95-001967 Duval County School Board vs. Herbert George Taskett Status: Closed Recommended Order on Friday, May 24, 1996.

Summary: Respondent submitted and forged document with application for certification in an area in which he had once passed test, but not applied for certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

vs. ) CASE NO. 95-1967

)

HERBERT GEORGE TASKETT, )

)

Respondent, )

________________________________)

FRANK T. BROGAN, )

As Commissioner of Education, )

)

Petitioner, )

vs. ) CASE NO. 95-1987

)

HERBERT GEORGE TASKETT, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Upon due notice, this matter came to formal hearing at The Yates Building,

City Hall Annex, 231 Forsyth Street, Room 431, Jacksonville, Florida, on

November 1, 1995, and was continued at the Division of Administrative Hearings,

The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, on January

26, 1996, before the Honorable Stephen F. Dean, Hearing Officer.

APPEARANCES

For Duval County Thomas E. Crowder, Esquire

School Board: 600 City Hall

220 East Bay Street

Jacksonville, Florida 32207

For Frank T. Brogan, Ronald G. Stowers, Esquire

As Commissioner Office of the General Counsel

of Education: Department of Education

Suite l70l, The Capitol

Tallahassee, Florida 32399-0400

For Respondent: John M. Merrett, Esquire

220 East Forsyth Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

Case Number 95-l967: Whether the Respondent should be dismissed from his

employment with the Duval County School Board [School Board] for the violations

alleged in the Superintendent's Notice of Dismissal dated April 7, 1995.

Case Number 95-l987: Whether the Education Practices Commission [EPC]

should revoke or suspend the Respondent's Florida teaching certificate, or

impose any other penalty provided by law, for the violations alleged in the

Commissioner's Administrative Complaint dated February 23, 1995.

PRELIMINARY STATEMENT

Commissioner's Administrative Complaint

By letter dated February 23, 1995, Petitioner, Frank T. Brogan, as

Commissioner of Education [Commissioner], informed Respondent, Herbert George

Taskett [Respondent], of the filing of the Administrative Complaint against him.

In the Administrative Complaint, the Commissioner charges Respondent with

misconduct constituting violations of Sections 231.28(l)(a), (c) and (i),

Florida Statutes, and Rules 6B-l.006(4)(b) and (c), and Rules 6B- 1.006(5)(a),

(g), (h), and (i), Florida Administrative Code. If proven by clear and

convincing evidence, the charges in the Administrative Complaint constitute

grounds for imposition of discipline against Respondent's professional

certification pursuant to Section 231.28, Florida Statutes.

On March 16, 1995, Respondent executed an Election of Rights relating to

the Administrative Complaint. In the Election of Rights, Respondent selected

the settlement/formal hearing option, while denying each and every allegation.

On April 24, 1995, the Administrative Complaint was transferred to the

Division of Administrative Hearings [DOAH] for formal hearing. On May 1, 1995,

an Initial Order was issued assigning Stephen F. Dean, as Hearing Officer, to

this case.

Duval County's Notice of Dismissal

In the Notice of Dismissal dated April 7, 1995, Dr. Larry L. Zenke,

Superintendent of Duval County Public Schools, informed Respondent that he would

be discharged pursuant to the Duval County Teacher Tenure Act, Chapter 21197,

Laws of Florida 1941, as amended [the Act], if the charges of misconduct against

him were sustained. The Notice of Dismissal charges the Respondent with

misconduct constituting violations of Sections 4(a), (b) and (d) of the Act. As

to the charges of misconduct relating to Section 4(b) of the Act, relating to

violation of Florida Law, the Notice of Dismissal specifically charges

Respondent with violating Sections 231.28(1)(a), (c) and (i), Florida Statutes,

and Rules 6B-1.006(4)(b) and (c), and 6B-1.006(5)(a), (g), (h), and (i), Florida

Administrative Code. If proven by a preponderance of the evidence, the charges

in the Notice of Dismissal constitute grounds for dismissal under the Act.

In a letter to Dr. Zenke dated April 12, 1995, Respondent, through his

attorney, denied all allegations charged in the Notice of Dismissal and

requested a formal hearing. On April 20, 1995, the Notice of Dismissal was also

referred to DOAH for formal hearing.

DOAH Proceedings

In the Unilateral Response to the Initial Order in Case Number 95-1987,

filed on May 9, 1995, counsel to the Commissioner gave notice of the related

school board case and indicated the desire of the School Board and the

Commissioner to consolidate the cases for hearing. On June 26, 1995, an Order

of Consolidation and Notice of Hearing consolidated Case Numbers 95-1967 and 95-

1987 for hearing. The hearing was scheduled for September 15, 1995.

On September 8, 1995, Respondent moved for continuance of the hearing, to

which neither the School Board nor the Commissioner objected. Thereafter, the

hearing was rescheduled for November 17, 1995.

At hearing on November 17, 1995, in Jacksonville, Florida, the Commissioner

presented the testimony of four witnesses and eight exhibits. The School Board

presented the testimony of one witness and one exhibit and two exhibits, which

were marked for identification purposes only. Respondent presented the

testimony of four witnesses and no exhibits.

Commissioner's counsel did not have all the witnesses necessary to testify

as to the chain of custody of materials contained in Commissioner's Exhibit 7

available at the Jacksonville hearing. Consequently, the Hearing Officer

permitted all parties to present as much of their cases as possible on November

17, 1995 and continued the proceedings to a later time convenient to all parties

and the Hearing Officer. Respondent was not required to testify on this date

but was afforded the right to wait until the Petitioners had rested their cases

when the proceedings resumed.

On December 20, 1995, the Hearing Officer issued the Second Notice

Rescheduling Hearing providing that the proceedings would be resumed on January

22, 1996. In a letter to the Hearing Officer dated January 4, 1996,

Respondent's counsel requested that the hearing be rescheduled for January 25,

1996, due to a conflict. By Amended Notice dated January 11, 1996, the

resumption of the hearing was rescheduled for January 25, 1995, in Tallahassee.

At hearing on January 25, 1995, in Tallahassee, Florida, the Commissioner

presented the testimony of five witness and five exhibits. The School Board

presented no additional testimony or exhibits. Respondent testified on his own

behalf and presented one exhibit.

The transcripts of the proceedings of November 17, 1995 and of January 25,

1996, were filed with DOAH, the latter having been filed on February 9, 1996.

