RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION, Petitioner, vs. CALVIN CHIN, Respondent. / | Case No. 21-1658PL |
RECOMMENDED ORDER
A duly-noticed final hearing was conducted in this case on July 16, 2021, via Zoom teleconference, before Administrative Law Judge Suzanne Van Wyk of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Ron Weaver, Esquire
Post Office Box 770088 Ocala, Florida 34477-0088
For Respondent: Mark Herdman, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clearwater, Florida 33761-1526
STATEMENT OF THE ISSUES
Whether Respondent violated section 1012.795(1)(d) or (1)(f), Florida Statutes (2019), and, if so, what penalty should be imposed.1
1 Unless otherwise noted, all references to the Florida Statutes herein are to the 2019 version, which was in effect when the actions alleged in the Administrative Complaint took place.
PRELIMINARY STATEMENT
On October 14, 2020, Petitioner filed an Administrative Complaint against Respondent, alleging violations of section 1012.795(1)(d) and (1)(f). Respondent subsequently filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing. The case was referred to the Division of Administrative Hearings (“Division”) on May 21, 2021, and assigned to the undersigned.
The case was initially set for final hearing on July 16, 2021, live in Ocala, Florida; but, due to the unavailability of a hearing space of sufficient size to allow the parties to safely socially-distance during the COVID-19 pandemic, the final hearing was conducted via Zoom teleconference on that date.
The final hearing commenced as scheduled. Petitioner presented the testimony of Joanne Mandic, Respondent’s life partner, and introduced Exhibits 1 through 4, 5A, B, C, and D, which were admitted into evidence.
Respondent testified on his own behalf and presented the testimony of Stephen Ayers, Marion County Schools director of student assignment and school choice; Bobby James; Ryan Malloy; Linda Malloy; and Sharon Lambert. Respondent introduced Exhibits 1 through 3, which were admitted into evidence.
A one-volume Transcript of the proceedings was filed with the Division on August 24, 2021. The parties timely filed Proposed Recommended Orders, which have been taken into consideration in preparing this Recommended Order.
FINDINGS OF FACT
Petitioner is the chief educational officer of the state, who recommends members for appointment to the Education Practices Commission—the statewide commission with the authority to discipline Florida educators. See
§§ 1001.10(1), 1012.79(1), and 1012.795(1), Fla. Stat. (2021).
Respondent, Calvin Chin, holds State of Florida Educator’s Certificate 737639, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2026.
Respondent has served as an educator for 27 years, primarily with the
Marion County School District (“District”). He was first employed by the
District as a math teacher at Dunnellon High School (“Dunnellon”) in 1994,
where he continued for 12 years.
Respondent was promoted to dean of students at Dunnellon in 2002 and served in that capacity through 2012. During that time-frame, Respondent was also a part-time math instructor at a local community college.
Respondent served as dean of students for College Park Elementary School from 2012 through 2016, when he returned to Dunnellon to continue teaching math for college readiness and dual enrollment math for students enrolled for college-level credit math instruction.
Respondent also had a 19-year career with the U.S. Marine Corps. He originally enlisted in 1978 after graduating from high school, then joined the Marine Reserves while he pursued his college education. Respondent graduated from the University of Florida in 1983 and became a commissioned officer through the Reserve Officer Training Corps (“ROTC”) program in December of that year. Respondent served in the Marine Corps through 1994.
In 1996, Respondent established the Young Marines at Dunnellon, a program similar to ROTC that teaches discipline and military structure to youth.
Respondent is passionate about teaching and shaping the lives of young people. Respondent has never had any disciplinary action taken against his
license or against him by either the District or any school at which he has taught.
Relationship with Joanne Mandic
Respondent and Joanne Mandic are not married, but have been in a relationship for 19 years. Respondent and Ms. Mandic have lived together as a couple for over 18 years.
The couple has one child together, C.C., who lives with her parents.
C.C. was 13 years old and home-schooled by Ms. Mandic at all times relevant hereto.
Ms. Mandic has another child, Nyasha Mandic-Mandaza, from a prior relationship. Ms. Mandic-Mandaza was 22 years old at all times relevant hereto. She does not live with her mother and Respondent; however, on the date of the incident, Ms. Mandic-Mandaza was staying at their home. October 25, 2019, Incident
On Friday, October 25, 2019, Respondent came home from Dunnellon and prepared himself an alcoholic drink. At some point during the evening, he asked Ms. Mandic what she was preparing for dinner and she responded that she was too tired to cook.
