Findings Of Fact At all times pertinent to the issues herein, Petitioner, Clara Carr, was an inmate at the Florida Correctional Institution. The Respondent Commission is responsible for establishing Presumptive Parole Release Dates (PPRD's) for all inmates in the custody of the State of Florida who meet the requirements of Section 947.173, Florida Statutes. Petitioner met all of the requirements of that section and was entitled to a PPRD initial interview on November 25, 1985. In the establishment of a PPRD, the inmate is first interviewed in the field by an examiner who evaluates and scores the inmates on a form which is then sent to the full Commission which also scores the individual based on salient factors which may be aggravated or mitigated because of other permissible factors. If the Commission decides to assess an aggravating factor, the amount of time is discretionary within certain time limits. Initially, the Commission looks at the offense and its severity in setting a salient factor score and uses that as a beginning. Then the jail time prior to the admission to the Department of Corrections facility, if any, is removed and the pre and post sentencing reports, the interview, and other reports of public hearings and the like are evaluated as aggravating or mitigating factors. The aggravating factors are generally set out in the rule in question here but the list in question in the rule is not all inclusive. The Commission may consider anything which can be founded on a valid or reasonable connection to the action taken. Petitioner was interviewed by Commission staffers on November 25, 1985, for the purpose of setting her PPRD. By action of the Commission at a meeting held on January 8, 1986, the PPRD was established to be December 28, 1988. This date was arrived at by initially utilizing the maximum matrix of 32 months set for her offense and the conditions thereof aggravated by a history of alcohol abuse listed in the pre-sentence investigation; the psychological interview; and the admissions summary, for which the Commission added an additional 36 months. When that time was applied to the commencement of sentence, April 28, 1983, the PPRD was established as stated above. On January 30, 1986, through counsel, Petitioner requested a review of her PPRD alleging that the rule under which the Commission had aggravated her PPRD (Rule 23-21.10(4)(a)2b) is invalid. Petitioner claimed that alcoholism is a treatable illness and it is improper and illegal to aggravate on such grounds. Petitioner cited Article 1 Section 2 of the Florida Constitution; Section 396.022(1), Florida Statutes; 42 USC 4541(a)(8), and other authorities. A commission meeting was held on February 26, 1986, to consider Petitioner's request for review of her PPRD. The Commission did not change it holding that the rule in question was appropriate and provided for the aggravation of a PPRD for history of alcohol abuse. Consequently, the PPRD remained at December 28, 1988. In the pre-sentence investigation conducted by officials of Marion County, Florida, in August, 1983, which was presented to the Judge at the time Petitioner was sentenced and which was considered by the Commission at the time the PPRD was established, Petitioner is alleged to have indicated that she had been drinking very heavily for several hours the night of the incident and does not remember any of the circumstances surrounding it. She described herself as a "weekend drinker" of beer and liquor and denies the use of any drugs, but it is significant to note that her nickname in the community is "Boozie." Though Petitioner denied having a prior arrest record, the records of the Marion County Sheriff's Office and the Ocala Police Department indicate a series of arrests going back to January, 1975, five of six of which relate to aggravated battery or assault and battery, in some cases with a deadly weapon. During the admissions examination conducted at the time Petitioner entered FCI, she indicated that she did not drink, but also that she is a weekend alcoholic. The evaluator was of the opinion that her alcoholic involvement was more than just weekends involvement and in addition, she was diagnosed by the institutional psychiatrist as having an adjustment disorder. She was described as being very aggressive and one who would probably display aggressive behavior if placed under too much stress. The Commission is required, under the provisions of Sections 947.16 and 947.172, Florida Statutes, to provide the Petitioner with a PPRD and to compute that date according to objective parole guidelines outlined in Section 947.165, Florida Statutes. In determining the PPRD, the Commission may use aggravating or mitigating circumstances but these circumstances must not be duplicative of the severity of the offense behavior or the salient factor score arrived at pursuant to Sections 947.1651 and 947.1722, Florida Statutes. The Commission was delegated rulemaking power by Section 947.07, Florida Statutes. Consistent with the authority, the Commission developed parole guidelines outlined in Rule 23-21.10, Florida Administrative Code. The aggravation factor which is the subject of the instant challenge is contained in Rule 23-21.10(4)(a)2b, Florida Administrative Code. This Petitioner is a 28-year old female serving her first felony conviction from Marion County, Florida, for