STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT EUGENE GRIMSLEY,

vs.

Petitioner,

Case No. 16-7622PL

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on March 7, 2017, via video teleconference in Tallahassee and Pensacola, Florida, before Yolonda Y. Green, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Robert E. Grimsley, pro se

2220 Gloria Circle, Apartment 179

Pensacola, Florida 32514

For Respondent: J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435 STATEMENT OF THE ISSUE

Whether Petitioner demonstrated entitlement to a Florida educator’s certificate.

PRELIMINARY STATEMENT

On October 12, 2016, the Commissioner of Education issued a four-count Notice of Reasons setting forth her determination that Petitioner was not entitled to a Florida educator’s certificate, and identifying the statutory and regulatory violations warranting her determination.

On November 7, 2016, Petitioner filed an Election of Rights requesting a formal hearing. The record is silent as to when the Notice of Reasons was served on Petitioner. However, there has been no allegation that the request for hearing was not timely filed.

On December 30, 2016, this case was referred to the Division for a final administrative hearing.

On January 5, 2017, the undersigned issued a Notice of Hearing scheduling the final hearing for March 7, 2017, via teleconference in Tallahassee and Pensacola, Florida. The hearing was held as scheduled.

On February 3, 2017, Respondent filed an Unopposed Motion for Leave to Amend Notice of Reasons, and the undersigned granted the motion.

At final hearing, Petitioner testified on his own behalf and offered no exhibits. Respondent presented the testimony of: Andre Buckley, a Florida State University (FSU) police officer; Lieutenant (Lt.) Jason King, Motor Vehicle Division of Highway

Patrol in Panama City, Florida; and Randy Kossec, the Program Director of the Florida Board of Education Office of Professional Practices Services (Professional Practices Services). Respondent’s Exhibits R-1, R-2, R-5, and R-6 were admitted in evidence without objection.

A one-volume Transcript of the proceeding was filed on March 16, 2017. On March 20, 2017, a corrected Transcript was filed and the deadline for filing proposed recommended orders was changed to March 30, 2017. Both parties timely filed Proposed Recommended Orders which have been considered by the undersigned in the preparation of this Recommended Order.

Petitioner’s application for licensure is governed by the law in effect at the time the final licensure decision is made. See Lavernia v. Dep’t of Prof’l Reg., 616 So. 2d 53, 54 (Fla.

1st DCA 1993). Therefore, all statutory references shall be to the 2016 Florida Statutes, unless otherwise indicated.

FINDINGS OF FACT

1. Respondent, Pam Stewart, as Commissioner of Education, is authorized to issue Florida educator’s certificates to persons seeking certification to become school teachers in the state of Florida.

2. Petitioner, Robert Grimsley, is a high school teacher who teaches liberal arts and algebra. He is in his first year of teaching and currently teaches at Washington High School in

   
   

   Pensacola, Florida. He seeks to obtain an educator’s certificate to continue teaching.

3. On June 6, 2016, Petitioner submitted an on-line application for a Florida Educator’s Certificate in mathematics (grades 6-12). The application included a section for “Criminal offense record(s) (Report any record other than sealed or expunged in this section.)” Under that section, was the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?”

4. In his application, Petitioner answered affirmatively that he had entered into a pretrial diversion program related to a criminal offense. Based on the fields provided in the application, he disclosed the following criminal offense as indicated below:

   City Where Arrested	State	Date of Arrest	Charge(s)	Disposition
   Tallahassee	FL	1/2015	Less Than 20 Grams	Community Service

   
   

5. Petitioner did not disclose any other offenses in the application.

6. There was no definition of “arrest date” provided in the application. Mr. Kossec, program director of Professional Practices Services, testified that Petitioner could have included the dates for his Notice to Appear. However, the

   
   

   application did not indicate that such an option was available to applicants.

7. On August 3, 2016, Professional Practices Services sent Petitioner a letter requesting additional information regarding his criminal offenses so it could conduct an investigation of his criminal history. He submitted documents reflecting two offenses for which he completed a pretrial diversion program.

8. The submissions included the “No Information” for each offense, which disclosed the following:

   1. Case No. 14-000004MMA (related to January 31, 2013 offense); Disposition:

      No Information due to completed Misdemeanor Diversion Program (filed on February 24, 2014).

      
      

   2. Case No. 15MM00158 (related to January 20, 2015 offense); Disposition: No Information due to completed Diversion Program (filed on March 6, 2015).

      
      

9. The parties stipulated to the following facts regarding Petitioner’s criminal history and application:

   1. On or about December 31, 2013, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, the Applicant was issued a Notice to Appear by law enforcement for a criminal violation. Applicant was charged with Possession of Marijuana and entered into a pre-trial [sic] diversionary program.

      
      

   2. On or about January 20, 2015, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, law enforcement arrested Applicant for possessing marijuana. Applicant was charged

      
      

      with Possession of Marijuana and entered into a pre-trial [sic] diversionary program.

