STATE OF FLORIDA - Florida Administrative Code

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs.

ELAINE ANDERSON,

Respondent.

/

Case No. 13-1347PL

RECOMMENDED ORDER

This case was heard on September 24, 2013, in Tallahassee,

Florida, before E. Gary Early, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

387 Lakeside Drive

DeFuniak Springs, Florida 32435

For Respondent: Ronald G. Stowers, Esquire

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether there are sufficient grounds for the imposition of

disciplinary sanctions against Respondent‟s teaching

certificate, and if so, the nature of the sanctions.

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PRELIMINARY STATEMENT

On November 30, 2012, the Commissioner of Education

executed an Administrative Complaint against Respondent which

alleged that from September 29, 2007 to July 6, 2012, Respondent

engaged in a series of unlawful acts for which she was

convicted, found guilty, had adjudication withheld, committed to

a pretrial diversion program, or pled guilty or nolo contendere;

that such acts violated provisions of section 1012.795, Florida

Statutes; and that Respondent failed to self-report the judicial

disposition of such acts in violation of the Principles of

Professional Conduct for the Education Profession in Florida.

On December 14, 2012, Respondent timely filed an election

of rights by which she requested a formal hearing. The matter

was referred to the Division of Administrative Hearings for an

evidentiary hearing.

The evidentiary hearing was noticed for June 27 and 28,

2013. On May 28, 2013, Petitioner filed a Motion for

Continuance of the hearing based on a conflict with a meeting of

the Education Practices Commission scheduled to take place on

June 27, 2013. The Motion for Continuance was granted, and the

hearing was rescheduled for August 6 and 7, 2013.

On July 31, 2013, the parties filed their pre-hearing

stipulation in which they presented their witness and exhibit

lists, and stipulated to certain facts.

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On the morning of August 6, 2013, counsel for Respondent

filed an Emergency Motion for Continuance due to Respondent‟s

hospitalization the night before. The hearing was convened and,

upon confirmation of Respondent‟s medical condition, the motion

was granted without objection.

The hearing was rescheduled for September 24, 2013. On

August 7, 2013, the case was re-assigned to the undersigned.

Thereafter, the hearing was held as scheduled.

The parties stipulated that, as to a charge of Driving

While License Suspended or Revoked that resulted from a

January 2, 2010, traffic citation, Respondent pled to a lesser

charge of operating a motor vehicle without a valid driver‟s

license. Petitioner made an ore tenus motion to conform the

pleadings to the evidence. Since the underlying facts were the

same, with the only change being the reduction in the charge,

the motion was granted.

At the final hearing, Petitioner presented the testimony of

Doug Clark, a patrol officer with the Tallahassee Police

Department; William Hurlbut, who at the time pertinent to his

testimony was a field training officer with the Tallahassee

Police Department; Frederick Paul Teslo, a sergeant with the

Florida Highway Patrol; Sterling Hollingsworth, who at the time

pertinent to his testimony was an investigator with the

Tallahassee Police Department; Shaun Marshall, a fraud

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investigator with the Department of Economic Opportunity; and

Reginald Cecil James, Superintendent of Gadsden County Schools.

Petitioner‟s Exhibits 1-18 were received into evidence.

Petitioner‟s Exhibit 1 consisted of a discovery deposition of

Respondent, which is admissible pursuant to Florida Rule of

Civil Procedure 1.330(a)(2).

By agreement of the parties, Respondent testified on her

own behalf by deposition, which was filed on October 21, 2013.

The deposition transcript is received in evidence as

Respondent‟s Exhibit 3, and considered as though Respondent

testified in person. Respondent‟s Exhibit 2 was also received

in evidence.

By agreement of the parties, Dr. Pink Hightower, Director

of Human Resources for Gadsden County Schools, testified by

deposition, which was filed on October 28, 2013. The deposition

transcript is received in evidence as Petitioner‟s Exhibit 19

and considered as though Dr. Hightower testified in person.

During the hearing, it was agreed that those pages of

Respondent‟s personnel file deemed to be pertinent to the issues

would be identified in Dr. Hightower‟s deposition, and would

thereupon be received in evidence. Based thereon, Respondent‟s

Composite Exhibit 1, which consists of numbered pages 51, 92-96,

156, 183-191, 207, and 216-223, is received in evidence.

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The filing of Dr. Hightower‟s deposition transcript closed

the evidentiary portion of the proceeding.