aggravated battery with a dangerous weapon having been sentenced to a term of 10 years (less 81 days jail time), on July 18, 1983. She was received at FCI on July 22, 1983, and presently has a maximum release date of April 25, 1993. Under the provisions of the rule cited above, the Commission may aggravate a Parole Release Date if the inmate has demonstrated a history of alcohol or drug abuse. The Petitioner's PPRD was aggravated for that reason because the history of her alcohol abuse relates to negative behavior on her part. This history of alcohol abuse alone would not be sufficient to cause the Commission to aggravate a PPRD. Here, however, there was a showing of increased risk on the part of Petitioner as a potential parolee. The Commission felt that she was a risk due to the interrelation of her history of bad behavior and alcohol consumption. Even though the rule in question does not specifically refer to aberrant behavior as related to the alcohol abuse as grounds for aggravation, it is nonetheless implied therein and a logical and reasonable extension and interpretation of the rule. The Commission does not specifically consider that the alcohol abuse may stem from a medical condition. It deals with results or behaviors regardless of the cause of the behavior. It is not the function of the Commission to deal with the cause of the problem, but to evaluate each inmate for parole on the basis of that inmate's specific situation. There is no formula for evaluation but instead, it is the best collective judgment of the risk factors in the individual case as arrived at by the members of the Commission. The matrix time ranges are limits of foundation times and the other factors are add-ons or subtractables. If this were not so; if there were to be no independence of thought and judgment by members of the Commission; there would be no need for people to make up the Commission and to make the decision. This function could be performed by a machine on the basis of factors fed into it. Petitioner contests the validity of the rule on the basis that it does not consider the fact that alcoholism is a sickness rather than a mental condition. At the time the rule complained of was drafted, the Commission hired Florida Research Center, Inc. as consultants to help come up with appropriate matrices and salient factors which included alcohol and drug abuse. In addition to this, a survey was conducted in 1978 of 10 individuals including the Commissioners as to how certain factors should be rated. Five of the ten parties questioned rated drug and alcohol abuse as number one. Two others rated those conditions as second in importance. Further, the Commission was provided with the professional literature considered by authorities at the time the preponderance of which supported these evaluations. It is clear that the legislative intent behind Chapter 947, Florida Statutes, was to have rules in effect for the Commission to use in establishing PPRD which call for the use of objective parole criteria within certain limits. Under the statute, the rule need not specify a number of months or a range of months for aggravation due to alcohol abuse. The Commission has not suggested to Petitioner that she seek treatment for her alcohol abuse nor has it offered to reduce her sentence if she should do so. It would be inappropriate for the Commission to do this as a part of a determination but it would not be inappropriate for the interview staff to suggest it as a matter of course. It is not the role of the Commission to suggest the course of an inmate's confinement or rehabilitation. That subject is within the purview of the Department of Corrections. The Commission's function is to assess the propriety of returning the inmate to society and the issue to be decided by the Commission at its hearing is whether the inmate constitutes a threat to the community or not. In fulfilling this function, the Commission uses the Department of Corrections to prepare mental and medical examinations of the inmate and to produce reports. If the evidence indicates there is a mental health problem, the Commission considers it. In early 1984, the Commission published two policy letters dealing with the Commission operations; Numbers 4.17 and 4.20, both of which relate to medical or mental health status reports regarding inmates. The first, dealing with the request for these reports indicates that if the Commission requires an up- to-date report in these areas it may request it and in those cases where a hearing examiner for the Commission feels that the Commission would need it, it is the responsibility of the examiner to request it so that it is available for the Commission to consider at the time the inmate's PPRD is considered. Number 20 deals primarily with the language to be used by the Commission in citing a mental health status report as a source of new information used to alter the PPRD. Neither of these policy letters are necessarily pertinent unless it is considered that alcohol abuse, the language used in the rule in question here, is equated to alcohol dependency and alcohol dependency is considered either a mental health or medical condition. It cannot be found here that alcohol abuse, which may be a single incident of improper consumption of alcohol, is tantamount to or equates to alcoholism or alcohol dependency which may