Leave was granted to file post-hearing briefs and proposed findings more

than 10 days after the filing of the second transcript because of the illness of

one of the attorneys. In accordance with Rule 60Q-2.031, Florida Administrative

Code, the parties are deemed to have waived provisions of Rule 28-5.402, Florida

Administrative Code.

Citation to the pages in the transcript of that portion of the hearing

conducted on November 17, 1995 will be referred to as [NT: ____]. Citation to

the pages in the transcript of that portion of the hearing conducted on January

25, 1996 will be referred to as [JT: ____]. Citation to the Commissioner's

exhibits will be referred to as [CE: ____]. Citation to the School Board's

exhibits will be referred to as [SBE: ____]. Citation to Respondent's exhibit

will be referred to as [RE: ____].

All parties filed proposed findings of fact, which were read and

considered. The Appendix to this Recommended Order states which of the proposed

findings were adopted, and which were rejected and why.

FINDINGS OF FACT

Jurisdiction

1. Respondent, Herbert George Taskett, holds Florida Educator's

Certificate No. 359729, covering the areas of Guidance and Distributive

Education, which is valid through June 30, 1997. [CE: 1; NT: 12; JT: 73 -

74, 87]

2. At all times pertinent hereto, the Respondent was employed as a

guidance counselor at Ed White High School in the Duval County School District.

The Florida Educational

Leadership Examination

3. Since 1988, individuals desiring to obtain certification from the

Department of Education [DOE] in the area of educational leadership have been

required to pass the Florida Educational Leadership Examination [FELE].

Certification in this area permits individuals to be assigned to administrative

and supervisory positions in the State's public schools, such as Assistant

Principal, Vice-Principal, and Principal. [NT: 14-15, 35]

4. The FELE has been administered since 1986. In 1986 and 1987, the

examination was "normed". Anyone taking the FELE prior to July 1, 1988 received

an automatic passing score. However, these scores are valid for educational

leadership certification only for a period of two years from the test

administration date. Rule 6A-4.00821(7)(c), Florida Administrative Code. After

July 1, 1988, all individuals seeking FELE certification had to take and pass

the FELE examination.

5. The norming of the FELE examination was performed in administrations of

the examination at the University of West Florida.

6. Following the conclusion of the norming period, the FELE was

administered from 1988 through 1993 by the Institute for Instructional Resource

Research and Practices at the University of South Florida in Tampa. That

institute maintains records of administrations of the examination for the time

period of 1988 through 1993.

7. FELE scores are reported on printed computer cards. Two copies of the

report are provided, one for the individual to keep, and one to provide to DOE

for certification in the area of educational leadership. If another copy of the

score report is requested by the examinee, two additional copies are provided,

which are marked as duplicate copies. Xerox copies are never provided. [NT:

61; JT: 28, 35, 63; CE: 12; RE: 1]

Findings on Misconduct

8. Respondent and Mr. Wayne Michael Chandler worked together at Ed White

High School. [NT: 39]

9. Wayne Michael Chandler is Assistant Principal at Ed White High School

in Jacksonville, Florida. He graduated with a bachelor's degree in criminology

from the Florida State University in 1977 and a master's degree in educational

administration from the University of North Florida in 1981. He is certified as

an educator in the areas of mathematics and educational leadership

(administration). [NT: 37 - 38]

10. Prior to the summer of 1994, Respondent asked Mr. Chandler if he had

taken the FELE. Mr. Chandler advised the Respondent that he had become an

administrator prior to the FELE being required and had not taken the

examination. Respondent asked if Mr. Chandler knew anyone who had taken the

examination. Mr. Chandler told Respondent that David Gilmore, a friend of his,

had taken the FELE examination. [NT: 39 - 40]

11. Respondent asked Mr. Chandler to obtain a copy of Mr. Gilmore's FELE

scores for him. Mr. Chandler called Mr. Gilmore and requested that Mr. Gilmore

send him a copy of his FELE score report. Mr. Gilmore testified that he sent a

copy of his FELE scores to Mr. Chandler; however, Mr. Chandler does not recall

ever receiving it. [NT: 40; 54]

12. The Respondent testified that he did not receive a copy of the score

sheet from Mr. Chandler, but did obtain Mr. Gilmore's Social Security Number

from Mr. Chandler. This is the most credible testimony.

13. David Gilmore is Assistant Principal at James Weldon Johnson Middle

School in Jacksonville, Florida. Mr. Gilmore graduated with a bachelor's degree

in botany from Eastern Illinois University. He has a master's degree in

educational leadership from Jacksonville University. Currently, Mr. Gilmore is

obtaining a doctorate degree in educational leadership at the University of

North Florida. Mr. Gilmore is certified as an educator in the areas of biology,

chemistry, and middle grades science. Mr. Gilmore has been a certified educator

in Florida for approximately 10 years and, for approximately four years, has

been certified in the area of educational leadership. [NT: 51 - 52; 58]

14. Mr. Gilmore took the FELE on November 16, 1991. [CE: 4, 6; NT: 60]

Institute for Educational Research

15. Carolyn Krute is employed by the Institute for Instructional Resource

Research and Practices [Institute] at the University of South Florida [USF] in

Tampa, Florida. [NT: 14]

16. Until 1993, the Institute administered the FELE examination. Although

the Institute ceased administering the FELE in approximately November 1993,

anyone who took the examination prior to that time would have to go to the

Institute to obtain a copy of his or her score. [NT: 14-15]

17. Respondent, using the name of David Gilmore, requested the FELE scores

for David Gilmore in a letter to Carolyn Krute dated May 11, 1994. Respondent

requested that Mr. Gilmore's FELE scores be sent to his own home address, not

that of Mr. Gilmore. [CE: 2, 8; NT: 16]

18. Upon receipt of the Respondent's letter in which he assumed the name

of Mr. Gilmore, Ms. Krute wrote on May 16, 1994, to Respondent, at Respondent's

home address, returning his letter and advising that in order to process the

request for a duplicate copy of the FELE scores, she would need his Social

Security Number and a check or money order in the amount of $7.50 made payable

to USF. [CE: 3; NT: 17]

19. Upon receipt of Ms. Krute's letter [CE: 3], the Respondent replied to

her again as "Mr. Gilmore" [CE: 2], noting Mr. Gilmore's Social Security Number

at the bottom of the original letter. [CE: 2]. Respondent forwarded a United

States Postal Money Order in the amount of $7.50 in the name of Mr. Gilmore,

together with his original letter back to Ms. Krute. [CE: 2 & 4]

20. On May 23, 1994, after receiving Respondent's request for Mr.

Gilmore's scores and the money order, Ms. Krute mailed a duplicate copy of Mr.