A one-volume Transcript of the proceedings was filed on

October 8, 2013. Motions for Extension of Time to File Proposed

Recommended Orders were filed by both of the parties and granted

by the undersigned. Both parties thereafter timely filed

Proposed Recommended Orders which have been duly considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Florida Education Practices Commission is the state

agency charged with the duty and responsibility to revoke or

suspend, or take other appropriate action with regard to

teaching certificates as provided in sections 1012.795 and

1012.796. § 1012.79(7), Fla. Stat.

2. Petitioner, as Commissioner of Education, is charged

with the duty to file and prosecute administrative complaints

against individuals who hold Florida teaching certificates and

who are alleged to have violated standards of teacher conduct.

§ 1012.796(6), Fla. Stat.

3. Respondent holds a teaching certificate issued by the

Florida Department of Education, No. 608837, covering the areas

of pre-kindergarten and primary education.

4. Respondent‟s current teaching certificate was issued as

a result of the entry of a September 18, 2007, Settlement

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Agreement that resolved an initial denial of the teaching

certificate for a series of pleas or convictions for financial

crimes, including Public Assistance Fraud. The Settlement

Agreement authorized the issuance of Respondent‟s teaching

certificate subject to a letter of reprimand and a two-year

period of probation. The Settlement Agreement was adopted by

the Education Practices Commission by Final Order entered on

January 25, 2008.

5. Respondent was employed by the Gadsden County School

Board in various positions since 2005, most of them being as a

teacher at the elementary school and kindergarten level.

6. Respondent received instructional employee evaluation

ratings of “very effective” for the 2006-2007 school year, and

of “effective” for the 2007-2008, 2008-2009, and 2009-2010

school years.

7. Respondent was suspended from teaching by the Gadsden

County School Board on January 3, 2011 for issues relating to

her December 21, 2010, arrest for drug-related offenses. The

suspension was upheld at a meeting of the Gadsden County School

Board on January 25, 2011.

8. Respondent was rehired as a Gadsden County substitute

teacher in February, 2011, and worked in that capacity at two

schools until December 2012. The decision to rehire was made to

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accommodate Respondent with lawful employment so as to meet the

terms of her probation.

Administrative Complaint

9. On November 30, 2012, Petitioner issued the

Administrative Complaint that forms the basis for this

proceeding. The Administrative Complaint identified the

offenses that underlie the five specified counts.

Resisting an Officer - September 29, 2007

10. On September 29, 2007, Officer Clark was in the

process of effectuating an arrest of Respondent‟s son at a

convenience store located near Respondent‟s home. According to

Officer Clark, Respondent‟s son was resisting efforts to place

him in handcuffs.

11. While Officer Clark was attempting to take

Respondent‟s son into custody, Respondent appeared on the scene

and attempted to intervene in the incident. The nature of the

intervention is disputed. When a back-up officer arrived,

Officer Clark instructed him to take Respondent into custody.

12. The only evidence of the disposition of the charge of

resisting an officer was a printout of the case docket from the

website of the Leon County, Florida Clerk of Court. The

printout is hearsay, and comes within no exception to the

hearsay rule set forth in section 90.803, Florida Statutes.

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13. Disposition of the charge of resisting an officer was

not supported by competent, substantial, and non-hearsay

evidence. Thus, no finding can be made to substantiate that

charge.

Driving Without a Valid License - January 2, 2010

14. On January 2, 2010, Respondent was driving her vehicle

in Tallahassee. She was stopped by Officer Hurlbut for a

traffic infraction. Respondent presented Officer Hurlbut with a

Florida driver‟s license. When Officer Hurlbut ran the driver‟s

license through his onboard computer, he discovered that the

driver‟s license produced by Respondent was not current, and

that Respondent‟s driver‟s license had been suspended.

15. Officer Hurlbut issued a citation and notice to appear

to Respondent, and seized her expired driver‟s license and her

automobile tag.

16. On April 14, 2010, Respondent entered a plea of no

contest to a charge of operating a motor vehicle without a valid

driver‟s license, a second-degree misdemeanor, was adjudged

guilty, and was placed on probation for a period of six months.

Driving Without a Valid License/Violation of Probation -

September 26, 2010

17. On September 26, 2010, Respondent was stopped by

Highway Patrol Sergeant Teslo for driving without a seatbelt.