be a mental or physical condition. The term, "aggravation", is defined in Rule 23-21.02(1) as: . . . to exceed the matrix times ranges upper month limit. Alcohol abuse is not defined in the rule or anywhere else for specific use by the Commission. It is basically left up to each Commissioner to apply his interpretation of the term to the facts before him or her and most Commissioners have a common understanding of what the term means. The Commission considers there is a medical difference between alcohol abuse and alcohol dependence for setting PPRDs. The determination of whether to use a history of alcohol abuse may be based on whether the abuse played a part in the current offense or not. If so, the Commission generally will utilize the incident in its deliberations. If not, then it may not, but the issue of whether to use it as either aggravation or mitigation is discretionary with the Commission. Once it is determined to use alcohol abuse as aggravation in establishing a PPRD, then the amount of aggravation and time to be added is also based on the individual judgment of each Commissioner based on his or her evaluation of the degree of risk involved to the general public by the inmate. In arriving at this additional time, the Commission has a range within which it may assess a period of months, but there is no formula. In substance, the Commission is making an assessment of the risk - not a medical diagnosis and the issue is whether, because of that demonstrated alcohol abuse, the inmate constitutes a greater risk to the public if paroled. If so, then additional months are added on. If not, they are not. In that connection, expert evidence tends to indicate that abusers of either alcohol or drugs have a lesser chance of success than those who do not abuse. Alcohol addiction does generally lead to poor behavior and it is often a condition of parole that the inmate not drink to excess. Consequently, if a demonstrated alcohol abuser does drink to excess, the likelihood of his behavior becoming inappropriate again is high, but in addition, he will most likely be in violation of the conditions of his probation. It is again a question of risk assessment by professional judgment on an individual basis. Some experts define alcohol abuse as "a voluntary excess or inappropriate use of alcohol", whereas alcoholism is "involuntary." An abuser is not necessarily an alcoholic and trained medical expertise differentiates between alcoholism and alcohol abuse. Because of the fact that alcohol abuse is voluntary, some experts believe there is no reason to extend a prison term on the basis of alcohol abuse if the extension does not result in treatment for the behavior. Petitioner introduces the Commission's action with regard to inmate Nicky Berkart, wherein the Commission declined to utilize that inmate's alcohol abuse to aggravate his PPRD as evidence of the inconsistency of treatment of this factor. Mr. Burkart's situation is not comparable, however, to the issue here. None of the documentation considered by the Commission here was prepared by a doctor or medical professional with the exception of the psychologist's interview, but there is no indication that it need be. If the Commission had decided that additional medical or professional evaluation was necessary and pertinent, it could have requested it. What must be recognized is that an inmate has no right to parole. The sentence imposed by the court generates an expiration of sentence date (EOS) at which time the inmate will be released unless he or she has committed additional offenses. Parole, which is a release prior to expiration of sentence, is a privilege and if no parole is granted, the inmate will still get out at the EOS less gain time. Consequently, since nothing extends the sentence, denial of parole does not increase the penalty. The Commission may and does make abstinence from alcohol, or the use of antabuse, a condition of parole. Neither, however, is a guarantee that the individual will refrain from using alcohol. The evidence presented by Respondent indicates that it is not at all unusual for a parolee to commit offenses while under the influence of alcohol. Forty to fifty percent of all revocations of parole result from some sort of substance abuse. Many of those parolees have a history of alcohol abuse. Therefore, a history of alcohol abuse would appear to be a negative indicant of parole success. The aggravating factor in this situation is not that the inmate has the medical problem of alcoholism, but that the history of alcohol abuse shows that the inmate is not a good parole risk. It is generally a safe statement that people in prison who abuse alcohol are not a risk to society. Those who are released form prison with a demonstrated propensity to abuse alcohol are. In making this evaluation, the Commission is not, as was indicated previously, bound by any strict formula. Whatever qualification is applied, however, it must be applied on an individual basis and not across the board. Each Commissioner tailors his recommendation on what he knows about the individual before him. Based on the information provided, plus whatever information is requested as appropriate, an individual conclusion is drawn by each member of the Commission. These then are evaluated and a Commission vote is taken which results in the establishment of the PPRD.
