The Issue Whether Respondent committed the violation alleged in the Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at "formal hearing," and the record as a whole, including the parties' Joint Stipulation, the following findings of fact are made: Respondent is now, and has been since February 19, 1998, certified as a correctional officer in the State of Florida. He holds Correctional Certificate Number 178896. On February 19, 1982, Respondent was certified as a law enforcement officer in the State of Florida and issued Law Enforcement Certificate Number 34142, which has since expired. Respondent is now, and has been since shortly after receiving his bachelor of science degree in education from Slippery Rock University, certified as a teacher in the State of Florida. From the early 1980's until 1993, Respondent worked as a police officer for various law enforcement agencies in Florida. In 1985, Respondent was physically arrested and charged with battery in Pinellas County. He was acquitted of the charge following a jury trial. After the acquittal, at Respondent's request, records relating to the matter were ordered sealed. In the mid 1990's, Respondent worked for Wackenhut Corporation as a teacher at correctional facilities in Moore Haven and South Bay, Florida. While working for Wackenhut in South Bay, Respondent was asked to assist in the "start up" of a "work release center" in Broward County, Florida, that Wackenhut was going to operate for the Broward County Sheriff's Office. Pursuant to Wackenhut policy, Respondent had to "go through a correctional academy" before assuming his new duties. After graduating from the "correctional academy," Respondent relocated to Broward County and began his new assignment for Wackenhut. Respondent's primary tasks were to "draw[] up all the rules and regulations for the [soon to be opened] facility" and "interview[] people for jobs." Respondent was housed in a "temporary [Wackenhut] office" in Lauderdale-by-the-Sea, Florida, along with others involved in the effort to open the facility, including Richard Fortenberry, who was going to be the facility administrator. On September 26, 1997, Respondent was accused of stealing a "couple of packs of playing cards" from a retail establishment in Palm Beach County, Florida. The Palm Beach County Sheriff's Office deputy on the scene issued Respondent a notice to appear2 in lieu of physically arresting Respondent. As directed, Respondent subsequently appeared in the Criminal Division of Palm Beach County Court to respond (in Palm Beach County Court Case No. 97-024167 MM A04) to the retail theft accusation made against him. On November 17, 1997, Respondent signed a Deferred Prosecution Agreement in Palm Beach County Court Case No. 97- 024167 MM A04,3 which provided that, if Respondent complied with the[] "conditions [set forth in the agreement] during the [three-month] period of Deferred Prosecution, no criminal prosecution concerning this charge [of retail theft] [would] be instituted " On December 22, 1997, the Palm Beach County State Attorney's Office issued a Nolle Prosse in Palm Beach County Court Case No. 97-024167 MM A04. The Broward County "work release center" was scheduled to open in February of 1998. Respondent was to occupy a "lead supervisor" position at the facility when it opened. Before he was able to assume this position, however, Respondent needed to fill out an "extensive" application (even though he was already employed by Wackenhut) and pass a pre- employment review conducted by the Broward County Sheriff's Office. Respondent filled out the application, "to the best of [his] ability," in October of 1997. On the application, he mentioned the 1985 Pinellas County battery charge of which he was acquitted, but not the notice to appear that he had received the previous month.4 Deputy James Diefenbacher was the Broward County Sheriff's Office "contract manager" for the Broward County "work release center" project. In November of 1997, after Respondent had entered into his Deferred Prosecution Agreement in Palm Beach County Court Case No. 97-024167 MM A04, Mr. Fortenberry told Respondent that Deputy Diefenbacher needed from Respondent certain documents concerning the 1985 Pinellas County battery charge in order for Deputy Diefenbacher to complete his pre-employment review of Respondent's background. Respondent promptly furnished Deputy Diefenbacher the requested documents. On December 31, 1997, Deputy Diefenbacher "showed up" at Respondent's office in Lauderdale-by-the-Sea and told Respondent that he "needed to talk to [Respondent] real quick." It was New Year's Eve. The "handful of people," including Respondent, who were there, were finishing up there work for the day so the office could close early. After he and Respondent "looked over [Respondent's] application" together, Deputy Diefenbacher turned on a tape recorder, "swore [Respondent] in," presented Respondent with a document, and told Respondent, "I need you to sign this document here. It means that you don't have any other arrest history."5 The document, which was typed on Broward County Sheriff's Office letterhead, read as follows: I swear under oath that all information regarding my criminal history has been presented to the Broward Sheriff's Office. My criminal history consists of a charge of simple battery, of which I was found not guilty of all charges by the court. Not [sic] other criminal history exists. SWORN AND ATTESTED TO BY TIMOTHY J. MILLER ON THIS 31ST DAY OF DECEMBER NINETEEN HUNDRED NINETY SEVEN. Signed By: DEPUTY JAMES DIEFENBACHER OF THE BROWARD SHERIFF'S OFFICE Signed CCN# Respondent signed the document without reading it. Respondent took Deputy Diefenbacher at his word that, by signing the document, Respondent was attesting that he had no other arrests other than his 1985 arrest in Pinellas County for battery. Respondent did not intend to deceive anyone in signing the document. He believed that the information contained in the document (as explained to him by Deputy Diefenbacher) was true.6 He did not consider his having been given a notice to appear (on September 26, 1997, in Palm Beach County) to have constituted an arrest.7 Nonetheless, "a couple [of] years later," Petitioner was charged with and tried for perjury in connection with his signing the document; however, he was acquitted of the charge.8
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 16th day of February, 2004, in Tallahassee, Leon County, Florida. S 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 16th day of February, 2004.
