01-002644 John Rolle vs. Charlie Crist, As Commissioner Of Education Status: Closed Recommended Order on Friday, December 14, 2001.

Summary: Applicant for teaching certificate failed to demonstrate that he was eligible for and entitled to certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN ROLLE, )

)

Petitioner, )

)

vs. )

) Case No. 01 - 2644

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The parties having been provided proper notice,

Administrative Law Judge John G. Van Laningham of the Division

of Administrative Hearings convened a formal hearing of this

matter on September 25, 2000, in Miami, Florida.

APPEARANCES

For Petitioner: John Rol le, pro se

938 Northwest 59th Street

Miami, Florida 33127

For Respondent: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 South east 13th Street

Fort Lauderdale, Florida 33316 - 1924

STATEMENT OF THE ISSUES

The issue in this case is whether the Education Practices

Commission should deny Petitioner's application for a teaching

certificate on the grounds that Petitioner lacks the requisite

good moral character and that he has committed an act or acts

for which such a certificate could be revoked.

PRELIMINARY STATEMENT

By a Notice of Reasons dated March 28, 2001, Respondent

Charlie Crist, as Commissioner of Education (the "Commissioner"),

notified Petitioner John Rolle ("Rolle") that the Department of

Education intended to deny his application for a teaching

certificate pursuant to Section 231.17, Florida Statutes. As

grounds for the denial, the Commissioner asserted that Rolle

lacked the good moral character required to be eligible for a

teaching certificate and that, as a temporary teacher, Rolle had

violated the Principles of Professional Conduct for the Education

Profession, committing acts that would aut horize the Education

Practices Commission to revoke a teaching certificate. In

particular, the Commissioner charged that Rolle had shown his

students R - rated movies in class; told one or more sexually

explicit jokes in the classroom; and instructed or all owed

students to act out sexually - themed plays.

Rolle disputed the factual allegations and timely requested a

formal hearing. On July 2, 2001, the Commissioner referred this

matter to the Division of Administrative Hearings for a formal

hearing.

At the formal hearing held on September 25, 2001, Rolle,

appearing pro se , called the following witnesses: Kenneth Cooper;

Carolyn Kaloostian; Beverly Ann Salomatoff, and Darrel Brown, all

of whom were, during the relevant time frame, employees of the

Miami - Dade County School District; parents Ruby Pearson and

Margaret McGarty; student L. P. 1 ; and himself. Rolle also offered

two Petitioner's Exhibits, numbered 1 and 2, into evidence, and

these were received without objection.

The Commissioner called five witn esses: parents Vickie Myer

and Sue Pratt; and students D. M., K. S., and M. M. Finally, the

Commissioner, without objection, moved into evidence Respondent's

Exhibits 1 through 8.

The transcript of the final hearing was filed on October 29,

2001. The C ommissioner timely submitted a proposed recommended

order, which was carefully considered in the preparation of this

Recommended Order. Rolle did not submit any post - hearing papers.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

1. During the 1999 - 2000 school year, Rolle was employed as

a public school teacher in the Miami - Dade County School District

(the "District"). He was assigned to Mays Middle School, where

he taught drama to sixth, seventh, and eighth gr ade students.

2. Holding a temporary Florida Educator's Certificate,

Rolle was hired initially to work as a substitute teacher.

Later during the 1999 - 2000 school year, Rolle's contract status

was reclassified, and he became a "3100" or "temporary" teac her.

A 3100 teacher's contract automatically expires at the end of

the school year.

3. Before the close of the subject school year, Rolle was

removed from the classroom after allegations of misconduct were

made against him. When the school year ended, R olle's

supervisor gave him an unsatisfactory evaluation and recommended

that the temporary teacher not be re - hired. Consequently, Rolle

separated from employment with the District following the 1999 -

2000 school year.

4. In the meantime, Rolle applied to the Department of

Education for a professional ( i.e. non - temporary) teaching

certificate, pursuant to Section 231.17, Florida Statutes.

5. On March 28, 2001, the Commissioner, as the head of the

Department of Education, issued a Notice of Reasons setting

forth the grounds for denying Rolle's application. In a

nutshell, the Commissioner alleged that Rolle lacked the good

moral character required of a teacher and that he had violated

the Principles of Professional Conduct for the Education

Profession.