The Issue Whether Respondent's educator's certification should be sanctioned for alleged gross immorality or an act involving moral turpitude, and other offenses in violation of Section 231.2615(1)(c), (e), (f) and (2), Florida Statutes.
Findings Of Fact Respondent, Daniel Ayers, holds Florida Educator Certificate number 735644, which was valid through June 30, 2005. At all times relevant hereto Respondent was employed as a second grade teacher at Gulfport Elementary School in the Pinellas County School District during the relevant school year. On July 5, 2000, at about 8:15 p.m., Respondent entered the public restroom at Lake Seminole Park, Pinellas County Florida, where he was observed by Deputy James Brueckner of the Pinellas County Sheriff's Office. It is a well-used park, and people were present that evening. It was still light at that time, and Lake Seminole Park was being used by families and children. The playground is close to the northeast corner of the restroom Respondent entered. Respondent approached a urinal, and, after facing it for about 30 seconds, he went to the back wall where it was possible for him to observe, through the openings, anybody approaching the restroom. At that point, Respondent had his penis in his hands and was masturbating by holding his penis and fondling it. He then replaced his penis in his pants through the fly, pulled down his shorts, and began moving his hand up and down on his penis in a rapid motion. Deputy Brueckner, who was inside the restroom, removed his badge and identified himself to Respondent. He told Petitioner that he was a detective and showed him the badge. He told Respondent that he was under arrest, but that he should be calm. They would go out to his vehicle to do the paperwork. Respondent made a move towards the door, as if he was going to run. Deputy Brueckner grabbed him, and Respondent shoved the deputy and fled. Deputy Brueckner pursued Respondent and caught him. Respondent swatted the deputy several times. Two other deputies came to Deputy Brueckner's assistance, and Respondent was subdued. Respondent was charged with indecent exposure of sexual organs (a misdemeanor) and with resisting arrest with violence (a felony). He subsequently entered a plea of No Contest to the charge of indecent exposure of sexual organs and to the reduced charge of resisting arrest without violence in Pinellas County Circuit Court. He was adjudicated guilty on both charges by the court and placed on probation. Respondent admitted to Michael Bessette, an administrator in the office of professional standards, Pinellas County School District, that he was the person arrested and charged as a result of the incident on July 5, 2000. In Bessette's expert opinion, the public would not tolerate the type of behavior exhibited by Respondent on July 5, 2000, at Lake Seminole Park. Respondent's effectiveness as a teacher was seriously reduced to the point where the school district had to remove him from teaching duties. In Bessette's opinion Respondent engaged in conduct that constitutes gross immorality and would not be tolerated under state or local ethical standards. Respondent resigned his teaching position with the Pinellas County School District on April 25, 2001, following his conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(c), (e), and (f), Florida Statutes. It is further RECOMMENDED that a final order be issued revoking Respondent's teaching certificate for three years, imposing a $1,000 fine for the above violations, and that upon re- application for certification, imposing such conditions as are just and reasonable. DONE AND ENTERED this 14th day of April, 2003, in Tallahassee, Leon County, Florida. 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 14th day of April, 2003. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Daniel Ayers 7096 111th Street, North Seminole, Florida 33772 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Mary Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
Findings Of Fact On March 5, 1976 the U. S. District Court for the Southern District of Florida found Petitioner guilty of possession and distribution of cocaine and sentenced him to confinement for two years (Exhibit 10). This sentence was reduced by Order entered 3 March 1977 to 16 months (Exhibit 11). Following his release from prison, Petitioner returned to school and received a Bachelor of Arts degree in communications from Florida International University in August 1978. Petitioner's testimony and evidence he presented consisting of excerpts of his writing ability demonstrated that he is articulate and probably more competent to teach than some who presently hold certificates.