Findings Of Fact The Respondent holds law enforcement certificate number 4519, issued February 3, 1972. On March 5, 1981, in the Circuit Court of Duval County, Florida, the Respondent plead nolo contendere to the charge of aggravated assault. Pursuant to Section 784.021(2), Florida Statutes, aggravated assault is a felony.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that law enforcement certificate number 4519 held by the Respondent, Nathaniel Frederick, Jr., be revoked. DONE and RECOMMENDED this 18th day of April, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1983. COPIES FURNISHED: Susan Tully, Esquire Assistant Attorney General Suite 1601 - The Capitol Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 G. Patrick Gallagher, Director Criminal Justice Standards Post Office Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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
Findings Of Fact The Respondent, Randy Lee Pomerantz, is currently eligible for licensure and is licensed in the State of Florida as a general lines, property, casualty, surety, and miscellaneous lines insurance agent. On or about May 30, 1989, the Respondent, along with one of his former employees, was charged by Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, in Case No. 89-20405, with fifteen felony counts and three misdemeanor counts. The fifteen felony counts included one count of a RICO violation, one count of scheme to defraud, three counts of grand theft in the second degree, and ten counts of grand theft in the third degree. On or about July 13, 1990, the Respondent entered a plead of nolo contendere to Count VIII of the information, which was one of the counts charging grand theft in the third degree in violation of Section 812.014, Florida Statutes. The prosecutor entered a nolle prosequi as to all other counts insofar as they related to the Respondent. Adjudication of guilt was withheld on Count VIII. The Respondent was placed on probation for three years and ordered to pay restitution in the amount of $2,325.03. The Respondent's plea of nolo contendere to Count VIII of the Information was a plea of convenience. The Respondent did not commit the acts alleged in Count VIII of the Information. As the Respondent explained at the hearing, at the time of his plea his wife was about to give birth and he did not feel he could take a chance on a "roll of the dice" with a jury trial.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance and Treasurer issue a Final Order in this case dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of February 1991. MICHAEL PARRISH 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 27th day of February 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4430 The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1, 2, and 4: Accepted. Paragraph 3: Rejected as contrary to the greater weight of the evidence. Although it is likely that the facts alleged in Count VIII of the Information related to the transaction of insurance business in this state, such is not established by clear and convincing evidence. And, in any event, the matter is irrelevant in light of the findings that the Respondent's plea was a plea of convenience and that the Respondent was not guilty of the crime charged. Findings proposed by Respondent: COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Ted Crespi, Esquire 110 Tower, Suite 815 110 S.E. 6th Street Fort Lauderdale, Florida 33301 Tom Gallagher Bill O'Neil State Treasurer and General Counsel Insurance Commissioner Department of Insurance The Capitol, Plaza Level and Treasurer Tallahassee, Florida 32399-0300 The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant to this matter, Ricky L. Sapp held Florida Teaching Certificate number 528297, in elementary education and was employed as a math teacher at Belleview Middle School, Escambia County, Florida. During the 1985-1986 school term, Shawn Dickinson, a 13-14 year old male, was a student in the Respondent's math class. During the fall of 1985, Sapp began to employ the student to perform tasks including yard work, car washing and other small jobs. Dickinson went to Sapp's home both to perform odd jobs and on a social basis. The student gave gifts to Sapp and other teachers at Christmas 1985. Sapp and two other teachers gave the student a pair of jeans. During the 1985- 86 school term, Sapp assisted the student with a science project. On at least one occasion, they attended a movie together. On other occasions Sapp took the student along with a group of other students on a deep-sea fishing trip. During the summer of 1986, Dickinson began to reduce his social contact with Sapp. While Dickinson's mother had expressed to her son her desire that he associate more often with people his own age, she did not forbid him from visiting Sapp. She did not express her concern to Sapp. On one occasion Sapp spoke with Dickinson's mother and asked her to permit the student to have dinner at Sapp's home. She agreed to allow the student to attend with a friend of his and instructed the boys to remain together; however, the student's friend left Sapp's home. Dickinson and Sapp may have engaged in an