Respondent had no identification.

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18. Sergeant Teslo asked Respondent to write her name and

date of birth on a sheet of paper so that he could run it

through his onboard computer. The name and birthdate provided

by Respondent were not those of Respondent.

19. When Sergeant Teslo determined that the name and

birthdate were not those of Respondent, he returned to her car,

whereupon Respondent provided him with her real name and

birthdate.

20. When Sergeant Teslo ran Respondent‟s name and

birthdate, he discovered that Respondent was operating her

vehicle while her driver‟s license was suspended. He issued a

traffic citation, and waited for a licensed driver to come and

pick up Respondent. As a matter of discretion, Sergeant Teslo

did not charge Respondent with providing false information.

21. On September 30, 2010, an affidavit of probation

violation was executed which alleged that Respondent violated

her April 14, 2010, sentence of probation by driving with a

suspended license. A warrant was issued, and Respondent was

taken into custody.

22. Respondent entered a plea of no contest to a reduced

charge of operating a motor vehicle without a valid driver‟s

license. Adjudication was withheld.

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Drug Offenses - December 9, 2010

23. On December 9, 2010, after a period of investigation

and surveillance of Respondent‟s home, the Tallahassee Police

Department executed a search warrant for the home. Respondent

was not at the home when the search was conducted.

24. Respondent arrived at her home while the search

warrant was being executed. There were numerous police cars

around the house. Respondent asked a neighbor to watch the

house and retrieve the keys when the search was done while she

took her pit bulldog, which had been Tasered during the

execution of the warrant, to the veterinarian. The neighbor

later called Respondent to advise her that drugs were found

during the search. Thus, the search and its results were openly

known in the area.

25. During the execution of the search warrant, two of

Respondent‟s sons were taken into custody. The search of the

home uncovered a significant quantity of powdered and crack

cocaine, cannabis, and various articles of paraphernalia located

in rooms throughout the home, including the kitchen and

Respondent‟s bedroom.

26. On December 21, 2010, Respondent was arrested for a

number of drug-related offenses.

27. On February 11, 2011, an Information was filed

charging Respondent with trafficking in controlled substances, a

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felony of the first degree; sale or possession of controlled

substances with intent to sell within 1000 feet of a convenience

store, a felony of the first degree; sale or possession of

controlled substances with intent to sell within 1000 feet of a

convenience store, a felony of the second degree; and possession

of paraphernalia, a misdemeanor of the first degree.

28. On November 15, 2011, Respondent entered into a

deferred prosecution agreement for the charged offenses subject

to Respondent‟s compliance with various terms of the agreement.

Public Assistance Fraud - July 25, 2012

29. On July 6, 2012, an affidavit was executed by

Department of Economic Opportunity Investigator Marshall, in

which it was alleged that Respondent made false statements that

she was unemployed and not receiving wages or benefits from

June 19, 2010 through February 26, 2011, so as to qualify for

reemployment assistance benefits for which she was otherwise not

eligible.

30. Respondent asserted that she was, in fact, unemployed

during the summer of 2010, since her annual contract expired at

the conclusion of the 2009-2010 school year, and was not renewed

until the commencement of the 2010-2011 school year. She

further asserted that she was suspended without pay commencing

on January 26, 2011. However, the evidence is undisputed that

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Respondent was employed and receiving wages for, at a minimum,

the start of the 2010-2011 school year1/ until January 26, 2011.

31. On July 25, 2012, an Information was filed charging

Respondent with Unemployment Compensation Fraud, a felony of the

third degree, for making false statements to obtain or increase

benefits under Florida unemployment compensation laws.

32. On November 2, 2012, Respondent entered a plea of nolo

contendere to the felony charge of unemployment compensation

fraud, was adjudicated guilty, was placed on probation for a

period of five years, and was ordered to pay restitution to the

Florida Reemployment Compensation Trust Fund in the amount of

$7,972.00 and to pay an additional $750 in court costs.

CONCLUSIONS OF LAW

A. Jurisdiction.

33. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2013).

B. Standards

34. Section 1012.795(1), which establishes the violations

that subject a holder of an educator certificate to disciplinary

sanctions, provides, in pertinent part, that:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or

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(3) for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(f) Has been convicted or found guilty of,

or entered a plea of guilty to, regardless

of adjudication of guilt, a misdemeanor,

felony, or any other criminal charge, other

than a minor traffic violation.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person‟s effectiveness as an

employee of the district school board.