Recommendation RECOMMENDED that the denial of the application of George Derek Joy for a teaching certificate be upheld and the Petition for a certificate be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of September, 1979. K. N. Ayers Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1979. COPIES FURNISHED: Mr. George Derek Joy 7035 N. E. 4th Court, Apt. 1 Miami, Florida 33138 Mr. Hugh Ingram Administrator Professional Practices Council Room 3, 319 W. Madison Street Tallahassee, Florida 32301
The Issue Whether Petitioner has grounds to terminate Respondent’s professional service contract as a classroom teacher, as alleged in the Administrative Complaint dated February 28, 2003.
Findings Of Fact The School Board of Monroe County, Florida (School Board), is charged with the duty to operate, control, and supervise the public schools within Monroe County, Florida, pursuant to Section 4(b) of Article IX of the Florida Constitution. The Superintendent of Schools (Superintendent) is authorized by law to act on behalf of the School Board in this proceeding. The respective duties and responsibilities of the School Board and the Superintendent are set forth in the Florida Education Code at Chapter 1012. Respondent was hired by the School District of Monroe County, Florida, on or about November 11, 1986. At all times pertinent to this action, Respondent was employed pursuant to a professional service contract as a teacher at MMS. She taught eighth grade English to students who were generally 13 to 14 years of age. Respondent's formal job evaluations have been satisfactory or better. On October 26, 1989, Respondent committed the criminal offense of DUI by driving or being in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol to the extent that her normal faculties were impaired. Respondent was arrested and charged with committing the criminal offense of DUI. She submitted to a breath alcohol test, which indicated that her breath alcohol level was .19 grams of alcohol per 210 liters of breath. Pursuant to Section 316.193(1), Florida Statutes (1989), a person is guilty of driving under the influence if that person was in control of a car and had a breath-level alcohol reading of .10 grams or more. On December 11, 1989, Respondent entered a plea of guilty to the criminal offense of DUI with regard to her arrest on October 26, 1989. The County Court of Monroe County, Florida (the Court), adjudicated Respondent guilty of DUI, sentenced her to six months' probation, and suspended her Florida driving privileges for six months. Additionally, Respondent was required to pay a $250.00 fine and $222.50 in court costs. Her sentence also required her to perform 50 hours of community service and to complete DUI School. On October 14, 1992, Respondent committed the criminal offense of DUI by driving or being in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol to the extent that her normal faculties were impaired. Respondent was arrested and charged with the criminal offense of DUI. Respondent submitted to two breath alcohol tests, which indicated that her breath alcohol level was .261 and .256 grams of alcohol per 210 liters of breath. Pursuant to Section 316.193(1), Florida Statutes (1992), a person is guilty of driving under the influence if that person was in control of a car and had a breath-level alcohol reading of .10 grams or more. On January 25, 1993, Respondent entered a plea of nolo contendere to DUI with regard to her arrest on October 14, 1992. The Court adjudicated Respondent guilty of DUI, sentenced her to ten days in jail, 12 months' probation, and suspended her Florida driving privileges for five years. She was also required to pay fines and court costs in the amount of $1,266.00, to perform 50 hours of community service, and to complete the Multiple DUI Offender Program. On August 1, 1994, the Florida Commissioner of Education (COE) filed an Administrative Complaint against Respondent, which alleged that her Florida teaching certificate should be disciplined based on her DUI convictions in 1989 and 1992. The Administrative Complaint alleged that Respondent was guilty of gross immorality and/or an act involving moral turpitude. On August 3, 