Respondent became upset that Ms. Mandic was not preparing dinner. By this time, Respondent had consumed several alcoholic drinks, and he and Ms. Mandic got into a verbal altercation about dinner.
During the verbal altercation, Respondent came out of his bedroom
holding his handgun. He said to Ms. Mandic, “Don’t piss me off. I am a Marine and I know how to shoot,” or similar words. Respondent “racked” the gun, which made a distinctive sound audible to Ms. Mandic. Afterward, Respondent returned to his bedroom.
Ms. Mandic is familiar with the gun and familiar with Respondent’s
habit of storing the gun and ammunition separately. According to
Ms. Mandic, the gun was unloaded when Respondent brought it out of the
bedroom. Ms. Mandic testified that she knew the gun was unloaded and that she was not in fear of Respondent.
Ms. Mandic testified that this incident was not indicative of her relationship with Respondent and that he has never been violent toward either her or the children. She further testified that there has been no similar incident since that date.
C.C. was home in her bedroom and heard, but did not see, the altercation between her parents. No evidence was introduced regarding C.C.’s reaction to the incident or its effect on her.
Ms. Mandic-Mandaza both heard and saw the altercation between Respondent and her mother. Ms. Mandic-Mandaza had come to the house after work and was preparing to leave for the evening, when she stepped into the hallway in response to the verbal altercation. She saw Respondent walking down the hallway with his handgun. Ms. Mandic-Mandaza was in fear as Respondent appeared to be approaching her in the hallway; however, Respondent passed by her and moved towards her mother, who was in the kitchen.
Ms. Mandic-Mandaza retreated to a bedroom where she called the police to report the incident, then left the house shortly thereafter.
Respondent’s Arrest
In response to the 911 call, Marion County Deputy Sheriffs Joseph Diaz and Christopher White, as well as Sergeant Moore, were dispatched to the Chin home.
Both Respondent and Ms. Mandic were interviewed by the officers.
During his interview with the officers, Respondent was forthcoming about his actions. He demonstrated to the officers how he held and racked the gun, and repeated the statements he made as he held the gun.
Ms. Mandic downplayed the incident when she was interviewed,
describing Respondent’s actions as simply “showing us his handgun.”
Deputy White also contacted Ms. Mandic-Mandaza via telephone and interviewed her, as well as meeting with her to take her statement. She was reticent to discuss the incident with Deputy White and expressed that she did not want to get Respondent in trouble.
Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the Commission of a Felony, and was incarcerated from October 25 to November 2, 2019.
On November 21, 2019, the State Attorney for the Fifth Judicial
Circuit filed an “Announcement of No Information” on the allegation of Use of a Firearm During the Commission of a Felony and charged Respondent solely with Aggravated Assault with a Deadly Weapon (without Intent to Kill).
On March 11, 2020, Respondent plead nolo contendere to the lesser charge of Improper Exhibition of a Firearm, which is a misdemeanor defined in section 790.10, Florida Statutes, and adjudication was withheld. Respondent received credit for eight days served, was placed on a year of probation, assessed court and prosecution costs of $350, and was required to submit to random alcohol screens at least two times per month during probation.
Subsequent Events
Following his incarceration, Respondent voluntarily participated in mental health counseling and alcohol evaluation. Respondent testified that he “talked about drinking” with the counselor. Respondent further testified that, since the incident, he has “not been drunk like that.”
The District placed Respondent on administrative leave with pay through December 2020. Respondent was placed on administrative leave without pay in December 2020, but returned to teach at Dunnellon in March 2021 just before spring break. Following spring break, due to the COVID-19 pandemic, the school moved classes to an online format and Respondent continued teaching in that format throughout the remainder of
the 2020-2021 school year. Respondent remains employed by the District and is currently teaching at Dunnellon.
Neither Dunnellon nor the District imposed any disciplinary action against Respondent due to the incident and his subsequent arrest.
Respondent testified that neither any student nor any fellow teacher has questioned him or made any remark about the incident or his arrest.
Petitioner introduced no evidence of any press coverage or community concern regarding the incident.
Character Witnesses
Stephen Ayers is the director of student assignment and school choice for the District. Mr. Ayers has worked in various educational capacities with the District for 27 years, including as a math teacher, dean, assistant principal, principal, and coordinator for the District.