argument. Following that incident, Dickinson's mother refused to permit him to further associate with Sapp. In the fall of 1986, the mother spoke with the school principal about Sapp and her son. She also talked with the vice- principal and guidance counselor, apparently related to the same concerns expressed to the principal. She did not communicate with Sapp. The student testified that during this time Sapp sent messages to him through other students but there was no information as to the nature of the messages. During the fall, both the student and his mother, according to testimony, received telephone calls from Sapp during which he relayed his feelings regarding the situation. Sapp denied making the phone calls. The mother also received calls from someone who would hang up when she answered. She believed the calls were from Sapp. During this time period Dickinson's family had their telephone number changed. At about the same time, the mother's car tires were slashed. In early October 1986, Sapp's home was burglarized and various items were stolen. Sapp had reason to believe that Dickinson was involved in the incident. He contacted the boy's parents and accused the student of the theft of approximately $1,300.00 of personal items. The boy's mother did not believe her son had committed the act. Sapp also contacted the police who investigated the incident. At about the same time, the police conducted an investigation into the slashed tire incident and the phone "hang-ups", during which Dickinson was apparently questioned. Dickinson was not charged in the matter. At the administrative hearing Dickinson denied stealing any of Sapp's belongings, but stated that he possibly "stole my stuff back from him." In early November 1986, Sapp was arrested and charged with lewd and lascivious acts on a child, Shawn Dickinson. Sapp attempted to have the student and his family withdraw their accusations and apparently offered to reimburse the student's family for the cost of having their phone number changed and for replacement of the car tires, but was unsuccessful. The Respondent was subsequently tried on the charge and found not guilty. (R-1) COUNT I Count I of the administrative complaint alleges several instances of sexual contact between Sapp and Dickinson. Sapp denied the allegations. The evidence did not clearly and convincingly establish that such sexual contact took place. The testimony of the student related to the allegation of sexual content was limited to the student's assertion solely that such contact, one instance wherein Sapp performed oral sex on Dickinson, and 20- 25 instances wherein Dickinson performed anal intercourse on Sapp, occurred. Dickinson stated that he told no one other than the police about the contact. The claimed contact supposedly occurred over a period of approximately six months. Dickinson stated that he continued to participate in the activity because of alleged threats made by Sapp. The threats included having Dickinson's class schedule changed, killing his dog, having one of Dickinson's "best friends" attack him, and putting a bomb in his mother's car and killing her. Dickinson admitted that he had never revealed the threat to kill the dog prior to the administrative hearing, although he has testified several times previously about the threats. At one point on direct examination the student testified that he first revealed the sexual contact to the police when Sapp "got arrested and I had to go talk to the police." (Tr.19) Yet Sapp was arrested for the alleged sexual contact with the student. Dickinson stated that he terminated the alleged contact with Sapp because his parents were suspicious of the amount of money Dickinson was receiving. However, there was no evidence that funds changed hands other than as a result of the odd-jobs Dickinson performed for Sapp. The administrative complaint alleges that the student received approximately one hundred dollars over the 1985-1986 period, an amount which appears reasonable in relation to the work apparently performed. Because the student's explanation of events and reasons for permitting the alleged contact to continue are vague and confusing, his testimony is not credible. The allegation of sexual contact between Dickinson and Sapp is rejected as not being supported by clear and convincing evidence. COUNT II Count II alleges several instances wherein Sapp has been convicted or had adjudication withheld in criminal offenses and has failed to disclose such facts on his application for teacher certification. One allegation concerns a charge of telephone harassment against Sapp. The arrest supposedly was related to numerous phone calls to the home of Dickinson. While there was testimony by Dickinson and his mother which indicated that they had received phone calls which could be termed harassing, and that such calls were or were believed to be from the Respondent, there was no evidence that he was ever arrested for such activities. The evidence introduced at hearing indicates that the arrest which occurred in November 1986 was related to the alleged sexual contact. The Petitioner did not meet the burden of proof on this allegation. Further, the