1994, Respondent entered into a Settlement Agreement with the COE whereby she elected not to contest the allegations set forth in the Administrative Complaint. Based on the Settlement Agreement between Respondent and the COE, the EPC entered a Final Order on September 22, 1994, which approved the terms of the Settlement Agreement executed by Respondent on August 3, 1994. Pursuant to the terms of the Final Order, the EPC issued to Respondent a written reprimand, dated September 23, 1994, which stated, in pertinent part, that: [A]s a teacher you are required to exercise a measure of leadership beyond reproach. By your actions [i.e., 1989 and 1992 DUI convictions], you have lessened the reputation of all who practice our profession. Your actions cannot be condoned by the profession nor by the public who employ us. The Education Practices Commission sincerely hopes it is your intention to never allow this situation to occur again or indeed, to violate any professional obligation in fulfilling your responsibility as an educator. To violate the standards of the profession will surely result in further action being taken against you. A copy of the written reprimand was placed in Respondent's state certification file and a copy was sent to the School Board for placement in Respondent's personnel file. In addition to the reprimand, the Final Order placed Respondent’s teaching certificate on probation for a period of two years and ordered her to: (1) submit to an examination and consultation with a licensed substance abuse counselor; undergo a program of substance abuse counseling and treatment until such time as she was released from such treatment by a licensed substance abuse counselor; and submit proof of successful completion of the substance abuse counseling program to the EPC. Respondent did not comply with these conditions of her probation. Respondent did not submit to an examination and consultation with a licensed substance abuse counselor who was mutually acceptable to the EPC and was, consequently, unable to tender proof to the EPC that she had successfully completed such a substance abuse counseling program. The EPC notified Respondent of her failure to comply with the settlement and final order by letter dated September 10, 1997. The EPC closed her probation file with the notation that she had not satisfied the conditions of probation. There was no evidence that further disciplinary action was taken against Respondent for her failure to successfully complete the terms of her probation. On January 17, 2003, Respondent committed the criminal offense of DUI by driving or being in actual physical control of a motor vehicle in the State of Florida while under the influence of alcohol to the extent that her normal faculties were impaired. Respondent submitted to two breath alcohol tests, which indicated that her breath alcohol level was .207 and .206 grams of alcohol per 210 liters of breath. Pursuant to Section 316.193(1) a person is guilty of driving under the influence if that person was in control of a car and had a breath-level alcohol reading of .08 grams or more. Respondent was aware that it is unlawful for an individual to drive or be in actual physical control of a vehicle while under the influence of alcohol when affected to the extent that the individual’s normal faculties are impaired and/or while having a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath. On January 17, 2003, Respondent was arrested and charged with the criminal offense of DUI. On May 12, 2003, Respondent entered a plea of nolo contendere to the criminal offense of DUI with regard to her arrest on January 17, 2003. The court adjudicated Respondent guilty of that criminal offense and sentenced her to serve 30 days in jail, or in the alternative, to serve 30 days in an approved in-patient substance abuse rehabilitation facility, followed by 12 months of probation. She was also required to pay fines and court costs in the amount of $2,393.00, to perform 150 hours of community service, to complete an Advanced DUI offender course, and to refrain from using alcohol during probation. Respondent’s Florida driving privileges were suspended for a period of ten years. Respondent