The Issue The issue in this case is whether Respondent violated Section 475.25(1)(f), Florida Statutes (1997), by pleading or having been found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate broker pursuant to license no. 0414405. The last license issued is inactive. On December 15, 1997, Respondent entered into a plea of guilty to aggravated assault and leaving the scene of an accident with injuries. Both crimes are third-degree felonies under Sections 784.02(1) and 316.027(1)(a), respectively. The court adjudicated Respondent guilty and sentenced Respondent to two years of community control to be followed by two years probation. Both sentences ran concurrently. The court also imposed miscellaneous fines in the cumulative amount of $255 and ordered Respondent to pay probation costs. On January 13, 1998, Respondent sent a letter to Petitioner voluntarily disclosing his plea and conviction. Respondent has no prior disciplinary history. Both convictions involve a single incident which occurred on November 23, 1996, at the Draft House, 1615 Lee Road, Orlando, Florida, a bar in Orange County, Florida. Respondent touched the female owner of the bar on her buttocks. The owner's son took offense to the incident. When Respondent left the bar, the owner's son followed Respondent to Respondent's car in the parking lot. The owner's son hit Respondent in the nose with his fist. Respondent got into his car. The owner's son smashed the windshield of Respondent's car with a steel bar. Respondent left the scene to call for help. When Respondent drove away, Respondent's car struck the owner's son. Respondent did not remain at the scene because he feared for his own safety. Respondent stopped a few blocks away and called 911. The extent of injuries of the person struck by Respondent's car was not established at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(f), and imposing an administrative fine of $1,000. DONE AND ENTERED this 16th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Richard F. Ronnick 4271 Biltmore Road Orlando, Florida 32804-2201 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent’s license to practice pharmacy should be revoked or otherwise disciplined based on conduct that resulted in criminal convictions and his failure to report the convictions to the Board of Pharmacy (Board), as required.
Findings Of Fact The Respondent has been a licensed pharmacist in Florida and held Florida license PS 36908 at all pertinent times, until it expired on September 30, 2013. On December 14, 2010, the Respondent was indicted in federal court in the Middle District of Florida, Case No. 8:10- CR-530-T-33AEP. On September 5, 2012, the Respondent pled guilty to one count of conspiring to violate 21 U.S.C. sections 841(a)(1), 843(a)(2), 843(a)(3), and 856(a)(1), all of which also constituted violations of 21 U.S.C. section 846, and to two counts of knowingly engaging in monetary transactions, in and affecting interstate and foreign commerce, in property of a value of greater than $10,000, which was derived from a felonious criminal conspiracy to traffick in controlled substances, in violation of 18 U.S.C. section 1957. The plea also admitted to the factual basis of the charges--namely, that the Respondent conspired to allow the pharmacy he owned and operated in Tampa, Florida, to be used by the criminal conspiracy to fill and dispense forged, and otherwise illegal, prescriptions for over a million doses of Schedule II controlled substances, mostly oxycodone. The cash proceeds of the illegal sales were treated as income of the pharmacy, and the Respondent and others participated in monetary transactions whereby the illegally- obtained cash was used to purchase cashier’s checks and other assets and to conceal the illegal source of the money. Based on his guilty pleas, the Respondent was adjudicated guilty and sentenced to 108 months in prison. The special conditions of supervision in the Judgment require the Respondent to “refrain from engaging in any employment related to dispensing prescriptions drugs either in a pharmacy, pain clinic, or other medical environment.” The Respondent’s convictions clearly were related to his practice of pharmacy. The Respondent now maintains that he should not have pled guilty and would not have done so but for the incompetence of his attorney, who advised him to enter into the plea agreement. Based on this ground and others, he has been seeking to have his convictions vacated or his sentence reduced. There is no evidence that he has been successful in altering his convictions or sentence in any way, and the evidence does not suggest that it is likely that he will succeed in accomplishing either objective. The Respondent did not report his guilty pleas to the Board in writing within 30 days. The Respondent contends that his incarceration since his arrest made it impossible for him to do so. However, the greater weight of the evidence was to the contrary. More likely, compliance with the technical requirement to report to the Board in writing was not in the forefront of his mind. The Respondent has been licensed since July 31, 2002. This is the first time action has been taken by DOH and the Board to discipline his license. The Respondent’s actions had the potential to expose numerous people to harm from the misuse and abuse of oxycodone and other controlled substances. This violated the trust placed in him by the State of Florida when he became licensed as a pharmacist. His violation of the public trust demonstrated unsound judgment and a lack of integrity. As a result, the Respondent’s professional standing among his peers was lowered. (The only direct evidence of this was the testimony of DOH’s expert witness, but this fact can be inferred from the nature of his convictions and sentence, as well as the comments of the sentencing federal judge, who viewed the Respondent’s actions as an abuse of the public trust and undeserving of a second chance to be a pharmacist.) The Respondent also contends that he should be treated leniently in this case because alcohol abuse and long-standing emotional and psychological problems were primary reasons for his actions. His contention belies the criminal convictions, which were for intentional crimes and based on voluntary guilty pleas. To the extent that these problems were contributory factors, it is commendable that the Respondent is taking them seriously, and he will benefit in the long run from continuing to seek treatment and counseling to address them. Neither the problems, in themselves, nor the start of treatment and counseling warrants lenient license discipline. The Board has guidelines for the imposition of penalties for license violations. DOH submitted Petitioner’s Exhibit 4 as evidence of the guidelines in effect at the time of the Respondent’s guilty pleas and convictions. However, the exhibit actually purports to certify the guidelines in effect at various times from January 1, 2011, until December 31, 2013. It appears from the exhibit that as of the time of the Respondent’s guilty pleas and convictions, the range of penalties for a first violation of section 456.072(1)(c), Florida Statutes (2012), for a felony conviction or guilty plea was from a year probation and a $3,000 fine to a year suspension to revocation and a $5,000 fine. Fla. Admin. Code R. 64B16-30.001(o)3. (revised Nov. 29, 2006). The range of penalties for a first violation of section 456.072(1)(x), Florida Statutes (2012), is from a $1,000 fine to a $2,500 fine and a year probation. Fla. Admin. Code R. 64B16-30.001(o)(18) (revised Nov. 29, 2006). The guidelines in effect at that time also included aggravating circumstances that would justify deviating above the guidelines and mitigating circumstances that would justify deviating below