Gilmore's FELE scores from the FELE test administered on November 16, 1991 to

Respondent at Respondent's address. [NT: 18-19; CE: 4]

21. At hearing, Mr. Gilmore testified that he received two copies of his

original examination scores; and Ms. Doyle testified that it is the policy of

DOE to furnish two duplicate copies to anyone who requests another copy. At

hearing, Respondent produced only one copy of Mr. Gilmore's duplicate FELE score

report, which he obtained through the Institute, into evidence. [RE: l]

Gilmore's Relationship with Respondent

22. Mr. Gilmore did not write the letter to Ms. Krute dated May 11, 1994

nor did he receive the response dated May 16, 1994. Mr. Gilmore did not request

a duplicate copy of his FELE score report from the Institute at that time or

obtain a money order for that purpose. Mr. Gilmore has never resided at 7610-2

India Avenue in Jacksonville, Florida. Mr. Gilmore does not know Respondent.

Mr. Gilmore never spoke to Respondent regarding Respondent obtaining a copy of

Mr. Gilmore's scores.

23. The Respondent thought he had leave to obtain a copy of Mr. Gilmore's

scores because of obtaining Mr. Gilmore's Social Security Number from Mr.

Chandler.

Duval County School Board

24. Bob Mathena is employed as the Director of Operations and Records for

the School Board. Mr. Mathena is the supervisor of the custodian of the

personnel records for the School Board. [NT: 92-93]. He has held that

position since 1986. Mr. Mathena identified and testified concerning the

Respondent's records.

25. On or about July 28, 1994, Respondent prepared and submitted an

application to add an additional subject area, educational leadership, to his

teaching certificate to the School Board, which forwarded the application to

DOE.

26. Along with the application, the Respondent attached a xerox copy of a

FELE score report bearing his name, address, and Social Security Number. The

report indicated that Respondent had taken the FELE on November 16, 1991 and

that he had passed the three subtests of the examination. [CE: 7, 10A, lOB]

[DOE].

Taskett's FELE Scores

27. On August 29, 1994, Respondent telephoned Ms. Krute at approximately 4

p.m. Respondent told Ms. Krute that he needed a duplicate copy of his FELE

score report. Ms. Krute told Respondent that she would have to call him back

the next day. [NT: 19-21]

28. During their conversation on August 29, 1994, Respondent indicated Ms.

Krute that he had telephoned her earlier in the year for a duplicate copy of his

FELE scores. Further, Respondent stated that when he had called previously, Ms.

Krute could not initially find his name in the computer but that thereafter,

when Respondent sent her the required fee, and she sent Respondent a duplicate

of his score report. [NT: 19-21]. The Respondent had not previously spoken

with Ms. Krute.

29. On August 30, 1994, Ms. Krute attempted to locate Respondent's FELE

scores on the computer. She used both his name and his Social Security Number,

but could not locate any evidence that Respondent took the FELE examination

between 1988 and 1993. [NT: 21-22]

30. On August 30, 1994, Ms. Krute telephoned Respondent at work to double

check the identifying information (spelling of his name and his Social Security

Number) that he had given her the previous day. Respondent repeated the

information to Ms. Krute he had given her the previous day. [NT: 22]

31. During their telephone conversation of August 30, 1994, Respondent

informed Ms. Krute that the Bureau of Certification at DOE had rejected his

application for certification in the area of educational leadership because of

the xerox copy of the FELE scores he submitted. [NT: 23]

32. On August 31, 1994, Respondent faxed to Ms. Krute a copy of the

xeroxed FELE scores he submitted to DOE with his application for certification

in educational leadership. [CE: 5; NT: 23-24]

33. Ms. Krute realized, upon examination of the FELE score report which

Respondent faxed her, that it had not been generated by the Institute's computer

system because the report did not use the same print font used by the

Institute's computer printer. [NT: 24-25]

34. In reviewing her records, Ms. Krute discovered that the address to

which she had sent "Mr. Gilmore's" duplicate FELE score reports in May 1994 was

the same as the Respondent's address: 7610-2 India Avenue in Jacksonville,

Florida. Further, Ms. Krute observed that the handwriting in "Gilmore's" letter

of May 11, 1994 [CE: 2] appeared to be the same as Respondent's fax cover sheet

of August 31, 1994. [CE: 5], [NT: 25-28]

35. Ms. Krute called Kathy Fearon, a Program Specialist at DOE, and

informed her that she could not locate a score report for Respondent, under

either his name or his Social Security Number. Ms. Fearon, whose duties include

management of FELE certification, searched for Respondent's score using both

Respondent's name and Social Security Number in both the computer database and

hard copies of the records for all administrations of the FELE. Respondent had

not taken, or registered to take, the FELE between 1988 and July 28, 1994, the

date of his application to DOE for certification in educational leadership.

[NT: 21-22, 84-85; JT: 27, 48-53]

Department of Education

36. Roy Allen Smith is a Staff Specialist for the Bureau of Teacher

Certification [Bureau] at DOE. Mr. Smith is the custodian of the records for

the Bureau. [JT: 4-5]

37. Mr. Smith gave Respondent's application and alleged FELE score report

[CE: 10A and lOB] to Betty Lee to initiate an inquiry based upon Ms. Krute's

report and Ms. Fearon's inability to confirm Respondent's having taken the FELE.

[JT: 7-8] Betty Lee was under the direct supervision and control of Audrey

Huggins, who is the Program Director of Communications and Policy Development.

[JT. 7-9].

38. Whenever the authenticity of a document submitted to the Bureau is

called into question, it is the policy of the Bureau to return the original

document which it received to the agency, which allegedly issued it to determine

whether the document is authentic. This policy is necessary because the issuing

agency will often need to use the original submitted to the Bureau to determine

the authenticity of a document. A xerox copy is not sufficient.