6. Below are the relevant historical facts concerning the

specific incidents upon which the preliminary denial of Rolle's

application was based. 2

The Vulgar Joke

7. On March 17, 2000, Rolle told a vulgar joke to his

sixth grade class. One of his student s, an 11 - year - old girl

named D. M., reported the joke to the school's administration,

submitting a handwritten statement dated March 23, 2000, that

quoted Rolle's monologue. 3

8. Rolle admits having told the joke; indeed, he repeated

it in full while te stifying at hearing. Therefore, no useful

purpose would be served by including the entire joke in this

Recommended Order. The punch line —— "Your mouth smells exactly

like your butt" —— is sufficient to convey the crudity of Rolle's

ill - considered attempt at comedy, which would have been

inappropriate in polite adult company. Telling such a coarse

joke in the classroom to a group of young schoolchildren at a

minimum reflected appallingly poor judgment on the teacher's

part.

The R - Rated Movies

9. On several occasions during the school year, Rolle

showed movies to his sixth and seventh grade classes. 4 At least

two of the movies, Rolle admitted, are rated "R." Another,

Rolle claimed, is rated "PG - 13." 5 Rolle did not obtain the

permission of his students' pa rents to show the children any of

these films in class.

10. While the movies themselves were not offered into

evidence, it is a matter of general knowledge based on common

experience that R - rated movies are intended for a "restricted"

audience and typi cally contain language, images, and plots to

which children under the age of 17 should not be casually

exposed. At any rate, clearly, children aged 11 and 12 should

not be shown R - rated movies in a public school classroom without

parental knowledge and co nsent .

11. Rolle showed these movies, not for a pedagogic

purpose, but merely to entertain the children.

12. Making matters worse, Rolle instructed his students to

have sheets of paper on their desks while a videotape was

playing so that they could pretend to be "critiquing" the movie

if someone (presumably another teacher) were to enter the

classroom. Rolle also directed the children not to tell others

that R - rated films were being screened in his class, warning the

students that if word got out, then someone might complain, with

the predictable result that the school's administration would

forbid such movies from being shown in the future.

The Impromptu Skits

13. In class, Rolle often required small groups of his

students to act in impromptu ski ts as a means of developing

improvisational skills. Rolle would describe a scene in broad

terms, and the students selected to perform would play assigned

parts, making up appropriate dialogue extemporaneously.

14. The plots for some of these impromptu skits were taken

from the students' textbooks. But Rolle required the students

to act out some other scenes that he had imagined on his own.

Several of these skits were highly inappropriate, to say the

least.

15. In the sixth grade class, for example, Rolle assigned

children to play in a scene involving a lesbian having an affair

with her female boss at work; a skit in which a girl describes

losing her virginity and becoming pregnant; and a vignette

wherein a girl who has been raped reports the crime t o her

parents and the police. Students not chosen to perform in these

skits were obligated to watch them.

16. D. M., the young girl who reported the gauche joke

discussed above, was one of the sixth - grade students chosen to

play a lesbian. She refused the assignment, whereupon Rolle

threatened her with a failing grade.

17. Rolle also instructed his seventh grade students to

perform in impromptu skits having adult themes. 6 More than once,

the plot required these adolescent (or pre - adolescent) children ,

aged 12 and 13, to explore the subject of homosexual

relationships. On one occasion, according to the credible

testimony of a (then) seventh - grade student named M. M., Rolle

suggested that two girls kiss. One of the girls refused. M. M.

described a se parate incident during which she and another girl,

playing lesbians in an impromptu skit under Rolle's direction,

actually did kiss one another, although M. M. professed not to

have been adversely affected by the experience.

Rolle's Explanations

18. Rolle conceded that he had exercised "bad judgment" in

connection with the incidents described above and stressed that

he had been "reprimanded" by the District for them. Rolle

admitted that he had believed his actions were appropriate at

the time taken, but upon reflection he now recognizes that he

made what he calls "first year teacher" mistakes. Rolle

adamantly denied having intended to harm or embarrass any

student.