chose to serve her time in jail in the Monroe County Jail located in Key West. She did not want to attend the state-sponsored rehabilitation program because it was a 61-day program and she believed the 30-day private rehabilitation program she wanted was too expensive. Respondent's arrest for DUI on January 17, 2003, and the fact she had been convicted of DUI on two prior occasions became common knowledge and a topic of conversation in Marathon, which is a relatively small community. Students at MMS and MHS were aware of these facts about Respondent, as were parents of students, Respondent's colleagues, and the community in general. On or about January 28, 2003, the Key West Citizen, a local newspaper in the Florida Keys, reported the news of Respondent’s January 17, 2003 arrest for DUI and identified her as a teacher at MHS (sic). The Monroe County Sheriff’s Office web site reported Respondent’s DUI arrest, the fact that she was a teacher at MMS, and a copy of her booking photograph. This information was readily available via the Internet. Students at MMS displayed Respondent’s DUI booking photograph and information as wallpaper on the computers in the school library. Respondent's acts are wholly inconsistent with Petitioner's efforts to teach students to say no to drugs and alcohol and to the efforts of such school-sponsored groups as Students Against Drunk Driving. During the school year 2002/2003, Dr. Colvard was principal of MMS and MHS. At the time of the final hearing, he was retired. Dr. Colvard received a letter from one parent and an e-mail from another condemning Respondent's behavior. Respondent's arrest for DUI on January 17, 2003, and the fact that it became common knowledge among her students and in the community that she had two prior DUI convictions, were of such notoriety to impair both her effectiveness to the school system and her service in the community.1 Mr. Lannon has been an educator in the Monroe County School system since 1973 and became Superintendent in 1996. Mr. Lannon recommended that the School Board terminate Respondent's employment because Respondent had, by her misconduct, lost credibility and effectiveness with students, parents, and the community. Subsequent to Respondent's arrest on January 17, 2003, a beginning teacher was arrested for DUI. That teacher was disciplined with a reprimand. Mr. Lannon testified, credibly, that the beginning teacher's case was appropriately distinguished from Respondent's because that case did not generate the notoriety that Respondent's generated and because that was the first offense for the beginning teacher. At all times pertinent to these proceedings, Respondent was aware of the Code of Ethics/ Principles of Professional Conduct and had been provided with and signed for copies of those documents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that sustains the suspension of Respondent’s employment without pay and terminates her professional service contract of employment as a classroom teacher effective March 11, 2003. DONE AND ENTERED this 3rd day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of October, 2003.
Findings Of Fact Respondent, Allen McGhee and Latarra Hargarett, d/b/a A Touch of Class, is licensee of a facility located at 208 South Paramore Avenue, Orlando, Florida. The alcoholic beverage license #58-02721, 2COP series, was most recently renewed for the period October 1, 1991 through September 30, 1992. Allen McGhee did not appear at the hearing and is apparently in custody as a result of the activities that are the subject of this license discipline proceeding. Latarra Hargarett, a/k/a/ Gibbs, is the current sole lessee of the premises at 208 South Paramore Avenue. She has also contracted to purchase Allen McGhee's share of A Touch of Class nightclub, and has commenced payment pursuant to the contract. The parties have agreed to resolution of this proceeding as follows: The current license is revoked, and $3,000.00 civil penalty and $1,500.00 investigative costs are imposed. This license discipline is without prejudice to Latarra Gibbs' right to file an application for a beverage license in her own name at the 208 South Paramore Avenue location.
