The Issue Whether Petitioner demonstrated entitlement to issuance of a Florida Educator?s Certificate.
Findings Of Fact Respondent, as Commissioner of the Florida Department of Education, is charged with the duty to issue Florida Educator's Certificates to persons seeking authorization to become school teachers in the state of Florida. Petitioner is a second-grade teacher. She is in her third year of teaching. Pending action on her application for an Educator's Certificate, Petitioner has taught under the authority of temporary Statements of Eligibility. She currently teaches at George W. Monroe Elementary School in Quincy, Florida. On or about April 17, 2012, Petitioner submitted an on- line application for a Florida Educator's Certificate in Elementary Education. The application included a field with the heading “CRIMINAL OFFENSE RECORD(S)(Report any record other than sealed or expunged in this section). In her application, Petitioner disclosed the following criminal offenses, their dates, and their dispositions: Affray - June 2002 - Probation Conspiracy to Possess Marijuana - August 2006 - Guilty/Adjudicated Petty Theft - April 2000 - Pretrial Diversion Disorderly Conduct - February 2001 - Probation DWLS - February 2001 - Probation In conjunction with her application, Petitioner submitted information to substantiate those offenses that she could remember, as well as a set of fingerprints. Included in Petitioner?s submittals to Respondent was a copy of the Judgment in a Criminal Case, United States of America v. Torreya Haynes, Case No. 4:06cr10-03(S), from the United States District Court for the Northern District of Florida, dated August 3, 2006. Petitioner stipulated that she is the person identified in the Judgment as Torreya Haynes. The acts upon which the Judgment was based concluded on August 15, 2005. The Judgment established that Petitioner pled guilty to the offense of Conspiracy to Distribute Marijuana, and was sentenced to a three-year term of probation and payment of a special monetary assessment of one-hundred dollars. The parties stipulated to the following facts regarding Petitioner?s criminal record: On or about March 5, 2000, the Applicant was arrested and charged with Petit Theft in Leon County, Florida. The Applicant entered into a pre-trial diversion program and a “No Information” was filed on the charge. On or about July 20, 2000, the Applicant was arrested and charged with Affray in Leon County. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about August 20, 2001, the Applicant was arrested and charged with Disorderly Conduct/Affray in Leon County, Florida. The Applicant entered into a pre- trial diversion program and a “No Information” was filed on the charge. On or about June 9, 2004, the Applicant was arrested and charged with Battery in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about August 4, 2004, the Applicant was arrested and charged with Possession of Marijuana in Leon County, Florida. On or about November 15, 2004, the Applicant pled nolo contendere to the charge and the court withheld adjudication. On or about February 2, 2005, the Applicant was arrested in Miami-Dade County, Florida, and charged with Possession of Cannabis. The Applicant entered into a pre- trial diversion program called “Court Options” and the charge was nolle prossed. In addition to the foregoing, Petitioner testified that she did not list a 2001 arrest for passing a worthless bank check, to which she pled no contest and received probation. Petitioner did not list the offenses in sub-paragraphs 7.b. through 7.f. and in paragraph 8. in the application. On September 19, 2012, Respondent served Petitioner with a 10-count Notice of Reasons advising her that her application for a Florida Educator's Certificate was denied. Petitioner timely filed an Election of Rights that requested a formal hearing. Petitioner will be unable to continue to teach students in Florida without a valid Educator?s Certificate. Thus, Petitioner is substantially affected by the intended decision to deny her certification, and has standing to contest the intended action. From her March 5, 2000 arrest for Petit Theft, which occurred when she was 19 years of age, until the August 15, 2005, date of the conclusion of the offense of conspiracy to distribute marijuana, which occurred when she had just turned 25 years of age, Petitioner was arrested and entered into some form of official disposition of the offenses on, at best count, twelve occasions. Despite the relatively light nature of the dispositions, generally consisting of pretrial diversion or probation, the charges were serious, including multiple drug charges, battery, and affray. “Chaotic” would be an apt description of those years of Petitioner?s life. In her application for an Educator?s Certificate, Petitioner answered truthfully that she had criminal offenses in her background, and listed what she remembered. Petitioner testified that she completed the application from memory and thought she had answered the questions posed, but did not try to recover paperwork or records from the clerk of court. Petitioner understood that her fingerprints submitted with her application would provide the Department with access to her complete criminal record, and expected that the background check would disclose her record in the application process. A review of the application form shows there to be five spaces for information to be entered. There was no evidence that additional spaces were provided. It is not known how offenses were to be listed if they numbered more than five. Petitioner listed her federal conviction as “conspiracy to possess marijuana,” and indicated that she was adjudicated guilty. Petitioner testified that she had originally been charged with conspiracy to both possess and distribute marijuana. She was convicted of conspiracy to distribute marijuana, but confused the charges when filling out the application. Petitioner provided Respondent with a copy of the conviction, which plainly identified the offense for which she was convicted. There was no effort to conceal or falsify the nature of the conviction. Rather, the error was just that, an error. In the more than eight years that have passed since the conclusion of the last acts that constituted the conspiracy to distribute marijuana, Petitioner appears to have turned a corner. Petitioner?s actions since 2005 show a consistent pattern of personal stability and accomplishment, with no evidence of criminal activity. She married, and has a child with a second on the way. She is active with her school, her family, and her church. She went back to school and earned a Master?s Degree in Public Administration. She has taught for more than two years without incident or complaint. Petitioner expressed a sincere interest and concern for the children under her tutelage. Petitioner?s testimony that “I?ve grown up. I?m not the same person that I was before,” was convincing, and leads to the conclusion that she has substantially rehabilitated herself. Based on Petitioner?s demeanor and sincerity at the hearing, the undersigned finds her testimony to be credible and worthy of belief.
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, Torreya Landrea Davis?s application for an Educator?s Certificate, subject to such reasonable conditions as will allow the Commission to monitor and ensure Ms. Davis?s continued attention to and compliance with the standards necessary for maintaining the Educator?s Certificate in good standing. DONE AND ENTERED this 13th day of December, 2013, in Tallahassee, Leon County, Florida. S GARY EARLY 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 13th day of December, 2013.
