02-002909PL Charlie Crist, As Commissioner Of Education vs. Liborio J. Mejia Status: Closed Recommended Order on Thursday, February 6, 2003.

Summary: Teacher`s physical assault on estranged wife warranted 90-day suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2909PL

)

LIBORIO J. MEJIA, )

)

Respondent. )

)

RECOMMENDED ORDE R

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

on October 17, 2002, in Miami, Florida, before Florence Snyder

Rivas, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gon zalo R. Dorta, Esquire

334 Minorca Avenue

Coral Gables, Florida 33134 - 4304

For Respondent: David S. Abrams, Esquire

Abrams & Abrams P.A.

9400 South Dadeland Bou levard

Penthouse 3

Miami, Florida 33156

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint and, if so, what penalty should be

imposed.

PRELIMINARY STATE MENT

Petitioner, Charlie Crist, as Commissioner of Education

(Petitioner or Commissioner), by Administrative Complaint dated

July 26, 2001, seeks to impose sanctions against Respondent,

Liborio J. Mejia (Respondent or Mejia), for an alleged act of

gross i mmorality or moral turpitude. Specifically the

Administrative Complaint states:

On or about March 3, 2000, Respondent armed

with a screwdriver gained entry into a

bathroom that had been locked by his wife,

and a struggle ensued between Respondent and

his wife over the wife’s purse. In that

struggle, the Respondent injured his wife by

slashing her arm with the screwdriver.

Thereafter, on March 8, 2000, the Respondent

surrendered to the Miami - Dade law

enforcement authorities. He was placed

under arrest an d charged. These charges

were subsequently dropped on or about

December 19, 2000.

Respondent timely exercised his right to request an

administrative hearing.

The Commissioner unsuccessfully attempted to require Mejia

to give a deposition. By order dat ed September 12, 2002,

Administrative Law Judge Larry J. Sartin denied Petitioner's

Motion to Compel Respondent to Appear for Deposition. The order

further provided that Respondent would not be permitted to

testify at the final hearing unless he sat for h is deposition at

least 24 hours prior to the final hearing.

The Commissioner's need to depose Respondent in order to be

properly prepared to cross - examine him at hearing was rendered

moot when Respondent elected not to attend the hearing. He was,

howeve r, represented at hearing by counsel.

The Commissioner presented the testimony of Officer Carlos

Espinoza of the Miami - Dade Police Department. Respondent

presented no testimony. Joint Exhibits 1 - 9 were received into

evidence.

At the conclusion of the fin al hearing, the undersigned

stated:

. . . By agreement of the parties they will

have ten days from the filing of the

transcript in this matter to submit proposed

recommended orders. And as always,

gentlemen, if something comes up and you

find that you a re unable to comply with the

deadline, just give my office a call...If

you need an extension and can agree on a

date that is within reason, that will be

fine.

Respondent's counsel understood this statement to mean that

there was no need to advise the unde rsigned, on or before the

proposed recommended order due date, if one side or the other

wished an enlargement of time to a "date that is within reason."

The foregoing statement was not so intended.

A conference call was initiated by the undersigned to

res olve the miscommunication. Respondent's counsel stated that

the hearing transcript fully sets forth all factual and legal

matters Respondent deems relevant to the case and waived his

right to submit a proposed recommended order.

The undersigned has revi ewed the hearing transcript (filed

December 10, 2002) and the Joint Exhibits numbered 1 - 9, with

special attention directed to the factual and legal matters

argued by Respondent's counsel. Petitioner's Proposed

Recommended Order has also been carefully con sidered.

FINDINGS OF FACT

1. Respondent holds a Florida Educator’s Certificate in

the areas of elementary education and the teaching of English to

speakers of other languages (ESOL). The certificate is valid

through June 30, 2003.

2. At all times mater ial to this case, Respondent was

employed as an ESOL Teacher at R. R. Morton Elementary School in

the Miami - Dade County School District.

3. On or about March 3, 2002, the Respondent armed himself

with a screwdriver and forced his way into the bathroom at his

residence where his wife was taking a shower. An altercation

ensued and resulted in an injury to Respondent's wife.

4. Mrs. Mejia required medical attention at the emergency

room of Baptist Hospital. She received several stitches to

close a wound on her hand. The wound was sustained in the

struggle with her husband. Police were summoned to the

emergency room to investigate the allegation of domestic

violence.