Mr. Ayers met Respondent in 1994 when they were both pursuing their graduate degrees. Mr. Ayers later worked at Dunnellon as assistant principal, then principal, while Respondent served as dean of students. In those capacities, Mr. Ayers was Respondent’s supervisor at Dunnellon.
Mr. Ayers described Respondent as “an exemplary dean” and “a mentor with … youngsters.”
Mr. Ayers was aware of Respondent’s October 25, 2019 arrest and “the basis and reason for that arrest.” Mr. Ayers testified that he has no doubt Respondent can continue to perform his duties effectively and does not consider Respondent’s effectiveness in the community to be diminished by that arrest.
Bobby James retired from the District in 2018 after serving the District for 47 years as a teacher, coach, principal, school board member, and school board chairman for three terms.
Mr. James was the principal at Dunnellon in 1994 and hired Respondent as a math teacher. Mr. James remained principal for 12 years and moved Respondent into the dean of student’s position. Mr. James
initiated the Young Marines program at Dunnellon and chose Respondent as the first instructor in the program.
After leaving Dunnellon for a position with the school board, Dunnellon remained a school in which Mr. James, as a school board member, exercised oversight authority. Mr. James frequently visited Dunnellon and met Respondent and administrative leaders there.
Mr. James described Respondent’s performance as an educator and leader of young people as “exceptional,” especially in working with youth who have difficult life challenges.
Mr. James was familiar with Respondent’s arrest and “had heard” that a firearm was involved in the October 25, 2019 incident. He was not aware of the specific statements alleged to have been made by Respondent to
Ms. Mandic.
During cross-examination, Mr. James admitted that, if Respondent
had said, “Don’t piss me off, I have a gun and I know how to use it,” that
would not be appropriate conduct for an educator, or for that matter, “for any person.”
However, Mr. James testified that, given his 25 years of experience with Respondent in service to the District, even knowing the specifics of the incident, he believes Respondent can remain an effective educator. Mr. James testified that Respondent’s character with students and District employees is proven, and indicated that, if he were in a position to do so, Mr. James would rehire Respondent.
Ryan Malloy met Respondent through the Young Marines program in middle school when Respondent was the commanding officer of the program (for both high school and middle school). Mr. Malloy left the Young Marines program before high school but has maintained a mentoring relationship with Respondent through his recent graduation from the University of Florida. Respondent taught Mr. Malloy the game of golf and the two play golf regularly.
Mr. Malloy testified that Respondent has served as a constant mentor in his life; that when he is really struggling with something, he talks to Respondent. He related that Respondent encourages him to consider both sides of a situation and avoid quick judgments.
Mr. Malloy was generally familiar with Respondent’s arrest and the circumstances surrounding the arrest. Mr. Malloy testified that Respondent’s effectiveness as a mentor has not been diminished by the incident. He testified that Respondent has helped him acknowledge his own mistakes and learn from them. Mr. Malloy stated that Respondent taught Mr. Malloy that true character is built by taking ownership of one’s mistakes and using them for self-improvement. Mr. Malloy believes that is an important trait for all teachers to be effective role models.
Linda Malloy, Mr. Malloy’s mother, retired from the District in
May 2019, was a fellow teacher with Respondent at Dunnellon for 24 years, and second in command of the Young Marines with Respondent for 10 years. She described Respondent as strict, honest, and fair. She admired his ability to reach students through Young Marines and help them turn their lives around when they were headed “down the wrong path.”
Ms. Malloy was familiar with Respondent’s arrest and the fact that a gun was involved in the October 25, 2019 incident. Ms. Malloy testified that Respondent can remain an effective educator because she “believe[s] in his core values.” She trusted him with her own child and still would to this day. Ms. Malloy has not heard anyone in the education community suggest that Respondent should not continue to teach.
Sharon Lambert has taught at Dunnellon for 22 years and currently
teaches business technology and serves as the teachers’ union representative.
Respondent was in charge of the Young Marines when Ms. Lambert began teaching at Dunnellon. Her impressions of Respondent as an educator are that he cares about his students, wants to help them succeed, and “would do anything to help them learn what he’s supposed to teach.”