the guidelines. The aggravating circumstances included: a history of previous violations; in the case of negligent acts, the magnitude and scope of the damage or potential damage inflicted on a patient or the general public; and violations of professional practice acts in other jurisdictions. The mitigating circumstances included: in the case of negligent acts, the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare; the lack of previous discipline; restitution of monetary damage suffered by the patient; the licensee’s professional standing among his peers; the steps taken by the licensee to ensure the non-occurrence of similar violations in the future, including continuing education; and the degree of financial hardship incurred by the licensee. In this case, there are no aggravating circumstances justifying a deviation above the guidelines. As for mitigating circumstances: the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare from his failure to report his convictions and guilty pleas to the Board might justify a deviation below the guidelines for that violation, but not for the convictions and pleas, themselves; the Respondent’s lack of previous discipline is a mitigating circumstance; restitution of monetary damage to the patient is not relevant; the Respondent’s professional standing among his peers has suffered and does not justify a deviation below the guidelines in this case; the Respondent forfeited all ill-gotten gains to the federal government and has incurred financial hardship as a result of the forfeitures and his incarceration, but that does not justify a deviation below the guidelines in this case; the Respondent has taken several continuing education courses since he has been incarcerated, but that does not justify a deviation below the guidelines in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a final order finding the Respondent guilty as charged and revoking his license to practice pharmacy. DONE AND ENTERED this 23rd day of June, 2014, 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 23rd day of June, 2014. COPIES FURNISHED: Mark Whitten, Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C-04 Tallahassee, Florida 32399-3254 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Yolanda Y. Green, Esquire Lucas L. May, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher S. Switlyk Register No. 53913-018 Federal Satellite Camp Post Office Box 779800 Miami, Florida 33177-9800
The Issue Whether or not Charles D. Reynolds, on January 7th, 1976, was arrested and charged with DWI, Aggravated Assault, and Resisting Arrest without Violence; the charge of DWI was reduced to driving with an unauthorized blood alcohol level; Charles D. Reynolds plead guilty, was adjudicated guilty and paid a fine of $200 plus court costs; the aggravated assault charge was nol prossed; he plead guilty and was adjudicated guilty of Resisting Arrest without Violence and paid a fine of $250 plus court costs, his license was revoked, and he was sentenced to DWI School; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Charles D. Reynolds, on December 25th, 1976, was arrested and charged with DWI, and resisting arrest with violence; he plead guilty to the lesser including Offense of Assault on a Law Officer, was put on one year's probation, sentenced to spend weekends in Jail for a period of three months beginning June 11th, 1977; he was allowed to vacate the guilty plea and plead nolo contendere to the charge of Assault on a Law Enforcement Officer with the same conditions as the guilty plea; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.
Findings Of Fact The Respondent, Charles D. Reynolds, is presently the holder of Florida Teacher's Certificate Number 316529, Graduate Rank III and is employed in the public schools of Duval County, Florida. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated May 17th, 1977. Upon examination of the recommendation, the Commissioner of Education found probable cause for filing a petition for the suspension of the Respondent's Florida Teacher's Certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, F.A.C. This determination was made on May 17th, 1977. On May 23rd, 1977, a petition for the suspension of the Respondent's Florida Teacher's Certificate was filed. The Respondent has filed his answer to the petition and has opposed the entry of an order of suspension. The case has been forwarded to the Division of Administrative Hearings for consideration by correspondence from the Petitioner dated July 14th, 1977. On January 7th, 1976, Respondent, Charles D. Reynolds a/k/a Chuck Daniel Reynolds was involved in an automobile accident in the parking lot of his residence at the Arrowhead Apartments located in Jacksonville, Florida. Officers of the Jacksonville Sheriff's Office investigated the case and in the course of the investigation asked to enter Respondent's apartment to obtain his driver's license. Reynolds was opposed to them entering his apartment, but they did go in. Reynolds went to the bedroom and obtained the license and came back into the living room area. At that point he became angry with the officers and took a swing in the general direction of a Sergeant Branch. The other officers subdued Reynolds and handcuffed him. He was subsequently taken to the hospital for treatment of wounds received in the scuffle. In addition to the events described, Reynolds also made verbal threats against the witnesses to the accident, to the effect that he would get even with them. During the course of this entire exchange, Reynolds appeared intoxicated as evidenced in slurred speech, erratic actions, excitability and a strong odor of the substance alcohol. He continued to be belligerent and kicked the side of the police car while being transported. It should be indicated that the Respondent did not carry out any of the verbal threats that he made. As a result of the incident, the Respondent was charged with DWI, aggravated assault, and resisting arrest without violence. The charge of DWI was reduced to driving with an unauthorized blood alcohol level and a guilty plea was entered for which he was fined in the amount of $200.00. The aggravated assault charge was nol prossed. The further provision of his sentence was that he attend the DWI school. The particulars of this case may be found in the Petitioner's composite exhibit 1 admitted into evidence, which describes the pleas and the judgment and sentence. The Respondent was fined in the amount of $250.00 for his plea of guilty to resisting arrest without violence. The second incident for which Respondent is charged in the Petition for Suspension, pertains to events on December 25th, 1976. On that date officers of the Jacksonville Sheriff's Office were traveling east on 103rd Street, in Jacksonville, Florida. Reynolds was going west, driving with his bright lights on and straying into the oncoming lane in which the officers were driving. The time was approximately 1:30-2:00 a.m. The officers turned around and pursued Reynolds, who at one point in the pursuit pulled off the road to avoid the officers. The officers finally caught Reynolds on Interstate 295 in Duval County, Florida. After making the stop, they removed Reynolds from the car and noted that he had a strong odor of alcohol about his person, and was staggering around. One officer administered so-called field sobriety tests , specifically the finger to nose and balance test. In the finger to nose test the individual tries to place an index finger on his nose while standing in a certain posture. Reynolds was unable to do this and was also unable to stand on one foot in attempting the balance test. The officers felt that Reynolds was driving while under the influence of alcohol; however, being Christmas Day they intended to give