39. When a FELE score report is questioned, it is returned to the Office

of Testing Assessment and Evaluation at DOE to determine whether the report is

authentic. Prior to sending a document whose authenticity has been questioned

back to the issuing agency, the Bureau copies the document and notes on its copy

what was done with the original. [JT: 5, 17-18, 31]

40. On August 25, 1994, Respondent contacted the DOE regarding his

application. Respondent was informed that a xerox copy of his FELE score report

was insufficient; an official copy of the FELE score report was necessary in

order to process his application. [CE: 9; JT: 11, 19, 30-31]

Origin of the Test Scores

41. Based upon the information which it had, the Commissioner initiated an

investigation to resolve the authenticity of the FELE score report.

42. During Respondent's informal conference with JoAnn Carrin concerning

why the Respondent had sought to obtain Gilmore's test scores, the Respondent

stated that he thought Gilmore had taken the examination at the same time he

had. [NT: 82]

43. Respondent admitted to Ms. Carrin that he used poor judgment in

obtaining Gilmore's FELE score report. [NT: 81-84; CE: 8]

Respondent's Testimony

44. Respondent took the FELE during the norming period in 1986 or 1987.

The fact that the Institute had no record and the Department had no record is

not determinative of whether the Respondent took the examination during the

norming period. However, the records of the Department reveal that Respondent

did not request certification within the two years following the norming period.

45. Respondent requested information from several universities and DOE

regarding his FELE test scores to support his application for certification.

46. Respondent's statements that he received the xerox copy of the FELE

score report bearing his name in the mail is rejected as contrary to more

credible evidence.

47. Respondent's statement in his letter to DOE that the xerox of a score

report bearing his name, address, and Social Security Number and indicating that

he passed all three subtests on the FELE was provided to him by the University

of South Florida is also rejected as contrary to more credible evidence. [CE:

8]

48. The xerox copy of the score report provided by Respondent to DOE with

his application for certification was not legitimate.

49. The font used on the xerox copy attached to Respondent's application

is not the same font used to produce the report, and the layout of the material

printed was incorrect. [NT: 24-25; JT: 58-60; CE: 7, 10A, lOB, 12; RE: 1]

50. Respondent was not attempting to obtain a teaching certificate. He

was attempting to obtain certification as an administrator.

51. Knowledge of the Respondent's misconduct is limited to Ms. Krute, DOE

staff, and school board staff, and School Board staff involved in the

investigation and prosecution of Respondent.

52. At no time material hereto did Respondent engage in direct or indirect

public expression regarding the subject matter of these allegations. The

Respondent did make public representations regarding his qualifications for

certification as an administrator by filing an application for certification and

including a xerox copy of his purported FELE test scores.

53. At no time material hereto did Respondent make use of any

institutional privilege in connection with the subject matter of this action.

54. At no time material hereto did Respondent make any application for any

professional position. However, he did make an application for certification as

an administrator.

55. Respondent enjoys a reputation in the educational community for

truthfulness, veracity, and competence. His reputation is such that he would be

welcomed back to his former position as a guidance counselor at Ed White High

School in Duval County, Florida, if allowed by Petitioner, Duval County School

Board, to apply for such a position. His level of competence is such that he

presently performs guidance counselling duties in connection with at-risk

children in the Duval County School System.

CONCLUSIONS OF LAW

56. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause. Section 120.57(1), Florida Statutes.

Commissioner's Administrative Complaint

57. The Commissioner has met the procedural requirements precedent to the

bringing of this action, as set forth in Sections 231.262, 231.28, and

231.29(5), Florida Statutes. The case before DOAH and has complied with the due

process requirements of Section 120.57(l), Florida Statutes.

58. The Commissioner has the burden of proof in this proceeding. Where an

agency seeks to revoke a professional license, the evidence must be clear and

convincing. Turlington, 510 So.2d 292 (Fla. 1987)

59. Clear and convincing evidence, as defined by the court in Slomowitz v.

Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

requires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly remem-

bered; 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 pro-

duces 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.

Clear and convincing evidence is a greater standard of proof than the

preponderance of the evidence standard. Smith v. Department of Health and

Rehabilitative Services, 522 So.2d 956, 958 (Fla. 1st DCA 1988).

60. Section 231.28(1), Florida Statutes, gives the Education Practices

Commission the power to suspend or revoke the teaching certificate of any

person, either for a set period of time or permanently; and the statute sets out

the basis for such action. The Commissioner has alleged that the Respondent has

violated the following subsections of Section 231.28(1), Florida Statutes:

(a) Obtained, or attempted to obtain, the

teaching certificate by fraudulent means;

* * *

(c) Has been guilty of gross immorality or

an act involving moral turpitude;

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rule.

61. Gross immorality is not defined. "Immorality" is defined in Rule 6B-

4.009(2), Florida Administrative Code, as:

Conduct that is inconsistent with the stand-

ards of public conscience and good morals.

It is conduct sufficiently notorious to bring

the individual concerned or the educational

profession into public disgrace or disrespect

and impair the individual's service in the

community.

62. "Moral turpitude" is defined by Rule 6B-4.009(6), Florida

Administrative Code, 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 moral standards of the time a man

owes to his or her fellow man or to society

in general, and that the doing of the act it-

self and not its prohibition by statute fixes

the moral turpitude.

63. The Court in Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660

(Fla. 1933), defined moral turpitude as:

Moral turpitude involves the idea of

inherent baseness or depravity in the private

and social relations or duties owed by man to

man or man to society . . . it has also been

define as anything done contrary to justice,

honesty, principle, or good morals, though it

often involves the question of intent . . . .

64. Teachers, by virtue of their leadership capacity and influence they

have by example upon school children, are held to a higher moral standard than

other regulated professionals. Adams and Ward v. Professional Practices

Council, 406 So.2d 1170 (Fla. 1st DCA 1981).

65. The Commissioner has also alleged violation of State Board of

Education Rule (Florida Administrative Code) 6B-1.006, Principles of

Professional Conduct for the Education Profession in Florida, the penalty for

which includes revocation of the teaching certificate. Specifically, the

Commissioner has alleged that the Respondent has violated six provisions of Rule

6B-1.006, Florida Administrative Code, which provide:

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public expression.

(c) Shall not use institutional privileges

for personal gain or advantage.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all pro-

fessional dealings.

* * *

(g) Shall not misrepresent one's own pro-

fessional qualifications.

(h) Shall not submit fraudulent inform-

ation on any document in connection with pro-

fessional activities.

(i) Shall not make any fraudulent statement

or fail to disclose a material fact in one's

own or another's application for a profess-

ional position.