administrative complaint alleges that Sapp was charged with one count of passing worthless checks in October, 1977 and three counts of passing worthless in June, 1987. No evidence was presented on these allegations. In October 1979, Sapp was involved in a lounge fight and was subsequently charged with simple battery. Sapp pled guilty. Adjudication was withheld, and a fine and six months probation were imposed. (P-9) In December 1979, Sapp was involved in a parking lot altercation and was subsequently charged with criminal mischief. Sapp pled not guilty. Adjudication was withheld and six months probation was ordered. (P-8) In December 1976,2/ Sapp was charged with leaving the scene of an accident, a criminal traffic offense. Sapp pled not guilty, but was found by a judge to be guilty. A $52.00 fine was imposed. (P-7) On Sapp's applications for teacher certification filed in September 1982, October 1982, October 1984, June 1985 and December 1985, he replied in the negative to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" (P-2, P-3, P-4, P-5, P-6) On the applications Sapp acknowledged by signature that his responses on the application were true, correct, and on three applications, complete. 3/ On his applications, Sapp indicated that he had not been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation even though adjudication has been withheld in the simple battery and criminal mischief cases in 1979. The Petitioner testified at hearing that he did not understand the relevant portion of the teaching certificate application. He testified that he did not intend to deceive the Petitioner, that he did not understand the meaning of the term "adjudication withheld," that he did not list any arrests because, prior to the lewd and lascivious charge of November 1986, he had never been handcuffed or otherwise restrained which to him signified arrest, and that he had not intended to conceal the information. However, he did indicate that on several occasions he had heard a judge say "adjudication withheld" and that he made no attempt to learn the meaning of the term. Sapp's assertion that he did not intend to mislead the Petitioner is rejected in light of his attestation that the information he provided was complete, correct and true. Sapp failed to disclose the material facts of prior legal entanglements on his applications for the teacher certificates, in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B-1.006 (5)(h), Florida Administrative Code. Accordingly, insofar as the preceding findings of fact state, the Petitioner has met the burden of proof as to the related allegations of Count II. COUNT III The administrative complaint charges that Sapp has violated Section 231.28(1)(e), Florida Statutes, in that he has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. The evidence establishes that in 1976, Sapp was convicted of a criminal traffic offense, failure to remain at the scene of accident, and was fined fifty-two dollars. Section 231.28(1)(e) , Florida Statutes, provides for appropriate disciplinary action where the certificate holder has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. Section 316.655, Florida Statutes, establishes that failure to remain at the scene of an accident involving damage to property, a violation of Section 316.061, Florida Statutes, is included among those violations identified as criminal offenses. Other violations classified as criminal offenses include failure to remain at the scene of an accident involving death or personal injury, providing false information in circumstances where the uniform traffic control law requires that information be provided, failure to obey the orders of police and fire department officials, reckless driving, driving under the influence, fleeing or attempting to elude a police officer, obstruction of traffic for purposes of non-permitted solicitation, and failure or refusal to submit a vehicle to weight and load testing upon request. The potential penalty for violation of Section 316.061, Florida Statutes, is a fine of not more than $500.00 or imprisonment for not more than sixty days or both. An examination of the range of potential penalties for criminal traffic violations indicates that the penalty for violation of Section 316.061, Florida Statutes, is less severe than the penalties provided for other violations. Accordingly, it is found that the violation of Section 316.061, Florida Statutes, is a minor traffic violation. The allegation of Count III is rejected. COUNT IV The administrative complaint charges that Sapp, based on the prior allegations, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, pursuant to Section 231.28(1)(f), Florida Statutes. Although the Petitioner presented testimony related to the allegations and the resulting effectiveness of Sapp, such testimony was based on all of the allegations being established by the requisite burden of proof. In that such allegations were not established, this Count is rejected. COUNT V The administrative complaint alleges that, pursuant to Section 231.28(2), Florida Statutes, Sapp has pled guilty or been found guilty of an offense contained within Section 