The Issue The issue in this case is whether petitioner's application for licensure as a professional teacher should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, respondent, Doug Jamerson, as Commissioner of Education, has proposed to deny an application for a teaching certificate filed on behalf of petitioner, Bryan S. Frederick, a thirty year old graduate of Elon College in North Carolina. As a ground, respondent contends that on applications filed with the Department of Education in 1991 and 1993, petitioner failed to disclose the fact that in December 1990 he had been arrested for possession of marijuana, and in January 1991 he had pled guilty to that offense. Petitioner disputed this allegation and timely requested a hearing. The critical facts giving rise to this dispute are as follows. Respondent has prepared an Application for Florida Educator's Certificate which must be completed and filed by those persons desiring a teaching certificate. On page 3 of the form is found the following question: Have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to S. 943.058 F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida law. On applications dated August 29, 1991, and April 2, 1993, which were filed with respondent, petitioner answered the foregoing question by checking the "NO" box. He also certified that all information in the two applications was "true, correct, and complete." With the assistance of the Florida Department of Law Enforcement, in late 1993 respondent conducted a law enforcement background check on petitioner. The search revealed that on December 22, 1990, petitioner was arrested by the Brunswick, Georgia police department for possession of marijuana. On January 8, 1991, the solicitor for the state court of Glynn County, Georgia, filed an affidavit and accusation pertaining to that charge. On January 31, 1991, petitioner pled guilty to possession of marijuana, a misdemeanor. For this, he was adjudicated guilty and was sentenced to 12 months in jail, with all time suspended except for the one day served in jail. When he was assessed a fine in the amount of $300 plus costs, and he could not pay the fine, petitioner was sentenced to a week in jail. According to petitioner, however, no fine was ever paid, and except for the day when he was arrested, no time was served. After learning this information, respondent issued a Notice of Reasons on June 13, 1994, proposing to deny petitioner's most recent application for a teaching certificate for failing to disclose the arrest and conviction. Petitioner did not deny that the above events occurred. He explained, however, that on the day in question, he and a friend, Glenn Brinson, were driving to South Carolina for the Christmas holidays and stopped to eat at a fast food restaurant in Brunswick, Georgia (Glynn County) just off Interstate 95 (I-95). When returning onto I-95, Brinson was stopped by a law enforcement officer for making an illegal turn. After Brinson stepped out of the automobile, he was asked to show his driver's license and vehicle registration. Petitioner, who was a passenger, reached in the vehicle's glove compartment to retrieve the vehicle's registration and observed three marijuana joints. Having no prior knowledge that they were there, and being in what he describes as a state of panic, petitioner unwisely placed the three joints inside his hat. When the police officer noted that the license tag and registration had expired, he asked petitioner to step out of the car and submit to a search for weapons. Thereafter, the officer discovered the marijuana. Although petitioner denied that the contraband belonged to him, both he and Brinson were arrested for possession of marijuana. No traffic citations were issued. At hearing, Brinson acknowledged that the marijuana belonged to him, and not petitioner. Petitioner admits that he intentionally failed to disclose the arrest and conviction on his applications because he knew it would "blow his career" as a teacher. He says he could not afford an attorney to fight the charge and believed that by entering a plea of guilty with an explanation to the judge, the charge might be dropped. As it turned out, however, the judge simply accepted the plea and adjudicated him guilty of the offense. Petitioner does not work in the teaching profession at the present time but says he has a pending job opportunity should his application be approved. He desires a five-year professional teacher's license so that he can begin a full-time teaching career. Up to now, he has worked as a substitute teacher on a part-time basis. Except for this isolated incident on the part of petitioner, there is no evidence of any other misconduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a period of one year. Thereafter, and upon reemployment, a license shall be issued but the first three years shall be on a probationary status. DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4263 Respondent: 1-5. Partially accepted in finding of fact 3. 