99-004901 Joseph Aloysious Murphy vs. Frank T. Brogan, As Commissioner Of Education Status: Closed Recommended Order on Thursday, April 13, 2000.

Summary: Applicant for teaching certificate should be granted certification, notwithstanding his "solicitation for prostitution" arrest which occurred six years earlier when he was a 20-year-old college student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH ALOYSIOUS MURPHY, IV, )

)

Petitioner, )

)

vs. ) Case No. 99-4901

)

TOM GALLAGHER, as COMMISSIONER )

OF EDUCATION, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on

January 31, 2000, by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joan Stewart, Esquire

FEA/UNITED

118 North Monroe

Tallahassee, Florida 32399-1700

For Respondent: William R. Scherer III, Esquire

CONRAD & SCHERER

Post Office Box 14723

Fort Lauderdale, Florida 33302

STATEMENT OF THE ISSUE

Whether Petitioner's application for certification should be

denied for the reasons set forth in the Amended Notice of

Reasons.

PRELIMINARY STATEMENT

By letter dated December 28, 1998, the Commissioner of

Education (Commissioner) notified Petitioner of the denial of

Petitioner's Application for Florida Educator's Certificate for

the reasons set forth in the Notice of Reasons that accompanied

the letter.

On or about March 17, 1999, Petitioner was provided with an

Amended Notice of Reasons, which read as follows:

JOSEPH ALOYSIOUS MURPHY, 340 Northwest 34th

Street Oakland Park, Florida 33309,

Department of Education Number 789710 having

filed his application for a Florida

Educator's certificate before the Department

of Education; and the Department of Education

having reviewed the application in accordance

with Sections 231.17 and 231.262, Florida

Statutes, has determined that JOSEPH

ALOYSIOUS MURPHY is not entitled to the

issuance of a Florida Educator's Certificate,

accordingly

The Department of Education files and serves

upon the applicant, JOSEPH ALOYSIOUS MURPHY,

its Amended Notice of Reasons for it denial

in accordance with the provisions of Section

120.60, Florida Statutes, and as grounds

therefor[], alleges:

1. On or about August 6, 1994, Applicant

solicited sex from an undercover Police

Officer posing as a prostitute. Applicant

was arrested and charged with Soliciting for

Prostitution. On or about October 23, 1995,

the case was Nolle Prosequi after Applicant

completed a Pre-Trial Intervention Program.

The Department of Education charges:

STATUTE VIOLATIONS

COUNT 1: The applicant is in violation of

231.17(3)(c)6, Florida Statutes, which

requires that the holder of a Florida

Educator's Certificate be of good moral

character.

COUNT 2: The applicant is in violation of

Section 231.17([10])(a), Florida Statutes,

which provides that the Department of

Education is authorized to deny an Applicant

an educator's certificate if it possesses

evidence satisfactory to it that the

Applicant has committed an act or acts or

that a situation exists for which the

Education Practices Commission would be

authorized to revoke a teaching certificate.

COUNT 3: The Applicant is in violation of

Section 231.28(1)(c), Florida Statues, in

that he has been guilty of gross immorality

or an act involving moral turpitude.

WHEREFORE, the undersigned concludes that

Joseph Aloysious Murphy has committed an act

or acts or that a situation exists for which

the Education Practices Commission would be

authorized to revoke an educator's

certificate. It is therefore respectfully

recommended that the Education Practices

Commission affirm the Department of

Education's denial of the issuance of a

teaching certificate to the Applicant based

upon the reasons set forth herein, in

accordance with the Explanation of Rights for

which is attached to and made a part of this

Amended Notice of Reasons.

On or about March 29, 1999, Petitioner submitted an executed

Election of Rights form through which he requested (1) an

opportunity to attempt to "negotiate a settlement" and (2) if

settlement negotiations were unsuccessful, a "formal hearing" on

the proposed denial of his application.

No settlement was reached, and on November 22, 1999, the

matter was referred to the Division of Administrative Hearings

(Division) for the assignment of an Administrative Law Judge to

conduct the hearing Petitioner had requested.

The case was assigned to the undersigned, who scheduled a

hearing in the matter for January 31, 2000. On January 27, 2000,

the Commissioner filed a Notice of Withdrawal of Count I of [the

Amended] Notice of Reasons, in which he stated the following:

Respondent . . . hereby withdraws Count I of

[his Amended] Notice of Reasons which alleges

that the Petitioner is in violation of

Section 231.17(3)(c)([5]) Florida Statutes

which requires that the holder of a Florida

Educator's Certificate be of good moral

character. Respondent does not withdraw

Counts II and III of its Amended Notice of

Reasons which remain pending for the final

hearing. 1/

As noted above, the hearing was held on January 31, 2000.