Ms. Lambert was familiar with Respondent’s arrest. She testified that the incident has not had any negative affect on his ability to teach his students. To her knowledge, since Respondent returned to the classroom, there has been “no talk amongst the students or the teachers” concerning the incident or Respondent’s ability to teach.
Respondent also introduced a letter from Jay Easom, who served as president of the Dunnellon School Advisory Council (“SAC”) from 2007-2010 and is familiar with Respondent in that capacity, as well personal conversations with him. The letter relates as follows:
I am writing on behalf of “Captain Chin.” I am acquainted with him for more than ten (10) years. I’ve had the opportunity to know him in his capacity of leadership at our local high school as well as our personal conversations detailing his desire to be responsible to his family. He always plans well and stands firmly in his commitment to reach his personal goals for the benefit of his family.
I can’t tell you how surprised I was when [Respondent] shared with me the events of October 25, 2019 that resulted in him being charged. I instantly detected his regret and disappointment. The idea of [Respondent] bringing harm to anyone escapes my consideration especially in the handling of a firearm. My children attended and graduated from [Dunnellon]. I know [Respondent] in this period during my participation as president of the [SAC] from 2007-10. I learned more about [Respondent] when as a part of our meetings, he introduced proud young men and women to share their outlook for the future that had joined Young Marines. He provided a path of personal development for them and I am sure that his peers will tell you that his hard work, dedication, and friends in the community supported the program because of his commitment.
I expect that [Respondent] has a plan to be sure that there will never again be such an event in his
life as this. I hope that you may have the opportunity to give him further consideration as his employer, students, peers, and friends have over a very difficult year and a half. Thank you.
Respondent also introduced the following letter from Jeffery Daniel Ratliff:
To whom it may concern,
Captain Calvin Chin has been, and still is, one of my largest influences throughout my life. I still remember the very first time I met him, and that was over 20 years ago. It was my first day in a new school, an entirely new state, at [Dunnellon]. While waiting with my parents in the front office to get registered for classes, in walks this Marine wearing freshly starched cammies with flickering silver and gold on his uniform, and it was at that moment that I decided to become a Marine. Over my high school career Captain Chin shaped and guided me in a way that only a true leader can. When my temper or overzealousness got the best of me, he did not hesitate to punish me but always ensured that a lesson was learned. When I was unable to understand the mathematic teachings of Mr. Gaitanis’ overeducated ramblings, Captain Chin would break it down simply for me and insist that I already knew how to do it. And he was right!
When I left for Marine Corps bootcamp, he gave me some last-minute advice, but insisted that I would do fine … as long as I didn’t ask too many questions. He was right about that too. When I got back from Iraq and needed another Marine to vent to about what I saw, he was there for me. He wasn’t judgmental at all. After the Young Marines program was removed from the high school, he chose to keep it active and open it up for all ages from 8 to eighteen. He even encouraged me to come volunteer after I had gotten out of the Marines. I did not have the patience or understanding to deal with such young children at the time, but Captain Chin did.
Even though I have two loving parents who are still together, and love me very much, I still refer to Captain Chin as my Adopted Asian Dad. I have seen this man motivate, influence and inspire so many young minds over the years that I lose count. As Dean at the high school, the kids who he had to punish still respected him and find him years later to tell him that they are doing so much better now, because he showed them respect first. It is impossible to fit everything that Captain Chin has done to help me, influence me on one page. Just know that this is one of the most selfless human beings I have ever met, that has committed his entire life to serving and helping others, and will continue to do so until he is no longer physically able.
Respondent also introduced his final evaluation from the District for the 2020-2021 school year on which he received the rating of “Effective” on all four instructional practice domains in which he was assessed.
Respondent became emotional during his testimony at the final hearing. Petitioner introduced, and played for the undersigned, body-camera footage from the responding officers on October 25, 2019. Respondent was ashamed and remorseful of his behavior on the night of the incident. Respondent was dismayed by his own behavior and it obviously pained him to watch the video footage.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2021).
This is a proceeding in which Petitioner seeks to discipline
Respondent’s educator’s certificate.
Charges in a disciplinary proceeding must be strictly construed, with any ambiguity construed in favor of the licensee. Elmariah v. Dep’t of Prof’l
Reg., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor v. Dep’t of Prof’l Reg., 534 So. 2d 782, 784 (Fla. 1st DCA 1988).