6-11. Partially accepted in finding of fact 2. 12. Partially accepted in finding of fact 5. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or cumulative. COPIES FURNISHED: Bryan S. Frederick 10960 Beach Boulevard, #10 Jacksonville, FL 32246 Robert J. Boyd, Esquire 3121 Killearney Way, Ste. G Tallahassee, FL 32308 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact Petitioner, Chester K. Lewis (Lewis), applied to the Respondent, Department of Education (Department), for a Florida teacher's certificate. By letter of January 15, 1987, the Department advised Lewis that his application had been denied, and Lewis filed a timely request for formal hearing. Pertinent to this case, the application for teacher's certificate posed the following questions, and Lewis gave the following answers: - FULL TIME TEACHING EXPERIENCE Grades taught or No months Type School State District School if departmental- taught in Certi- Year (County) ized subjects school ficate taught term Held * * 1982 to Florida Dade Edison 1983 Park Elem. 9 1983 to Florida Dade Edison 1984 Park 9 1984 to Florida Dade Edison 1985 Park 9 1985 to Florida Dade Edison Varied 1986 Park Elem. 9 PLEASE CHECK ONE YES X NO 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? If yes, you must give complete details for each charge. Please attach a separate sheet if additional space is needed. Where Arrested Dates Nature of Charge(s) Disposition(s) Trespassing Resist- Nolo Contendere Dade County 5/6/82 ing Arrest 9 mos served 1/19/83 NOTARIZATION I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete. /s/ Chester K. Lewis Signature of Applicant Sworn to and subscribed before me this 3rd day of June , 1986. My Commission Expires Seal and Signature of Notary Public Contrary to the sworn representations in part IV of the application, that he had been employed full time by the Dade County School Board for the school years 1982-83 through 1985-86, the proof established that Lewis was employed by the Dade County School Board as follows: For the 1982-83 school year Lewis was employed as a per diem (daily) substitute teacher, and worked only 29 days between March 1983 and June 1983. For the 1983-84 school year Lewis was employed as a daily substitute teacher, and worked at 5 different schools between November 1983 and June 1984 for a total of only 5 1/2 days. For the 1984-85 school year Lewis was employed as a daily substitute teacher, and worked at 5 different Schools between October 1984 and June 1985 for a total of only 15 days. For the 1985-86 school year Lewis was employed as a daily substitute teacher, and worked only 1 day during that school year. With respect to Lewis' response to part V of the application, the proof established that by Information filed May 27, 1982, in the Circuit Court of Dade County, Florida, Case No. 82-11708, he was charged with aggravated assault (Section 784.021(1)(a), Florida Statutes), battery upon a law enforcement officer (Sections 784.03 and 784.07, Florida Statutes), and resisting an officer with violence to his person (Section 843.01, Florida Statutes). On January 19, 1983, Lewis entered a plea of nolo contendere, and the court sentenced him to a term of imprisonment of nine months. Regarding the substance of the charges, the proof established that on May 6, 1982, at or about 11:00 p.m., in Dade County, Florida, Lewis did commit the crimes of aggravated assault (Section 784.O2l(1)(a), Florida Statutes), battery upon a law enforcement officer (Sections 784.03 and 784.07, Florida Statutes), and resisting an officer with violence to his person (Section 843.01, Florida Statutes). At the aforesaid time and date, a uniformed Florida Highway Patrol Officer (trooper) responded to a request for assistance at the home of a female complainant (complainant) who professed a fear that Lewis would harm her. While at the complainant's residence, the trooper took a telephone call from Lewis, identified himself as a trooper with the Florida Highway Patrol, and asked Lewis what the problem was. Lewis replied: I don't care who the fuck you are. If I get over there in 15 minutes and you're there I'm going to kill you. Approximately 15 minutes later, Lewis drove up to the residence. The trooper then told Lewis: Look, we don't need a problem Just leave. She doesn't want to be bothered with you. Just leave so we don't have a problem with you. Lewis responded, "Fuck you", sped down the street, and turned the car to face the trooper. Lewis then sped his car at the trooper, who barely avoided injury by jumping out of the way of Lewis' vehicle. Lewis then drove his car into an alley, and as the trooper approached from the rear Lewis attempted