00-004018PL Tom Gallagher, As Commissioner Of Education vs. Costa Lempesis Status: Closed Recommended Order on Friday, December 22, 2000.

Summary: Respondent`s failure to reveal criminal conviction on application for renewal of teacher certification equates to fraud and serves as the basis for revocation of certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 00-4018PL

)

COSTA LEMPESIS, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

on December 5, 2000, in Tallahassee, Florida, before

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: William B. Graham, Esquire

Graham, Moody & Sox, P.A.

215 South Monroe Street, Suite 600

Tallahassee, Florida 32301

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses s et forth in

Administrative Complaint and, if so, what penalties should be

imposed?

PRELIMINARY STATEMENT

On August 21, 2000, Tom Gallagher, as the Commissioner of

Education (Petitioner), filed an Administrative Complaint

alleging that Costa Lempesis (Respondent), had violated various

Sections of Chapter 231, Florida Statutes. Respondent is alleged

to have failed to disclose, when he executed his sworn

application for a Florida teacher's certificate on November 26,

1996, that he had previously pled guilty to a charge of assault

and battery and disturbing schools on or about March 18, 1996.

Petitioner contends that the failure to disclose by Respondent is

tantamount to receiving a teacher's certificate by fraudulent

means, a violation of Section 231.2615, Florida Statutes, and

constitutes gross immorality by Respondent, reducing his

effectiveness as a teacher. Additionally, Respondent is deemed

to have violated Section 231.17, Florida Statutes, as a result of

failure to exhibit good moral character. These violations are

also considered violative of the Principles of Professional

Conduct for the education profession.

Respondent subsequently requested a formal administrative

hearing. The matter was then transferred to the Division of

Administrative Hearings to conduct formal proceedings pursuant to

Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented six exhibits.

Respondent did not appear and no evidence or testimony was

presented on his behalf. No transcript of the final hearing was

provided.

Petitioner filed a Proposed Recommended Order on December

15, 2000. Respondent did not file any post-hearing submissions.

The Proposed Recommended Order submitted by Petitioner has

been duly considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Respondent holds Florida Education Certificate

No. 460644, covering the areas of Educational Leadership and

Social Science. The license is valid through June 30, 2001.

2. At all times material to this proceeding, Resp ondent was

employed as a substitute teacher at Marathon High School in the

Monroe County School District.

3. On or about November 26, 1996, Respondent submitted an

application for renewal of a Professional Florida Educator's

Certificate to Petitioner's Bureau of Teacher Certification. On

the application, Respondent checked "no" in response to the

following question:

Have you ever been convicted of a crime,

found guilty, or entered a plea of nolo

contendre or had adjudication withheld in a

criminal proceeding; or are there any

criminal charges now pending against you.

Failure to answer this question accurately

could cause denial of certification.

4. By indictment of the grand jury convened in Pickens

County, South Carolina, on June 22, 1995, Respondent was charged

with "Assault and Battery of a High and Aggravated Nature" and

with the offense of "Disturbing Schools." Respondent pled guilty

to the charge of Disturbing Schools and the lesser charge of

"Simple Assault and Battery" on March 18, 1996. He received a

sentence of a $200 fine and a suspended 90 days jail sentence.

5. On or about October 6, 2000, Petitioner submitted its

First Request for Admissions to Respondent. Respondent failed to

answer, admit, or deny the truth of the matters asserted in the

request; namely, that Respondent submitted the application for

renewal of a Professional Florida Educator's Certificate in the

manner and form described in paragraph 3, above, and that he pled

guilty to the criminal charges described in paragraph 4, above.

Pursuant to Rule 1.370(b), Fla. R. Civ. P., the truth of the

matters asserted in the request is conclusively established.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over this subject matter and the parties to this action pursuant

to Section 120.57(1), Florida Statutes.

7. The Petitioner bears the burden of proof in this

proceeding. The evidence must be clear and convincing. Ferris

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

8. Pursuant to Section 231.2615(1), Florida Statutes, the

Education Practices Commission is empowered to take punitive

action against the holder of a Florida teaching certificate based

upon the grounds enumerated in the statute. The disciplinary

actions, which may be imposed by the Commission, range from

probation to revocation of certification.

9. The evidence clearly and convincingly demonstrates that

Respondent fraudulently obtained his teaching certificate through

failure to disclose his criminal past in the course of the

application process. Such fraud is one of the proscribed actions

for which discipline pursuant to Section 231.2615(1), Florida

Statutes, may be imposed.

10. An examination of the Principles of Professional

Conduct for the Education Profession as set forth in Rule Chapter

6B-1.006, Florida Administrative Code, also reveals that

Respondent has violated Rule 6B-1.006(5)(i) of that Chapter,

proscribing fraudulent action such as that indulged in by

Respondent in this case.

11. Petitioner has met its burden in this case and

justifiably requests that Respondent's teaching certificate be

revoked for a period of three years.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED that a final order be entered revoking

Respondent's teaching certificate for a period of three years.

DONE AND ENTERED this 22nd day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administr ative 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 Administr ative Hearings

this 22nd day of December , 2000.

COPIES FURNISHED:

William B. Graham, Esquire

Graham, Moody & Sox, P.A.

215 South Monroe Street, Suite 600

Tallahassee, Florida 32301

Costa Lempesis

1334 Bryjo Place

Charleston, South Carolina 29407

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

224-E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 614

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.