The Issue The issue in this case is whether Respondent, Stephen H. Rosenthal, committed the offenses alleged in an Administrative Complaint issued on or about December 22, 1999, by Petitioner, Tom Gallagher, as Commissioner of Education and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Respondent, Stephen Rosenthal, holds a valid Florida Educator's Certificate, Number 644646. Respondent's Certificate covers the areas of Elementary Education and Mathematics and is valid through June 30, 2001. At all times relevant to this matter, Respondent was employed as a fifth-grade teacher at Manatee Elementary School, an elementary school in the St. Lucie County School District. During the fall of 1997 Paul E. Griffeth, a detective with the Port St. Lucie Police Department, was informed that Respondent had been in contact through the internet with a detective of the Keene, New Hampshire Police Department, that Respondent believed that he was communicating with a minor, and that Respondent had sent the Keene detective pornographic pictures via the Internet. Based upon the information Officer Griffeth received, a search warrant was obtained. The search warrant authorized a search of an address where Respondent was believed to reside. Officer Griffeth, Todd Schrader, then a detective with the Port St. Lucie Police Department, and a Detective Calabrese attempted to execute the search warrant. When they served the search warrant on Respondent they learned that Respondent no longer lived at the address identified in the search warrant. Respondent informed Detectives Schrader and Griffeth of his new residence address and agreed to allow them to search his residence without obtaining a new warrant. Respondent inquired into the reason for the search warrant and was told that it was believed that he was suspected of having sent child pornography on the internet and of having files on his computer and computer disks in his residence that contained child pornography. Respondent initially denied these allegations. Detective Schrader asked Respondent if he knew who "Luke 14" was. Respondent admitted that he believed that "Luke 14" was a 14-year-old male. Detective Schrader told Respondent that "Luke 14" was a police detective. Respondent shook his head and said, "No, no." Respondent later admitted that he had sent pornographic pictures, including pictures of Respondent naked, to "Luke 14," believing he was a 14-year-old boy. Respondent then admitted to Detective Schrader that he had a number of pictures that he had downloaded from the internet and acknowledged that some of the pictures could be construed as child pornography. Respondent also admitted that he had numerous diskettes with pictures of minors that he had downloaded from the internet. When the detectives entered Respondent's residence, they found two pictures of two individual nude males, with their genitalia exposed, which the detectives believed to be between the ages of 12 to 16. Respondent admitted that he believed that that was the age of the boys. Respondent also admitted that he had downloaded the pictures off the internet and that he had printed them. A number of diskettes were found at Respondent's residence which contained pictures of males with their genitalia exposed. Although some of the males pictured appeared to be minors, the evidence failed to prove that they were in fact pictures of minors. 1/ On November 3, 1997, Respondent was arrested. He was charged in an Indictment filed before the United States District Court for the Southern District of Florida (hereinafter referred to as the "U.S. District Court") with eight counts of Knowingly Receiving a Visual Depiction of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. In March 1998 Respondent entered into a Plea Agreement in the U.S. District Court, agreeing, in part, to the following: The [Respondent] agrees to plead guilty to Counts 1 and 3 of the Indictment, which charges the defendant with the knowing receipt of child pornography in interstate commerce by computer, that is, visual depictions of minors engaged in sexual conduct . . . . The [Respondent] admits that he is, in fact, guilty of this offense. On March 12, 1998, Respondent appeared before the Honorable James C. Paine, United States District Court Judge for the Southern District of Florida. Respondent was questioned extensively concerning the Plea Agreement and Respondent's understanding of the charges to which he had admitted. During this proceeding, the essential facts relating to Counts 1 and 3 were summarized and Respondent was asked whether he agreed with those facts. Respondent agreed with all the summarized facts; except the allegation that he thought that Luke 14 was a minor. 2/ Among the summarized facts which Respondent admitted to are the following: That Respondent knowingly received a visual depiction; the visual depiction was shipped or transported by interstate commerce by any means, including computer; that the visual depiction was of a minor engaged in sexually explicit conduct; and that Respondent knew that the visual depiction was of a minor engaged in sexually explicit conduct; That Respondent sent several sexually explicit pictures to Luke 14. The pictures were of the Respondent, naked; and That Respondent had photographs of two nude minors in his residence. Respondent entered a plea of guilty to Counts 1 and 3 of the Indictment, was adjudicated guilty of the two counts, and was sentenced to 70 months in prison on each Count to run concurrently. The other seven counts were dismissed. The evidence failed to prove that Respondent's plea of guilty was made as the result of any threat, coercion, or fraud. By entering a plea of guilty to Count 1 of the Indictment, Respondent admitted to the following: On or about February 5, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting a minor engaging in sexually explicit conduct . . . to wit: a depiction of a minor male engaging anal-genital sexual intercourse with an adult male, the production of which involved the use of a minor engaging in sexually explicit conduct. By entering a plea of guilty to Count 3 of the Indictment, Respondent admitted to the following: On or about April 15, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting minors engaging in sexually explicit conduct . . . to wit: a depiction of two minor males engaging oral-genital sexual intercourse, the production of which involved the use of a minor engaging in sexually explicit conduct. By pleading guilty to Counts 1 and 3 of the Indictment and admitting to Judge Paine that he had committed those offenses, Respondent admitted that he had been in possession of child pornography and that he had downloaded the child pornography from the Internet. Respondent subsequently attempted to withdraw his plea. This effort was rejected. Respondent is currently incarcerated at FCC Coleman serving his 70-month sentence. The arrest and subsequent conviction of Respondent resulted in adverse and widespread publicity in St. Lucie County. Respondent's arrest and conviction and the resulting adverse publicity were sufficiently notorious to disgrace the teaching profession and seriously reduce Respondent's effectiveness as a teacher. Respondent's employment with the St. Lucie County School Board was terminated due to the foregoing incidents. Petitioner issued an Administrative Complaint on or about December 22, 1999, in which Petitioner recommended that the Education Practices Commission impose appropriate disciplinary sanctions on Respondent's educator's certificate pursuant to Sections 231.262 and 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code, due to the following alleged facts: 3. During the 1996-1997 and 1997-1998 school year, Respondent was in possession of child pornography and down loaded the child pornography from the Internet onto his home computer. On or about November 3, 1997, Respondent was arrested and charged with 8 counts of Knowingly Receiving a Visual Depiction of Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer, and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. On or about June 2, 1998, Respondent pled Guilty to two of the counts of receiving the photographs. The court dismissed all other charges and adjudicated Respondent Guilty on the remaining two. Respondent was sentenced to 70 months on each count to run concurrently, to receive health/psychiatric counseling during incarceration, 3 years of supervised release, not possess a firearm and pay $3200 in fines and fees. On or about November 25, 1997, Respondent was terminated from his position with the St. Lucie County School Board. Respondent filed an unexecuted Election of Rights form and a letter in response to the Administrative Complaint. Although Respondent did not specifically request an administrative hearing, he did dispute the material facts of the Administrative Complaint. The Administrative Complaint and Respondent's letter were filed with the Division of Administrative Hearings on September 19, 2000, with a request that the matter be assigned to an administrative law judge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Stephen H. Rosenthal, violated Sections 231.28(1)(c) and (f), Florida Statutes. It is further RECOMMENDED that the final order dismiss the charge that Respondent violated Section 231.28(1)(i), Florida Statutes. It is further RECOMMENDED that Respondent's Florida Educator's Certificate, Number 644646, be permanently revoked. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of January, 2001.