At the hearing, nine witnesses testified: Joyce Fleming; Deborah

Cooper; Howard Greitzer, Esquire; Beverly James; Michael Zarra;

Edward Walsh, Esquire; Broward County Court Judge Joseph

Aloysious Murphy III; Father Guy Fenger; and Petitioner. In

addition to the testimony of these nine witnesses, the parties

offered 14 exhibits (Petitioner's Exhibits A through C and

Respondent's Exhibits A through K) into evidence. Respondent's

Exhibits A and D through K were received into evidence. The

undersigned reserved ruling on Petitioner's Exhibits A through C

and Respondent's Exhibits B and C 2/ (as well as the testimony

related to these exhibits) to give the parties an opportunity to

present further argument (in their proposed recommended orders)

on the admissibility of this evidence.

At the conclusion of the evidentiary portion of the hearing

on January 31, 2000, the undersigned announced on the record that

proposed recommended orders had to be filed no later than 30 days

from the date of the undersigned's receipt of the transcript of

the hearing. The undersigned received the hearing Transcript

(which consisted of two volumes) on February 25, 2000.

Thereafter, on March 27, 2000, and March 29, 2000, respectively,

Petitioner and Respondent filed their Proposed Recommended

Orders, which the undersigned has carefully considered.

In his Proposed Recommended Order, Petitioner gave notice

that he was withdrawing his offer of Petitioner's Exhibits B and

C. Accordingly, the only exhibits about which there remains an

unresolved dispute concerning admissibility are Petitioner's

Exhibit A (the Final Order of Dismissal issued in Broward County

Court Case No. 94- 15421MO10A), Respondent's Exhibit B (an

executed waiver of Petitioner's right to a speedy trial and a

preliminary hearing filed in Broward County Court Case No. 94-

15421MO10A), and Respondent's Exhibit C (the Nolle Prosequi

entered in Broward County Court Case No. 94- 15421MO10A). Having

reviewed the respective arguments made by the parties and having

otherwise given careful consideration to the matter, the

undersigned has determined that, in the interest of fairness and

completeness, these exhibits (and the non-expert, fact testimony

related to these exhibits 3/ ) should be made a part of the

evidentiary record in the instant case, which already contains

evidence, presented by the Commissioner, of Petitioner's arrest

on the "soliciting [of] prostitution" charge that was the subject

of Broward County Court Case No. 94- 15421MO10A. 4/

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Petitioner is presently 25 years of age. His date of

birth is July 29, 1974.

2. Petitioner had a troubled youth; however, since the

August 6, 1994, incident (described below) that is the focus of

the instant case, he has matured and gained a reputation of being

a responsible adult member of his community.

3. On Saturday, August 6, 1994, shortly after his twentieth

birthday, at approximately 5:55 p.m., Petitioner was driving

north on Andrews Avenue in downtown Fort Lauderdale. He had just

finished running errands for his father in the downtown area and

was on his way home. 5/ There were no passengers in his

vehicle.

4. As Petitioner approached the intersection of North

Andrews Avenue and Second Street, there was a woman standing on

the sidewalk on the northeast corner of the intersection, facing

south, who attracted his attention.

5. Unbeknownst to Petitioner, the woman, Joyce Fleming was

a police officer employed by the Fort Lauderdale Police

Department. Officer Fleming was participating in an undercover

operation designed to "combat street level prostitution

activity." Her role in the operation was to pose as a street

prostitute.

6. When Petitioner stopped for a red light at the

intersection of North Andrews Avenue and Second Street, he made

eye contact with Officer Fleming, who waved at him and pointed

him toward a nearby parking garage, which was underneath an

office building.

7. Petitioner pulled into the parking garage and parked his

car, head first, facing a concrete wall and beside concrete

pilings.

8. Officer Fleming, who was wearing a wire, then walked up

to the driver's side of Petitioner's vehicle and started talking

to Petitioner. The conversation she had with Petitioner was tape

recorded 6/ and monitored by backup officers (who were in the

vicinity).

9. Officer Fleming began her conversation with Petitioner

by complaining that a certain police officer, who, she told

Petitioner, had been across the street from where she had been

standing on North Andrews Avenue, was always "bothering" her. It

was because of this police officer, she explained to Petitioner,

that she had not "want[ ed] to get in over there." After being

told about the police officer, Petitioner asked Officer Fleming,

"Why don't I meet you somewhere else?" To allay Petitioner's

concerns, Officer Fleming told him that the police officer was no

longer across the street and that therefore she could "get in"

his vehicle. Petitioner, however, indicated to Officer Fleming

that he was still "nervous about it," to which Officer Fleming

replied, "If you're nervous, you can go on." Petitioner, though,

did not "go on." He chose to stay. 7/

10. Officer Fleming then asked Petitioner what he "want[ ed]

to do." Petitioner answered, "I don't know, what do you want?"

Officer Fleming's response was, "Well, I don't care; just tell me

what you want to do and I'll tell you how much."