Recommendation Based on the foregoing, it is hereby, recommended that the agency enter its Final Order reflecting the parties' stipulated disposition as stated herein. RECOMMENDED this 31st day of October, 1991, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1991. COPIES FURNISHED: Nancy Waller, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Joerg F. Jaeger, Esquire Katz, Jaeger & Blankner 217 E. Ivanhoe Blvd., North Orlando, FL 32804 Richard W. Scully, Director Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
Findings Of Fact At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School. During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a 25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later. Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening. Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer. The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School. The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education. Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3. In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner. In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows: The testimony offered by the Superintendent of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board. This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972, and that incident alone is the basis for the Board's action. On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school. The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he also offered the use of his telephone so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow- ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22) None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part as follows: (P-1) The State moved under Rule 3:74 to amend the third count of the indictment to read `did contribute to the delinquency of a minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment). * * * In the hearing examiner's judgment, it would be wrong to speculate why Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself. Respondent entered a plea of guilty (P-1) which the Commissioner must con- sider in making his determination. N.J.S.A. 2A:96-4 reads as follows: A parent, legal guardian or person having the legal custody or control of a child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor. The hearing examiner found that the unrefuted testimony of respondent, and the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents. Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record. Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School. While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children. When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989. Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration. Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
Recommendation Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Post Office Box 391 Bartow, FL 33830 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue Whether the Respondent committed the violations alleged in the Administrative Action dated April 28, 2008, as amended by the Division at the final hearing, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for regulating the sale of alcoholic beverages in the State of Florida, and for investigating and imposing discipline on persons holding licenses under Florida's Beverage Law. See §§ 561.02 and 561.29, Fla. Stat.(2007).1 The Pineapple Grille, which is located in Delray Beach, Florida, is a restaurant that serves food and alcoholic beverages. It holds a special restaurant license under Florida's Beverage Law, having been issued license number 60- 14514, Series 4COP. On or about February 25, 2008, Eric Scarborough, a special agent with the Division, visited the Pineapple Grille to investigate a complaint from an anonymous source alleging that employees of the Pineapple Grille had been refilling call-brand bottles in the bar with lower-grade liquor. Special Agent Scarborough's investigation revealed that the complaint received from the anonymous source was completely without foundation. During the visit on February 25, 2008, Special Agent Scarborough met with Renee Resemme, the manager and chef of the Pineapple Grille, and, as a matter of routine, served her with a notice requiring the Pineapple Grille to provide him with the previous six months' records of its sales and purchases of alcoholic and non-alcoholic beverages and food no later than March 3, 2008. Special Agent Scarborough requested these records as a matter of course because, under its license, the Pineapple Grille is required to have sales of food and non- alcoholic beverages comprise 51 percent of its gross revenue and because the Pineapple Grille must purchase alcohol from authorized distributors. Gurpal Singh and Ovide Paul are the owners of the Pineapple Grille. At the times material to this proceeding, Mr. Singh was the individual responsible for keeping the records of the business; Mr. Paul had been an owner of the business for only a short time before the notice was served and was not familiar with the manner in which the business's records were kept. At the time of Special Agent Scarborough's visit to the Pineapple Grille and for a significant period of time after the visit, Mr. Singh was in Seattle, Washington, on family business. When he received the notice served on Ms. Rosemme, Mr. Paul contacted the Pineapple Grille's certified public accountant, who had possession of the business records requested by Special Agent Scarborough. The certified public accountant told Mr. Paul that he was very busy, but he began gathering the records requested. The records had not been provided to Special Agent Scarborough by March 18, 2008, so he made a return visit to the Pineapple Grille on that date. Mr. Paul met with Special Agent Scarborough, and he told Special Agent Scarborough that he was not in charge of the documents but that the certified public accountant was getting them together. While the certified public accountant was trying to put the documents in order, the Division sent a letter requiring that records for the previous three years' sales of alcoholic and non-alcoholic beverages and food were to be produced. Upon receiving this letter, the certified public accountant wrote a letter to the Division requesting an extension of time to provide the records but there was no response to this request for an extension. The records were produced to the Division on August 6, 2008. During the five months in which Mr. Paul and the certified public accountant were working to get the records together, Mr. Paul made a number of telephone calls to Special Agent Scarborough's office to explain the delay in producing the records. Mr. Paul left his name and telephone number on the voice mail system whenever he telephoned, but he received no response from the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding that GN Hotels & Restaurant, Inc., d/b/a Pineapple Grille, violated Section 561.29(j), Florida Statutes, by failing to produce records of the purchase and sales of alcoholic and non-alcoholic beverages and food within 10 days of the request for such records and imposing an administrative fine in the amount of $500.00. DONE AND ENTERED this 30th day of September, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 September, 2008.
Findings Of Fact The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.
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 the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year. RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1994. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 (Copies furnished, continued) Karen B. Wilde Executive Director The Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