Ultimate Factual Determinations

19. Rolle's classroom conduct during the 1999 - 2000 s chool

year repeatedly fell short of the reasonable standard of right

behavior that defines good moral character. By any reasonable

measure, it is wrong for a teacher to show R - rated movies to

impressionable sixth and seventh grade students; when that

teac her, an authority figure acting in loco parentis, further

instructs the students to be prepared to lie about or conceal

the fact that such films are being shown, as Rolle did, he not

only exhibits a propensity for dishonesty that is incompatible

with the p osition of great trust he holds but also encourages

the children in his charge likewise to be deceitful. Similarly,

when Rolle told that scatological joke to his sixth grade class,

he revealed a lack of respect for the rights of others and

behaved in a ma nner inconsistent with the high standard expected

of a public school teacher. Finally, asking children as young

as 11 years old to act out or watch scenes in which lesbians

discuss an illicit workplace romance; a rape victim describes

her trauma; and a pr egnant girl speaks about her first sexual

experience, as Rolle did, reveals a personality that is

preoccupied with subjects unsuitable for the middle school

curriculum. If Rolle were soon permitted to teach again,

parents understandably would question the ir children's safety

and well - being. The risk of allowing Rolle to return to the

classroom, at this juncture, is too great.

20. The conduct in which Rolle engaged, moreover, took

place in the classroom during the 1999 - 2000 school year and

directly invol ved the students in his care. Thus, the conduct

involved in this case is both recent and rationally connected to

Rolle's fitness to teach in the public schools of Florida.

21. In sum, the evidence fails to establish that, more

likely than not, Rolle pos sesses the good moral character

required of a teacher to whom the custody of children is

entrusted. For that reason, Rolle is not eligible for

certification.

22. There is, further, ample proof that Rolle failed on

numerous occasions to exert a reasona ble effort to protect

students from conditions harmful to learning, health, or safety

as required under Rule 6B - 1.006(3)(a), Florida Administrative

Code, which is part of the Principles of Professional Conduct.

Rolle's multiple violations of this Rule wou ld be grounds for

revocation of a teaching certificate and hence independently

justify the denial of his application for one.

23. Finally, the greater weight of evidence does not

demonstrate that Rolle specifically intended to expose his

students to unne cessary embarrassment or disparagement in

violation of Rule 6B - 1.006(3)(e), Florida Administrative Code.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 12 0.569 and 120.57(1), Florida Statutes.

25. Section 231.17, Florida Statutes, governs the issuance

of teaching certificates. In pertinent part, this statute

provides as follows:

(2) ELIGIBILITY CRITERIA. – To be

eligible to seek certification pursuant to

th is chapter, a person must:

* * *

(e) Be of good moral character.

* * *

(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 ap plicant 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 is

subject to review by the Education Practices

Commiss ion upon the filing of a written

request from the applicant within 20 days

after receipt of the notice of denial.

26. Section 231.2615, Florida Statutes, prescribes the

grounds upon which the Education Practices Commission is

authorized to revoke a teach ing certificate. As relevant to

this case, Section 231.2615(1)(i), Florida Statutes, authorizes

the Education Practices Commission to take disciplinary action,

including the revocation of a guilty teacher's certificate,

against a certified teacher who has "violated the Principles of

Professional Conduct for the Education Profession in Florida

prescribed by State Board of Education rules."

27. The Principles of Professional Conduct for the

Education Profession in Florida are contained in Rule 6B - 1.006,

Flo rida Administrative Code, which provides in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject t he individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires

that the individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

28. The foregoing statutory and rule p rovisions are penal

in nature and must be strictly construed, with ambiguities being

resolved in favor of the licensee. Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

29. In this application dispute proceeding, the burden of

producing evidence shifted between the parties according to the

issue at hand. Initially, Rolle needed to introduce evidence of

his eligibility for certification. Then, the Commissioner 7 bore

the burden of bringing forth evidence demonstrating that Rolle

had committed an act or acts for which the Education Practices

Commission would be authorized to revoke a teaching certificate. 8

At all times, however, the burden of ultimate persuasion

remained on Rolle, the applicant, to prove his entitlement to

certification by a preponderance of evidence. See Department of

Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932,

934 (Fla. 1996) .

30. If the applicant fails to meet his burden of proving

entitlement to certific ation, then the Education Practices

Commission

shall enter a final order . . . imposing one

or more of the following penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a teaching

cert ificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicant's

application, for a specified period of time

or permanently.