231.28(1) , Florida Statutes, which is prima facie proof of grounds for revocation of the certificate. Section 231.28(1)(d), Florida Statutes, includes misdemeanors, felonies, and certain other criminal charges. The evidence established that in October 1979, Sapp pled guilty to simple battery, a first degree misdemeanor. Section 784.03(2), Florida Statutes (1975). Accordingly, the burden of proof has been met and Count V is sustained. COUNT VI COUNT VII COUNT VIII COUNT IX COUNT X COUNT XI The above six Counts were related to allegations of sexual contact between Sapp and Dickinson and are rejected as not established by the requisite burden of proof. COUNT XII The administrative complaint alleges that the Respondent has failed to maintain honesty in all professional dealings pursuant to Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(5)(a), Florida Administrative Code. As to the allegations supported by the burden of proof, Sapp failed to disclose material facts on applications filed for purposes of obtaining or retaining teacher certification even though he attested to the truthfulness of the information. The failure to provide the information is found to be a failure to maintain honesty in his professional dealings, accordingly, Count XII is sustained. COUNT XIII The administrative complaint alleges that in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B- 1.006(5)(g), Florida Administrative Code, Sapp submitted fraudulent information on a document in connection with his professional activities. Sapp testified that he did not understand the question on the application for teacher certification related to prior criminal offenses, and did not intend to mislead or deceive the Petitioner. However, more than once he admitted to having heard a judge state that adjudication was withheld in connection with the various separate offenses, and that he did not know the meaning of the term. Yet he attested that the information submitted on two applications was true and correct and on three later applications that the information was true, correct and complete. The attestation of truth, correctness and completeness implies that the attestor understands the questions and that his responses are based on such understanding. To provide false information or to make material omissions of fact on such an application constitutes the submission of fraudulent information. Accordingly, the Petitioner has met the burden and Count XIII is sustained.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order imposing a fine of $1,000.00. DONE and ENTERED this 6th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 6th day of October, 1988.
The Issue The Petitioner requested a hearing pursuant to Section 120.57 (1)(b)(1), Florida Statutes, and as grounds therefor alleged that the Respondent, Cynthia Ann Schoneck, on or about September 12, 1975, at approximately 11:00 a.m. violated Monroe County District School Board policy rule 2.5.1 "in that the Respondent on said date on school property was in possession of a controlled substance that is categorized as a harmful drug under the provisions of Chapter 893, Florida Statutes. Based on this allegation, the Petitioner seeks to suspend or dispel the Respondent from school.
Findings Of Fact At the outset of the hearing, counsel for Respondent requested from Petitioner's counsel a list of drug(s) that were in the Respondent's possession on the date in question so that he would be prepared to properly defend. Pursuant thereto, counsel for the Petitioner stated that the Respondent had in her possession valium and phenobarbital tablets while she was on the school's property, all in violation of school board policy rule 2.5.1 and which are prescribed by Chapter 893, Florida Statutes. As to the allegation that the Respondent had in her possession phenobarbitol on September 12, counsel for Respondent contended that he was unaware that any charge had been made alleging that she possessed such drugs inasmuch as the drug analysis which was attached to the police report showed or asserted that the Respondent only had in her possession the drug valium. The undersigned noted that counsel for the Respondent had filed no motion to compel discovery or for a more definite statement which in his opinion was needed in order to properly prepare his defense and this being the state of the record, the undersigned considered Respondent's counsel's claim of "surprise" to be without merit. Norman Thomas Lee, an employee of the Monroe County School District and presently a criminologist and a property custodian for the county testified that he is a member of the American Society of Crime Labs and that he has been classified as an expert witness to testify in criminal proceedings in Circuit, County and Municipal courts in Monroe County. Lee testified that on or about September 11, he received from Alfredo Vasquez (phonetic), a patrolman, a sealed envelope which has been marked for identification and received into evidence as Board Exhibit 1. He further testified as to the copy of the report which is an analysis of the contents of Board Exhibit 1. Based on his lab analysis, he was able to determine that