11. Petitioner told Officer Fleming (whom he believed to be

a prostitute) that he was interested in a "blow job." 8/ He and

Officer Fleming then haggled over the price. Petitioner

ultimately agreed to pay Officer Fleming $10.00, 9/ after which

the following exchange took place between Petitioner and Officer

Fleming:

Officer Fleming: Okay. We can do that then.

Petitioner: Why don't I meet you somewhere

else?

Officer Fleming: You don't want to do it

here?

Petitioner: Well, I don't want a cop pulling

up.

12. It was at this point in time that back up officers

arrived on the scene and arrested Petitioner for "soliciting for

prostitution" in violation of Fort Lauderdale Municipal Ordinance

16-1.

13. At no time did Petitioner actually pay Officer Fleming

any money; nor was there ever any physical contact, sexual or

otherwise, between Petitioner and Officer Fleming. (Petitioner

remained in his vehicle, while Officer Fleming stood alongside

the vehicle on the driver's side, throughout their conversation

in the parking garage.)

14. The charge that Petitioner had violated Fort Lauderdale

Municipal Ordinance 16-1 10/ by agreeing to pay Officer Fleming

for oral sex was filed in Broward County Court, and it was

docketed as Case No. 94- 15421MO10A.

15. On March 23, 1995, Petitioner filed a Sworn Motion to

Dismiss in Case No. 94- 15421MO10A. Appended to the motion was a

copy of a transcript that had been prepared of the tape recording

of the conversation Petitioner had had with Officer Fleming

immediately prior to his arrest. The transcript, however, did

not accurately and completely reflect the contents of the tape

recording. It omitted Petitioner's affirmative response when he

was asked by Officer Fleming, during price negotiations, whether

he would be agreeable to paying $10.00 for her services. 11/

16. Pursuant to an agreement with the Municipal Prosecutor,

Petitioner entered a Pre-Trial Intervention Program on or about

July 5, 1995.

17. Petitioner successfully completed the Pre-Trial

Intervention Program. Consequently, on October 23, 1995, prior

to any ruling having been made on Petitioner's Sworn Motion to

Dismiss, the Municipal Prosecutor issued a Nolle Prosequi in Case

No. 94- 15421MO10A announcing that the "City of Fort Lauderdale

decline[d] prosecution on all municipal violations against

[Petitioner] arising out of [his] arrest on [August 6, 1994]."

18. Petitioner graduated from the University of South

Florida in December of 1997 with a B.A. degree in English.

19. On or about February 17, 1998, Petitioner submitted to

the Department of Education (Department) an Application for

Florida Educator's Certificate seeking an "initial two-year

nonrenewable temporary" teaching certificate. On the

application, he acknowledged his August 6, 1994, arrest.

20. From August of 1998 to January of 1999, Petitioner was

employed as a tenth-grade English teacher at MacArthur High

School in Hollywood, Florida (which, at the time, had an

enrollment of 2,200 students). The principal of the school was

(and still is) Beverly James. In Ms. James' opinion, Petitioner

did a "very good job" while at the school, and she "would not

hesitate" to rehire him if he received his teaching

certification.

21. In addition to his classroom responsibilities at

MacArthur High School, Petitioner also served as the assistant

coach of the school's wrestling team. The head coach of the team

was Michael Zarra. In Mr. Zarra's opinion, Petitioner did a

"good job coaching," and he would not "have any hesitation to

have [Petitioner] back as an assistant wrestling coach."

22. As evidenced by his job performance at MacArthur High

School, by engaging in the conduct for which he was arrested on

August 6, 1994, Petitioner has not impaired his ability to be an

effective teacher. The incident, which took place when

Petitioner was a 20-year old college student, four years before

he began teaching at the school, was not widely publicized and it

has not adversely affected his reputation in the community.

23. By letter dated December 28, 1998, Petitioner was

notified that his Application for Florida Educator's Certificate

was being denied for the reasons set forth in the Notice of

Reasons that accompanied the letter.

24. Shortly thereafter, Ms. James terminated Petitioner's

employment at MacArthur High School. She did so only because she

was told she had to inasmuch as Petitioner "would not be

certified."

25. On or about March 17, 1999, Petitioner was provided

with an Amended Notice of Reasons reflecting that the denial of

his application was based solely upon the August 6, 1994,

incident involving Officer Fleming.

26. Petitioner subsequently sought to reopen Broward County

Court Case No. 94- 15421MO10A. His efforts were successful. On

June 23, 1999, Broward County Court Judge Joel T. Lazarus issued

a Final Order of Dismissal in the case, which provided as

follows:

CAME ON TO BE HEARD on June 21, 1999

Defendant's Motion to Vacate and Set Aside

Disposition and Defendant's Sworn Motion to

Dismiss and the Court having heard the

arguments of counsel and being further

advised, it is hereby

ORDERED AND ADJUDGED that Defendant's Motion

to Vacate and Set Aside Disposition be and

the same is hereby GRANTED.