Findings Of Fact Based upon the record evidence, as well as matters officially recognized and the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent was employed as a teacher by the Dade County School Board from approximately 1980 to November 6, 1987, when he resigned his position. Since his resignation, Respondent has not been employed as teacher. At all times during his employment with the Dade County School Board, Respondent held Florida teaching certificate 467693, which covered the areas of elementary education, early childhood education and motor disability. Respondent's teaching certificate expired on June 30, 1989, without Respondent having made any effort to renew it. Respondent is 34 years of age. He has been married to Marcia Carter- Wright since December 13, 1985. They no longer live in the same household, however. Marcia has a sister, M.R., who suffers from cerebral palsy and is developmentally disabled. At all times material hereto, M.R. has lived with Marcia. In September 1986, while he was still living with his wife and her sister, Respondent had sexual intercourse with M.R. Although she was 40 years of age at the time, M.R. was incapable of engaging in consensual sexual activity because of her developmental disability. Respondent's liaison with M.R. produced a child, J.W., who was born on July 7, 1987. Respondent was subsequently arrested and charged by information filed in Dade County Circuit Court Case No. 87-36763 with sexual battery upon a mentally defective person in violation of Section 794.011(4)(f), Florida Statutes. The matter was reported in the newspaper. Pursuant to a plea bargain agreement, Respondent pled no contest to the charge and, in turn, adjudication of guilt was withheld and he was placed on ten years probation. Among the terms and conditions of probation to which he agreed was that he surrender his teaching certificate and refrain from teaching. Respondent did not formally surrender his teaching certificate. He believed that, inasmuch as he had already resigned from his teaching position, letting his certificate expire would suffice. Respondent had difficulty finding a well-paying job while on probation. He became despondent and depressed. In June 1989, approximately one year after he had been placed on probation, Respondent admitted to his probation officer, Hazel Cooper Shepp, that he was using cocaine. Respondent hoped that Shepp would be able to provide him with assistance in dealing with his drug problem. Shepp subsequently filed an affidavit in Dade County Circuit Court alleging that Respondent had violated the conditions of his probation. On August 28, 1989, Respondent's probation was revoked and he was adjudicated guilty of sexual battery as charged in the information filed in Dade County Circuit Court Case No. 87-36763 and sentenced to five years of imprisonment, with credit for 250 days for time served. Respondent was released from prison on May 31, 1991. He currently lives with his mother, but visits his wife, M.R., J.W. and his other two children on a regular basis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission enter a final order (1) finding Respondent guilty of the violations alleged in Counts II and V of the Amended Administrative Complaint, and (2) barring him from applying for a new teaching certificate for a period of 10 years pursuant to Section 231.262(6)(g), Florida Statutes. DONE and ORDERED in Tallahassee, Leon County, Florida, this 31st day of December, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1991.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent graduated from college with a degree in elementary education in 1964. His first teaching position was in Dade County. He taught in Dade County from 1964 until 1970 or 1971, when he moved to New Jersey. After teaching for a year or two in New Jersey, Respondent returned to Dade County. He taught for another year or two in Dade County before relocating to California. Respondent did not work as a classroom teacher while in California. Among the jobs he held, however, was that of an education assistant at the San Francisco Zoo, a position which involved contact with children. Respondent moved back to Florida in 1987. Upon his return to the state, he applied for a temporary Florida teaching certificate in the area of elementary education. The Department of Education subsequently issued Respondent Temporary Certificate No. 159246. This certificate was valid from July 31, 1987, through June 30, 1988. Respondent has not held a valid Florida teaching certificate since the expiration of Temporary Certificate No. 159246. During the 1987-88 school year, Respondent was employed by the School Board of Broward County as a classroom teacher on annual contract status. He spent the entire school year at Nova Middle School. J.A. is a student at Nova Middle School. His date of birth is August 4, 1975. For the first nine weeks of the 1987-88 school year, J.A. was in Respondent's fifth period guidance class. He received a grade of "D" from Respondent. Respondent did not have J.A. as a student in any of his classes for the remainder of the 1987-88 school year. They did have some contact, however. On occasion, Respondent would bring into school reading material about reptiles and give it to a student in one of J.A.'s classes. Frequently, J.A., who, like Respondent and the other student, was interested in reptiles, joined their conversation on the subject. During at least one of these conversations, Respondent made reference to the many snakes he kept at home. His collection included approximately 300 snakes which he kept in his garage and other parts of his home. In addition to these snakes, Respondent also had sixteen cages of rats and mice and several turtles. J.A. asked if he could visit Respondent at home and see these animals. Respondent was not receptive to the idea of entertaining J.A. after school. Consequently, J.A. did not view Respondent's collection of animals during the 1987-88 school year. There were other instances during the 1987-88 school year where J.A.'s and Respondent's paths crossed at school. For instance, towards the latter part of the school year, when a substitute teacher with whom he did not get along taught his class, J.A. stayed in Respondent's room to avoid a confrontation with the substitute. J.A. and Respondent did not have any contact during the summer following the close of the 1987-88 school year. They next saw one another at registration for the following school year at Nova Middle School. Respondent had been offered another annual contract by the Broward County School Board and he was to teach the sixth grade at Nova Middle School. J.A. was to be a seventh grade student at the school. J.A. was accompanied at registration by his mother. He and his mother conversed with Respondent about, among other things, Respondent's collection of animals. Following registration, J.A. once again expressed to Respondent his desire to see Respondent's animal