the contents of the sealed envelope was negative on all drug or narcotic tests except the spot test and electroscopic test which in fact showed that the drug or the tablets contained valium or diazepan. He testified that he kept the drug under seal while in his possession and thereafter, it was in the custody and control of the sheriff's department at all times in a sealed vault. He further testified that valium is a drug that is not controlled by Chapter 893, F.S. He testified that he conducted no inspection and analysis for phenobarbitol. Cynthia Ann Schoneck was called and pleaded the 5th amendment to all questions put to her by counsel for the Petitioner with the exception of stating her name and address for the record. Donna Roberts was called and testified that she is a student at Key West High School and that she knows the Respondent. She testified that on September 11, she complained to officials that the witness attempted to sell or give her "downers." She testified that on September 12, she was absent from school although she vaguely recalled seeing the Respondent briefly during the day because she visited the campus for a short period. 1/ Mary Llewlyn, the dean of girls for approximately 20 years testified that she knows the Respondent and that on or about the date of September 12, Mr. Roberts and Mr. Cebelli (apparently instructors) testified that the Respondent had in her possession pills; she testified that upon learning of this she immediately visited the Respondent's class and asked her to accompany her to the dean's office. She testified that during this period, which was the third period and a morning class, that the Respondent was in a science class. Mrs. Llewlyn testified that the Respondent admitted to her that her parents were in Europe and that she took the pills in question from her father's medicine cabinet. Llewlyn testified that she was given the pills from an open package which was found in the Respondent's purse. She testified that she called the Respondent's uncle and her sister and they were at a loss to explain how the pills got into the Respondent's purse. She testified that she also asked the Respondent how the pills got into her purse and she denied having any knowledge. She also testified that the Respondent stated to her that she was selling pills which she thought to be phenobarbital. Llewlyn testified that she did not recall which specific date that the Respondent had possession of the pills. Curtis Phelps, a ninth grade student, was called and testified that he was in a class with the Respondent on September 12 and that he also attended the third period lab class with her. He testified that the Respondent gave him a bottle of pills and that she instructed him to "get rid of the pills." He testified that he placed the pills in the biology sink and left them there. On cross examination he did not recall any date as to when the incident regarding the pills took place. The Petitioner rested its case. At the conclusion of the testimony of the Petitioner's case in chief, counsel for Respondent requested the undersigned to take official notice of Florida Statutes, Chapter 593 and also the student rule in question and to note that the possession of valium is not a drug which falls within the guidelines of Chapter 593, F.S. He also provided for the record, the fact that there was no chemical testimony as to any alleged possession of phenobarbital by his client, the Respondent, and that the matter should be dismissed based on lack of evidence. He testified that no creditable testimony and in fact no chemist would testify as to the contents of a particular pill without having subjected it to various chemical tests for analysis. He testified further that in this case, no such finding of phenobarbital had been made and that therefore the case against his client must fall. The position urged by Respondent's counsel is well taken. The evidence reveals and the statute nor the school rule under which the Respondent was charged does not cite the possession of valium as being a prescribed substance. The proceeding herein involves the interpretation of penal statutes which must be strictly construed. Aside from the poor status of the record which tended to show that Respondent possessed valium on the School's property, Florida Statute Chapter 893 and the school's own rule do not proscribe the possession of valium on school property. This factor plus the record evidence concerning the petitioner's counsel failure to pursue the possession of valium as an act contrary to school rules, puts the matter to rest. The only remaining act which the Respondent allegedly committed and which the petitioner sought to pursue was the alleged possession, by Respondent, of phenobarbital. The record, absent the mere allegation by Mrs. Llewlyn that the petitioner "thought that she was selling phenobarbital," is barren of any creditable evidence. Accordingly, it is RECOMMENDED that this allegation be DISMISSED due to lack of proof and withdrawal of any proposed suspension of Respondent based on the charges filed herein. DONE and ORDERED this 29th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1976.