Reynolds the opportunity to have someone come and pick him up and drive his car home, and waive charges. When this was explained to Reynolds, Reynolds replied that he wanted to get back in his car, for purposes of driving away. The officers prohibited him from getting in the car, at which point a struggle ensued between the officers and Reynolds for a period of minutes. Most of the struggle was in the traffic lanes of Interstate 295. In the end, Reynolds was charged with DWI, a couple of traffic violations and resisting arrest with violence. After the struggle Reynolds indicated that the officers were going to be sorry for, "screwing with me." He was taken to the Duval County, Florida Jail and booked for the offenses and given a breathalizer examination which showed his reading to be .27 percent blood alcohol level. This reading nay be found in Petitioner's Exhibit 3 admitted into evidence. He entered a plea of guilty to the lesser included offense under resisting arrest with violence, to wit assault on a law enforcement officer. The Court withheld the adjudication of guilt and placed the Respondent on probation for a period of one year on the condition that he spend weekends in jail for a period of three (3) months, beginning on June 11th, 1977, and pay $10.00 per month for cost of supervision. This plea was subsequently withdrawn and the Court allowed a plea of nolo contendere to be entered in lieu of the guilty plea. The Court also allowed a motion to mitigate the sentence, which motion was filed prior to the imposition of the petition for suspension made by the Petitioner in this cause. The Court's Order Granting the Motion to Mitigate was entered subsequent to the Petition for Suspension made by the Petitioner. The probation terms were modified by memorandum of June 9th, 1977, from the Court, deleting the provision to spend weekends in jail. Subsequently, the Respondent was required to spend time working in a program known as the Jacksonville Probation and Restitution Center, working with young offenders. (The Director of that program testified in the hearing and indicated that Mr. Reynolds did an admirable job of assisting in the program.) For the violations alleged on January 6th, 1976 and December 25th, 1976, the Petitioner has charged Respondent with violations of Section 231.09 and .28, F.S. The two incidents will be discussed chronologically in considering whether the Petitioner has proven the violations or not. The first factual incident discussed pertains to the events of January 7th, 1976. In reviewing the events that led to the arrest and charges previously discussed and the subsequent disposition of those charges in terms of a possible substitute violation of Section 231.09, F.S., the only provision of that section which would seen to have any application would be Section 231.09(2) F.S. No other sub-paragraphs of Section 231.09, F.S. seem to have application under the evidential facts established. The subsection that does have application, i.e., Section 231.09(2), F.S. reads as follows: "EXAMPLES FOR PUPILS -- Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." This provision of the chapter has been considered in the case of Meltzer vs. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), in that opinion the Court held Section 231.09(2), F.S., to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc, reported at 553 F.2d 1008, The United States Fifth Circuit Court of Appeals, granted rehearing with the right for oral agreement and the opportunity to submit supplemental briefs, with the date of the oral agreement to be announced in the future. The rehearing has not been held at the time of this recommended order, to the knowledge of the undersigned. Consequently, the undersigned will report whether the evidential facts as demonstrated established a violation under the language of Section 231.09(2), F.S., with a caveat that this section may not withstand the final order of the Court in Meltzer, supra. Should Section 231.09(2), F.S. be upheld, the acts of being arrested and pleading guilty to driving with an unlawful blood alcohol level and resisting or opposing a police officer without violence constitute violations of Section 231.09(2), F.S., both in terms of the entry of the plea in those two counts and in terms of the underlying evidential facts which led to the plea of guilty. These facts establish that the Respondent failed to labor faithfully and honestly for the advancement of the pupils in their department and morals, in accordance with Section 231.09(2), F.S., assuming this latter section of the law to be constitutional. Again, the evidential facts spoken of are those established in the events reported in the hearing pertaining to the incident of January 7th, 1976, in which Respondent was driving with an unlawful blood alcohol level and resisted the police without violence. In connection with the events of January 7th, 1976, there is a further allegation of a violation of Section 231.28, F.S. In pertinent part, Section 231.28(1), F.S., states that the license can be suspended in accordance with the following language: * * * "(1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic vio- lation , or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of the law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the re- gulations of the State Board of Education or the school board in the district in which he is employed." In reviewing the language of that section in comparison to the facts established in the events of January 7th, 1976, it is established that Respondent is guilty of a violation of that section because he has plead guilty to driving with an unauthorized blood alcohol level and resisting arrest without violence, which are misdemeanors or other criminal charges, other than minor traffic violations. This activity was also an act involving moral turpitude. No other violations of this section were shown as a result of the matters of January 7th, 1976. Turning to a consideration of the factual matters established in this hearing as it pertains to December 25th, 1976, and in view of the discussion of Section 231.09(2), F.S., pertaining to January 7th, 1976, a violation has been shown. The events of December 25th, 1976, are likewise subject to the caveat pertaining to the case of Meltzer, supra. The events of the arrest and subsequent pleas in Court after the factual events of December 25th, 1976, have shown the Respondent has failed to labor faithfully and honestly to the advancement of pupils and their deportment and morals, by his condition while driving and by his resistance to the authorities who were trying to enforce the laws of the State of Florida. No other violations of Section 231.09, F.S., were shown for the December 25th, 1976 incident. The events of December 25th, 1976, show a violation of Section 231.28(1), F.S., in that the act of the Respondent's driving and resistance to the authorities who were enforcing the laws of the State of Florida were acts involving moral turpitude. Also by the entry of the plea of nolo contendere which the Court accepted in lieu of the guilty plea, the Respondent has been convicted of a misdemeanor other than a minor traffic violation. No other violations of Section 231.28, F.S. were shown for the events of December 25th, 1976. By the guilty plea entered to the offenses of driving with an unlawful blood alcohol level and resistance without violence in the charges of January 7th, 1976, and the nolo contendere plea to the offense of assault on a law enforcement for the events of December 25th, 1976, the Petitioner has made a prima facie proof of grounds for revocation of the Respondent's teaching certificate, as set forth in Section 231.28(3), F.S. These prima facie grounds have not been refuted by the Respondent.