collection. This time Respondent capitulated. He told J.A. to have his mother call Respondent so that arrangements for such a visit could be made. Such arrangements were made and a few weeks after August 29, 1989, which was the first day of classes of the 1988-89 school year, J.A. and his mother visited Respondent at his home. During the visit, Respondent mentioned that he needed assistance to care for his animals. J.A. thereupon suggested that he be allowed to assist Respondent. J.A.'s mother indicated that she had no problem with J.A. coming to Respondent's home and helping Respondent. Respondent accepted the offer of assistance and told J.A. and his mother that he would compensate J.A. for the work he performed. Before J.A. and his mother left, Respondent gave J.A. a baby snake as a gift to keep. Following this visit, J.A. went to Respondent's home one or two times a week after school to assist Respondent in accordance with their agreement. For his efforts, J.A. received from Respondent either a snake or $3.50 for each hour he worked. J.A. did not come on any particular day or days of the week. He came when he was needed and when it was convenient for both he and Respondent, provided he had his mother's permission to be there on that particular day. On these workdays, Respondent drove J.A. from school to his home. Upon their arrival, they generally worked for one or two hours and then ate dinner and watched television before Respondent drove J.A. to J.A.'s home. Respondent did not attempt to hide the fact that J.A. was coming to his home after school to help him with his collection of animals. Among the people Respondent told were Steven Friedman, one of the assistant principals at Nova Middle School, Betty Brown, a fellow sixth grade teacher at the school, and Mary Rayder, Respondent's girlfriend. J.A. is not the only young person Respondent has hired to help him care for his animals. Other young persons who have worked for Respondent include a boy Respondent met at a pet shop and the boy's girlfriend; J.S., the teenage son of one of Respondent's friends; and M.F., who at the time was a thirteen year old former student of Respondent's. M.F. came to Respondent's house only once. His parents did not allow him to return because they were concerned for his safety after learning that he had fallen in the lake behind Respondent's home while he and Respondent were "playing around in a boat" and that he had taken a shower in Respondent's home following this incident. M.F. was not fully clothed when he fell into the water. He was wearing a boy's bathing suit that Respondent had loaned him. Although M.F. undressed and took a shower in Respondent's home, Respondent made no sexual advances towards him. There were other occasions during the 1988-89 school year that J.A. and Respondent had contact outside of school. One evening Respondent took J.A. to a lecture at the University of Miami. On another occasion Respondent brought J.A., J.A.'s cousin and J.A.'s friend to his home on a Saturday to allow J.A. to show the cousin and friend Respondent's animals. Betty Brown, one of Respondent's colleagues at Nova Middle School, and her nine year old son were also present during this Saturday visit. One weekend morning a couple of weeks following this Saturday visit, J.A., along with two friends, paid an uninvited visit to Respondent's home. Respondent let them in and quickly showed them his collection of animals. They then left on their bicycles. Although Respondent did not have J.A. as a student during the 1988-89 school year, they did see one another on occasion during the course of the school day early in the school year. Once or twice a week, J.A. went to Respondent's classroom to talk with Respondent about snakes. J.A. also approached Respondent at school on a regular basis to inquire as to when Respondent wanted him to come to Respondent's house to work. J.A. made such an inquiry of Respondent on the morning of Wednesday, October 26, 1988. He told Respondent that he wanted to come over that afternoon after school to work and to look at some photographs of zoo animals that had been the subject of a prior discussion between them. Respondent initially indicated that that afternoon would not be a good time for J.A. to be at his home because he was having some home repair work done and because, in any event, he was not feeling well. Since that previous Saturday, Respondent had been periodically experiencing stomach cramps and diarrhea. On Monday or Tuesday of that week he had made an appointment to see his doctor the following Friday concerning his condition. 2/ By the end of the school day on Wednesday, October 26, 1988, however, Respondent was feeling somewhat better. Furthermore, he had discovered that the person doing the repair work at his home had apparently finished for the day. Therefore, he had a change of mind regarding J.A.'s coming over to his house that afternoon. He so advised J.A. and the two left school together in Respondent's car. They proceeded directly to Respondent's home and arrived at their destination between 4:15 and 4:30 p.m. Upon their arrival, Respondent had J.A. telephone his mother to make sure that she knew that J.A. was at Respondent's home. After J.A.'s mother was contacted, J.A. and Respondent worked in Respondent's garage cleaning cages. At one point, Respondent had to excuse himself because he was again feeling nauseous. He went to the bathroom in his bedroom and remained there for five or ten minutes. When he opened the door of the bathroom to leave, he observed J.A. standing in Respondent's bedroom just outside the bathroom. At another point when they were in the garage together, Respondent noticed J.A. wrap a three and one-half to four foot snake in a newspaper and then place it in a plastic-lined garbage can. Respondent thereupon asked J.A., who appeared to be embarrassed that Respondent had discovered what he had done, "Do you realize what you just did?" Respondent then retrieved the snake from the garbage can and further inquired of J.A. if he had perhaps accidentally discarded a valuable king snake that had been missing from Respondent's collection for several weeks. J.A. responded in the negative. He told Respondent that the cage in which the king snake had been kept "was empty when he opened it." Later that afternoon, while cleaning the cages of some baby ball python snakes that Respondent owned, J.A. said something to the effect that all he would "have to do is throw one of these [baby ball pythons] away and come back and get it later." In response to this comment, Respondent told J.A., "You don't have to do that, [J.A.], you can have one." J.A. and Respondent finished working in the garage at approximately 6:30 p.m. They then ate dinner. After dinner, J.A. asked Respondent if he could look at the photographs that Respondent had taken when he was employed as an education assistant at the San Francisco Zoo. Respondent went to his bedroom closet to get the albums