to back his car over the trooper. Again the trooper barely avoided injury. Subsequently, Lewis jumped from the car, and ran toward the complainant's residence. At that time the trooper removed the keys from the ignition of Lewis' car, and pursued Lewis. Fortunately, a backup unit from the Metro-Dade Police Department arrived and Lewis fled to his car and tried to lock himself inside. The trooper, noting that the front passenger door was open, entered the vehicle to arrest Lewis. During the course of the trooper's efforts to arrest him, Lewis repeatedly punched and kicked the trooper. Lewis' conduct demonstrated gross immorality or an act involving moral turpitude. His conduct was inconsistent with the standards of public conscience, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to such notoriety, Lewis' service in the community, as well as his effectiveness in the school system, has been severely impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Chester K. Lewis, for a Florida teacher's certificate be DENIED. DONE AND ORDERED this 8th day of July, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 8th day of July, 1987. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Mr. Chester K. Lewis 1028 N.W. Third Avenue, #1 Miami, Florida 33136 Marlene T. Greenfield, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue The issue for determination is whether Petitioner's expulsion of Respondent from school is appropriate pursuant to provisions of Union County School Board Rule 5.37 and Section 230.23(6), Florida Statutes.
Findings Of Fact Respondent is R.S.V. He was a senior year student at Union County High School in October, 1994. Donald Leech was the principal of Union County High School in October, 1994, when he was apprised that there was a possibility of sale and possession of marijuana at the school. Leech contacted the school resource officer, Union County Sheriff's Deputy Charles Townsend, Jr., and an investigation was launched. Efforts of Townsend and Leech failed to yield any evidence of contraband substances on the school campus that could be linked to any individual or tested for purposes of subsequent prosecution. They had, however, obtained information about an event involving the alleged use of marijuana which had occurred on the school campus and allegedly involved Respondent. As a result, their investigation focused on Respondent. Townsend was apprised by his superior at the sheriff's department that a criminal prosecution could not be maintained due to the lack of admissible evidence or a "corpus delicti." Still, Leech and Townsend determined to question Respondent. On October 11, 1994, Leech and Townsend interrogated Respondent regarding his participation in the possession of a marijuana "joint" on school property on October 6, 1994. Townsend first apprised Respondent of his right against self- incrimination through the reading to Respondent of "Miranda" warnings regarding incriminating statements. The questioning then began. In response to questions, Respondent denied any knowledge of the October 6, 1994, incident. Leech failed to gain an admission from Respondent even though Leech advised Respondent that suspension for 10 days for being in an improper area (the school parking lot) was the only likely penalty. Leech then left the room. Respondent asked to telephone his mother. Townsend agreed. Respondent called his mother and explained the situation to her. She asked to speak with Townsend. Townsend told her that sufficient evidence existed to criminally prosecute Respondent. Respondent's mother told Townsend to cease questioning her son until Respondent's father arrived. Townsend complied and left Respondent alone in the room. Respondent's father soon arrived. He did not speak with Respondent. He, likewise, was informed by Townsend that sufficient evidence for prosecution existed, but that co- operation by Respondent would go a long way with authorities and have an impact on the likelihood of prosecution. Then, with the assent of Leech and Townsend, Respondent's father spoke privately with two other youths who were alleged to be involved in the incident. As a result of his conversation with the two youths, Respondent's father learned that his son had been present at a incident on school property where an alleged marijuana cigarette had been smoked but that his son had refused to participate in smoking the "joint." Respondent's father then spoke with Leech and Townsend. In addition to the earlier advice by Townsend of leniency if his son co-operated with the investigation, Respondent's father was now informed by Leech that only a 10 day suspension from school was contemplated because of Respondent's presence during the incident which had occurred in the school parking lot, an "improper area." Without any discussion with his son or legal