Recommendation In the course of the hearing, certain witnesses testified as to the Respondent's good character and teaching proficiency. These witnesses were various members of the community and members of the staff of the school in which the Respondent teaches and pupils of the Respondent. Although these witnesses were not aware of the events involved in the incidents of January 7th, 1976, and December 25th, 1976, they were nonetheless impressed with Respondent's abilities as a teacher. In considering their testimony and the testimony offered which established the alleged violations, it is
The Issue Whether Petitioner's application for certification should be denied for the reasons set forth in the Amended Notice of Reasons.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is presently 25 years of age. His date of birth is July 29, 1974. Petitioner had a troubled youth; however, since the August 6, 1994, incident (described below) that is the focus of the instant case, he has matured and gained a reputation of being a responsible adult member of his community. On Saturday, August 6, 1994, shortly after his twentieth birthday, at approximately 5:55 p.m., Petitioner was driving north on Andrews Avenue in downtown Fort Lauderdale. He had just finished running errands for his father in the downtown area and was on his way home. 5/ There were no passengers in his vehicle. As Petitioner approached the intersection of North Andrews Avenue and Second Street, there was a woman standing on the sidewalk on the northeast corner of the intersection, facing south, who attracted his attention. Unbeknownst to Petitioner, the woman, Joyce Fleming was a police officer employed by the Fort Lauderdale Police Department. Officer Fleming was participating in an undercover operation designed to "combat street level prostitution activity." Her role in the operation was to pose as a street prostitute. When Petitioner stopped for a red light at the intersection of North Andrews Avenue and Second Street, he made eye contact with Officer Fleming, who waved at him and pointed him toward a nearby parking garage, which was underneath an office building. Petitioner pulled into the parking garage and parked his car, head first, facing a concrete wall and beside concrete pilings. Officer Fleming, who was wearing a wire, then walked up to the driver's side of Petitioner's vehicle and started talking to Petitioner. The conversation she had with Petitioner was tape recorded 6/ and monitored by backup officers (who were in the vicinity). Officer Fleming began her conversation with Petitioner by complaining that a certain police officer, who, she told Petitioner, had been across the street from where she had been standing on North Andrews Avenue, was always "bothering" her. It was because of this police officer, she explained to Petitioner, that she had not "want[ed] to get in over there." After being told about the police officer, Petitioner asked Officer Fleming, "Why don't I meet you somewhere else?" To allay Petitioner's concerns, Officer Fleming told him that the police officer was no longer across the street and that therefore she could "get in" his vehicle. Petitioner, however, indicated to Officer Fleming that he was still "nervous about it," to which Officer Fleming replied, "If you're nervous, you can go on." Petitioner, though, did not "go on." He chose to stay. 7/ Officer Fleming then asked Petitioner what he "want[ed] to do." Petitioner answered, "I don't know, what do you want?" Officer Fleming's response was, "Well, I don't care; just tell me what you want to do and I'll tell you how much." Petitioner told Officer Fleming (whom he believed to be a prostitute) that he was interested in a "blow job." 8/ He and Officer Fleming then haggled over the price. Petitioner ultimately agreed to pay Officer Fleming $10.00, 9/ after which the following exchange took place between Petitioner and Officer Fleming: Officer Fleming: Okay. We can do that then. Petitioner: Why don't I meet you somewhere else? Officer Fleming: You don't want to do it here? Petitioner: Well, I don't want a cop pulling up. It was at this point in time that back up officers arrived on the scene and arrested Petitioner for "soliciting for prostitution" in violation of Fort Lauderdale Municipal Ordinance 16-1. At no time did Petitioner actually pay Officer Fleming any money; nor was there ever any physical contact, sexual or otherwise, between Petitioner and Officer Fleming. (Petitioner remained in his vehicle, while Officer Fleming stood alongside the vehicle on the driver's side, throughout their conversation in the parking garage.) The charge that Petitioner had violated Fort Lauderdale Municipal Ordinance 16-1 10/ by agreeing to pay Officer Fleming for oral sex was filed in Broward County Court, and it was docketed as Case No. 94-15421MO10A. On March 23, 1995, Petitioner filed a Sworn Motion to Dismiss in Case No. 94-15421MO10A. Appended to the motion was a copy of a transcript that had been prepared of the tape recording of the conversation Petitioner had had with Officer Fleming immediately prior to his arrest. The transcript, however, did not accurately and completely reflect the contents of the tape recording. It omitted Petitioner's affirmative response when he was asked by Officer Fleming, during price negotiations, whether he would be agreeable to paying $10.00 for her services. 11/ Pursuant to an agreement with the Municipal Prosecutor, Petitioner entered a Pre-Trial Intervention Program on or about July 5, 1995. Petitioner successfully completed the Pre-Trial Intervention Program. Consequently, on October 23, 1995, prior to any ruling having been made on Petitioner's Sworn Motion to Dismiss, the Municipal Prosecutor issued a Nolle Prosequi in Case No. 94-15421MO10A announcing that the "City of Fort Lauderdale decline[d] prosecution on all municipal violations against [Petitioner] arising out of [his] arrest on [August 6, 1994]." Petitioner graduated from the University of South Florida in December of 1997 with a B.A. degree in English. On or about February 17, 1998, Petitioner submitted to the Department of Education (Department) an Application for Florida Educator's Certificate seeking an "initial two-year nonrenewable temporary" teaching certificate. On the application, he acknowledged his August 6, 1994, arrest. From August of 1998 to January of 1999, Petitioner was employed as a tenth-grade English teacher at MacArthur High School in Hollywood, Florida (which, at the time, had an enrollment of 2,200 students). The principal of the school was (and still is) Beverly James. In Ms. James' opinion, Petitioner did a "very good job" while at the school, and she "would not hesitate" to rehire him if he received his teaching certification. In addition to his classroom responsibilities at MacArthur High School, Petitioner also served as the assistant coach of the school's wrestling team. The head coach of the team was Michael Zarra. In Mr. Zarra's opinion, Petitioner did a "good job coaching," and he would not "have any hesitation to have [Petitioner] back as an assistant wrestling coach." As evidenced by his job performance at MacArthur High School, by engaging in the conduct for which he was arrested on August 6, 1994, Petitioner has not impaired his ability to be an effective teacher. The incident, which took place when Petitioner was a 20-year old college student, four years before he began teaching at the school, was not widely publicized and it has not adversely affected his reputation in the community. By letter dated December 28, 1998, Petitioner was notified that his Application for Florida Educator's Certificate was being denied for the reasons set forth in the Notice of Reasons that accompanied the letter. Shortly thereafter, Ms. James terminated Petitioner's employment at MacArthur High School. She did so only because she was told she had to inasmuch as Petitioner "would not be certified." On or about March 17, 1999, Petitioner was provided with an Amended Notice of Reasons reflecting that the denial of his application was based solely upon the August 6, 1994, incident involving Officer Fleming. Petitioner subsequently sought to reopen Broward County Court Case No. 94-15421MO10A. His efforts were successful. On June 23, 1999, Broward County Court Judge Joel T. Lazarus issued a Final Order of Dismissal in the case, which provided as follows: CAME ON TO BE HEARD on June 21, 1999 Defendant's Motion to Vacate and Set Aside Disposition and Defendant's Sworn Motion to Dismiss and the Court having heard the arguments of counsel and being further advised, it is hereby ORDERED AND ADJUDGED that Defendant's Motion to Vacate and Set Aside Disposition be and the same is hereby GRANTED. IT IS FURTHER ORDERED AND ADJUDGED that, as to Defendant's Sworn Motion to Dismiss and the Court's consideration of the matters before it, this Court makes a determination that no material issue of fact that sustains the criminal charges against this Defendant exist[s] and that the Defendant is entitled to dismissal as a matter or law. IT IS FURTHER ORDERED AND ADJUDGED that Defendant's Sworn Motion to Dismiss be and same is hereby GRANTED and the Defendant is herewith discharged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order reversing the Department of Education's preliminary denial of Petitioner's Application for Florida Educator's Certificate and directing the Department to issue, unconditionally, the "initial two-year nonrenewable temporary" teaching certificate sought by Petitioner. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 13th day of April, 2000.