A license may only be disciplined for those matters specifically referenced in an administrative complaint against them. Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep’t of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep’t of Prof’l Reg., 563 So. 2d 805 (Fla. 1st DCA 1990).
Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As stated by the Florida Supreme Court:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Administrative Allegations
The Administrative Complaint contains the following material allegations:
On or about October 25, 2019, Respondent pulled a gun out, in the presence of his girlfriend, and told her “don’t piss me off. I have a gun and I know how to use it,” or words to that effect. As a result, Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the
Commission of a Felony. On or about March 11, 2020, Respondent plead nolo contendere to Improper Exhibition of a Firearm and adjudication was withheld.
The evidence was of such weight that the undersigned has a firm conviction in the truth of those material allegations. Petitioner has proven the material allegations of the Administrative Complaint by clear and convincing evidence.
Based on the factual allegations in the Administrative Complaint, Respondent is charged with the following alleged statutory violations:
Count 1: The Respondent is in violation of section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
Count 2: The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been convicted of or found guilty, has had adjudication withheld for, or has plead guilty or nolo contendere to a misdemeanor, felony, or any other criminal charge other than a minor traffic violation.
Count 1
The standards relating to gross immorality and acts of moral turpitude are adopted in Florida Administrative Code Rule 6A-10.083. With regard to gross immorality, the rule provides as follows:
For the purpose of Section 1012.795(1)(d), F.S., the term gross immorality shall be defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard for proper moral standards. Further, the conduct brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.
Without limiting the conduct here defined, conduct listed below in paragraphs (2)(a)-(c), shall prompt review for gross immorality. In determining whether the conduct, act or omission meets the definition of gross immorality, the factors found in subsection (4) shall be considered.
An act or omission, regardless of whether the individual is charged with or convicted of any criminal offense, which would constitute a felony or a first-degree misdemeanor under the laws of the State of Florida or equivalent law in another state or U.S. Territory, or laws of the United States of America.
Respondent’s conduct on October 25, 2019, was inconsistent with
standards of good morals. Threatening Respondent’s household with a gun
was serious, rather than minor in nature. However, based on the
overwhelming testimony from Respondent’s colleagues, former students, and peers, the conduct in this case did not bring either Respondent or the education profession generally into public disgrace or disrespect. Nor did it impair Respondent’s service in the community. Respondent continues to be employed by the District as a math instructor at Dunnellon and has been rated as effective on his evaluations. There was no evidence that he attained any notoriety from his arrest or that the incident was covered by the press or has been discussed among students, faculty, or parents.
The charge of Aggravated Assault with a Deadly Weapon Without Intent to Kill is a felony under Florida law, thus, under rule 6A-10.083(2), Respondent’s actions must be “review[ed] for gross immorality.”
The rule requires application of the following factors to determine whether the conduct meets the definition of gross immorality:
The educator’s dishonesty or deception;
The educator’s use, attempted use or threatened
use, of violence;
The educator’s malice or cruelty;
The educator’s deliberation, premeditation, or
contemplation of an act;
The educator’s repeated behavior that displays a
disregard for law, order, or human safety;
The harm, injury or insult to the victim;
The age, ability or limitation of the victim;
The benefit derived by the educator;
The presence or absence of mitigating factors, such as the educator’s age, experience, mental illness, or actions in self-defense.
Analysis reveals that few of the factors apply.2 Undoubtedly, Respondent’s actions constituted a threat of violence. However, they were not premeditated and are not indicative of a pattern of behavior that displays a disregard for law, order, or human safety. Further, when interviewed by law enforcement officers, Respondent was completely forthcoming, and did not attempt to deceive the officers.
Respondent’s actions did place Ms. Mandic-Mandaza in fear for her safety, as well as that of her mother. However, her ability to remove herself from the situation was not hindered by Respondent; and was comfortable enough with the situation to leave the house, with her mother and half-sister remaining with Respondent, before the arrival of the police. When interviewed by law enforcement, Ms. Mandic-Mandaza was reticent to recount the events because she did not want to get Respondent into trouble.
2 Petitioner’s Proposed Recommended Order lists, but does not analyze, these factors in light
of the facts. After listing the factors, Petitioner simply concludes that: “Threatening
Ms. Mandic with a handgun, in the presence of her two children, one a minor, whether loaded or not, put fear in the mind of Nyasha Mandic-Mandaza. That is obviously why she left the house and immediately called 911.”