IT IS FURTHER ORDERED AND ADJUDGED that, as

to Defendant's Sworn Motion to Dismiss and

the Court's consideration of the matters

before it, this Court makes a determination

that no material issue of fact that sustains

the criminal charges against this Defendant

exist[s] and that the Defendant is entitled

to dismissal as a matter or law.

IT IS FURTHER ORDERED AND ADJUDGED that

Defendant's Sworn Motion to Dismiss be and

same is hereby GRANTED and the Defendant is

herewith discharged.

CONCLUSIONS OF LAW

27. Petitioner is seeking an "initial two-year nonrenewable

temporary" teaching certificate.

28. The certification of teachers is governed by Section

231.17, Florida Statutes, which provides, in pertinent part, as

follows:

231.17. Official statements of eligibility

and certificates granted on application to

those meeting prescribed requirements

(1) Application.--Each person seeking

certification pursuant to this chapter shall

submit a completed application to the

Department of Education and remit the fee

required pursuant to s. 231.30. . . .

Pursuant to s. 120.60, the Department of

Education shall issue within 90 calendar days

after the stamped receipted date of the

completed application an official statement

of eligibility for certification or a

certificate covering the classification,

level, and area for which the applicant is

deemed qualified.

(10) Denial of certificate.--

(a) The Department of Education may deny an

applicant a certificate if the department

possesses evidence satisfactory to it that

the applicant has committed an act or acts,

or that a situation exists, for which the

Education Practices Commission would be

authorized to revoke a teaching certificate.

(b) The decision of the Department of

Education is subject to review by the

Education Practices Commission upon the

filing of a written request from the

applicant within 20 days after receipt of the

notice of denial.

29. The grounds upon which the Education Practices

Commission may take disciplinary action against a certified

teacher are set forth in Section 231.28, Florida Statutes, which

provides, in pertinent part, as follows:

231.28. Education Practices Commission;

authority to discipline

(1) The Education Practices Commission shall

have authority to suspend the teaching

certificate of any person as defined in s.

228.041(9) or (10) for a period of time not

to exceed 3 years, thereby denying that

person the right to teach for that period of

time, after which the holder may return to

teaching as provided in subsection (4); to

revoke the teaching certificate of any

person, thereby denying that person the right

to teach for a period of time not to exceed

10 years, with reinstatement subject to the

provisions of subsection (4); to revoke

permanently the teaching certificate of any

person; to suspend the teaching certificate,

upon order of the court, of any person found

to have a delinquent child support

obligation; or to impose any other penalty

provided by law, provided it can be shown

that such person: . . .

(c) Has been guilty of gross immorality or

an act involving moral turpitude;

30. Chapter 231, Florida Statutes, does not define the

terms "gross immorality" or "an act involving moral turpitude."

See Sherburne v. School Board of Suwannee County , 455 So. 2d

1057, 1061 (Fla. 1st DCA 1984).

31. Rule 6B-4.009, Florida Administrative Code (which deals

with dismissal actions initiated by school boards against

instructional personnel pursuant to Section 231.36, Florida

Statutes), however, provides guidance to those seeking to

ascertain the meaning of these terms, as they are used in

subsection (1)(c) of Section 231.28, Florida Statutes. See

Castor v. Lawless , 1992 WL 880829, 10 ( EPC 1992)(Final Order).

32. Rule 6B-4.009(2), Florida Administrative Code, defines

"immorality" as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

"Thus, in order to dismiss a teacher for immoral conduct the

factfinder must conclude: a) that the teacher engaged in conduct

inconsistent with the standards of public conscience and good

morals, and b) that the conduct was sufficiently notorious so as

to disgrace the teaching profession and impair the teacher's

service in the community." McNeill v. Pinellas County School

Board , 678 So. 2d 476, 477 (Fla. 2d DCA 1996). The teacher's

impairment may be inferred if the immoral conduct occurred in the

classroom or in the presence of students, but not if the

misconduct was of a "private nature" not involving students. See

Walker v. Highlands County School Board , 2000 WL 256154 (Fla. 2d

DCA March 8, 2000).

33. "Gross immorality," as the term suggests, is misconduct

that is more egregious than mere "immorality." It is "immorality

which involves an act of conduct that is serious, rather than

minor in nature, and which constitutes a flagrant disregard of

proper moral standards." See Castor v. Lawless , 1992 WL 880829,

10 ( EPC 1992)(Final Order); Turlington v. Knox , 3 FALR 1373A,

1374A ( EPC 1981)(Final Order).

34. Rule 6B-4.009, Florida Administrative Code, also

contains a definition of "moral turpitude." This definition is

found in subsection (6) of the rule, which provides as follows:

Moral turpitude is 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.