The Issue The issue to be determined is whether Respondent, Alexander Roy, is guilty of violating section 1012.795(1)(d), (f), (g) and (n), Florida Statutes (2011). If violations are found, the appropriate penalty must be determined.
Findings Of Fact Respondent holds Florida Educator Certificate 1035877, covering the areas of mathematics, middle grades integrated curriculum, and social studies, which is valid through June 2015. At all times material to the allegations in the Administrative Complaint, Respondent was employed by the St. Lucie County School Board (SLCSB) as a mathematics teacher at Manatee Elementary School, also known as Manatee K-8 School. On or about January 13, 2012, Respondent was arrested in Osceola County, Florida, as the result of allegations that Respondent used an internet provider and “knowingly persuaded, induced, enticed and coerced an individual who had not attained the age of eighteen years, to engage in sexual activity.” The allegations were based on the probable cause affidavit of Kevin Kulp, Special Agent for the Florida Department of Law Enforcement, who worked on the undercover operation giving rise to Respondent’s arrest, which stated that Respondent contacted a person on-line that he believed to be the mother of a 13-year-old girl in order to have sex with both the mother and the daughter. The “mother” and the “daughter” were undercover police officers. As a result of Respondent’s arrest, a search warrant was executed to search Respondent’s residence in St. Lucie County, Florida. According to Detective Longson, the search revealed that Respondent possessed approximately 75-100 images of minors engaged in explicit sexual conduct. The analysis of the information seized at Respondent’s home also included photos and videos of a teenage girl, approximately 16 years old, engaged in explicit sexual acts with Respondent. On January 17, 2012, as a result of his arrest, Respondent was placed on temporary duty assignment at his home. On or about March 5, 2012, Respondent was charged by indictment with one count of Enticing and Attempting to Entice a Minor to Engage in Sexual Activity in violation of 18 U.S.C. § 2422(b), and four counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A Superseding Indictment containing the same charges was filed May 31, 2012. On March 27, 2012, he was suspended without pay by the SLCSB because of the federal criminal charges against him. On April 10, 2012, Respondent was terminated from his employment by the SLCSB, based upon his inability to report for work because of his imprisonment. On or about June 15, 2012, Respondent was tried in federal court before a jury. He was found guilty of all five counts. On September 12, 2012, United States District Court Judge K. Michael Moore adjudicated Respondent guilty on all five counts, and sentenced him to life in prison as to Count 1, and 120 months of incarceration as to each of Counts 2 through 5, with the penalty for all five counts to be served concurrently. Upon release, Respondent is to be placed on probation for life, a condition of which is to comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901. et seq.), as directed by the probation officer, the Bureau of Prisons, or any state sex offender agency in a state in which he resides, works, is a student, or was convicted of a qualifying offense. Also included in the Special Conditions of Supervision are that Respondent may not possess or use any computer, with the exception of pre-approved use in connection with authorized employment; that Respondent shall not have personal, mail, telephone, or computer contact with children under the age of 18; that Respondent shall not be involved in any children’s or youth organization; and that Respondent shall participate in a sex offender program. Respondent’s arrest, prosecution, and conviction were covered by the media, in the newspaper and on the radio, television, and internet. Respondent’s conviction significantly impairs Respondent’s effectiveness as a teacher in the community. Respondent’s certification is for middle school grades. The prohibition from having contact with children under the age of 18 makes it impossible for him to hold employment as a teacher in the public school system. As stated by Maurice Bonner, the Director of Personnel for St. Lucie County Schools, “[t]here is absolutely no way that the students and the parents and the community would have any faith in him being alone in a classroom with kids even for one minute. And he would not be able to effectively be in a classroom. Or be on campus, period, where there are children present.” His testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of all four Counts in the Amended Administrative Complaint and permanently revoking his certification. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 2nd day of August, 2013. COPIES FURNISHED: David Holder, Esquire J. David Holder, P.A. 387 Lakeside Drive Defuniak Springs, Florida 32435 Alexander Roy, Register # 99238-004 United States Penitentiary Post Office Box 24550 Tucson, Arizona 85734 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Donald W. Del Bello, currently holds Florida teaching certificate number 402600, covering the area of music, which is valid through June 30, 1996. Respondent is currently employed by the Dade County Public School System to teach music at the elementary school level, and was so employed at all times pertinent to these proceedings. In these proceedings, the sole issue for determination was whether, on or about July 23, 1991, at Tropical Park, Dade County, Florida, the respondent exposed his sexual organs in a vulgar or indecent manner. The proof in this case was not, however, sufficiently compelling to satisfactorily resolve the issue raised. To support its case, petitioner offered the testimony of Sergeant James Julian, a police officer with the Metropolitan Dade County Police Department, who testified that on July 23, 1991, while operating undercover at Tropical Park, a public place, in Miami, Dade County, Florida, he observed respondent expose his sexual organs. According to Sergeant Julian, he observed the respondent, dressed in a white shirt, tie and green pants, and another man, dressed in running attire (tennis shoes, blue shorts and top), standing approximately 20 yards apart, and that, while watching each other they rubbed their crotches, removed their penises from their pants, and masturbated. According to Sergeant Julian, he was approximately 10 yards from the respondent and approximately 30 yards from the man in running attire when these events occurred, and that upon observing such activity he placed both men under arrest. Juxtaposed with the proof offered on behalf of petitioner, respondent testified that while he was in the park on the day in question, he was not dressed in a white shirt, tie and green pants but, rather, was wearing running attire (white running shoes, blue shorts and a white tee shirt), that he observed another male dressed in a white shirt, tie and green pants who was masturbating, and that he did not take his penis from his pants, expose himself or masturbate. Respondent's attire on the day in question was reasonably corroborated by two credible witnesses, and his testimony at hearing was consistent with his recitation of what had occurred to his attorney, within an hour of being released from police custody. Here, the proof offered by each of the parties appeared worthy of belief, and it cannot be concluded, based on the record in this case, which version reflects what actually transpired on the day in question. Therefore, considering the fact that the burden of proof in these proceedings rested on petitioner as discussed infra, it must be concluded that the proof fails to support the conclusion that respondent committed the offense as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1993. WILLIAM J. KENDRICK 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 16th day of February 1993.