66. The evidence presented at the hearing that the Respondent committed

the acts alleged in the Administrative Complaint is circumstantial, but it is

clear and convincing that the Respondent sought to obtain certification as an

administrator by attempting to present the DOE with a forged score sheet,

showing that he had taken and passed the FELE examination in 1991.

67. While the evidence in this case is circumstantial, there is no logical

alternative explanation regarding how the Respondent obtained a copy of a report

of FELE test scores, showing he had passed the FELE examination. The evidence

is clear and convincing and leads to the inevitable conclusion that the

Respondent altered, or caused to be altered, Mr. Gilmore's score report that he

received from the Institute and submitted the altered report to substantiate his

application for certification as an administrator.

68. The Respondent did take the FELE examination during its norming.

However, he did not initiate his application for certification within the

appropriate time period. The Respondent may have considered his act a ruse to

obtain the certification to which he felt entitled; however, it was a violation

of the statute and several rules, as discussed below.

69. The acts committed by the Respondent do not constitute gross

depravity, vileness or baseness, contrary to Section 231.28(1)(c), Florida

Statutes. The Respondent did not misuse institutional privileges for personal

gain or advantage, contrary to Rule 6B-1.006(4)(c), Florida Administrative Code.

70. However, based upon the findings of fact set forth herein, it is

concluded that the Respondent has violated 4(b), 5(a), 5(g), 5(h), and 5(i) of

Rule 6B-1.006, Florida Administrative Code, and pursuant to Section

232.28(1)(i), Florida Statutes. Accordingly, disciplinary action is warranted.

School Board's Notice of Dismissal

71. The School Board's action is based upon the Respondent's alleged

violation of the same statutory and rule provisions discussed above. Having

concluded above that the Respondent violated those provisions indicated above by

clear and convincing evidence, it is clear that the School Board met its

standard of proof by a preponderance of the evidence.

RECOMMENDATIONS

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that, as to DOAH Case Number 95-1987, the Respondent be found

guilty of violating Sections 231.28(1)(i), Florida Statutes, by violating Rules

6B-1.006(4)(b) and (5)(a), (g), (h), and (i), Florida Administrative Code. It

is further recommended that:

1. Respondent's teaching certificate be revoked for a period of one year.

2. Respondent shall pay the EPC a fine in the amount of $2,000.00.

3. Prior to being recertified in the State as an educator, Respondent

shall successfully complete one three-hour college level course in the area of

ethics.

4. Should the Respondent be recertified as an educator in the State of

Florida after his period of revocation, Respondent shall be placed on probation

for a period of three years, under such terms and conditions as the EPC may

prescribe.

5. During the period of probation, Respondent's scope of practice shall be

restricted so that he shall have no administrative authority over any employee.

6. Respondent receive a letter of reprimand.

IT IS FURTHER RECOMMENDED that, as to DOAH Case Number 95-1967, the

Respondent be found guilty of violating Sections 231.28(1)(i), Florida Statutes,

by violating Rules 6B-1.006(4)(b) and (5)(a), (g), (h), and (i), Florida

Administrative Code. It is further recommended that:

1. The School Board of Duval County take such actions as it deems

appropriate to include suspension and discharge, however, because of the lack of

general public knowledge, that the Respondent be considered for reinstatement

after having completed any penalties imposed by the Department, and being

recertified.

DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida.

___________________________________

STEPHEN F. DEAN, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NOS. 95-1967 and 95-1987

The parties submitted proposed findings of fact which were read and considered.

The following sates where the findings were adopted or where they were rejected:

DOE'S FINDINGS RECOMMENDED ORDER

Paragraphs 1-18 Adopted as 1-18

Paragraph 19 Conclusion of law

Paragraphs 20-46 Adopted, although renumbered in some

instances.

DUVAL COUNTY'S FINDINGS

Duval County's findings were a verbatim repetition of the DOE's findings.

TASKETT'S FINDINGS RECOMMENDED ORDER

Paragraphs 1-22 Adopted or subsumed in the findings.

Paragraphs 23 and 24 Are not necessary to the factual

conclusion reached.

Paragraph 25 Adopted or subsumed in the findings.

COPIES FURNISHED:

Ronald G. Stowers, Esquire

Department of Education

The Capitol, Suite 1701

Tallahassee, FL 32399-0400

Thomas E. Crowder, Esquire

600 City Hall

220 East Bay Street

Jacksonville, FL 32207

John M. Merrett, Esquire

220 East Forsyth Street

Jacksonville, FL 32202

Karen Wilde, Executive Director

Education Practices Commission

301 Florida Education Center

325 West Gaines Street

Tallahassee, FL 32399-0400

Kathleen M. Richards, Administrator

Professional Practices Services

325 Florida Education Center

325 West Gaines Street

Tallahassee, FL 32399-0400

Frank T. Brogan, Commissioner

Department of Education

The Capitol

Tallahassee, FL 32399-0400

Larry Zenke, Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, FL 32207-8154

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

submit written exceptions. Some agencies allow a larger period within which to

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION

OF THE STATE OF FLORIDA

FRANK BROGAN, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 95-123-RT

vs. DOAH CASE NOS. 95-1967

95-1987

HERBERT G. TASKETT, EPC INDEX NO. 96-133-FOF

Respondent.

____________________________/

FINAL ORDER

Respondent, HERBERT G. TASKETT, holds Florida educator's certificate no.

395729. Petitioner has filed an Administrative Complaint seeking suspension,

revocation, permanent revocation or other disciplinary action against the

certificate.

Respondent requested a formal hearing and such was held before a hearing

officer of the Division of Administrative Hearings. A Recommended Order issued

by the Division Hearing Officer on May 24,1996, was forwarded to the Commission

pursuant to Section 120.57(1), F.S. (Copy attached to and made a part or this

Order.)

A panel of the Education Practices Commission (EPC) met on August 14,1996,

in Ft. Lauderdale, Florida, to take final agency action. Petitioner was

represented by Ron Stowers, Attorney at Law. Respondent was represented by John

M. Merrett, Attorney at Law. The panel reviewed the entire record in this case.

Petitioner and Respondent each filed exceptions to the Recommended Order.

Copies of those exceptions are attached to and incorporated by reference.

RULINGS ON RESPONDENT'S EXCEPTIONS

Exception 1 is denied because the finding contained in paragraph 7 is

supported by competent, substantial evidence.

Exception 2 is granted because it is the same exception as Petitioner's

exception to paragraph 12 and 23 of the Recommended Order.