      
      

   3. On or about June 6, 2016, Applicant submitted an application for an educator’s certificate. In said application, Applicant was asked the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?” Applicant failed to disclose the fact that he entered into a pre-trial [sic] diversionary program for the December 31, 2013--Marijuana Possession arrest.

      
      

10. There is no dispute that Petitioner had two criminal offenses for which he participated in a pretrial diversion program. At hearing, Petitioner testified that he did not list the December 2013 offense on the application because he received a Notice to Appear for that offense. Petitioner testified that he did not understand that being released with a Notice to Appear1/ was an arrest because he was not physically arrested.

11. The two officers involved in the respective arrests testified at hearing and described their detainment of Petitioner. On December 31, 2013, Lt. King stopped Petitioner’s vehicle for driving in excess of the posted speed limit. He ultimately found marijuana in the vehicle. Lt. King read Petitioner his rights, issued him a Notice to Appear, and released him. Lt. King did not handcuff Petitioner at any point during the traffic stop.

    
    

12. Lt. King testified that he explained to Petitioner that although he was not being physically handcuffed and transported to the local jail, he was placed under arrest. Petitioner did not recall any explanation that a Notice to Appear is still an arrest. Lt. King’s offense report, completed on the same date as the incident, did not reference any explanation to Petitioner that the Notice to Appear was an actual arrest. Petitioner’s testimony is found to be credible.

13. The detainment for the second incident was different from the first. On January 20, 2015, Officer Andre Buckley, a FSU police officer, responded to a complaint of the smell of burnt marijuana coming from a restroom on the campus of FSU. Officer Buckley arrived at the suspected restroom and confirmed the smell of burnt marijuana. After discovering Petitioner in the restroom and in possession of marijuana, Officer Buckley placed Petitioner in handcuffs. Another officer transported Petitioner to the Leon County jail for booking.

14. Despite Petitioner’s mistaken belief regarding the December 2013 arrest, he was indeed arrested.

15. The facts here demonstrate that Petitioner did not understand that he was arrested for the December 2013 offense and, as a result, was confused regarding whether he should include the offense in the application. There was no effort to conceal his participation in the pretrial diversion program for

    
    

    the December 2013 offense because he submitted documents reflecting the information upon request. The undersigned finds that he simply made an error when completing the application.

16. Both misdemeanor criminal offenses occurred while Petitioner was a college student. Since completing the diversion programs, he has earned his Bachelor of Science degree in Statistics. In his letter to the Professional Practice Services dated July 20, 2016, he indicated that he has discontinued using drugs. Further, he has taught for approximately one year without incident.

17. Petitioner’s actions demonstrate that Petitioner had no intent to conceal his record, engaged in no fraudulent conduct in completing the application, and did not fail to maintain honesty in the submission of the application so as to warrant denial of an educator’s certificate.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto. §§ 120.569 and 120.57(1), Fla. Stat.

19. The Department of Education is the state agency responsible for licensure of instructional personnel for the public schools. § 1012.55, Fla. Stat.

20. The Commissioner of Education is the state officer responsible for investigating and prosecuting allegations of

    
    

    misconduct against teachers and licensure applicants. See

    
    

    § 1012.796(6), Fla. Stat.

    
    

    Burden of Proof

    
    

21. As the party seeking issuance of an educator’s certificate, Petitioner has the burden of proving by a preponderance of evidence that he satisfies the applicable standards and requirements. Dep't of Banking & Fin. v. Osborne

    Stern & Co., 670 So. 2d 932 (Fla. 1996).

    
    

22. Although Petitioner has the ultimate burden notwithstanding, Respondent has the burden of presenting evidence of any statutory or regulatory violations alleged in the Notice of Reasons as sufficient to warrant denial of the application. Osborne Stern & Co., 670 So. 2d at 934; Comprehensive Med. Access, Inc. v. Off. of Ins. Reg., 983 So. 2d

    45 (Fla. 1st DCA 2008).

    
    

23. Petitioner applied for an educator’s certificate in mathematics. The criteria for licensure are found in section 1012.56(2), Florida Statutes. There has been no allegation that Petitioner does not meet the basic requirements.

    Alleged Statutory Violations

    
    

24. In the Notice of Reasons, Respondent denied Petitioner’s application for an educator’s certificate based on alleged violations of section 1012.795(1)(a) and (j) and Florida Administrative Code Rule 6A-10.081(2)(c)1. and (8).

    
    

25. Section 1012.56(12)(a) provides:

    
    

    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.

    
    

26. Section 1012.795(1) provides in pertinent part:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:

       
       

       1. Obtained or attempted to obtain an educator certificate by fraudulent means.

          
          

          * * *

          
          

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

          
          

          Count 1

          
          

27. As a basis for the denial of Petitioner’s application for an educator’s certificate, Count 1 alleges that:

    The applicant is in violation of section 1012.795(1)(a), Florida Statutes, in that Applicant obtained or attempted to obtain a teaching certificate by fraudulent means.