that contained these photographs. J.A. followed Respondent into his bedroom. After the albums were located, Respondent and J.A. left the bedroom and went to the living room where they looked at the photographs. By the time they finished examining the photographs, it was time for J.A. to leave. Before J.A. went home, however, Respondent gave him the baby ball python snake he had been promised by Respondent earlier in the day. Respondent dropped J.A. off at his home sometime between 7:30 and 9:00 p.m. that evening. J.A.'s mother greeted them as Respondent's car pulled into the driveway. For the next fifteen to twenty minutes she and Respondent engaged in a conversation. J.A. went into his house to deposit his snake and to retrieve some containers that belonged to Respondent, but he was present during most of the conversation between his mother and Respondent. Among the matters that J.A.'s mother and Respondent discussed was the possibility of Respondent, one of Respondent's friends and J.A. going on a snake hunting expedition. Respondent doubted that they would be able to go on such an expedition and he so advised J.A.'s mother, although he did not explain to her why he believed they would be unable to go. Notwithstanding Respondent's advisement, in an abundance of caution, J.A.'s mother handed Respondent a signed statement she had prepared authorizing Respondent to seek medical care and treatment for her son in the event they did go on the expedition and there was a medical emergency. The snake hunting expedition was not the only subject of J.A.'s mother's and Respondent's discussion that evening. They also talked about J.A. Respondent reported that J.A. was doing a good job assisting him in caring for his animal collection. His report on J.A., however, was not entirely positive. Respondent also told J.A.'s mother about how J.A., during his Saturday visit to Respondent's home a few weeks earlier, had boarded Respondent's paddleboat without Respondent's permission, paddled across the lake behind Respondent's home and then jumped head-first in the water. Respondent further mentioned to J.A.'s mother that the previous week J.A. had gotten into a heated argument at school with a substitute teacher, which resulted in J.A. being "pulled" from the substitute's class and brought to the teacher's lounge to stay with Respondent. After having been told this by Respondent, J.A.'s mother made mention of a similar incident which occurred the year before and led to J.A.'s suspension. She expressed the view that on this prior occasion J.A. had been treated unfairly by the school administration. At no time during their conversation that evening did Respondent tell J.A.'s mother what had happened earlier that evening in his garage. Although these events had led him to suspect that J.A. had stolen the missing kingsnake and perhaps other snakes, he was not absolutely certain that this was the case and, in view of his uncertainty, he decided not to make an issue of the matter and subject J.A. to parental punishment for an offense he may not have committed. After J.A.'s mother and Respondent finished their conversation, Respondent drove off and J.A. and his mother went into their home. Upon entering the home, J.A. told his mother that Respondent had "tried to suck, lick my penis." 3/ J.A.'s mother reported to the police what her son had told her. Both she and her son were interviewed at the Pembroke Pines police station at around 10:00 p.m. that evening. The following is what J.A. related to the police during the interview concerning his interaction with Respondent that day, as accurately reflected by the interviewing officer's police report: As [Respondent] spoke to J.A. during school hours, [Respondent] asked [J.A.] if he would like to come over after school and help clean cages. [J.A.] advised that he would not be able to today (10-26-88) due to the fact that his mother was expecting him home after school. [Respondent] advised [J.A.] that he would be able to telephone his mother from his [Respondent's] house upon their arrival. [J.A.] agreed to go to [Respondent's) residence and telephone his mother for permission. At the end of the school day [Respondent] and [J.A.] met at [Respondent's] classroom [Respondent] and [J.A.] walked from the classroom (approx 1600) to [Respondent's] vehicle in the parking lot. [Respondent] along with [J.A.] traveled in [Respondent's] vehicle to [Respondent's] residence arriving at approx 1630. [Respondent] and [J.A.] immediately moved to the garage area of the residence, where the snakes are caged, to begin cleaning. Periodically during the cage cleaning [J.A.] would stop to call his mother. [J.A.] was unable to reach his mother until approx 1700 hours when he advised her of his location. [J.A.] then returned to the garage and continued to clean cages with [Respondent]. At approx 1800 hours [Respondent] and [J.A.] agreed to discontinue the cleaning and obtain something to eat. [Respondent] and [J.A.] moved to the kitchen where they began to eat. While [Respondent) and [J.A.] ate they discussed [Respondent's] former job at the San Diego Zoo. [Respondent) advised that he had numerous pictures from the zoo and would like to show them to [J.A.] [J.A.] advised that he would like to see the pictures. As [Respondent) and [J.A.] finished eating, (approx 1900 hours) Respondent led [J.A.] to his bedroom where the pictures were kept. [Respondent) and [J.A.] sat on [Respondent's] bed, hanging their feet over the edge, and began looking at the photo albums. While [J.A.] was seated on the edge of the bed, [Respondent] repositioned himself on the floor directly in front of [J.A.]. [Respondent] then reached forward and grabbed [J.A.'s] pants zipper and pulled it down. 4/ [J.A.] was surprised when he felt the pulling on his zipper due to the fact that [Respondent] had positioned himself behind the photo album [J.A.] was examining. [J.A.] dropped the photo album 5/ and attempted to push [Respondent] away. [Respondent] overpowered [J.A.] and reached inside [J.A's] pants taking hold of [J.A.'s] penis. 