5. On or about March 8, 2000, Respondent surrendered

himself to Miami - Dade police. H e was arrested and charged with

aggravated battery and strong arm robbery. These charges were

later dropped.

6. The evidence clearly and convincingly established that

Respondent’s physical aggression toward his wife was a

substantial departure from the s tandard of civilized behavior

the public rightly expects of members of the teaching

profession. It suggests an inability to conduct himself in a

mature and appropriate manner under stress, and gives the public

legitimate reason for concern as to whether R espondent is

sufficiently stable to be trusted with the care and safety of

school children.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding, pursuant to Section s 120.569 and 120.57(1), Florida

Statutes.

8. Petitioner has the burden of proof in this proceeding.

Where an agency seeks to impose sanctions upon a professional

license, the evidence must be, as it is here, clear and

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

Slomowitz v. Walker , 429 So. 2d 797(Fla. 4th DCA 1983).

9. The State's decision not to prosecute Respondent is not

dispositive of the question of whether Respondent may properly

be subject to administrative discipline. Here, t he Commissioner

contends that Mejia's attack on his wife constitutes an act of

gross immorality or an act involving moral turpitude, in

violation of Section 231.2615(1)(c), renumbered as Section

231.28(1)(c), now found at Section 1012.795(1)(c) of the Flor ida

Statutes.

10. Gross immorality is not defined. "Immorality" is

defined in Florida Administrative Code Rule 6B - 4.009(2) as:

[C]onduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct sufficiently

notorious t o bring the individual concerned

or the educational profession into public

disgrace or disrespect and impair the

individual's service in the community.

11. "Gross immorality" requires conduct more egregious

than that encompassed within the definitio n of "immorality"

found in Rule 6B - 4.009(2):

[t]he term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorality which involves an act of

misconduct that is serious, rather than

minor in nature, and which constitutes a

flagr ant disregard of proper moral

standards." Education Practice Commission

v. Knox , 3 FALR 1373 - A (Department of

Education 1981).

Frank T. Brogan v. Eston Mansfield , DOAH Case No. 96 - 0286.

12. "Moral turpitude" is defined by Florida Administrative

Code Rule 6B - 4.009(6) as:

a crime that is evidenced by an act of

baseness, vileness or depravity in the

private and social duties which, according

to the accepted standards of the time a man

owes to his or her fellow man or to society

in general, and the doing of the act itself

and not its prohibition by statute fixes the

moral turpitude.

13. The court in Tullidge v. Hollingsworth , 146 So. 660,

661 (Fla. 1933), defined moral turpitude as:

Moral turpitude involves the idea of

inherent baseness or depravity in t he

private social relations or duties owed by

man to man or man to society. . . . It has

also been defined as anything done contrary

to justice, honesty, principle, or good

morals, though it often involves the

question of intent . . . .

14. Teachers are required to maintain a high standard of

conduct. Whether a teacher's conduct constitutes an act of

gross immorality or an act of moral turpitude should be measured

against that high standard. Adams v. State, Professional

Practices Council , 406 So. 2d 11 70 (Fla. 1st DCA 1981). In

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

1st DCA 1975), the court observed:

A school teacher holds a position of great

trust. We entrust the custody of our

children to the teacher. We look to the

teac her to educate and to 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.

15. Respondent's willingness to resort to violence in his

domestic dealings requires that measures be taken to assure that

he will be able to maintain appropriate control of himself in

the classroom.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that Respo ndent be found to have violated

Section 231.2615(1)(c), Florida Statutes, as charged in the

Administrative Complaint; that his certificate be suspended for

a period of 90 days; and that he not be allowed to return to

teaching until an appropriate mental he alth professional

evaluates and pronounces him fit to teach and not a threat to

the safety or well - being of students subject to his control.

DONE AND ENTERED this 6th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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 6th day of February, 2003.

COPIES FURNISHED:

David S. Ab rams, Esquire

Abrams & Abrams P.A.

9400 South Dadeland Boulevard

Penthouse 3

Miami, Florida 33156

Gonzalo R. Dorta, Esquire

334 Minorca Avenue

Coral Gables, Florida 33134 - 4304

Liborio J. Mejia

9118 Southwest 157th Court

Miami, Florida 33196

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Ga ines Street, Room 224E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he 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.