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
The Issue The issue is whether the Respondent has failed to maintain good moral character.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards Training Commission as a correctional officer on March 21, 1985, and issued Certificate No. 04-85-599-01. At the time of the events which form the basis for the Administrative Complaint, the Respondent was employed as a correctional officer at the Marion Correctional Institution, a correctional facility of the State Department of Corrections. Marion County Sheriff's Deputies, David F. Faircloth, Jr. and Art King, are veteran law enforcement officers who have received training in the detection and recognition of controlled substances, to include marijuana. Both officers have made numerous arrests for the possession of a controlled substance which they suspected was marijuana and which, upon being tested, proved to be marijuana On June 9, 1990, while on regular patrol in Marion County, Florida, Deputy David F. Faircloth, Jr. was directed to investigate an anonymous report of a male and female who had been observed fighting in a white Camaro automobile parked on U.S. Highway 27. While in that vicinity in response to that request, Officer Faircloth responded to a complaint of a disturbance at 1261 N.W. 56th Court, Ocala, Florida. When Deputy Faircloth arrived on the scene, he noticed a white, two-door Camaro. Deputy Faircloth determined upon investigation that the Respondent and Linda Altman, who lived at the address, had engaged in an altercation involving their respective vehicles which were both damaged and parked in the front yard. Both the Respondent and Ms. Altman had been drinking and both were upset. Deputy King was dispatched as a backup and arrived at the Altman residence. Upon his arrival, Deputy King was briefed by Deputy Faircloth, who advised him that both the Respondent and Ms. Altman had been drinking, both were angry with one another, both had engaged in some altercation involving their vehicles which had caused damage to both vehicles, and both were correctional officers. Pursuant to their standard operating procedure, the deputies separated and interviewed separately the Respondent and Ms. Altman. Deputy King talked to the Respondent and Deputy Faircloth talked to Ms. Altman. Deputies Faircloth and King determined that the white Camaro parked at the location belonged to the Respondent. Deputy King stated that he intended to permit the Respondent to leave the scene; however, he was concerned that the Respondent, being a corrections officer, might have a weapon in his vehicle and return to cause more trouble. This testimony is logically inconsistent because if the Respondent had a gun and was released, he could retrieve the gun and return. However, it was on this basis Deputy King asked the Respondent if he could search his vehicle. The Respondent consented to the search of his vehicle by Deputy King. Officer King began his search of the vehicle in the front driver's seat. As Deputy King was leaning into the vehicle, conducting his search, the Respondent leaned over his back into the rear of the automobile and removed a shaving kit from the back seat. The Respondent's unanticipated action startled deputy King, who turned and inquired of the Respondent what he was doing. The Respondent, through words and gestures, indicated to Deputy King that he did not want him to search the shaving kit. The Respondent told Deputy King that there were no guns in the kit; but when Deputy King persisted in being permitted to search the kit, the Respondent indicated that he would open the kit and show Deputy King its contents. When the Respondent unzipped and opened the kit, Deputy King observed at the top of the kit a plastic bag containing dried vegetable matter which Deputy King thought to be marijuana. Deputy King seized as contraband the contents of the plastic bag, and upon administration of a field test for controlled substances, he determined that the substance was marijuana. Deputy King arrested the Respondent, and conducted a search of the Respondent's vehicle where he found a portion of a partially-smoked marijuana cigarette and a device which appeared to be some type of smoking device. The bag of marijuana which Deputy King seized from the Respondent's shaving kit was sent to the Florida Department of Law Enforcement crime laboratory for analysis. The crime laboratory concluded that the plastic bag contained 4.7 grams of cannabis or marijuana. One cannot determine from the report whether the burnt cigarette was tested and determined to be marijuana. Although Deputy King filed charges against the Respondent, the charges were later dismissed by the prosecutor for reasons unknown to Deputies King and Faircloth.
The Issue Whether Respondent's educator's certification should be sanctioned for alleged acts involving moral turpitude, in violation of Subsection 1012.795(1) (c), Florida Statutes (2003).1 Whether Respondent's educator's certification should be sanctioned for being convicted of a misdemeanor, felony, or other criminal charge, in violation of Subsection 1012.795(1)(e), Florida Statutes. Whether Respondent's educator's certification should be sanctioned for violation of the Principles of Professional Conduct for the Education Profession, in violation of Subsection 1012.795(1)(i), Florida Statutes. Whether Respondent's educator's certification should be sanctioned for a plea guilty or a decision of guilt in any court, in violation of Subsection 1012.795(2), Florida Statutes. Whether Respondent's educator's certification should be sanctioned for failure to maintain honesty in all professional dealings, in violation of Florida Administrative Code Rule 6B- 1.006(5)(a). Whether Respondent's educator's certification should be sanctioned for submitting fraudulent information on a document in connection with professional activities, in violation of Florida Administrative Code Rule 6B-1.006(5)(h).