Section 231.262(6), Florida Statutes. 9

31 . In the Notice of Reasons served on Rolle, the

Commissioner made the following allegations of fact:

During the 1999 - 2000 school year, [Rolle]

was employed by the Dade County School Board

as a drama teacher at Mays Middle School.

During said school year [Rolle] engaged in

inappropriate conduct in that he:

(a) exhibited R - rated movies in class;

(b) told one or more sexually explicit

jokes to his students; and

(c) instructed and/or allowed students to

act out scenes that were sexual in nature.

On the se allegations, the Commissioner asserted that Rolle lacks

the good moral character required for certification as a

teacher, and he accused Rolle of having engaged in conduct that

would authorize revocation of a teaching certificate, namely,

violating subs ections (3)(a) and (3)(e) of Rule 6B - 1.006,

Florida Administrative Code, which are part of the Principles of

Professional Conduct for the Education Profession in Florida.

32. Whether Rolle possesses the requisite good moral

character, and whether he vio lated the Principles of

Professional Conduct for the Education Profession in Florida, as

charged, are questions of ultimate fact. McKinney v. Castor ,

667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson ,

653 So. 2d 489, 491 (Fla. 1st DCA 1995).

33. As set forth in the Findings of Fact above, the trier

has determined as matter of ultimate fact that Rolle failed to

establish his good moral character by a preponderance of

evidence; that Rolle failed to protect his student from harmful

conditions, in violation of Rule 6B - 1.006(3)(a), Florida

Administrative Code; but that Rolle did not intentionally

embarrass or disparage his students in violation of Rule 6B -

1.006(3)(e).

34. These factual findings, however, were necessarily

informed by the adminis trative law judge's application of the

law. A brief discussion of the pertinent legal principles,

therefore, will illuminate the dispositive findings of ultimate

fact.

Good Moral Character

35. At the outset, the distinction should be clearly drawn

betwe en, on the one hand, the requirement that an applicant be

of "good moral character" to be eligible for certification

pursuant to Section 231.17(2)(e), Florida Statutes, and, on the

other hand, the disciplinable offense of committing an act

involving "gross immorality or . . . moral turpitude," which

conduct is proscribed in Section 231.2615(1)(c), Florida

Statutes. The former sets a standard of decency that an

applicant must meet to be allowed to enter the teaching

profession; the latter is a species of mi sconduct warranting the

punishment of the certificate holder, including the removal of

that person from the teaching profession.

36. The eligibility criterion of good moral character

operates as a screen to filter out applicants who, because of

establi shed behavior or personality traits, pose a potential

danger to the health, safety, or well - being of students.

Importantly, at the application stage, the focus is on

protecting the public and prospective students —— not on

safeguarding the applicant's right s; hence, the regulatory

agency is afforded wide discretion in denying certification to

applicants it deems unfit. See Astral Liquors, Inc. v.

Department of Business Regulation , 463 So. 2d 1130, 1132 (Fla.

1985). In contrast, in a disciplinary proceeding in which a

teacher's certificate may be revoked, preventing future harm

remains a goal, but great emphasis is placed on protecting the

teacher's significant property rights: the agency must

establish specific wrongdoing by clear and convincing evidence.

For these reasons, conduct that justifies denial of an

application upon a finding that the applicant lacks good moral

character might not warrant revocation of a teaching certificate

in a disciplinary proceeding.

37. Consequently, a person seeking certi fication must do

more, in demonstrating his or her good moral character, than

merely show that he or she is not a degenerate. Rather, the

burden is on the applicant to establish affirmatively that, as

an honest, decent, law - abiding citizen, the applicant

consistently conforms his or her behavior to generally accepted

societal norms.

38. The standard of conduct to which prospective teachers

are held is a high one, owing to the exceptional degree of trust

and confidence that the public places in teachers. As the First

District Court of Appeal wrote:

A school teacher holds a position of

great trust. We entrust the custody of our

children to the teacher to educate and

prepare our children for their adult lives.

To fulfill this trust, the teacher must be

of good moral character; to require less

would jeopardize the future lives of our

children.

Tomerlin v. Dade County School Board , 318 So. 2d 159, 160 (Fla.

1st DCA 1975).