counsel and solely in reliance upon the representations made to him by Leech and Townsend, Respondent's father then confronted his son and told Respondent to provide a written statement to Leech and Townsend. Respondent's statement reads as follows: On October 6, 1994. Myself, people 1 and people 2 walked out to the parking lot. People 1 lit up a marijuana joint and smoked it then passed it to people 2. After that, people 2 passed it to me. The 2 peoples walked off and I put it out and left it in the parking lot. After school I picked it up and kept it. Respondent later admitted to his father that he subsequently destroyed the remains of the cigarette after leaving school property. While Respondent's written statement references a "marijuana joint", no evidence was presented at the final hearing which is dispositive of whether the substance was, in actuality, cannabis. On the basis of Respondent's written statement, Leech instituted an immediate 10 day suspension of Respondent. On October 13, 1994, two days later, Leech formally recommended to the Union County School Superintendent, Eugene Dukes, that Respondent be expelled for the remainder of the school year. At final hearing, Leech rationalized that his expulsion recommendation was based upon Respondent's actual possession of the alleged contraband, as opposed to merely being present at the incident. By notice dated October 12, 1994, one day before the formal notification to him from Leech, Respondent's mother was informed by Superintendent Dukes that he would recommend the expulsion of Respondent for the remainder of the school year. The notice set forth no specific factual basis for the expulsion recommendation, but recited that the action was taken on the basis of misconduct charges set forth in Section 230.33 and Section 232.26, Florida Statutes, as well as Union County School Board Rules Section 5.37. Dukes also recommended the expulsion of the other students who admitted to actually smoking the alleged marijuana cigarette in question. The proposed expulsion of Respondent prevented his return to Union County High School and resulted in his completion of his senior year of high school in the school district of Columbia County, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Union County School Board imposing a 10 day suspension upon Respondent for violation of school restrictions regarding his presence in an improper location. FURTHER RECOMMENDED that such final order direct the destruction or sealing of school records that document the expulsion of Respondent for possession of a controlled substance due to the absence of credible evidence to sustain such charge. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 8th day of May, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Accepted. 2.-11. Rejected, subordinate to HO findings. 12.-13. Rejected, legal conclusions, relevancy. 14. Rejected as to first preparatory phrase of the paragraph as unsupported by weight of the evidence. Remainder rejected as unnecessary to result reached. 15.-16. Rejected, subordinate to HO findings. 17.-18. Incorporated by reference. 19.-20. Rejected, subordinate. 21. Rejected, legal conclusion. Respondent's Proposed Findings 1.-10. Accepted, but not verbatim. Incorporated by reference. Accepted. COPIES FURNISHED: Ronald G. Meyer, Esquire Robert J. Sniffen, Esquire Meyer and Brooks Post Office Box 1547 Tallahassee, Florida 32302 Stephen N. Bernstein, Esquire Post Office Box 1642 Gainesville, Florida 32602 Eugene Dukes, Superintendent Union County School Board 55 West Sixth Street Lake Butler, Florida 32054 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner, Lee County School Board (School Board or Petitioner), has just cause to dismiss Respondent, Maria Burns, from her employment as a school teacher for immorality and misconduct in office.
Findings Of Fact Respondent holds a Florida Educator Certificate and has been a teacher at Pine Island Elementary School in Lee County since August 27, 1990. Prior to that, she taught for four years in DeSoto County. The evidence was that she has been a good and effective teacher. On May 21, 2012, Respondent resided with a female housemate in a home Respondent owned in Charlotte County. The two women had a disagreement or altercation, and the housemate threatened Respondent, who left the premises to get help from the housemate's mother. When her mother arrived, the housemate became more violent and threatening. The Charlotte County Sheriff's Office (Sheriff's Office) was called and responded to the home. The housemate barricaded herself in the house, fired shots, and stood off law enforcement for several hours. When the stand-off ended, and before Respondent returned to the house, the Sheriff's Office arrested the housemate and executed a warrant to search the premises. During the search, law