Exception 3 is denied because the finding contained in paragraph 21 is

supported by competent, substantial evidence.

Exception 4 is denied because the finding contained in paragraph 22 is

supported by competent, substantial evidence.

Exception 5 is denied because the finding contained in the final sentence

of paragraph 24 is supported by competent, substantial evidence.

Exception 6 is denied because the finding contained in paragraphs 66 and 67

is supported by competent, substantial evidence.

Exception 7 is denied because the finding contained in paragraph 68 is

supported by competent, substantial evidence.

Exception 8 is sustained because the finding contained in paragraph 70 is

in conflict with the finding in paragraph 52.

Exception 9 is denied because the finding contained in paragraph 70 is

supported by competent, substantial evidence.

Exception 10 is sustained as to paragraph 70 because counsel for the

Petitioner stated for the record he agreed with the exception.

Exception 11 through 15 are rejected as not being exceptions to the

findings of fact or conclusions of law but rather are arguments concerning any

penalty to be imposed.

RULINGS ON PETITIONER'S EXCEPTIONS

Exception 1 is granted because it is the same as Respondent's exception to

paragraphs 12 and 23.

Exception 2 is granted because the finding of fact in paragraph 35 is not

supported by competent, substantial evidence.

Exception 3 is denied because the finding contained in paragraph 44 is

supported by competent, substantial evidence.

Exception 4 is denied because the finding contained in paragraph 53 is

supported by competent, substantial evidence.

Exception 5 is granted because the panel disagrees with the conclusions of

law in paragraph 66.

Exception 6 is granted because the panel disagrees with the conclusions of

law in paragraph 67.

Exception 7 is granted because the panel disagrees with the conclusions of

law in paragraph 68.

Exception 8 is denied because the panel agrees with the conclusions of law

in paragraph 69.

Exception 9 was withdrawn by Petitioner at the hearing.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1 through 55 of

the hearing officer's Findings of Fact as they were modified by the foregoing

rulings on exceptions.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 56 through 71 in the hearing officer's

Conclusions of Law as its Conclusions of Law as they were modified by the

foregoing rulings on exceptions.

The Commission has jurisdiction of the parties and subject matter of this

cause pursuant to Section 120.57 and Chapter 231, F.S.

Based upon the foregoing findings of fact, Respondent is guilty of

violating Section 231.28(1)(i), F.S., by having violated Rule 6B-1.006(4)(a) and

(5)(b), (g), (h), F.A.C.

WHEREFORE, it is ORDERED AND ADJUDGED that Respondent's teaching

certificate be, and the same is hereby REVOKED for a period of one year from the

date of this final order and shall be issued a letter of reprimand.

Prior to recertification, Respondent shall successfully complete one three-

hour college level course in the area of ethics.

Upon recertification and reemployment in a position requiring a Florida

educator's certificate, he shall be placed on three employment years probation.

The terms of probation shall be that upon employment in a position

requiring a Florida educator's certificate, Respondent shall:

1. Notify EPC immediately upon his employment as an educator in any public

or private school in the State of Florida.

2. Have his immediate supervisor submit performance reports to the EPC at

least every three months.

3. Within ten days of issuance, submit to the EPC copies of all formal

observation1evaluation forms.

4. Shall pay a $2000 fine prior to the end of the probation period.

5. During the period of probation, Respondent's scope of practice shall be

restricted so that he shall have no administrative authority over any employee.

6. During the first three months of each probation year, Respondent shall

pay to the EPC the sum of $150.00 to defray the costs of monitoring probation

during that year.

All costs incurred in fulfilling the terms of probation shall be borne by

the Respondent. This Order becomes effective upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as

set out in Section 120-68(2), F.S., and Florida Rule of Appellate Procedure

9.110(b) and (c), within thirty days of the date of filing.

DONE AND ORDERED, this 3rd day of September, 1996.

COPIES FURNISHED:

Kathleen Richards, Program ________________________________

Director Aaron Wallace, Presiding Officer

Professional Practices Services

Florida Admin. Law Reports I HEREBY CERTIFY that a copy of

the foregoing Order in the

Dr. Larry L. Zenke, Supt. matter of Brogan vs.Herbert G.

Duval County Schools Supt. Taskett, was mailed to John M.

Duval County Schools Merrett, Attorney at Law, 320 E.

1701 Prudential Dr. Forsyth St., Jacksonville,

Jacksonville, Florida 32207 Florida 32202, this 4th day

of September, 1996, by U.S.

Jimmie Summerlin Mail.

Dir., Personnel

Duval County Schools

______________________________

Carl Zahner Karen B. Wilde, Clerk

Attorney at Law

1701 The Capitol

Tallahassee, Florida 32399

Stephen Dean, Hearing Officer

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Ann Cole, Clerk

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

THE TREASURER OF THE STATE OF FLORIDA

DEPARTMENT OF INSURANCE

BILL NELSON

IN THE MATTER OF: DOI CASE NO. 11200-94-A-MKM

TARA JEANNE SMITH DOAH CASE NO. 95-4048

____________________/

FINAL ORDER

THIS CAUSE came on before me for the purposes of issuing a Final Agency

Order. The Hearing Officer assigned by the Division of Administrative Hearings

in the above-styled matter submitted a Recommended Order to the Department of

Insurance and Treasurer (hereinafter referred to as the "Department" or

"Petitioner"). The Recommended Order entered July 12, 199, by Hearing Officer

Diane Cleavinger recommending dismissal of the Administrative Complaint, is

incorporated by reference. The Department filed numerous exceptions to the

Recommended Order. The Respondent did not file exceptions. Based upon the

complete review of the record, including the original charging document, the

transcript and evidence adduced at the formal hearing, the Recommended Order and

exceptions thereto, and relevant statutes, rules and case law, I find as

follows:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Department of Insurance and Treasurer hereby adopts and incorporates by

reference the findings of fact set forth in the Recommended Order except as

modified by rulings on exceptions, and adopts the conclusions of law except as

modified by the rulings on exceptions.