"In contrast to the definition of immorality in Rule 6B-4.009(2),

the definition of moral turpitude in Rule 6B-4.009(6) does not

require notoriety or impaired ability for service in the

community." Gallagher v. Powell , 1999 WL 1483626, n.16 (Fla.

DOAH 1999).

35. In evaluating whether a teacher "[h]as been guilty of

gross immorality or an act involving moral turpitude," in

violation of Section 231.28(1)(c), Florida Statutes, it must be

remembered that "[b]y virtue of their leadership capacity,

teachers are traditionally held to a high moral standard in a

community." Adams v. Professional Practices Council , 406 So. 2d

1170, 1171 (Fla. 1st DCA 1981).

36. Where, as in the instant case, an applicant for a

teaching certificate disputes the announced intention to deny

certification on the ground that the applicant "[h]as been guilty

of gross immorality or an act involving moral turpitude," as

described in Section 231.28(1)(c), Florida Statutes, and the

applicant requests that an evidentiary hearing be held in

accordance with Section 120.57(1), Florida Statutes, the

Commissioner (as the head of the Department) bears the burden of

proving (at the requested hearing) by a preponderance of the

evidence that the applicant engaged in such alleged misconduct.

See Department of Banking and Finance v. Osborne Stern and

Company , 670 So. 2d 932, 934 (Fla. 1996); Department of Health

and Rehabilitative Services v. Career Service Commission , 289 So.

2d 412, 415 (Fla. 4th DCA 1974)("'As a general rule the

comparative degree of proof by which a case must be established

is the same before an administrative tribunal as in a judicial

proceeding--that is, A preponderance of the evidence. It is not

satisfied by proof creating an equipoise, but it does not require

proof beyond a reasonable doubt.").

37. The Commissioner, in the instant case, established by a

preponderance of the record evidence that, as alleged in the

Amended Notice of Reasons, "[o]n August 6, 1994, [Petitioner]

solicited [oral] sex from an undercover Police Officer [Officer

Fleming] posing as a prostitute" by agreeing to pay her $10.00 to

engage in such activity. In so doing, as further alleged in the

Amended Notice of Reasons, Petitioner committed "an act involving

moral turpitude," as described in Section 231.28(1)(c), Florida

Statutes. See In re the Matter of Robert W. Koch , 890 P.2d 1137,

1139 (Ariz. 1995)(soliciting prostitution deemed to be a crime

involving moral turpitude.). (The record evidence, however, is

insufficient to establish that this "act involving moral

turpitude" also constituted "gross immorality" inasmuch as there

has been no showing made that the incident has received any

notoriety or that it impaired Petitioner's ability to be an

effective teacher. See McNeill v. Pinellas County School Board ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996)(although the record

evidence demonstrated that " McNeill did in fact touch the

undercover officer in a sexually suggestive manner," such

inappropriate conduct could not be found to constitute

"immorality," as defined in Rule 6B-4.009(2), Florida

Administrative Code, because "the School Board failed to meet its

burden of proof with respect to impaired effectiveness, the

second element of the offense."); McKinney v. Castor , 667 So. 2d,

387, 389 (Fla. 1st DCA 1995)(proof insufficient to establish

McKinney engaged in conduct amounting to "gross immorality," in

violation of Section 231.28(1)(c), Florida Statutes, where it did

not demonstrate that his conduct "was 'sufficiently notorious' to

bring McKinney and the education profession 'into public disgrace

or disrespect and impair (McKinney's) service in the community,'

or that McKinney's conduct seriously reduced his effectiveness as

an employee of the school board"); Gallagher v. Powell , 1999 WL

1483626 (Fla. DOAH 1999)(educator guilty of committing an "act

involving moral turpitude, but proof insufficient to establish

educator's guilt of "gross immorality" because showing not made

that his "conduct was notorious or brought public disgrace or

disrespect to [educator] or to the education profession or that

[educator's] ability to serve the community was impaired.").)

38. To determine whether Petitioner's August 6, 1994, "act

involving moral turpitude" is conduct "for which the Education

Practices Commission would be authorized to revoke a teaching

certificate," within the meaning of Section 231.17(10)(a),

Florida Statutes, or whether it is, rather, less serious conduct

warranting disciplinary action not as severe as revocation, it is

necessary to consult the Education Practices Commission's

"disciplinary guidelines," which impose restrictions and

limitations on the exercise of the Commission's disciplinary

authority. See Parrot Heads, Inc. v. Department of Business and

Professional Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA

1999)("An administrative agency is bound by its own rules . . .

creat[ ing] guidelines for disciplinary penalties."); cf . State v.