enforcement found 25 to 30 small suspected marijuana plants in five flower pots in open view on chairs on the second floor balcony of the house. The plants tested positive for cannabis. It appeared to law enforcement that the plants were being tended by someone and that leaves were being harvested from the plants. A cigar-type box was found on a kitchen counter amid debris from the stand-off, during which tear gas canisters were shot through the windows of the home. The box had a hinged lid and contained suspected marijuana residue and seeds and a glass smoking pipe (drug paraphernalia). Because Respondent was the owner and a resident in the house, she was arrested and charged with marijuana possession, marijuana cultivation, and possession of drug paraphernalia. Respondent entered into a pre-trial diversion agreement, which she completed by the time of the hearing in this case. On February 25, 2013, the charges against her were dropped by nolle prosequi. No other evidence was presented from which it could be inferred that Respondent knew the marijuana plants were in her house. When found, the plants were in an open and obvious location, but there was no evidence how long they had been there prior to their discovery by law enforcement. The cushions of the chairs they were on were not designed to be left outside in the elements. There was no evidence as to where the plants were kept when not on the chairs on the balcony. Even if the plants were seen by Respondent, there was no evidence that she knew they were marijuana plants. There was no evidence that Respondent tended to the plants, harvested leaves from them, or used the leaves in any way. There also was no evidence that the drug paraphernalia belonged to Respondent, or that she knew the drug paraphernalia was in the house. No inferences are drawn simply from Respondent's decisions, made on advice of counsel based on Fifth Amendment privilege, not to appear at the final hearing and not to address certain aspects or give her explanation of the incident during the pre-determination hearing. The local media reported Respondent's arrest. The reports gave Respondent's name, age, and Charlotte County address, and included a photograph, but did not identify her as a teacher. Pine Island is a small community, and everyone at Respondent's school and in the community probably knows about her arrest and prosecution. There was no other evidence as to any adverse effect that knowledge might have on Respondent's service to the community or effectiveness as a teacher. Lee County School Board Policy 5.02 requires the School Board to "establish high standards and expectations for its professional faculty and staff, including: (1) Compliance with applicable federal and State laws, rules, codes, regulations and policies concerning professional credentials and employment; (2) Dedication to high ethical standards; [and] (3) Establishment of high standards in educational practice." It also requires employees to meet the standards and expectations established by the School Board. Lee County School Board Policy 5.04 requires criminal background checks to determine suitability for employment and provides that failure to be truthful on an employment application about prior criminal history will be grounds for ineligibility or dismissal from employment. Id. § (1)(a). It also provides that the School Board will not hire a teacher: who is "on probation or has a pending case"; with "[o]ther offenses listed in §§ 435.04 and 1012.315, Florida Statutes" (which includes, under section 435.04(2)(rr), Florida Statutes, a chapter 893 felony drug prevention and control offense, such as cultivation of marijuana); or with a misdemeanor drug and/or drug paraphernalia offense less than five years old. Id. § (7)(a)-(c). Lee County School Board Policy 5.29(1) provides that "[a]ll employees are expected to exemplify conduct that is lawful and professional " Lee County School Board Policy 5.37(2)(a) "prohibits the use, distribution, manufacture, possession, sale, cultivation, or attempt to sell illegal controlled substances at any time whether on or off duty . . . ." Violation of the prohibition subjects an employee to "disciplinary action up to and including termination." This policy is set out in the School Board's Employee Handbook. There is a Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County. It prohibits possession, consumption, or being under the influence of illegal drugs on the job or in the workplace. It does not negate Lee County School Board Policy 5.37(2)(a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: finding no just cause for dismissal on charges of immorality or misconduct in office; and reinstating Respondent with back pay from February 26, 2013, forward. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 19th day of April, 2013.