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* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

35. Florida Administrative Code Rule 6A-10.081(5)(m),

(previously numbered as rule 6B-1.006(5)(m)) provides that:

Obligation to the profession of education

requires that the individual:

(m) Shall self-report within forty-eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any

proceeding, civil or criminal,

administrative or judicial, investigatory or

adjudicatory. In addition, shall self-

report any conviction, finding of guilt,

withholding of adjudication, commitment to a

pretrial diversion program, or entering of a

plea of guilty or Nolo Contendre for any

criminal offense other than a minor traffic

violation within forty-eight (48) hours

after the final judgment. When handling

sealed and expunged records disclosed under

this rule, school districts shall comply

with the confidentiality provisions of

Sections 943.0585(4)(c) and 943.059(4)(c),

F.S.

36. Section 1012.796(7) provides, in pertinent part, that:

1012.796 Complaints against teachers and

administrators; procedure:

* * *

(7) A panel of the commission shall enter a

final order either dismissing the complaint

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or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching certificate or for an administrative or

supervisory endorsement on a teaching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicant‟s

application, for a specified period of time

or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the

investigative office in the Department of

Education upon termination of employment in

the state in any public or private position

requiring an educator's certificate.

2. Have his or her immediate

supervisor submit annual performance reports

to the investigative office in the

Department of Education.

3. Pay to the commission within the

first 6 months of each probation year the

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administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully

comply with all district school board

policies, school rules, and State Board of

Education rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with

the terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certification file of such person.

(g) Imposition of an administrative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal, which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

C. The Burden and Standard of Proof.

37. The Petitioner bears the burden of proving the

specific allegations of wrongdoing that support the charges

alleged in the Administrative Complaint by clear and convincing

17

evidence before disciplinary action may be taken against the

professional license of a teacher. Tenbroeck v. Castor, 640 So.

2d 164, 167 (Fla. 1st DCA 1994); § 120.57(1)(j), Fla. Stat.; see

also Dep‟t of Banking & Fin., Div. of Sec. & Inv. Prot. v.

Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Dep‟t of Ins. and

Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

38. Clear and convincing evidence “requires more proof

than a „preponderance of the evidence‟ but less than „beyond and

to the exclusion of a reasonable doubt.‟” In re Graziano,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof

entails both a qualitative and quantitative

standard. The evidence must be credible;

the memories of the witnesses must be clear

and without confusion; and the sum total of

the evidence must be of sufficient weight to

convince the trier of fact without

hesitancy.

Clear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be

precise and explicit and the witnesses

must be lacking in confusion as to the

facts in issue. The evidence must be

of such weight that it produces in the

mind of the trier of fact a firm belief

or conviction, without hesitancy, as to

the truth of the allegations sought to

be established.

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In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros.,

Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

39. Section 1012.795 is penal in nature, and must be

strictly construed, with any ambiguity construed against the

Petitioner. Penal statutes must be construed in terms of their

literal meaning, and words used by the Legislature may not be

expanded to broaden the application of such statutes. Latham v.

Fla. Comm‟n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997); see

also Beckett v. Dep‟t of Fin. Svcs., 982 So. 2d 94, 100 (Fla.

1st DCA 2008); Dyer v. Dep‟t of Ins. & Treas., 585 So. 2d 1009,

1013 (Fla. 1st DCA 1991).

Count 1 - Section 1012.795(1)(d)

40. Count 1 of the Administrative Complaint alleged that:

The Respondent is in violation of Section

1012.795(1)(d), Florida Statutes, in that

Respondent has been guilty of gross

immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

41. The Ethics in Education Act, chapter 2008-108, § 32,

Laws of Florida, amended section 1012.795(1)(d) to add the

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phrase “as defined by rule of the State Board of Education,”

creating the statute as it appears at present.

Gross Immorality

42. In Cappi Arroyo v. Dr. Eric J. Smith, as Commissioner

of Education, Case No. 11-2799, ¶ 109 (Fla. DOAH May 31, 2012;

Fla. EPC Nov. 13, 2012), Judge F. Scott Boyd analyzed the effect

of the 2008 legislative amendment of section 1012.795(1)(d) as

follows:

The Ethics in Education Act, Chapter 2008-

108, Laws of Florida, added the phrase "as

defined by rule of the State Board of

Education" to what now appears as section

1012.795(1)(d). It is unclear whether this

new language modifies only "an act involving

moral turpitude" or if it instead modifies

the entire phrase "gross immorality or an

act involving moral turpitude." The absence

of a comma after the word "immorality"

suggests that it modifies the entire phrase.