As to the age, ability, or limitations of the victims, it is significant that both Ms. Mandic and Ms. Mandic-Mandaza are adults. Also, Ms. Mandic was not in fear of harm because she knew that the gun was unloaded. Although
C.C. was a minor, no evidence was introduced as to any harm to C.C. resulting from the incident.
Respondent derived no personal benefit from the incident.
When applying the factors from the rule, the undersigned concludes
that Respondent’s actions do not constitute gross immorality.
The rule contains the following with respect to an act of moral turpitude:
For the purpose of Sections 1012.795(1)(d) and 1012.796, F.S., an act of moral turpitude shall be defined as a crime, regardless of whether the individual is charged or convicted, that is a felony or a first degree misdemeanor under the laws of the State of Florida or equivalent law in another state or U.S. Territory, or laws of the United States of America, 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.
The evidence does not support the conclusion that Respondent’s actions were base, vile, or depraved. Respondent was drunk and behaved recklessly. His behavior was unacceptable, but not depraved, vile, or base.
Petitioner did not prove that Respondent violated section 1012.795(1)(d) by committing acts of either gross immorality or moral turpitude.
Petitioner did not introduce evidence sufficient to sustain Count I of the Administrative Complaint.
Count 2
In Count 2, Petitioner maintains that Respondent is in violation of section 1012.795(1)(f), which authorizes discipline against an educator’s certificate if the educator:
Has been convicted or found guilty of, has had adjudication withheld for, or has pled guilty or nolo contendere to a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.
Respondent plead nolo contendere to improper exhibition of a firearm, which is a first-degree misdemeanor defined in section 790.10.
Petitioner introduced facts sufficient to sustain Count 2 of the Administrative Complaint.
Discipline to be Imposed
The penalty range for a violation of section 1012.795(1)(f) is from reprimand to revocation. See Fla. Admin. Code R. 6B-11.007(2). In this case, Petitioner is seeking a one-year suspension of Respondent’s license.
Pursuant to subsection (3) of the rule, the following mitigation and aggravating factors may be considered in deviating from the penalties recommended in subsection (2):
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the violation;
The number of times the educator has been previously disciplined by the Commission;
The length of time the educator has practiced and the contribution as an educator;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the educator’s
livelihood;
Any effort of rehabilitation by the educator;
The actual knowledge of the educator pertaining to the violation;
Employment status;
Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation;
Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;
Actual negligence of the educator pertaining to any violation;
Penalties imposed for related offenses under subsection (2), above;
Pecuniary benefit or self-gain inuring to the educator;
Degree of physical and mental harm to a student or a child;
Present status of physical and/or mental condition contributing to the violation including recovery from addiction;
Any other relevant mitigating or aggravating factors under the circumstances.
Multiple mitigating factors apply to Respondent’s case. Respondent’s offense, unlawful display of a firearm, was not a severe offense, and Respondent presented no danger to the public; the incident occurred almost two years ago and Respondent has not repeated the offense or engaged in any
similar behavior; he has never been previously disciplined by either the District or Petitioner; the offense resulted in placing Ms. Mandic-Mandaza in fear for her safety, but Respondent caused no other actual damage; Respondent is currently employed as a teacher and is rated effective; Petitioner has not offered evidence that the penalty would have a deterrent effect since Petitioner has sought counseling, complied with treatment requirements, and not repeated an episode of heavy drinking; a one-year suspension could have significant adverse effects on Respondent’s teaching career; Respondent realized no pecuniary benefit or self-gain; and Respondent caused no harm to any student. Moreover, Respondent has served as an educator for 27 years and has made significant contributions at Dunnellon, and other schools, including the Young Marines program and personally mentoring students.
While Respondent pled nolo contendere to a misdemeanor offense, Petitioner has not introduced facts sufficient to support discipline of Respondent’s teaching certificate based on that incident.
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 that Respondent violated section 1012.795(1)(f), but, based on the Findings of Fact herein, including substantial factors in mitigation, take no action against Respondent’s certificate.
DONE AND ENTERED this 29th day of September, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
S
SUZANNE VAN WYK
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 29th day of September, 2021.
Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 | Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Randy Kosec, Jr., Chief Office 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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 29, 2021 | Recommended Order | Petitioner proved that Respondent violated s.1012.795(1)(f), but based on mitigating factors, no discipline should be imposed. |