6/ [Respondent] leaned over and began to lick and suck on [J.A.'s] penis. [J.A.] struggled free and advised [Respondent] that he was not that kind of person. [J.A.] then advised [Respondent] that he wanted to go home. [Respondent] agreed to take [J.A.] home; however, insisted that [J.A.] take one of his pet snakes as a gift. [J.A.] accepted the snake; however believes that [Respondent] gave him the snake as a bribe so he would not relate what had taken place to anyone. [Respondent] along with [J.A.] traveled to [J.A.'s] residence at approx 2000 hours. At around 1:00 a.m. on October 27, 1988, J.A. was examined by a physician at the Sexual Assault Treatment Center in Fort Lauderdale. The medical examination revealed no abnormalities. There were no cuts, bruises, or marks on J.A.'s genitals nor any other evidence suggesting that he had been sexually molested as he had falsely claimed to his mother and the police. Respondent reported to work on October 27, 1988, although he was not feeling particularly well. During the morning, his condition worsened and he requested permission to go home for the day. He did not call his doctor, inasmuch as he already had an appointment scheduled for the following day. Before he left, he gave a statement to a Pembroke Pines police officer who had come to the school to interview Respondent as part of his investigation of the allegations that J.A. had made against Respondent. The police officer was accompanied by a School Board of Broward County investigator. Upon being told of the accusation that J.A. had made, Respondent truthfully denied that anything of that nature had taken place the day before. He stated that he could think of nothing out of the ordinary that occurred that evening. When asked what might motivate J.A. to falsely accuse him of wrongdoing, Respondent was unable to offer any answer. He indicated that he thought that they had a friendly relationship. That same day, Respondent was suspended with pay from his position at Nova Middle School based upon the allegations of sexual misconduct made against him by J.A. He thereafter was suspended without pay by action of the School Board of Broward County based on these same allegations. Respondent has never before been accused of any similar act of misconduct. Furthermore, he has a good reputation for truth and veracity amongst his friends and associates. On June 30, 1989, Respondent's annual contract with the School Board of Broward County expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that (1) the School Board enter a final order dismissing Petitioner Morgan's charge of sexual misconduct against Respondent and providing Respondent with appropriate relief pursuant to Section 231.36(6)(a), Florida Statutes, and (2) the Education Practices Commission enter a final order dismissing the Administrative Complaint filed by Petitioner Castor against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of October, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1989.
Findings Of Fact On August 7, 1983, the Petitioner, accompanied by two companions, a male and female, entered the Richway Department Store at 1941 South Military Trail in West Palm Beach, Florida. The male approached the store's service desk and attempted to obtain a refund for some silverware. Previously, the store security manager, Art Riggott, had been informed by telephone call from another local Richway Store that if two black females and a black male attempted to obtain a refund for silverware at his store, a refund should be refused. When Mr. Riggott advised the male that a refund for the silverware could not be issued without a receipt for its purchase, he left the silverware on the service desk counter and exited the store. While the two women were in the store, Mr. Riggott and another security officer kept them under surveillance. In the ladies wear department, they placed several articles of clothing in a carriage, including two women's jackets, and continued through the store, placing several other articles of merchandise in the carriage also. In the domestic department, the Petitioner was observed as she put the two jackets in her purse. The women then left the carriage in an aisle with the other merchandise in it, and exited the store. Outside, they rushed toward a red car parked at the curb, which was driven by the male who had sought the refund for silverware. The Petitioner was arrested. The other woman was able to get into the car before it sped off with one door open. The Petitioner was taken to the store office where her purse was opened and the two women's jackets were removed. The jackets had Richway price tags on them. They had been received by the Richway Store only two days before. When the Petitioner failed to appear at her scheduled court appearance, a bench warrant was issued for her arrest. She did appear at a subsequent hearing on January 20, 1984, and entered a plea of no contest to the offense of retail theft. The court withheld adjudication of guilt, ordered the Petitioner to pay a fine of $90.00, and rescinded the outstanding bench warrant. The Petitioner paid the fine. In 1985, after graduating from college, the Petitioner applied to the Dade County School Board for a teaching position. On her application, the Petitioner answered "no" to the question "Have you ever been convicted, fined, imprisoned or placed on probation in a criminal proceeding?" On this application, the Petitioner also certified that the information she provided was true, correct and complete to the best of her knowledge and belief, and that the information was furnished in good faith. The application includes the statement that any omissions or false statements will constitute reason for dismissal. The Petitioner was hired and worked during the 1985-1986 school year, but she was dismissed from this position when school officials learned of her criminal prosecution and the false statements on her employment application. On April 9, 1986, the Petitioner applied to the Department of Education for a Florida teaching certificate. On this application, the Petitioner answered "no" to a question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Because the results of a routine fingerprint check by the Florida Department of Law Enforcement disclosed that the Petitioner had been arrested and prosecuted for shoplifting in August of 1983, the Petitioner's application was denied. On November 26, 1986, the Petitioner filed another application for a Florida teaching certificate. On this application the Petitioner disclosed that she had been arrested in West Palm Beach for shoplifting on August 3, 1983, and that adjudication of guilt was withheld. The Petitioner's falsification of her applications for employment and for a teaching certificate are acts of extreme dishonesty and conduct which would seriously reduce her effectiveness as an employee of the school system. Such conduct violates the Principles of Professional Conduct for Educators, and is unacceptable for members of the teaching profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Cherry D. Cornelius for a Florida teaching certificate, be denied. THIS RECOMMENDED ORDER entered this 2nd day of April 1987 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of April 1987. COPIES FURNISHED: Ms. Cherry D. Cornelius 231 S.W. 15th Avenue Delray Beach, Florida 33444 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Karen Barr Wilde Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Department of Education 319 West Madison Street Room 3 Tallahassee, Florida 32301
The Issue The issues are whether Petitioner has just cause, within the meaning of Subsection 1012.33(1)(a), Florida Statutes (2007),1 to terminate Respondent’s professional service contract as an instructional employee, and, if so, whether termination of the contract is reasonable under the facts and circumstances of this case.