In any event, when construing penal

statutes, any statutory ambiguity should be

resolved in favor of Petitioner. Cilento v.

State, 377 So. 2d 663, 668 (Fla. 1979)(where

criminal statute is ambiguous, construction

most favorable to accused should be

adopted). See also § 775.021, Fla. Stat.

("The provisions of this code and offenses

defined by other statutes shall be strictly

construed; when the language is susceptible

of differing constructions, it shall be

construed most favorably to the accused.").

This portion of the statute is thus only

violated if an educator is guilty of gross

immorality as defined by rule of the State

Board of Education. (emphasis added).

43. The Final Order in Arroyo v. Smith accepted Judge

Boyd‟s Recommended Order, and it was “adopted in full and

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becomes the Final Order of the Education Practices Commission.”

That Final Order, and the conclusions of the Recommended Order

adopted thereby, will therefore be applied in this case.

44. Judge Boyd correctly noted that “[t]he State Board of

Education has not defined the term „gross immorality‟ by rule.”

Arroyo v. Smith at ¶110. The undersigned, having reviewed the

relevant rules promulgated by the State Board of Education,

concurs with Judge Boyd and finds that the State Board of

Education has not defined “gross immorality” by rule.

45. Petitioner suggests that “gross immorality” should be

applied in accordance with administrative cases construing the

term that were decided prior to the legislative mandate that the

term be defined by rule. Given the 2008 amendment of the

statute, those cases are inapplicable to the current standard

established by the legislature.

46. Based on the foregoing, Respondent failed to prove

that Petitioner was “guilty of gross immorality . . . as defined

by rule of the State Board of Education.”

Moral Turpitude

47. The State Board of Education has defined the term

“moral turpitude” by rule. The term previously appeared as rule

6B-4.009. Having been transferred, the rule now appears in the

Florida Administrative Code as rule 6A-5.056.

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48. All of the acts upon which this proceeding is based,

including the conduct that formed the basis for the conviction

for unemployment compensation fraud, occurred prior to a

substantial rewording of rule 6A-5.056 on July 8, 2012. Thus,

whether such acts constituted ones involving moral turpitude

must be gauged against the standard in effect at the time the

acts giving rise to this proceeding occurred, i.e. that version

of the rule as it existed prior to its 2012 amendment. Childers

v. Dep't of Envtl. Prot., 696 So. 2d 962, 964 (Fla. 1st DCA

1997)(“The version of a statute in effect at the time grounds

for disciplinary action arise controls.”).

49. Prior to its 2012 amendment, rule 6A-5.056(6) defined

“moral turpitude” as “a crime that is evidenced by an act of

baseness, vileness or depravity in the private and social

duties, which, according to the accepted standards of the time a

man owes to his or her fellow man or to society in general, and

the doing of the act itself and not its prohibition by statute

fixes the moral turpitude.” Furthermore, moral turpitude has

been defined by the Supreme Court as:

involv[ing] the idea of inherent baseness or

depravity in the private social relations or

duties owed by man to man or by man to

society . . . . It has also been defined as

anything done contrary to justice, honesty,

principle or good morals, though it often

involves the question of intent as when

unintentionally committed through error of

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judgment when wrong was not contemplated.

(citations omitted)

State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611 (Fla.

1933).

50. The standard to be upheld must be viewed in the

context of the profession at issue. As leaders and role models

in the community, teachers are held to a high moral standard.

Adams v. Prof‟l Practices Council, 406 So. 2d 1170, 1172 (Fla.

1st DCA 1981).

51. Based on the findings of fact established herein,

Petitioner has proven, by clear and convincing evidence, that

Respondent has been guilty of acts involving moral turpitude as

defined by rule of the State Board of Education, and has thus

proven that Respondent violated section 1012.795(1)(d).

Count 2 - Section 1012.795(1)(f)

52. Count 2 of the Administrative Complaint alleged that,

as a result of the facts alleged:


1012.795(1)(f), Florida Statutes, in that

Respondent has been convicted or found

guilty of, or entered a plea of guilty to,

regardless of adjudication of guilt, a

misdemeanor, felony, or any other criminal

charge, other than a minor traffic

violation.