39. In Zemour, Inc., v. State Division of Beverage , 347

So. 2d 1102, 1105 (Fla. 1st D CA 1977), the court described the

term "good moral character" as follows:

Moral character, as used in this statute

[which prescribes eligibility requirements

for obtaining a liquor license], means not

only the ability to distinguish between

right and wrong , but the character to

observe the difference; and the observance

of the rules of the right conduct, and

conduct which indicates and establishes the

qualities generally acceptable to the

populace for positions of trust and

confidence. An isolated unlawful act or

acts of indiscretion wherever committed do

not necessarily establish bad moral

character. But as shown by the evidence

here, repeated acts in violation of law

wherever committed and generally condemned

by law abiding people, over a long period of

time, evinces the sort of mind and

establishes the sort of character that the

legislature, as Judge Rawls said in [White

v.] Beary , [237 So. 2d 263, 265 (Fla. 1st

DCA 1970], "in its infinite wisdom," has

determined should not be entrusted with a

liquor lic ense.

The trust and confidence placed in public school teachers being

at least as great as that reposited in holders of alcoholic

beverages licenses, the foregoing analysis holds true in the

present context.

40. Likewise, in Florida Board of Bar Exam iners v. G.W.L. ,

364 So. 2d 454, 458, (Fla. 1978), the Florida Supreme Court

stated:

In our view, a finding of a lack of "good

moral character" should not be restricted to

those acts which reflect moral turpitude. A

more appropriate definition of the phra se

requires an inclusion of acts and conduct

which should cause a reasonable man to have

substantial doubts about an individual's

honesty, fairness, and respect for the

rights of others and for the laws of the

state and nation. . . . .

[T]he practice of law provides the

unscrupulous attorney with frequent

opportunities to defraud the client or

obstruct the judicial process. It is our

constitutional responsibility to protect the

public by taking necessary action to ensure

that the individuals who are admi tted to

practice law will be honest and fair and

will not thwart the administration of

justice. In our view, a definition of good

moral character which limits an adverse

finding to those acts which constitute an

offense evincing moral turpitude is

inadequ ate because, as we have held in bar

disciplinary matters, it would not

sufficiently protect the public interest.

. . . . The inquiry into good moral

character which emphasizes honesty,

fairness, and respect for the rights of

others and for the laws of t his state and

nation is a proper and suitable standard for

those who desire to be an integral part of

the administration of justice in the courts

of this state. We recognize . . . that the

standard of conduct required of an applicant

for admission to the bar must have a

rational connection to the applicant's

fitness to practice law, and the standard

must be applied with that limitation in mind

or the term "good moral character" could

become "a dangerous instrument for arbitrary

and discriminatory denial of the right to

practice law." . . . .

(Citations omitted). The court's observations about the nature

of the practice of law are equally applicable to the teaching

profession. Just as an unscrupulous attorney has frequent

opportunities to defraud clients or obstruct the judicial

process, so too does a teacher whose inability to observe

generally accepted standards of socially acceptable behavior

have frequent opportunities, as an authority figure acting in

loco parentis, to corrupt the schoolchildren in h is charge.

41. In this case, the trier has determined, based on

competent and substantial evidence, that, regardless whether

Rolle committed an act or acts involving gross immorality or

moral turpitude, he repeatedly failed in the classroom to

conform hi s behavior to standards of conduct relating to

honesty, fairness, and respect for the rights of others that

reasonable people would (or should) recognize are required of an

applicant for a teaching certificate. Rolle's conduct, in a

word, was indecent. M oreover, the conduct in question here —— all

of which occurred recently, in the classroom —— is rationally

related to Rolle's fitness to enter the teaching profession.

Rule 6B - 1.006(3)(a)

42. Rule 6B - 1.006(3)(a), Florida Administrative Code,

imposes on teac hers the affirmative duty to protect students

from harmful conditions. The standard against which a teacher's

performance of this duty is measured is an objective one: he

must make a "reasonable effort." Therefore, a teacher's

subjective intent is not d eterminative of whether Rule 6B -

1.006(3)(a) was violated.

43. The specific standard of care owed under legal duty is

typically a question of fact. See Dennis v. City of Tampa , 581

So. 2d 1345, 1350 (Fla. 2d DCA), rev. denied , 591 So. 2d 181

(1991); Spada fora v. Carlo , 569 So. 2d 1329, 1331 (Fla. 2d DCA

1990). As such, it is susceptible to ordinary methods of proof.