Findings Of Fact Petitioner employed Respondent as a classroom teacher from some time in 1998 until September 8, 2009, pursuant to a professional service contract. Petitioner relieved Respondent from the duties of her employment without pay on September 8, 2009. On September 21, 2009, Petitioner filed an Administrative Complaint against Respondent. Most of the material facts in the Administrative Complaint are undisputed. On December 12, 1999, Respondent was arrested for cocaine possession, a third-degree felony, and narcotic equipment possession, a first-degree misdemeanor. Respondent successfully completed a pretrial diversion program, and the charges were nolle prossed and expunged. Respondent did not report the criminal matter to Petitioner. The failure to report the criminal matter violated the self-reporting requirements in Management Directive A-10, Guidelines on Self-Reporting of Arrest and Convictions by Employees (the self-reporting requirements). On July 10, 2000, Respondent was arrested for driving under the influence (DUI), which was a first conviction. Respondent pled nolo contendere to a reduced charge of reckless driving and entered and successfully completed a pretrial diversion program. Respondent did not report the DUI matter to Petitioner. The failure to report the DUI matter violated applicable self- reporting requirements. On June 18, 2002, Respondent was arrested on a misdemeanor battery charge. The alleged victim dropped the charge, but Respondent did not report the incident to Petitioner in violation of the applicable self-reporting requirements. On July 6, 2006, Respondent violated Petitioner's Drug Free Workplace Policy by reporting to work at Rolling Hills Elementary School under the influence of alcohol. On July 9, 2006, Respondent entered into an agreement with Petitioner identified in the record as a Last Chance Agreement. The Last Chance Agreement was in effect for the 2006- 2007 and 2007-2008 school years. The Last Chance Agreement provides, in relevant part, that if justifiable grounds of discipline, rising to the level of a written reprimand or dismissal, occur during the school year, Respondent shall forfeit her right to be employed by Petitioner, and the Last Chance Agreement shall constitute a voluntary resignation from employment. The 2007-2008 school year ended on June 6, 2008. On May 30, 2008, Respondent failed to disclose on the renewal application for her Florida Educator's Certificate the expunged criminal record, pretrial diversion program, and plea of nolo contendere previously discussed. Respondent checked "no" to the following question: Have you ever had any record sealed or expunged in which you were convicted, found guilty, had adjudication withheld, entered a pretrial diversion program or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is not a minor traffic violation)? On March 20, 2009, the Education Practices Commission imposed several penalties against Respondent's teaching certificate for the violations that occurred during the 2007- 2008 school year. The Commission issued a written reprimand, imposed administrative fines in undisclosed amounts, and placed Respondent on two years’ probation. The disputed issue is whether Respondent's failure to disclose her criminal history on the renewal application for her Florida Educator's Certificate was intentional. Respondent claims the failure was not intentional, but was induced by post- traumatic stress syndrome (PTSS) caused by two statutory rapes that occurred when Respondent was 13 and 15 years old. When Respondent was 13 years old, a man who was approximately 33 years old "took her virginity." Respondent had an abortion, experienced a great deal of shame and guilt, and began self-medicating with alcohol and drugs. When Respondent was 15 years old, one of Respondent's high school teachers molested her. Respondent again experienced guilt and shame, did not disclose the incident, and continued using alcohol and drugs. Respondent presented expert testimony concerning the effects of PTSS. The expert testimony concludes that PTSS could have caused Respondent to drink excessively and fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. However, the expert testimony fell short of concluding that PTSS in fact induced Respondent to fail to disclose the criminal history on her application. Respondent's own testimony is that she had five or six glasses of wine the night she completed the application. Respondent completed the application without giving it much thought. On balance, a preponderance of the evidence does not support a finding that PTSS caused Respondent to fail to disclose her criminal history on the renewal application for her Florida Educator's Certificate. Several mitigating facts support a penalty less than termination of the professional service contract. The non- disclosure of facts was a harmless error to Petitioner. Petitioner had actual prior knowledge of all of the facts that Petitioner complains Respondent omitted from the application. The state licensing authority has knowledge of the non-disclosed facts. Respondent has already been disciplined for non-disclosure to the state licensing authority. When the Last Chance Agreement was entered into in 2006, Respondent was incorrectly diagnosed and treated for bipolar disorder. The treatment for bipolar disorder was ineffective during the term of the Last Chance Agreement. Respondent has been alcohol-free since September 2008, when she placed herself in a residential alcohol treatment program in Clearwater, Florida. Beginning in the early part of 2010, Respondent has been correctly diagnosed and treated for PTSS by Joseph L. Trim, Ed.D, a licensed mental health counselor and addiction specialist. That diagnosis and treatment appears to be effective for Respondent. Based on the testimony of the school principal who testified for Respondent, Respondent is an experienced and competent teacher who has not lost her effectiveness in the classroom. For each school year from 1998-1999 through 2004- 2005, Petitioner evaluated Respondent as effective in the classroom. Respondent has already received a reasonable penalty for violating the Last Chance Agreement, when Respondent was improperly diagnosed and treated for bipolar disorder. Petitioner has suspended Respondent from her employment without pay from September 8, 2009, to the present.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order reinstating Respondent's employment with her current principal, requiring Respondent to continue her current therapy with Dr. Trim, requiring Respondent to submit to random drug screening, and extending the term of the Last Chance Agreement for another two years. DONE AND ENTERED this 23rd day of July, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2010.