    
    

28. In order to demonstrate that an individual performed an act fraudulently, there is a requisite degree of deliberative intent. See Fla. Bar v. Forrester, 818 So. 2d 477, 483 (Fla. 2002)(“This court has held that ‘in order to find that an attorney acted with dishonesty, misrepresentation, deceit, or fraud, the Bar must show the necessary element of intent.’ Further, this Court has held that ‘in order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing.’” (internal citations omitted)). The error in Petitioner’s application was based on his confusion regarding the information requested. It was not suggestive of deliberate intent to submit fraudulent information. Thus, rule 6A-10.081(2)(c)8. does not warrant denial of Petitioner's application for an educator’s certificate.

    
    

    Count 2

    
    

29. As a basis for denial of Petitioner’s application for an educator’s certificate, Count 2 alleges that:

    The Applicant is in violation of section 1012.795(1)(j), Florida Statutes, in that Applicant has violated Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

    
    

30. Although listed as a separate count, it is clear that no specific act is alleged in Count 2. Rather, Count 2 takes those acts which were made the bases for denial in Counts 3 and 4, and adopts them as grounds for denial of an application.

    Thus, the substance of Count 2 is as set forth in Counts 3

    
    

    and 4. Therefore, the analysis of Counts 3 and 4 is applicable to Count 2. As set forth in detail below, there is no basis to warrant denial of Petitioner’s application as there is insufficient evidence to demonstrate that he violated Principles of Professional Conduct as alleged in the Notice of Reasons.

    Alleged Rule Violations

    
    

31. Rule 61A-10.081(2) provides in pertinent part:

    
    

    1. Florida educators shall comply with the following disciplinary principles.

    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.

    
    

    * * *

    
    

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

    
    

    1. Shall maintain honesty in all professional dealings.

    
    

    * * *

    
    

    8. Shall not submit fraudulent information on any document in connection with professional activities.

    
    

    Count 3

    
    

32. As a basis for the denial of Petitioner’s application for an educator’s certificate, Count 3 alleges that:

    The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(2)(c)1, Florida Administrative Code, in that Applicant has failed to maintain honesty in all professional dealings.

    
    

33. The basis for Count 3 is that Petitioner failed to disclose on his application the fact that he entered into a pretrial diversion program for the December 2013 offense.

34. The errors in the application do not demonstrate that Petitioner had any intent to conceal information or be less than honest in completing the application. He answered truthfully that he had participated in a pretrial diversion program, and testified that he completed the application to the best of his ability.

35. Petitioner testified that he had participated in two diversion programs. He credibly testified that he was confused by the application because it requested an arrest date and

    
    

    location. It was not clear to him that a Notice to Appear is also an arrest and thus, the December 2013 offense should have been disclosed on the application. The fact that he provided a copy of the “No Information” pleadings for both cases to Respondent demonstrates that he had no intent to be dishonest in submission of his application. On these facts, it is found that Petitioner filed an inaccurate application, but not that he filed an application with dishonest intent.

36. Respondent argues in her Proposed Recommend Order that Petitioner failed to maintain honesty in all professional dealings with police officers as allegations to support a violation of rule 6A-10.081(2)(c)1. However, those facts were not alleged in the Notice of Reasons. Therefore, they cannot be considered when analyzing whether he violated the rule.

37. It has been established that making reference to a statutory violation without supporting factual allegations does not place Respondent on notice of the charges against him. Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla.

    1st DCA 1996)(reference to the statute without supporting factual allegation insufficient to place Appellant on notice of charges against him). Here, the Notice of Reasons fails to allege any facts that Petitioner failed to maintain honesty in his professional dealings with law enforcement or place

    
    

    Petitioner on notice of the charges so he could defend himself. Therefore, the undersigned will neither consider nor find a violation related to any dealings with law enforcement as they were not alleged in the Notice of Reasons and such a ruling would be a violation of due process.

    Count 4

    
    

38. As a basis for the denial of Petitioner’s application for an educator’s certificate, Count 4 alleges that:

    The Applicant is in violation of Rule 6A- 10.081(2)(c)8, Florida Administrative Code, in that he has submitted fraudulent information on a document in connection with professional activities.

    
    

39. In order to demonstrate that an individual performed an act fraudulently, there is a requisite degree of deliberative intent. See Fla. Bar v. Forrester, supra. As set forth in the

analysis of Count 1, the error in Petitioner’s application was based on his legitimate confusion regarding the information requested based on the imprecision of Respondent’s own form. It was not suggestive of deliberate intent to submit fraudulent information. Thus, rule 6A-10.081(2)(c)8. does not warrant denial of Petitioner's application for an educator’s certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission

enter a final order granting Petitioner, Robert Eugene Grimsley’s, application for a Florida educator’s certificate.

DONE AND ENTERED this 20th day of April, 2017, in Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2017.

ENDNOTE

1/ Pursuant to Florida Criminal Procedure Rule 3.125, unless indicated otherwise, notice to appear means a written Order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education Turlington Building, Suite 316

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Robert E. Grimsley

2220 Gloria Circle, Apartment 179

Pensacola, Florida 32514 (eServed)

J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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 (eServed)

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: 16-007622

Orders for Case No: 16-007622