Accordingly, when a teacher is charged with having failed to

make a reasonable protective effort under Rule 6B - 1.006(3)(a),

Florida Administ rative Code, the final hearing necessarily

entails: (1) evidence regarding the teacher's actual actions in

the face of a harmful condition; (2) evidence from which the

trier of fact can conceptualize a standard of conduct in the

form of the action of a "r easonable teacher" under the same or

similar circumstances; and (3) a comparison of the teacher's

conduct against the theoretical, objectively reasonable standard

of conduct. Cf. Wal - Mart Stores, Inc. v. King , 592 So. 2d 705,

707 (Fla. 5th DCA 1991), rev. denied , 602 So. 2d 942

(1992)(enumerating facts that must be proved in trial of

premises liability action).

44. Here, Rolle's grossly inappropriate conduct created

conditions that were unambiguously harmful. His conduct was

patently unreasonable. On th ese facts, Rolle's violation of

Rule 6B - 1.006(3)(a) is so obvious as to be readily apparent to

persons of common experience, obviating the need for lay or

expert testimony regarding the applicable standard of reasonable

conduct. Compare Commissioner of Ed ucation v. Chavero , DOAH

Case No. 4020PL (Recommended Order Feb. 15, 2001), adopted in

toto, EPC Case No. 00 - 0769 - RT (Final Order Apr. 27, 2001)(Rule's

violation was not so obvious as to be readily apparent to

persons of common experience; thus, proof conc erning the

standard of reasonable protective effort was required).

45. Based on the evidence presented, the trier of fact

easily found that Rolle had failed reasonably to protect his

students from harmful conditions.

Rule 6B - 1.006(3)(e)

46. The Fir st District Court of Appeal has described

Rule 6B - 1.006(3)(e), Florida Administrative Code —— which, recall,

proscribes the intentional infliction of unnecessary

embarrassment —— as an "aspirational" rule, the "violation of

which could only justify suspension of a teaching certificate if

there was factual evidence that the violation was so serious as

to impair the teacher's effectiveness in the school system."

Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995);

MacMillan v. Nassau County School Boar d , 629 So. 2d 226, 228

(Fla. 1st DCA 1993).

47. Significantly, moreover, to be prohibited by Rule 6B -

1.006(3)(e), the offending conduct must be committed with a

specific intent to disobey the rule. Accordingly, "[t]here can

be no violation in the absenc e of evidence that the teacher made

a conscious decision not to comply with the rule." Langston ,

653 So. 2d at 491.

48. Although an inference of intentional harm very

reasonably could be drawn from the conduct involved here, the

record is short of dir ect evidence that Rolle specifically

intended to violate Rule 6B - 1.006(3)(e) or to embarrass or

disparage a student. After careful consideration of the

evidentiary record as a whole, the trier determined that the

inference of intentional harm, though not negligible, was yet

insufficiently strong to warrant finding the fact. Therefore,

the offense proscribed by Rule 6B - 1.006(3)(e), Florida

Administrative Code, was not established by the greater weight

of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order denying Rolle's application for a teaching

certificate and providing that he shall not be eligible to

reapply for certification for a per iod of 15 years from the date

of the final order, during which time the Department of

Education, in its discretion pursuant to Section 231.262(6)(a),

Florida Statutes, may refuse to consider his application,

neither granting nor denying same.

DONE AND ENTE RED this 14th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 2 001.

ENDNOTES

1 / Rolle's former students, who are minors, will be identified

in this Recommended Order by their initials. Their full names

are revealed in the record.

2 / The evidentiary record contains a good deal of proof of

arguably inappropriate actions by Rolle that were not alleged

with particularity in the Notice of Reasons. For the most part,

the facts concerning Rolle's "other" ( i.e. not pleaded) conduct

were undisputed. Nevertheless, to avoid raising any due process

concerns, the evidence regarding Rolle's other conduct has been

disregarded.