Findings Of Fact Vincent P. Durso (Respondent) holds Florida teaching certificate number 380932 valid through 1997. He is certified in the areas of Biology, Social Sciences and Middle Grades. From March 1984 to June 1984, the Respondent was employed as a teacher at Leto High School by the Hillsborough County School Board. From July 1984 to August 1985, the Respondent worked as a job training specialist by the Marion County School Board. From August 1985 to October 1987, the Respondent was employed as a teacher at Chamberlain High School by the Hillsborough County School Board. From February 1988 to August 1988, the Respondent was employed as a teacher at Carver Junior High School by the Los Angeles, California Unified School District. Since 1989, the Respondent has been employed by the School Board of Pinellas County under a professional services contract issued pursuant to Section 231.36(1)(a), Florida Statutes. While at Chamberlain High School, the Respondent taught a peer counseling class during the 1986-87 school year. The class was intended to address the needs of students at risk of dropping out of school. Roxanna Fitzgerald (Fitzgerald) and Jeaneen Boyas (Boyas) were students in the Respondent's peer counseling class during the 1986-87 school year. Ms. Fitzgerald is now known as Roxanna Fitzgerald Violette. Ms. Boyas is now known as Jeaneen Boyas Riches. For the purposes of this Recommended Order, they are identified by the names they were known by during their enrollment at Chamberlain High School. While at Chamberlain High, Ms. Fitzgerald and Ms. Boyas frequently skipped classes and often received passes from the Respondent which excused them from the missed classes. On June 19, 1987, Ms. Fitzgerald and Ms. Boyas were driven to the Respondent's house by a friend, Michael Ramsey. The alleged purpose of the visit was to permit the women to take a photograph of the Respondent. Upon arriving at the house, the two women went around to the rear of the house and attempted to look through the windows. Because the blinds were closed, they could not see inside the house. The two women then walked back to the front of the house and knocked on the door. The Respondent opened the door and invited them in. A few minutes later, Mr. Ramsey went to the front door and was also invited inside by the Respondent. After the three students were inside, the Respondent provided them with soft drinks and excused himself to shower. While in his bedroom, with the door closed, the Respondent telephoned a coworker with whom he had spoken earlier that day. During the earlier conversation, the Respondent had made arrangements to drive to the coworker's house and get a book. In the second call, the Respondent told the coworker about the students coming to his house and said that he still planned to go to the coworker's house and get the book. Ms. Boyas had to comply with a curfew, so while the Respondent showered, Mr. Ramsey and Ms. Boyas left his house and returned to Ms. Boyas home. Ms. Fitzgerald refused to leave with them, and chose to remain in the Respondent's house. When the Respondent returned to his living room, he saw that only Ms. Fitzgerald remained. She told him that her two friends had left. The Respondent told Ms. Fitzgerald he had an errand to run and invited her to go with him. She agreed to accompany him. The two drove in the Respondent's car to the coworker's house. The Respondent spoke briefly to the coworker and retrieved the book. Ms. Fitzgerald remained in the car. After the brief outing, the two returned to the Respondent's home to find Mr. Ramsey waiting. Mr. Ramsey attempted to convince Ms. Fitzgerald to leave with him, but after she declined, he left. Ms. Fitzgerald and the Respondent reentered the house. He offered her a soft drink and they sat on the sofa and talked. At some point during the evening, they went into his bedroom and engaged in sexual intercourse. Later that same evening, Mr. Ramsey returned and Ms. Fitzgerald agreed to leave with him. Because she had told her mother she was spending the night with Ms. Boyas, Ms. Fitzgerald slept in Mr. Ramsey's truck. Mr. Ramsey drove Ms. Fitzgerald to her home the next morning. During the period from June 19, 1987 to September 8, 1987, the Respondent and Ms. Fitzgerald engaged in sexual intercourse on five occasions. After the meeting on June 19, 1987, the sexual activity was initiated by the Respondent. He would call Ms. Fitzgerald and ask her to meet him at a prearranged location, generally down the street from her home. Each time, she would sneak out her bedroom window and wait for the Respondent. He would pick her up in his vehicle and take her to his house. He would return her to the location after the sexual activity had concluded. The sexual activity took place in his dark bedroom. He wore condoms during intercourse. He asked her not to disclose the relationship because it would damage his teaching career. During the summer of 1987, Ms. Fitzgerald's mother learned that her daughter had been sneaking out of the house. On August 19, 1987, Ms. Fitzgerald's mother received a telephone call from a man identified as "Cliff Durso" who said he was a teacher calling to wish her daughter a happy birthday. On September 8, 1987, Ms. Fitzgerald was involved in an auto accident while skipping school with Ms. Boyas. After leaving the site of the accident, the two women spoke with the Respondent who offered suggestions as to how to deal with the situation. Later that evening, Ms. Fitzgerald and her mother returned home from an appointment to find several people waiting to discuss the auto accident. At that point, Ms. Fitzgerald had not disclosed the accident to her parents. After the nature of the accident was disclosed, Ms. Boyas mother contacted the Respondent, apparently in an attempt to obtain whatever information she could about the accident. The extent of the Respondent's knowledge about the details of the accident is unclear. Late during the evening of September 8, 1987, the Respondent contacted Ms. Fitzgerald. As was the usual procedure, she left her house, went to the prearranged location and was picked up by the Respondent. After the two went to his house and engaged in sexual intercourse, he returned her to the same location. At some point after September 8, 1987, Ms. Fitzgerald's mother discovered hidden behind a poster in her daughter's room, photographs of the Respondent and a series of letters to the Respondent written but not mailed by Ms. Fitzgerald. In the letters, she discussed her activity with him and indicated that she would protect him. Ms. Fitzgerald's mother asked her daughter to explain the letters and the situation with the Respondent. Although the evidence establishes that Ms. Fitzgerald became upset, her actual response to her mother's inquiries is unclear. On September 12, 1987, Ms. Fitzgerald's parents contacted law enforcement officials regarding the activities of their daughter. At her home on September 13, 1987, Ms. Fitzgerald told Hillsborough County Deputy Sheriff James Mock that she had been engaged in a sexual relationship with the Respondent. She identified September 8 as the date of their last sexual activity. She told the deputy she did not want to get the Respondent into trouble. Later on September 13, 1987, after the conversation with Officer Mock had occurred, Ms. Fitzgerald's mother received a telephone call from the man identified as "Cliff Durso," who said he was a teacher of her daughter. The caller stated that he expected to see the mother the next morning at 9:00 a.m. for a school conference at