53. As to the September 29, 2007, charge of resisting an

officer, there was insufficient non-hearsay evidence of the

disposition of that charge to support a finding that Respondent

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was found guilty of, or entered a plea of guilty to, regardless

of adjudication of guilt, that charge.

54. As to the January 2, 2010, and September 26, 2010,

citations for violations of Florida‟s motor vehicle laws,

although the initial charges were more severe, the charges to

which Respondent pled were for operating a motor vehicle without

a valid driver‟s license. The State Board of Education has not

defined the term “minor traffic violation” and, except for the

admonition contained in the certification application that

driving while under the influence (DUI) is not a minor traffic

violation (see Thomas Filippi v. John L. Winn, as Comm'r of

Educ., Case No. 07-4628, ¶30 (Fla. DOAH June 20, 2008; Fla. EPC

Oct. 15, 2008)) there is no interpretive guidance regarding the

application of the term. Operating a motor vehicle without a

valid driver‟s license does not, of itself, expose anyone to a

threat of harm or injury, so that the consequences might

reasonably be understood to be more than a minor traffic

violation. See Dr. Eric J. Smith, as Comm'r of Educ. v. Tina

Adams, Case No. 09-5392PL (Fla. DOAH Feb. 18, 2010; Fla. EPC

June 24, 2010)(reckless driving is more than a minor traffic

violation); Charlie Crist, as Comm'r of Educ. v. Troy Doyle,

Case No. 03-0393PL (Fla. DOAH July 16, 2003; Fla. EPC Nov. 3,

2003)(leaving the scene of an accident without injuries is more

than a minor traffic violation). Since the term “minor traffic

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violation” is ambiguous, and ambiguity is to be construed

against Petitioner, Petitioner has failed to prove that

Respondent‟s operation of a motor vehicle without a valid

driver‟s license constituted a violation of section

1012.795(1)(f). Cf. Lee Co. Sch. Bd. v. William Myers, Case No.

03-4233 (Fla. DOAH June 23, 2004; Lee Co. Sch. Bd. Aug. 22,

2004).

55. As to the December 21, 2010, arrest on drug-related

charges, Respondent entered into a Deferred Prosecution

Agreement and thus was not found guilty of, and did not enter a

plea of guilty to, those charges.

56. As to the felony charges related to unemployment

compensation fraud, Respondent was adjudicated guilty of those

charges. As to that element of Count 2, Petitioner has proven,

by clear and convincing evidence, that Respondent has been found

guilty of a felony, and has thus proven that Respondent violated

section 1012.795(1)(f).

Count 3 - Section 1012.795(1)(g)

57. Count 3 of the Administrative Complaint alleged that,

as a result of the facts alleged:


1012.795(1)(g), Florida Statutes in that

Respondent has been found guilty of personal

conduct which seriously reduces her

effectiveness as an employee of the Gadsden

County School Board.

25

58. Section 1012.795(1)(g) is a bit confusing in that it

uses the term “guilt” when describing the personal conduct that

would rise to the level of a violation. The use of the term

could imply that there be a conviction of a crime involving a

standard of personal conduct in order for Respondent to have

“been found guilty.” However, a long string of administrative

orders, going back many years, has applied a broader

construction of the term to mean a more general breach of

standards of personal conduct that seriously reduce a

Respondent‟s effectiveness as a teacher. See, e.g., Pam

Stewart, as Comm'r of Educ. v. Roy Shewchuk, Case No. 13-1086PL

(Fla. DOAH July 17, 2013; Fla. EPC Oct. 10, 2013); John Winn, as

Comm'r of Educ. v. Richard Allen, Case No. 13-0140PL (Fla. DOAH

June 4, 2013; Fla. EPC Sept. 12, 2013); John L. Winn, as Comm'r

of Educ. v. Michelle O‟Neill, Case No. 08-1597PL (Fla. DOAH June

30, 2008; Fla. EPC Oct. 15, 2008); John L. Winn, as Comm'r of

Educ. v. Daniel Ray Madril, Case No. 07-3498PL (Fla. DOAH Nov.

9, 2007; Fla. EPC Mar. 6, 2008); Charlie Crist, as Comm'r of

Educ. v. Heather Cotton, Case No. 02-3942PL (Fla. DOAH Apr. 11,

2003; Fla. EPC June 12, 2003).