In addition, the record is replete with hearsay, such as

parents' testimony regarding classroom incidents of which they

could claim only second - hand knowledge. Under the

Administrative Procedure Act, this testi mony was admissible and

might properly have served as secondary proof, to supplement

other competent substantial evidence forming the primary basis

of fact findings. See Section 120.57(1)(c), Florida Statutes.

In this case, however, the compelling testim ony of the several

student - witnesses, who had direct personal knowledge of the

incidents in question, together with Rolle's own testimony,

constitutes such a solid evidential foundation for the fact

findings in this Recommended Order that reliance on hears ay for

corroboration was not necessary. The trier nevertheless did

give some weight to the prior handwritten statements of L. P.,

D. M., and M. M., which are in evidence, respectively, as

Petitioner's Exhibit 1 and Respondent's Exhibits 5 and 6. These

st udents testified —— and were subject to cross - examination —— at

hearing, and their prior written statements supplemented and

explained not only their hearing testimony but also Rolle's.

Finally, there was evidence at hearing concerning certain

adverse effec ts that Rolle's conduct purportedly had on some

students' physical and emotional states. While this evidence

was believable as far as it went, the trier determined that the

relationship between Rolle's conduct and the alleged

consequences thereof was show n to be associational at best;

expert testimony (of which there was none) would have been

required to make the connection causal. Therefore, this

evidence was ultimately deemed irrelevant.

3 / For obvious reasons, D. M. was not asked to repeat the joke

on the witness stand. D. M.'s handwritten statement, in

evidence as Respondent's Exhibit 5, is hearsay, and thus has

been used only to supplement and explain other admissible

evidence. See Section 120.57(1)(c), Florida Statutes.

Specifically, D. M.'s ou t - of - court statement corroborates

Rolle's testimony.

4 / Although there is no direct, unambiguous evidence that Rolle

showed the same movies to his eighth grade class as well, it

would be reasonable to infer the fact, except that doing so

would not a ffect the outcome. The findings, therefore, are

limited to Rolle's conduct in his sixth and seventh grade

classes.

5 / Undoubtedly, many of Rolle's sixth and seventh grade students

were younger than age 13, so it was, at least, irresponsible to

show the m a PG - 13 - rated movie. Because showing the students R -

rated films was egregious, however, the Commissioner

understandably focused on that misbehavior.

6 / As with the R - rated movies, it would be reasonable to infer

that Rolle staged sexually - charged imp romptu skits in his eighth

grade class too, despite the absence of direct, unambiguous

proof of that fact. Doing so, however, would not affect the

outcome. The findings, therefore, are limited to Rolle's

conduct in his sixth and seventh grade classes.

7 / When a disappointed applicant challenges the preliminary

denial of his application for a teaching certificate, the

Commissioner is responsible for prosecuting the Department's

case against the applicant in the ensuing administrative

proceeding. See Se ctions 231.262(5) and 231.262(6), Florida

Statutes.

8 / The denial of a teaching certificate is not a disciplinary

sanction; it is, rather, the application of a regulatory

measure. For that reason, where an intended denial of

certification is based on th e allegation that the applicant has

committed an act or acts which would warrant revocation of a

teaching certificate, the Commissioner is not required to prove

the charges of wrongdoing by clear and convincing evidence;

instead, the factual predicate need only be established by the

greater weight of the evidence. See Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932, 934 - 35 (Fla.

1996). The issue is largely academic here, however, because the

evidence that Rolle violated Rule 6B - 1.006(3)(a), Florida

Administrative Code, is not merely persuasive under the

preponderance of evidence standard but is clear and convincing

and would have satisfied that more rigorous standard of proof

were this a proceeding to revoke a certificate.

9 / T echnically speaking, the designation "penalty" is a misnomer

as applied in the statute to the regulatory act of application

denial. The denial of an application for a teaching

certificate, unlike the revocation of such a certificate, is not

penal in natur e and does not —— again in contrast to revocation ——

implicate significant property rights. Osborne Stern , 670 So.

2d 934 - 35.

COPIES FURNISHED:

John Rolle

938 Northwest 59th Street

Miami, Florida 33127

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316 - 1924

James A. Robinson, General Couns el

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

Kathleen M. Richards, Executive Director

Department of Education

325 West Gaines Street, Room 224E

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 R ecommended O rder. Any exceptions

to this R ecommended O rder should be filed with the agency that

will issue the F inal O rder in this case.