Jenkins , 469 So. 2d 733, 734 (Fla. 1985)("[A] gency rules and

regulations, duly promulgated under the authority of law, have

the effect of law."); Buffa v. Singletary , 652 So. 2d 885, 886

(Fla. 1st DCA 1995)("An agency must comply with its own rules.");

Decarion v. Martinez , 537 So. 2d 1083, 1084 (Fla. 1st

1989)("Until amended or abrogated, an agency must honor its

rules."); Williams v. Department of Transportation , 531 So. 2d

994, 996 (Fla. 1st DCA 1988)(agency is required to comply with

its disciplinary guidelines in taking disciplinary action against

its employees). The Education Practices Commission's

"disciplinary guidelines" are found in Rule 6B-11.007, Florida

Administrative Code, and they provide, in pertinent part, as

follows:

6B-11.007 Disciplinary Guidelines.

(1) When the Education Practices Commission

finds that a person has committed any act for

which the Commission may impose discipline,

the Commission shall impose an appropriate

penalty within the ranges set forth for

various acts or violations in the following

disciplinary guidelines unless, based upon

consideration of aggravating and mitigating

factors in the individual case which are

among those set out in subsection (3), the

Commission determines that a penalty outside

the range in those guidelines but within

statutory limitation is appropriate. In

those cases in which the Commission relies on

aggravating or mitigating factors to depart

from the ranges in these disciplinary

guidelines, such aggravating and mitigating

factors shall be stated in the record of the

case and in the Final Order imposing the

applicable penalty.

(2) The following disciplinary guidelines

shall apply to violations of the below listed

statutory and rule violations and to the

described actions which may be basis for

determining violations of particular

statutory or rule provisions. Each of the

following disciplinary guidelines shall be

interpreted to include "probation" with

applicable terms thereof as an additional

penalty provision. . . .

(h) Sexual misconduct, no students involved,

in violation of S. 231.28(1)(c), (f), ( i),

F.S., Rule 6B-1.006(4)(c), (5)(c), (d),

F.A.C.

Probation -- Suspension

( i) Sexual misconduct with any student or

any minor in violation of S. 231.28(1)(c),

(f), ( i), F.S., Rule 6B-1.006(3)(a), (e),

(g), (h), (4)(c), F.A.C.

Suspension -- Revocation . . .

(3) Based upon consideration of aggravating

and mitigating factors present in an

individual case, the Commission may deviate

from the penalties recommended in subsection

(2). The Commission may consider the

following as aggravating or mitigating

factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

( i) The effect of the penalty upon the

educator's livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the licensee

to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and penalties

served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self-gain [ i] nuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or mental

condition contributing to the violation

including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

39. Petitioner's August 6, 1994 "act involving moral

turpitude" constituted "[s] exual misconduct, no students

involved," within the meaning of Rule 6B-11.007(2)(h), Florida

Administrative Code, an offense that, according to the Education

Practices Commission's "disciplinary guidelines," is punishable

by no more than a suspension in the absence of aggravating

circumstances warranting a harsher penalty. An examination of

the record in the instant case reveals that no such aggravating

circumstances are present in the instant case. 12 & 13/

40. Accordingly, Petitioner's "sexual misconduct" (which

occurred almost six years ago when he was a 20-year old college

student) is not conduct "for which the Education Practices

Commission would be authorized to revoke a teaching certificate,"

within the meaning of Section 231.17(10)(a), Florida Statutes,

and, therefore, it does not provide a basis upon which

Petitioner's Application for Florida Educator's Certificate may

be denied.

41. In his Proposed Recommended Order, the Commissioner

proposes that Petitioner's Application for Florida Educator's

Certificate be granted ("due to mitigating circumstances," not

because of any lack of authority to deny the application pursuant

to Section 231.17(10)(a), Florida Statutes 14/ ), but he

further proposes that the application be granted "with conditions

to include one year of probation, a letter of reprimand, and a

three credit college course in ethics." No statutory authority,

however, exists for the issuance of such a "conditional" license.