which they would discuss the "problems" being caused by Ms. Fitzgerald. Ms. Fitzgerald's mother described the call as threatening. She did not meet with the caller the next day. On September 14, 1987, Ms. Fitzgerald spoke to another Hillsborough County Deputy Sheriff Detective, M. G. Marino, and recanted her story from the previous day and explained that she'd been "confused." On September 15, 1987, the Respondent was summoned to the principal's office at Chamberlain High School and was met by Officer Marino who advised the Respondent that he was a suspect in a criminal investigation. The officer read a "Consent to Interview" form to the Respondent. The first sentence of the "Consent to Interview" form states, "I, Vincent Paul Durso, do hereby consent to being interviewed by Detective M. G. Marino concerning the offense of sexual battery/in custodial authority." After Officer Marino began reading the form, the Respondent invoked his constitutional right to counsel and exited the principal's office. The interview was not completed. On September 22, 1987, Officer Marino again met with and interviewed Ms. Fitzgerald. At that time, she acknowledged that her recantation was not truthful and told the officer that she had been engaging in sexual activity with the Respondent. On September 23, 1987, Captain Wayne Dasinger of the Hillsborough County School System Security Division met with and interviewed Ms. Fitzgerald. The interview was taped until Ms. Fitzgerald instructed Captain Dasinger to turn the recorder off. She continued to discuss the matter after the recording was stopped. During the discussion, she acknowledged engaging in sexual activity with the Respondent and expressed her concern that the Respondent not get into trouble because of the activity. Also on September 23, 1987, Captain Dasinger met with the Respondent. Captain Dasinger told the Respondent that he was investigating allegations of misconduct with a student. The Respondent declined to be interviewed. On October 5, 1987, the Respondent resigned from the Hillsborough County School System for "personal reasons." The allegations of sexual activity with a student were at least a part of the "personal reasons" cited by the Respondent in his October 5 resignation. In a letter dated November 30, 1987 and written by the Respondent, he "vehemently objects" to the "one dimensional report into my personal life" being placed into his personnel file "especially since it was agreed on October 5th, 1987, that it would not be placed in there in accordance to the conditions of my resignation...." Other than as to the matters at issue in this proceeding, there is no evidence that any other inquiry into the Respondent's "personal life" was conducted or was the subject of any investigation reports. From February 10, 1988 to August 3, 1988, the Respondent was employed in Los Angeles, California. On January 3, 1989, the Respondent submitted an application for employment with Pinellas County School System. On January 15, 1989, the Pinellas County School System received on behalf of the Respondent a reference form which purports to be from the principal of Leto High School. The signature is illegible. The evidence establishes that the Respondent received the reference forms with his application form, wrote his name and address at the top of each reference form, and distributed the forms to his "references." The Leto reference form was completed and signed by someone other than a principal of Leto High School. The form was not completed by any person employed as the principal of Leto High School during or since the employment of the Respondent at the school. The Leto reference form was not completed by any person employed as an assistant principal or secretary to the principal of Leto High School during or since the employment of the Respondent at the school. The allegations related to the Respondent became a matter of public knowledge after an article appeared in a local newspaper. According to the Superintendent of the Pinellas County School System, School Board practice and policy provides that any type of sexual conduct between a teacher and a student constitutes just cause for termination of the offending teacher's employment. Such conduct further constitutes misuse of the teacher's position and impairs the effectiveness of the teacher in the classroom. At the hearing, the Respondent sought to establish his activities on June 19 and September 8, 1987, which would "prove" that Ms. Fitzgerald's recollection was fabrication. The greater weight of the credible and persuasive evidence establishes that the events occurred as set forth in the preceding findings.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The School Board of Pinellas County enter a Final Order terminating the employment of Vincent P. Durso. The Commissioner of Education enter a Final Order permanently revoking the teaching certification of Vincent P. Durso. DONE and ENTERED this 28th day of August, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-2994 and 96-0861 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Pinellas County School Board The Pinellas County School Board's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 7. Rejected, not supported by evidence. The address set forth in the proposed finding is incorrect. 24. Rejected, unnecessary. 28-29. Rejected, subordinate. 31. Rejected, unnecessary. 33. Rejected, unnecessary. 35. Rejected as to Respondent's inquiry as to how caller obtained his telephone number, irrelevant. Rejected, subordinate. Rejected, the assertion that Ms. Fitzgerald left home "as a result of her sexual involvement" with the Respondent is not supported by credible and persuasive evidence. 55-58. Rejected, unnecessary. 59. Rejected, cumulative. 62. Rejected. The evidence fails to establish that the Respondent caused a forged document to be submitted to the School Board. 68-69. Rejected, unnecessary. Petitioner Frank T. Brogan, Commissioner of Education The Commissioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6. Rejected, not supported by evidence. The address set forth in the proposed finding is incorrect. 23. Rejected, unnecessary. 27-28. Rejected, subordinate. 30. Rejected, unnecessary. 32. Rejected, unnecessary. 34. Rejected as to Respondent's inquiry as to how caller obtained his telephone number, irrelevant. Rejected, subordinate. Rejected, the assertion that Ms. Fitzgerald left home "as a result of her sexual involvement" with the Respondent is not supported by credible and persuasive evidence. 54-57. Rejected, unnecessary. 58. Rejected, cumulative. 61. Rejected. The evidence fails to establish that the Respondent caused a forged document to be submitted to the School Board. 67. Rejected, unnecessary. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649 Karen Barr Wilde, Executive Director Education Practices Commission 224B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 J. David Holder, Esquire 1408 North Piedmont Way Tallahassee, Florida 32312 B. Edwin Johnson, Esquire 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 34616