Findings Of Fact Respondent, Carolyn Stewart, holds Florida Educator Certificate 747243, covering the area of Guidance and Counseling, which was valid through June 30, 2005. Respondent was employed as a guidance counselor at Sea Breeze Elementary School, in the Manatee County School District, during the 2003/2004 school year, until she resigned sometime in the fall of 2003. On or after October 1, 2003, Respondent was arrested and charged with two counts of fraudulent use of a credit card. Respondent entered a plea of guilty to those charges, both third degree felonies, in the Circuit Court for Manatee County, Florida, Case Nos. 2003-CF-3150 and 2003-CF-4094, on May 18, 2004. Adjudication was withheld, and Respondent was sentenced to credit for time served in the county jail, court costs, and facility fee. On or about March 18, 2004, following the issuance of an Information, Respondent was arrested and charged with the felony offense of filing fraudulent insurance claims, between October 1, 1999, and September 12, 2003, with her employer, the Manatee County School Board. Respondent entered a plea of nolo contendre to the charge of filing fraudulent insurance claims for less that $20,000, a third degree felony, in the Circuit Court for Manatee County, in Case No. 2004-CF-1067, on May 24, 2005. Respondent was adjudicated guilty and sentenced to five years probation. On April 15, 2004, Respondent was charged, by Information, with the offense of Poisoning Food or Water of Michael Skoyec, which occurred between August 31, 2003, and/or September 1, 2003. Respondent pled not guilty to the charge, a first degree felony, and the matter proceeded to a jury trial before the Circuit Court for Manatee County, Case No. 2004-CF- 1787. Prior to the trial, the State Attorney amended the Information by adding a second count, charging Respondent with Attempted Second Degree Murder, a second degree felony. Following the trial which concluded on February 11, 2005, the jury returned a verdict of guilty on the first count, Poisoning Food and Water, and a verdict of guilty on the lesser count included offense of Battery (a first degree misdemeanor), as to the second Count. At the sentencing hearing on April 19, 2005, Respondent was adjudicated guilty and sentenced to 15 years in the custody of the Department of Corrections, and costs, followed by five years' probation. Respondent was committed to the custody of the Department of Corrections on April 19, 2005, and is at present serving her sentence in the Gadsden Correctional Institution. Following her conviction and sentence, Respondent appealed her convictions to the Second District Court of Appeal. The conviction was affirmed on March 3, 2006, and the Mandate issued on May 18, 2006. In each of the criminal cases in which she entered a plea of guilty or no contest, Respondent, through her attorney, stipulated that there was a factual basis for the charge, or the facts were stated on the record for the court to determine the factual basis. Following these incidents, Respondent resigned her position with the Manatee School District in the fall of 2003. There was adverse publicity in the newspaper about the charges against Respondent, including the poisoning charge. There was no dispute that as a result of these incidents Respondent's effectiveness as a teacher was seriously, if not totally, reduced. The honesty of educators is relied upon by administrators. Respondent's actions, including her fraudulent acts, prevented administrators from relying on her honesty. Fellow employees rely on an educator's honesty, and Respondent's actions similarly prevent that reliance in the future. On October 18, 2004, Respondent was charged by Information, with one felony count of falsifying records, on September 22, 2003, of the Department of Children and Family Services (DCFS). She entered a plea of no contest, was adjudicated guilty, and placed on five years' probation for that offense on May 24, 2005. Although the avenue of direct appeal of her conviction has been exhausted, Respondent has retained legal counsel to explore the possibility of filing post-conviction relief in the courts in regard to those charges, where she has been adjudicated guilty by the court. Although Respondent acknowledged that grounds existed to revoke her teaching certificate, she testified that she was very good at what she did as a guidance counselor and desired the opportunity to seek reinstatement of her teaching certificate in the future. Respondent offered no evidence to support this assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: A final order be issued finding that Respondent did violate the provisions of Subsections 1012.795(1) (c), (e) and (i), Florida Statutes, and Florida Administrative Code Rule 6b- 1.006(5) (a), and (h). Count 4 of the Administrative Complaint should be dismissed. If is further RECOMMENDED: That the Education Practices Commission enter a final order permanently revoking Respondent's teaching certificate. DONE AND ORDERED this 24th day of January, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 24th day of January, 2007.