RULINGS ON EXCEPTIONS FINDINGS OF FACT

The Petitioner takes exception to the findings of fact contained in the

Recommended Order at paragraphs 12, 19, and 27, wherein the Hearing Officer

found that the evidence did not prove that the Respondent had committed the

violations charged as referenced in each finding. This conclusion is not

supported by competent and substantial evidence as required by section

120.57(1)(a)10., Florida Statutes. The Hearing Officer was convinced that the

altitude of forms utilized by the Respondent in selling the non-insurance

products (motor clubs) to Hulan Mitchell, Jenna Chester and Michele Humose

demonstrated that they had given their informed consent. However, the Hearing

Officer overlooked the blatant misrepresentation and false statement contained

in the "premium" receipts issued to each of the insured. Although the Hearing

Officer is free to determine the credibility of the witness' testimony, the

Hearing Officer cannot ignore or reject unrefuted competent and substantial

evidence in the record that clearly and convincingly demonstrates that the

premium receipts are a misrepresentation of fact or false statement. No witness

testimony is necessary to make this finding. The documents speak for themselves

and were not otherwise questioned or refuted. The record unequivocally

established the following:

Hulan Mitchell - The "premium" receipt (Pet. Ex. "1") issued to Mr.

Mitchell indicates a total premium of $378. The actual cost of the "insurance"

was $328 with a downpayment of $98 required. See Premium Finance Agreement

(Pet. Ex. "1") This is absolutely unrefuted on the record. The premium receipt

includes $50 for the cost of the motor club, which is not a policy of insurance

and accordingly is not "premium". Also the downpayment required, purportedly

for insurance, included $50 for the motor club ($98 $50 = $148). Furthermore,

based on clear documentary evidence in the record, Mr. Mitchell was again

subject to a misrepresentation of fact (undisputed) wherein on July 9, 1993 he

received a letter (Pet. Ex. "1") threatening to cancel his "insurance" policy

because he did not pay a $48 balance due on the motor club. Accordingly the

record clearly indicates that the Respondent has made a false or misleading

statement with reference to the insurance transaction for Mr. Mitchell. The

fact that the Hearing Officer held that Mr. Mitchell knew (despite his testimony

otherwise) that he had purchased a motor club, does not negate the fact that the

Respondent made a false or misleading statement.

JENNA CHESTER - The deceptive premium receipt practice was visited upon Ms.

Chester on two occasions. First on February 1, 1994 a "premium" receipt (Pet.

Ex. "2") was issued in an amount of $670 for "total premium" due and a required

downpayment of $261. The actual cost of the "insurance" was $585 with a

required downpayment of $176. See Premium Finance Agreement (Pet. Ex. "2") The

"premium" receipt and downpayment included a non-insurance fee for a motor club

in the amount of $85. On May 23, 1994 Ms. Chester went to the Respondent to

repurchase coverage which had been cancelled. At that time, another "premium"

receipt was issued to her in the amount of a "total premium" of $719 and a

required downpayment of $286 (Pet. Ex. "2") The actual cost of the insurance was

$619 and a required downpayment of $186. See Premium Finance Agreement (Pet.

Ex. "2") The additional $100 was for the non-insurance motor club which was sold

to Ms. Chester. Although the Hearing Officer held that Ms. Chester knew she was

purchasing this motor club (despite Ms. Chester's testimony otherwise) this does

not negate the fact that the Respondent has made false or misleading statement

in this insurance transaction with Ms. Chester.

Michelle Humose - The unrefuted documentary evidence indicates that on May

5, 1994, Ms. Humose was issued a "premium" receipt (Pet. Ex. "3") indicating a

"total premium" in the amount of $92 and a required downpayment of $348. The

actual cost of the "insurance" was $826 with a required downpayment of $248 See

Premium Finance Agreement (Pet. Ex. "3") The additional $100 included in the

"premium" receipt was for the non-insurance motor club sold to Ms. Humose.

Again despite the Hearing Officer's finding contrary to Ms. Humose's direct

testimony that she did not know she was purchasing a motor club, the Respondent

has clearly and convincingly made a false or misleading statement with respect

to this insurance transaction with Ms. Humose.

It is implicit in the Findings of Fact by the Hearing Officer that each

referenced transaction took place as described herein. The Hearing Officer

merely failed to explicitly state in the Recommended Order that the unrefuted

documentary evidence establishes a prima facie misrepresentation of fact.

Indeed, the exact factual scenario established herein was determined to

constitute a misrepresentation in In the Matter of: Kenneth Michael Whitaker,

Case Number 93-L-432DDH (Final Order dated July 3, 1995). It was specifically

determined "that the Respondent's standard business practice of combining the

costs of insurance overages with the costs of the auto club memberships and then

calling such costs "total premium" on receipts issued to customers constituted a

misrepresentation and was deceptive." Also, it was further determined "that the

Respondent's standard business practice of deducting all or part of the

ancillary product fee up front resulted in false statements on other documents

that the full downpayment for premium or financing of premium had been made,

when in actuality it had not." Whitaker Final Order at pp's 9-10. The

Department determined that this activity was a violation of section 626.611(9),

Florida Statutes. This finding was also affirmed on appeal in Whitaker v.

Department of Insurance and Treasurer, Case No. 95-2702, (21 FLW 1353, Slip

Opinion dated June 13, 1996). The court upheld this violation when it

summarized the practice in the opinion as follows:

Appellant took all or part of the ancillary

product from the required premium downpayment

and gave the consumer a receipt which listed

the full downpayment as "Total Premium". The

receipt did not reveal that part of the

"premium" went to purchase an ancillary

product. Whitaker Slip Opinion at pp's 3-4.

This type of fraudulent and deceptive practice also constitutes a violation

of section 626.9541(1)(b), Florida Statutes, by placing before the public a

representation or statement which is untrue, deceptive or misleading.

The Hearing Officer has already considered the unrefuted facts on the

record and was clearly in error to make a finding otherwise. Accordingly,

pursuant to section 120.57(a)(a) 10., Florida Statutes, which reads in part:

5

The agency may not reject or modify the

findings of fact, including findings of

fact that form the basis for an agency

statement, unless the agency first determines

from a review of the complete record, and

states with particularity in the order, that

findings of fact were not based upon competent

substantial evidence or that the proceedings

on which the findings were based did not

comply with essential requirements of law.

the Department may modify the findings of fact.

In this case there was no competent and substantial evidence to make a

finding that the Respondent did not make a false or misleading statement with

the premium receipts issued in this cause. A review of the entire record

demonstrates unrefuted documentary evidence which supports the modified findings

of fact contained herein. Therefore, Petitioner's exceptions to findings of

fact 12, 19 and 27 are hereby GRANTED.

RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW

The Petitioner takes exception to conclusions of law at paragraphs 30 and 31,

based on the Hearing Officer's rejection of unrefuted facts established on the

record, i.e., deceptive and misleading premium receipts. Conclusions of Law 30

and 31 are revised to reflect that the premium receipts issued to insureds

constitute fraudulent and deceptive practices as well as placing before the

public a representation or statement which is untrue, deceptive, or misleading.

Conclusion of Law 30 is modified as follows:

30. In this case, the Respondent was charged

with violating sections 2.11 (4), 626.611(5),

626.611(7), 626.611(9), 626.611(13), 626.621(2),

626.621(6), 626.9541(1)(b), 626.9541(1)(e),

626.9541(1)(k)1., and 626.9541(1)(z), Florida

Statutes. Boiled down to the essentials the

Department alleged that Respondent violated the

provisions listed above by unlawfully selling

insured motor club memberships without their

informed consent, made false and misleading

statements regarding the coverage provided and

falsely represented and illegally required

insured to purchase motor club membership as

part of their purchase of automobile insurance

and that Respondent engaged in the prohibited

practice of "sliding" additional coverages or

products into the purchase of the insured without

the informed consent of the insured.

This revision is necessary because the Hearing Officer failed to

include sections 626.9541(1)(b) and 62.9541(1)(e), Florida Statutes, as alleged

violations.

Conclusion of Law 31 is likewise revised as follows:

31. The Department failed to establish by clear

and convincing evidence that Respondent attempted

to "slide" coverage or ancillary products

involved in this case. Likewise, the evidence

did not clearly or convincingly demonstrate that

Respondent did not obtain the informed consent of

her customers prior to selling them the auto club

memberships involved here. However, based on the

unrefuted evidence in the record, the Respondent

has violated sections 626.611(9) and

626.9541(1)(b), Florida Statutes, by issuing

"premium receipts" which falsely and deceptively

represented "total premium" which included a fee

for a non-insurance product, ie. motor club

membership. Accordingly, the Respondent is

guilty of three counts of violating sections

626.611(9) and 626.9541(1)(b), Florida Statutes.

The Petitioner's exceptions to conclusions of law 30 and 31 are-hereby GRANTED.

RULING ON EXCEPTIONS TO RECOMMENDATION

The Petitioner takes exception to the recommendation that the

Administrative Complaint be dismissed. The Penalty Guidelines contained in

Chapter 4-231, Florida Administrative Code, should be applied in this case.

There are three documented violations (one for each count) of engaging in

fraudulent and dishonest practices as prohibited in section 626.611 (9), Florida

Statutes, and placing before the public a representation 6r statement which is

untrue, deceptive or misleading in violation of section 626.9541(1)(b), Florida

Statutes. Under the penalty guidelines, a violation of section 626.611(9),

Florida Statutes, requires a suspension of 9 months per count. Under the

penalty guidelines, a violation of section 626.9541(1)(b), Florida Statutes,

requires a suspension of 6 months per count. Based on Rule 4-231.040, Florida

Administrative Code, the highest penalty per count should be assessed, therefore

the appropriate penalty is three counts at 9 months for a total suspension

period of 27 months. Since the total required suspension exceeds 2 years, the

appropriate sanction is the revocation of the Respondent's licenses in

accordance with section 626.641(1), Florida Statutes.

The violation of section 626.9541(1)(b), Florida Statutes, permits the

assessment of an additional fine on top of any other administrative sanction,

pursuant to section 626.9521, Florida Statutes. This section permits fines for

wilful violations of up to $10,000 per violation not to exceed $100,000. The

Petitioner recommends that a fine of $3,000 be assessed against the Respondent.

However, insufficient grounds have been demonstrated to justify the

assessment of a $3,000 administrative fine. Therefore, Petitioner's exceptions

to the recommendation are hereby GRANTED, except for the Petitioner's argument

for an additional sanction in the form of a $3,000 administrative fine which is

hereby DENIED.

PENALTY

Rule 4-231.160, Florida Administrative Code, prescribes the aggravating and

mitigating factors which the Department shall consider and, if warranted, apply

to the total penalty in reaching the final penalty. Aggravating factors in this

matter, as delineated in Rule 4-231.160, Florida Administrative Code, are the

willfulness of the Respondent's conduct and the existence of secondary

violations established in Counts I-III of the Administrative Complaint. Only

minimal mitigating factors exist which are outweighed by the aggravating

factors. The existence of these aggravating factors would increase the

Respondent ` s total penalty, thereby resulting in a higher final penalty.

Increasing the Respondent's total penalty would be pointless, however, for

section 626.641(1), Florida Statutes, limits a licensee's period of suspension

to a maximum of 2 years. The Respondent's 27-month total penalty already

exceeds the two-year statutory limit. Consequently, the Department has

determined that a revocation of the Respondent's insurance agent license is

warranted and appropriate in this matter, and is necessary to adequately protect

the insurance-buying pubic.

IT IS THEREBY ORDERED:

All licenses and eligibility for licensure held by TARA JEANNE SMITH, are

hereby REVOKED, pursuant to the provisions of sections 626.611, 626.621,

626.641(2) and 626.651(1), Florida Statutes, effective the date of this Final

Order. As of the date of this Final Order, the Respondent shall not engage in

or attempt or profess to engage in any transaction or business for which a

license or permit is required under the Florida Insurance Code, or directly or

indirectly own, control or be employed in any manner by an insurance agent or

agency.

Any party to these proceedings adversely affected by this Final Order is

entitled to seek review of this Final Order pursuant to section 120.68, Florida

Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review

proceedings must be instituted by filing a Notice of Appeal with the General

Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee,

Florida 32399-0333, and a copy of the same and the filing fee with the

appropriate District Court of Appeal within thirty (30) days of rendition of

this Order.

DONE and ORDERED this 4th day of September, 1996, in Tallahassee, Florida.

__________________________

BILL NELSON

Treasurer and

Insurance Commissioner

COPIES FURNISHED:

Tara Jeanne Smith

2588 Panther Creek Road, Apt. A

Tallahassee, Florida 32308-5628

Charles J. Grimsley, Esquire

Charles J. Grimsley and Associates, P.A.

1880 Brickell Avenue

Miami, Florida 33129

Diane Cleavinger, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Stephen C. Fredrickson, Esquire

Division of Legal Services

200 E. Gaines Street

Tallahassee, Florida 32399-0333