59. Superintendent James testified as to his belief that

the conduct involved in this case, including the conviction of

unemployment compensation fraud, seriously reduced Respondent‟s

effectiveness as a teacher. His testimony is credited.

26

60. Dr. Hightower testified that Respondent‟s conduct, as

alleged and proven herein, seriously reduced her effectiveness

as a teacher due to the message that employing a teacher with a

record of criminal offenses would send to students and to the

community. His testimony in that regard was convincing and is

credited.

61. For the reasons set forth herein, including the

notoriety of the drug search of Respondent‟s home and the fraud

that formed the basis for the unemployment compensation

conviction, Petitioner has proven, by clear and convincing

evidence, that Respondent is guilty of personal conduct which

seriously reduces her effectiveness as an employee of the

Gadsden County School Board, and has thus proven that Respondent

violated section 1012.795(1)(g).

Counts 4 and 5 - Section 1012.795(1)(j) and Florida

Administrative Code Rule 6A-10.081(5)(m)

62. Count 4 of the Administrative Complaint charged

Respondent with violating section 1012.795(1)(j) by having

violated the Principles of Professional Conduct for the

Education Profession prescribed by State Board of Education

Rules. Thus, Count 4 does not constitute an independent

violation, but rather is dependent upon a corresponding

violation of the rules constituting the Principles of

Professional Conduct.

27

63. Count 5 of the Administrative Complaint charged

Respondent with violating Florida Administrative Code Rule 6B-

1.006(5)(m)(renumbered without substantive change to rule 6A-

10.081(5)(m)) by failing to self-report within 48 hours to

appropriate authorities (as determined by district) any arrests

or charges involving the sale and/or possession of a controlled

substance, and to self-report any conviction, finding of guilt,

withholding of adjudication, commitment to a pretrial diversion

program, or entering of a plea of guilty or Nolo Contendere for

any criminal offense other than a minor traffic violation within

48 hours after the final judgment.

64. The September 18, 2007, Settlement Agreement upon

which Respondent‟s teaching certificate was issued required that

Respondent fully comply with the Principles of Professional

Conduct for the Education Profession. Thus, Respondent was on

specific notice of those standards, and of her obligation to

comply with them.

65. Given the lack of proof of the disposition of the

September 29, 2007, charge of resisting an officer, and the

nature of the January 2, 2010 and September 26, 2010, traffic

citations, Petitioner failed to prove that Respondent‟s failure

to report those incidents constituted a violation of the

reporting obligations as alleged.

28

66. Respondent asserted that she made efforts to advise

certain persons at her school of the drug arrest, but that she

was unaware of the Principles of Professional Conduct for the

Education Profession, or of any specific obligation to report.

She further indicated that she did not report the filing of the

information related to the drug arrest or the unemployment

compensation fraud conviction.

67. Petitioner has proven, by clear and convincing

evidence, that Respondent failed to report specified offenses

within the time periods established by Florida Administrative

Code Rule 6A-10.081(5)(m), and has thus proven that Respondent

violated section 1012.795(1)(j).

68. Given the nature and severity of the charges proven in

this proceeding, the most appropriate penalty is permanent

revocation of Respondent‟s Educator‟s Certificate.

RECOMMENDATION

Upon consideration of the findings of fact and conclusions

of law reached herein, it is

RECOMMENDED that Petitioner enter a final order permanently

revoking Respondent‟s teaching certificate, No. 608837.

29

DONE AND ENTERED this 16th day of December, 2013, in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of December, 2013.

ENDNOTE

1/ The undersigned, pursuant to Florida Administrative Code Rule

28-106.213 and section 90.202(11), takes official recognition of

the fact that the school year in the panhandle region of Florida

starts during the last two weeks of August of any given year.

COPIES FURNISHED:

David Holder, Esquire

J. David Holder PA

387 Lakeside Drive

Defuniak Springs, Florida 32435

Ronald G. Stowers, Esquire

Levine and Stivers, LLC

245 East Virginia Street


30

Gretchen Brantley, Executive Director

Education Practices Commission

Department of Education

Suite 224

325 West Gaines Street

Tallahassee, Florida 32399-0400

Matthew Carson, General Counsel


Turlington Building, Suite 1244



Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services


Turlington Building, Suite 224-E



NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.

STATE OF FLORIDA - Florida Administrative Code

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