handwriting filling out the affidavit also could be hers. Ms. Simmons said she was complicit in the passport misrepresentation because Mr. Altime became violent after they married, always carried a gun, and she was afraid of him.

   15. When Mr. Altime returned to the federal office to pick up his passport, he was arrested and subsequently deported.

       Ms. Simmons was arrested and charged with conspiracy to commit passport fraud. On January 29, 1998, she pled guilty to one count in violation of 18 USC § 371. She was placed on probation for two years, prohibited from possessing a firearm, and assessed a penalty of $100. At the time she entered her guilty plea, court documents indicate that Ms. Simmons was represented by counsel. Other than her self-serving testimony, which is rejected, there is no evidence that Ms. Simmons did not understand her plea of guilty to conspiracy to commit passport fraud or that she claimed, after he was deported, that her crime was based on a fear of Mr. Altime.

   16. After Ms. Simmons was released from federal custody, she was arrested by Broward County authorities and charged with first degree murder in the death of Mr. Douchard. She was in jail for about two years with no bond. Having been born in Jamaica, Ms. Simmons was considered at risk for fleeing the country.

   17. Ms. Simmons was tried for murder and, at the conclusion of the prosecution's case, the defense motion for judgment of acquittal was granted.

   18. After the murder charges were dismissed, Ms. Simmons filed suit against Valley Forge Life Insurance Company, Midland Insurance Company, Jackson National Life Insurance Company, and Primerica Life Insurance Company in 2000, to collect on the policies that named Raymond Douchard as the insured. Primerica settled before trial. On January 25, 2002, a jury verdict was entered against Ms. Simmons based on findings of "Material misrepresentations, fraud in policy application, murderous intent of beneficiary, and disenfranchisement - Florida Slayer Statute."

   19. Ms. Simmons filed for bankruptcy to discharge a judgment against her for $13,845 in the civil case and debts that she said accumulated during her two years in jail. There is evidence, however, that her testimony that she had good

       credit in March and April 1997, when she married Mr. Douchard was not the truth.

   20. Lieutenant Jeffrey Jackson worked with Ms. Simmons at the Sheriff's Department for approximately five-to-seven years, beginning in 1989 or 1990. He recalled that she was a good employee, who handled the different inmate population in her assigned housing unit well.

   21. Sheila Henry, a principal with the Palm Beach County School District for 27 years, was the principal at Royal Palm Beach High School for the two years (2004-2006) that Ms. Simmons worked there. Ms. Henry described Ms. Simmons as a good employee, who taught ESE classes, with no complaints from students or parents. Ms. Simmons' evaluations support a finding that she is a competent teacher. Ms. Henry was not aware of any civil or criminal proceedings against Ms. Simmons.

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

   23. Petitioner bears the burden of proof to establish by a preponderance of the evidence that her application should be approved pursuant to Florida Administrative Code Rule 28-

       107.003. Department of Business and Professional Regulation,

       Div. of Sec. and Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

   24. A "preponderance" of the evidence means the greater weight of the evidence. See Fireman's Fund Indemnity Co. v.

       Perry, 5 So. 2d 862 (Fla. 1942).

       
       

   25. The five Counts citing the statutory bases for Respondent's denial of Petitioner's application are as follows:

       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(11)(a), 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.

       
       

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

       
       

       COUNT 4: The Applicant is in violation of Section 1012.795(1)(e), Florida Statutes, in that she has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation.

       
       

       COUNT 5: The Applicant is in violation of Section 1012.795(2), Florida Statutes, which provides that the plea of guilty by any

       court is prima facie proof of grounds for the revocation of the certificate.

       
       

   26. In Rolle v. Crist, 2001 Fla. Div. Adm. Hear. LEXIS 3171; DOAH Case No. 01-2644 (R.O. 12/14/01; F.O. 2/28/02), the Administrative Law Judge explained that:

       1. . . . [A] person seeking certification must do more, in demonstrating his or her good moral character, than merely show that he or she is not a degenerate. Rather, the burden is on the applicant to establish affirmatively that, as an honest, decent, law-abiding citizen, the applicant consistently conforms his or her behavior to generally accepted societal norms.

       2. The standard of conduct to which prospective teachers are held is a hight one, owing to the exceptional degree of trust and confidence that the public places in teachers. As the First District Court of Appeal wrote:

          
          

          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. Dade County School Board, 318 So. 2d 159, 160 (Fla.

          1st DCA 1975).

          
          

   27. The First District Court also has held that:

       
       

       The law is well established that a judgment of conviction of a criminal offense, whether based on a plea of guilty or nolo contendere, is not admissible in a subsequent civil proceeding as proof of the facts on which it is based. State v.

       Dubose, 152 Fla. 304, 11 So. 2d 477 (Fla.

       1943). See also 23 Fla. Jur. 2d Evidence

       and Witnesses § 321 (1980). Thus, proof of the fact of Appellant's conviction by a copy of the criminal judgment was not legally sufficient to prove that Appellant was guilty of violating any of the statutes or rules the EPC found him guilty of violating, other than section 231.28(1)(e). Moreover, this latter finding was subject to attack on grounds that the plea resulted from threats, coercion, and fraud. § 231.28(2), Fla.

       Stat. (1991).

       Williams v. Castor, 613 So. 2d 97 (Fla. 1st DCA 1993).

       
       

   28. In Williams, supra, the case was reversed based on the erroneous remand to the EPC that entered an order permanently revoking a teaching certificate solely on court documents that showed a guilty plea and adjudication of guilt to a felony.

   29. Petitioner, in this case, has been given an opportunity and has failed to demonstrate that she possesses good moral character in spite of her felony conviction. Paschette v. Department of Education, 1984 Fla. Div. Adm. Hear. LEXIS 4850; DOAH Case No. 83-2926 (R.O. 3/15/84; F.O. 5/10/84).

   30. Petitioner has also failed to establish that she possesses good moral character in spite of the civil judgment against her. Her explanation of the circumstances related to the application for insurance policies and surrounding the death of her husband are inconsistent and contrary to the greater weight of the evidence.

   31. Count 1 of the Amended Notice of Reasons has not been proven erroneous.

   32. The State Board of Education has enacted Florida Administrative Code Rule 6B-4.009, which defines conduct that may result in suspension or dismissal of instructional personnel. That conduct includes immorality and moral turpitude as defined in the Rule.

       (2) 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.

       
       

       * * *

       
       

       (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 other fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

       
       

   33. It is not in fact necessary for a teacher to be charged with or be guilty of a crime to be disciplined for conduct reflecting gross immorality or moral turpitude. See Winn v. Popescu, 2006 Fla. Div. of Admin. Hear. LEXIS 408 (R.O. 8/23/06; F.O. 1/17/07). Petitioner's civil and criminal acts of dishonesty justify the conclusion that she is guilty of immorality and moral turpitude.

1. Counts 3, 4, and 5 of the Amended Notice of Reasons have not been proven erroneous.

2. Based on the establishment of Counts 3, 4, and 5, Count 2, the denial of the application for the commission of acts that would authorize revocation of a certificate, is appropriate.

RECOMMENDATION

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

RECOMMENDED that the Education Practices Commission enter a final order denying the application of Petitioner for a permanent educator's certificate, permanently barring her from reapplying, and authorizing the Department of Education to refuse to consider any application filed by Petitioner.

DONE AND ENTERED this 8th day of February, 2010, in Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

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 February, 2010.

COPIES FURNISHED:

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

325 West Gaines Street, Room 224 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

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

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305 Brandon, Florida 33511

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: 08-003618

Orders for Case No: 08-003618