Findings Of Fact The Respondent holds Florida teaching certificate 227677, covering the areas of Chemistry, Biology, and Middle Grades General Science, which is valid through June 30, 1996. Petitioner has been certified to teach in Florida since 1969. On or about February 5, 1979, Respondent was arrested and charged with Disorderly Conduct, a misdemeanor, in Orange County, Florida. Respondent pled not guilty to the charge, waived a jury trial and was tried before the court and found guilty. The count withheld adjudication and on or about May 2, 1979, the Court sentenced Respondent to pay a $350.00 fine, plus court costs. On or about June 24, 1985, Respondent executed, under oath, an Application for Extension of Certificate. Respondent answered "no" to the following question: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Respondent was negligent in completing his application in that he failed to acknowledge his 1979 arrest for Disorderly Conduct for which the Court withheld adjudication. The renewal application was completed six years after the incident and Respondent simply forgot to list it on the form. On or about December 25, 1992, Respondent was arrested and charged with Battery, a first degree misdemeanor, following a domestic disturbance with his wife in Seminole County, Florida. Respondent pled nolo contendere to the battery charge. On or about February 11, 1993, the count withheld adjudication and sentenced Respondent to serve six months probation. Probation was successfully terminated on August 23, 1993. On or about September 6, 1993, Respondent was arrested and charged with Aggravated Battery, a third degree felony, and Shooting Into or At a Building, a second degree felony. Respondent pled not guilty to the charges and was tried and convicted on both counts following a trial by jury. On or about May 30, 1994, the Court adjudicated the Respondent guilty of Aggravated Battery and withheld adjudication on the charge of Shooting Into or At a Building. Respondent was sentenced to 3 years in prison on the battery charge (Count I). He was placed on one year probation on Count II and required to pay court costs. The conviction and sentence was appealed to the Fifth District Court of Appeal of Florida. The court upheld the conviction and sentence. However, it did certify a question as one of great public importance to the Florida Supreme Court Respondent testified that he has been a school teacher for more than 25 years and has an outstanding record in the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 231.28(1)(c), (e), (f), (i), (j), Florida Statutes and not guilty of violating Section 231.28(1)(a), Florida Statutes and Fla. Admin. Code R. 6B-1.006(5)(a) and (h). It is further RECOMMENDED that the Respondent's teaching certificate be revoked for a period of 5 years, followed by a period of 3 years probation should the Respondent become recertified in Florida and upon such reasonable and necessary conditions as the Commission may require. DONE AND ENTERED this 22nd day of December, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1995. APPENDIX Petitioner's Proposed findings of fact: Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5 (in part), 6 (in part. Rejected as hearsay and irrelevant: paragraphs 4 (in part), 5 (in part), 6 (in part). Respondent did not file proposed findings of fact. COPIES FURNISHED: John A. Knight, Pro Se 1817 Harding Avenue Sanford, Florida 32771 Barbara J. Staros, General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Ronald G. Stowers, Esquire Office of the General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Dr. Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen Richards, Administrator Professional Practices Services 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether the Division of Administrative Hearings has jurisdiction to determine whether Florida Administrative Code Rule 6B-4.009 is an invalid exercise of delegated legislative authority in violation of section 120.52(8)(d), Florida Statutes (2013).
Findings Of Fact Petitioner, Donna Burney (Petitioner or Ms. Burney), is a teacher in Duval County. She is also the subject of an Administrative Complaint in DOAH Case No. 13-4958PL, by which the Education Practices Commission seeks to discipline her educator certificate pursuant to section 1012.795, Florida Statutes. The Administrative Complaint alleges that Petitioner is incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate a private school. Respondent, the State Board of Education, is the chief implementing and coordinating body of public education in Florida. The Board adopted the rule which is the subject of this proceeding. At all times material to the issues alleged in the Administrative Complaint in DOAH Case No. 13-4958PL, Florida Administrative Code Rule 6B-4.009 was the rule applied in those cases where alleged conduct forming the basis for dismissal from employment or discipline against an instructor’s license occurred prior to the amendment to and transfer of the rule in 2012. Rule 6B-4.009 provided definitions for the basis of charges upon which a district school board could pursue a dismissal action against instructional personnel. “Incompetency” is one of the bases for charges defined by rule 6B-4.009. Incompetency was defined as follows: Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following: Inefficiency: (1) repeated failure to perform duties prescribed by law (section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization. The specific authority for and law implemented by the rule are all provisions from chapters 229 and 231, Florida Statutes. Section 231.09, referenced in the rule, as well as all of chapters 229 and 231, were repealed in 2002. § 1058, ch. 2002-387, Laws of Fla. At the time of rule 6A-4.009’s final amendment in 1983, section 231.09, Florida Statutes (1983), provided: Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. Prior to its repeal in 2002, section 231.09, Florida Statutes (2001), provided: The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role. Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher’s duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board. The rule was not amended between 1983 and 2012 to address the repeal of section 231.09. Nor was it amended to provide new statutory authority or law implemented. Rule 6B-4.009 on its face applied to actions by district school boards seeking to dismiss instructional personnel, as opposed to cases brought by the Education Practices Commission seeking to discipline certified educators. However, administrative law judges have referred to the definition of incompetency in educator certificate discipline cases. While section 1012.795(1)(c) authorizes discipline for incompetence, rules 6B-4.009 and 6A-5.056 appear to be the only rules adopted by the State Board of Education to define the term. Effective July 8, 2012, rule 6B-4.009 was transferred to rule 6A-5.056 and amended. Rule 6A-5.056 presently defines incompetency as follows: “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. “Inefficiency” means one or more of the following: Failure to perform duties described by law; Failure to communicate appropriately with and relate to students; Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents; Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or Excessive absences or tardiness. “Incapacity” means one or more of the following: Lack of emotional stability; Lack of adequate physical ability; Lack of general educational background; or Lack of adequate command of his or her area of specialization. Petitioner has not challenged rule 6A-5.056.
Findings Of Fact On March 5, 1976 the U. S. District Court for the Southern District of Florida found Petitioner guilty of possession and distribution of cocaine and sentenced him to confinement for two years (Exhibit 10). This sentence was reduced by Order entered 3 March 1977 to 16 months (Exhibit 11). Following his release from prison, Petitioner returned to school and received a Bachelor of Arts degree in communications from Florida International University in August 1978. Petitioner's testimony and evidence he presented consisting of excerpts of his writing ability demonstrated that he is articulate and probably more competent to teach than some who presently hold certificates.
Recommendation RECOMMENDED that the denial of the application of George Derek Joy for a teaching certificate be upheld and the Petition for a certificate be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of September, 1979. K. N. Ayers Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1979. COPIES FURNISHED: Mr. George Derek Joy 7035 N. E. 4th Court, Apt. 1 Miami, Florida 33138 Mr. Hugh Ingram Administrator Professional Practices Council Room 3, 319 W. Madison Street Tallahassee, Florida 32301