An examination of the provisions of Chapter 120, Florida Statutes

(including, in particular, Section 120.60, Florida Statutes,

which deals specifically with "licensing") and Chapter 231,

Florida Statutes, does not reveal any language clearly

authorizing the Department to issue a reprimand to an applicant

seeking an "initial two-year nonrenewable temporary" teaching

certificate or to place such an applicant on probation, with

conditions, for pre-application conduct that does not render the

applicant unqualified or ineligible for certification or that

does not warrant the denial of certification pursuant to Section

231.17(10)(a), Florida Statutes. In the absence of such clear

language, Petitioner may neither be reprimanded, placed on

probation, nor required to take a three-credit college course in

ethics, as the Commissioner proposes. 15/ See City of Cape

Coral v. GAC Utilities, Inc., of Florida , 281 So. 2d 493, 495-96

(Fla. 1973)("All administrative bodies created by the Legislature

are not constitutional bodies, but, rather, simply mere creatures

of statute. This, of course, includes the Public Service

Commission . . . . As such, the Commission's powers, duties and

authority are those and only those that are conferred expressly

or impliedly by statute of the State. . . . Any reasonable doubt

as to the lawful existence of a particular power that is being

exercised by the Commission must be resolved against the exercise

thereof, . . . and the further exercise of the power should be

arrested."); Schiffman v. Department of Professional Regulation,

Board of Pharmacy , 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) ("An

administrative agency has only the authority that the legislature

has conferred it by statute."); Taylor v. Department of

Professional Regulation, Board of Medical Examiners , 534 So. 2d

782, 784 (Fla. 1st DCA 1988)("We discern no clear statement of

legislative intent to provide for discipline of a physician for

prelicensure misconduct where he has not falsified his

application and is adjudged presently fit to practice. We

therefore hold that the Board was without jurisdiction to

discipline appellant" for his prelicensure conduct.); see also

Section 120.52(8), Florida Statutes ("A grant of rulemaking

authority is necessary but not sufficient to allow an agency to

adopt a rule; a specific law to be implemented is also required.

An agency may adopt only rules that implement or interpret the

specific powers and duties granted by the enabling statute. No

agency shall have authority to adopt a rule only because it is

reasonably related to the purpose of the enabling legislation and

is not arbitrary and capricious or is within the agency's class

of powers and duties, nor shall an agency have the authority to

implement statutory provisions setting forth general legislative

intent or policy. Statutory language granting rulemaking

authority or generally describing the powers and functions of an

agency shall be construed to extend no further than implementing

or interpreting the specific powers and duties conferred by the

same statute."). 16/

42. The Commissioner does not dispute that Petitioner is

"of good moral character," as required by Section

231.17(3)(c)(5), Florida Statutes, and otherwise meets the

qualifications for an "initial two-year nonrenewable temporary"

teaching certificate. Furthermore, the Commissioner has not

shown that Petitioner has engaged in any conduct warranting the

denial, pursuant to Section 231.17(10)(a), Florida Statutes, of

Petitioner's application for such a teaching certificate. Under

such circumstances, Petitioner must be granted the "initial two-

year nonrenewable temporary" teaching certificate he is seeking.

See Section 231.17(3)(a), Florida Statutes ("The department shall

issue a temporary certificate to any applicant who submits

satisfactory evidence of possessing the qualifications for such a

certificate . . . .") .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Education Practices Commission issue a

final order reversing the Department of Education's preliminary

denial of Petitioner's Application for Florida Educator's

Certificate and directing the Department to issue,

unconditionally, the "initial two-year nonrenewable temporary"

teaching certificate sought by Petitioner.

DONE AND ENTERED this 13th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April, 2000.

ENDNOTES

1/ At the outset of the final hearing held on January 31, 2000,

counsel for Respondent gave the following explanation for the

decision to "drop[] the first count" of the Amended Notice of

Reasons:

Quite candidly, I don't think I have any

evidence to support that count.

2/ Although marked for purposes of identification as

Respondent's exhibits, Respondent's Exhibits B and C were offered

into evidence by Petitioner.

3/ Expert testimony is nonadmissible concerning a question of

law." Lee County v. Barnett, Banks, Inc. , 711 So. 2d 34 (Fla. 2d

DCA 1997); see also Edward J. Seibert, A.I.A., Architect and

Planner, P.A. v. Bayport Beach and Tennis Club Association, Inc. ,

573 So. 2d 889, 891 (Fla. 2d DCA 1990)("An expert should not be

allowed to testify concerning questions of law."). To the extent

that Mr. Greitzer and Petitioner's father (both of whom are

members of the Florida Bar) testified concerning "questions of

law," such testimony has not been considered by the undersigned.

4/ The undersigned, however, recognizes that the dismissal of

the solicitation charge in Broward County Court Case No. 94-

15421MO10A does not foreclose a finding in the instant case that

Petitioner, during his encounter with Officer Joyce Fleming on

August 6, 1994, engaged in conduct constituting "gross immorality

or an act involving moral turpitude," within the meaning of

Section 231.28(1)(c), Florida Statutes. See E. C. v. Katz , 731

So. 2d 1268, 1270 (Fla. 1999)("In the present case, it is clear

that collateral estoppel does not bar relitigation of the alleged

abuse of J .K. C. because the respondents were not parties to the

previous proceeding."); Walton v. Turlington , 444 So. 2d 1082

(Fla. 1st DCA 1984)("[W]e agree that it is appellant's conduct,

not the criminal charge o[r] conviction nor the records thereof,

which forms the basis of the administrative complaint. We are in

accord with appellee's contention that the expungement of the

records of the criminal prosecution places appellant in the same

position as if he had never been charged with the crime. This

does not mean, of course, that appellant may not be held

responsible for his actions in a non-criminal proceeding, for as

the Commission appropriately observes, it is not necessary for a

teacher to be charged with or convicted of a crime in order to be

subject to revocation of his certificate based upon conduct

reflecting gross immorality or moral turpitude.").