The Issue The issues are whether Respondent committed the act alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(c) and (i), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and the entire record in this proceeding, the following Findings of Fact are made: At all times pertinent to this proceeding, Respondent held a Florida Educator's Certificate No. 891417. Respondent was first employed as a teacher at River Ridge Middle School ("River Ridge") in the Pasco County School District in August 2003, under a ten-month contract. During the 2003-2004 school year, Respondent taught sixth-grade geography at River Ridge. On April 15, 2004, during the five-minute period while classes were changing and before the fourth-period class started, Respondent left his classroom to go to the faculty bathroom. Prior to leaving the classroom, Respondent announced to the class that there would be a "pop quiz" that day and told them to sit down, study their notes, and/or read the book. Respondent was gone no longer than five minutes. When Respondent returned to the classroom, M.M. and one of his friends, another student, were standing up "play fighting." This "play fighting" involved the two students pushing each other. Upon observing the two students pushing each other, Respondent reasonably, but mistakenly, believed the two students were fighting and took immediate action consistent with that belief. Respondent approached M.M. and the other student and yelled at them, "Break it up!" Respondent then pushed or grabbed M.M.'s shoulder, pivoting him around Respondent, in an attempt to separate him from the other student. Immediately thereafter, while Respondent was turning toward the other student, he heard a commotion, which presumably was M.M. falling on the floor.2/ Immediately after Respondent grabbed or pushed M.M., he (M.M.) fell on the floor. Prior to landing on the floor, M.M.'s back hit the corner of a nearby table.3/ As a result of hitting the table, M.M. testified that he had a bruise on his back. However, there was no evidence to substantiate this claim, including evidence as to the severity of that alleged injury or whether it required medical attention. When M.M. got up from the floor, Respondent walked M.M. over to his seat. At first, M.M. sat in his assigned seat, but then he got up from his seat and "got in Respondent's face." During this confrontation, Respondent told M.M. that he was tired of dealing with him and to go to the principal's office. Initially, M.M. didn't move, but just stood there facing Respondent. Eventually, M.M. left the classroom and went to the principal's office. However, before he left the classroom, M.M. told Respondent, "I'll get you." M.M. was embarrassed by the incident. When M.M. arrived at the principal's office, he told John Joens, the school principal, that Respondent had pushed him down. In addition to M.M.'s verbal account of the incident, he also gave Principal Joens a written statement concerning the incident.4/ After Principal Joens listened to M.M.'s account of the incident, he also discussed the incident with Respondent. Respondent told Principal Joens that he was trying to break up a confrontation between M.M. and another student. To do so, Respondent explained that he grabbed M.M. by the shoulders, pivoted the student around behind him [Respondent] to move M.M. behind him, and then turned back to the other student. In discussing the incident with Principal Joens, Respondent also reported that after M.M. fell to the floor, he told M.M., "I know you're embarrassed but you have to go sit down." Finally, with regard to students who may have seen the incident, Respondent told Principal Joens that given the seating arrangement in the classroom, most of the students could not have had a clear vision of what happened. After listening to Respondent's explanation about the incident, Principal Joens' primary question to Respondent was how the student ended up on the floor. However, Respondent was unable to answer that question, because he was not sure how M.M. ended up on the floor. After listening to Respondent's explanation, Principal Joens could not understand or determine how M.M. had ended up on the floor. Therefore, in an effort to ascertain what had actually happened, Principal Joens decided to identify and interview as many students as possible who were eyewitnesses to the incident. As part of his investigation of the subject incident, Principal Joens interviewed 16 or 17 students who were in Respondent's fourth-period class on April 15, 2004. He also had the students to prepare and give him written statements about what, if anything, they observed relative to the incident. After Principal Joens completed his investigation, which consisted of input from M.M., information provided in student interviews, and Respondent's explanation and responses, he still could not determine how M.M. landed on the floor. On the day of the incident, except for two student desks and two tables, where a total of four students sat, the front of all of the student desks faced south; the backs of those desks faced north, which was the area of the classroom where the incident occurred. Therefore, in order to observe the incident, the students sitting at their desks would have had to get up from their seats or turn around in their seats. Two of the students who were in Respondent's fourth- period class on April 15, 2004, testified at this proceeding. Both students were credible witnesses. However, given the lapse of time since the incident (almost four years) and the proximity of their desks to the area where the incident occurred, it is understandable that there were details that they could not clearly recall, if they ever knew those details, or the sequence of the events. J.W., a student in Respondent's fourth-period class on April 15, 2004, recalled that when Respondent entered the classroom that day, he approached M.M. and two other students who were pushing each other around and told them, "Break it up!" J.W. also testified that "they [presumably Respondent and M.M.] were arguing and Respondent pushed M.M. down and M.M. fell on the floor." When J.W. observed the incident, he was sitting at his desk, which was three rows from the area of the classroom where the incident occurred. J.W. testified that in order to see the incident, he had to turn around in his seat or look over his left shoulder, since the back of his desk faced the area where the incident occurred. D.L., a student in Respondent's fourth-period class on April 15, 2004, testified that she recalled that Respondent pushed M.M. on the shoulder area and then M.M. hit the table and then fell to the chair. She did not recall M.M. falling or ending up on the floor. Furthermore, D.L. did not know the reason Respondent pushed M.M. or even if there was a reason for pushing him. When D.L. observed the incident, she was sitting at her desk, which was in the last of five rows of desks in Respondent's classroom and the row farthest from the area in the classroom where the incident occurred. The back of D.L.'s desk faced the area where the incident occurred, and in order to see the incident, she had to turn around. According to Principal Joens, the only reason an adult "gets between two students is to provide . . . [for] the safety of that student or the other student's [safety]." In this case, Principal Joens testified that he does not believe that any student's safety was in danger and, thus, there was no need for Respondent to touch M.M. and "use that force." Two days after the incident, Respondent resigned from his teaching position at River Ridge. During the eight months that Respondent was teaching at River Ridge, Principal Joens observed Respondent while he was teaching and interacting with the students. Principal Joens described Respondent's interactions with students during those observations as positive. Moreover, two former students who were in Respondent's fourth-period class on April 15, 2004, testified that Respondent was a good teacher.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of April, 2008.