5/ Earlier in the day, he had played a round of golf with a

friend.

6/ The tape recording of the conversation was received into

evidence (as Respondent's Exhibit G) at the final hearing in this

case. The undersigned has listened to the tape several times.

His findings as to what was said during the conversation are

based upon what he heard on the tape.

7/ His decision to remain, like his decision to stop in the

first place, was purely voluntarily. He was not, at any time,

coerced or forced to do anything by Officer Fleming.

.

8/ The undersigned rejects as unworthy of belief Petitioner's

claim that he was joking when he told Officer Fleming he wanted a

"blow job" and that he told her this only "because he was

intimidated by her, and that was his way of dealing with the

intimidating circumstances."

9/ Petitioner's agreement to pay Officer Fleming $10.00 for oral

sex was not the product of any coercion or intimidation.

10/ The "violation of a municipal ordinance is not a 'crime,'

and it is not a ' noncriminal violation' as defined in Florida

Statutes." Thomas v. State , 614 So. 2d 468, 471 (Fla. 1993).

11/ By all appearances, this omission was inadvertent.

12/ That Petitioner, in his testimony at the final hearing in

this case, may not have accurately described, in all respects,

what happened during his encounter with Officer Fleming on

August 6, 1994, is not such an aggravating circumstance which

would justify a departure "from the penalties recommended" in

Rule 6B-11.007(2)(h), Florida Administrative Code. See Bernal v.

Department of Professional Regulation, Board of Medicine , 517 So.

2d 113 (Fla. 3d DCA 1987), approved , 531 So. 2d 967 (Fla.

1988)(disciplinary action against licensee may not be increased

based upon licensee's "alleged lack of candor in his testimony

before the hearing officer[,] . . . an offense with which he was

not charged"; "one's conduct in defending an action against him

may not be the subject of an increased penalty if he is

nevertheless found guilty"); see also In re: Davey , 645 So. 2d

398, 405 (Fla. 1994)("[O] nly where lack of candor is formally

charged and proven may it be used as a basis for removal or

reprimand" of a judge.).

13/ As the Commissioner acknowledges in his Proposed Recommended

Order, the following are among the "mitigating circumstances"

present in the instant case: Petitioner's "age at the time of

the incident, the length of time which has elapsed between the

incident and the time of his application, and his rehabilitation

since the incident."

14/ The undersigned has rejected the Commissioner's argument

that "the Department is authorized to deny [Petitioner's]

application" pursuant to Section 231.17(10)(a), Florida Statutes,

because the argument ignores the significance of the Education

Practices Commission's "disciplinary guidelines."

15/ Contrary to the argument made by the Commissioner in his

Proposed Recommended Order, such language is not found in Section

231.262, Florida Statutes, which deals with "[c] omplaints against

teachers and administrators" who are already certified, not

applicants for an "initial two-year nonrenewable temporary"

teaching certificate.

16/ Had the Legislature desired to authorize the issuance of a

conditional license, such as that proposed by the Commissioner in

the instant case, it could have used, in Chapter 231, Florida

Statutes, language similar to that which it used in Section

373.2295, Florida Statutes, which deals with applications for

permits for an interdistrict transfer of groundwater and provides

for the "approval, denial, or approval with conditions" of such

applications, or the language it used in Section 490.009(1)(g),

Florida Statutes, which authorizes the "[p] lacement of an

applicant [seeking licensure as a psychologist] on probation for

a period of time and subject to conditions." See Chapman v.

Sheffield , 750 So. 2d 140, 143, n1. (Fla. 1st DCA 2000)("Had the

legislature intended to authorize other persons to sign for the

defendant in a representative capacity, it could have expressed

that intention in the statute [as it did in Section 48.031(1)(a),

Florida Statutes]. The absence of such a provision supports our

conclusion that the defendant must sign the receipt."); Bishop

Associates Limited Partnership v. Belkin , 521 So. 2d 158, 161

(Fla. 1st DCA 1988)("Had the legislature wanted to qualify

developers by lease duration in section 718.301 Florida Statutes,

it could have easily inserted the same terms it used in section

718.502(1). But no such language is present.").

COPIES FURNISHED:

Kathleen M. Richards, Executive Director

Department of Education

Education Practices Commission

Florida Education Center, Room 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Joan Stewart, Esquire

FEA/UNITED

118 North Monroe

Tallahassee, Florida 32399-1700

William R. Scherer III, Esquire

CONRAD & SCHERER

Post Office Box 14723

Fort Lauderdale, Florida 33302

Jerry W. Whitmore, Program Director

Department of Education

Professional Practices Services

Florida Education Center, Room 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

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.