03-000393PL Charlie Crist, As Commissioner Of Education vs. Troy Doyle Status: Closed Recommended Order on Wednesday, July 16, 2003.

Summary: Respondent acted inappropriately at school while under the influence of medications and alcohol.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, )

AS COMMISSIONER OF EDUCATION, 1/ )

)

Petitioner, )

)

vs. ) Case No. 03 - 0393PL

)

TROY DOYLE, )

)

Respondent. )

___________ ______________________)

RECOMMENDED ORDER

Notice was provided and on May 23, 2003, a formal hearing

was held in this case. Authority for conducting the hearing

is set forth in Sections 120.569 and 120.57(1), Florida

Statutes. The hearing location was the Board of County

Commissioners, Community Treasures Room, First Floor, County

Administration Building, 12 Southeast First Street,

Gainesville, Florida. The hearing was conducted by Charles C.

Adams, Administrative Law Judge.

APPEARANCES

For P etitioner: Ginger L. Barry, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Tallahassee, Florida 32301

For Respondent: H. B. Stivers, Esquire

Levine, Stivers, and Myers

245 East Virgi nia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent's

Florida Educator's Certificate No. 654546, based upon the

allegations in the Administrative Complaint, Case No. 001 -

1338 - A, before the State of Florida, Education Practices

Commission?

PRELIMINARY STATEMENT

On February 20, 2002, Charlie Crist, then Commissioner of

Education, executed the Administrative Complaint. Respondent

selected a settlement option in reply, followed by a reques t

for formal hearing if the case did not settle. Settlement was

not achieved. Therefore, the case was transmitted to the

Division of Administrative Hearings to conduct a formal

hearing in accordance with Sections 120.57(1) and 231.262(5),

Florida Statute s. The case was assigned, and following a

single continuance the case was heard on the aforementioned

date.

Respondent's Motion for Final Summary Order calling for

the dismissal of Counts One, Five and Six was denied by

written order, with leave to ad vance the arguments in that

motion through a proposed recommended order after the final

hearing.

Consistent with the prehearing order the parties prepared

and submitted a prehearing statement. That statement includes

facts that both sides admit. The adm itted facts are accepted

and reported in the fact - finding to the recommended order.

At hearing Petitioner presented the testimony of Robert

Michael Ice, Dr. Leila Pratt, Terri McKinney, Mary Kay Warner,

Linda Karol Yon, and Officer Russ Hamm. Petitione r's Exhibits

numbered 1 through 3 were admitted. Respondent testified in

his own behalf and presented the testimony of David Beard, and

Delores Doyle. Respondent's Exhibits numbered 1 through 8

were admitted, to include Exhibit Numbered 2, the sworn

stat ement of Asa L. Godbey, Jr., M.D.

A hearing transcript was prepared. On June 4, 2003, the

hearing transcript was filed with the Division of

Administrative Hearings. On June 16, 2003, the parties filed

proposed recommended orders. The proposed recomme nded orders

have been considered in preparing the recommended order.

FINDINGS OF FACT

Stipulated Facts:

1. Respondent holds a Florida Educators Certificate

(FEC), number 654546, in the area of Music.

2. Respondent's FEC is valid through June 30, 2006.

3. At all times relevant to this proceeding, Respondent

was employed as a Music Education Teacher at Chiefland

Elementary School in the Levy County School District.

Additional Facts: Background

4. Respondent served as a music teacher at Chiefla nd

Elementary for 12 years.

5. On January 17, 2001, while at school Respondent spoke

to Johnny Turner, the guidance counselor at Chiefland

Elementary. In this conversation Respondent commented that he

had a problem with alcohol. Mr. Turner did not bel ieve that

Respondent was inebriated at that time. Mr. Turner did

observe that Respondent was very hyper - active emotionally and

verbally.

6. On the evening of January 17, 2001, Respondent called

Mr. Turner several times at Mr. Turner's home. From his

r emarks Mr. Turner believed that the Respondent was

inebriated. Respondent's speech was slurred, Respondent was

incoherent and repeated himself often. Respondent commented

that he had a problem with alcohol and wanted help.

Mr. Turner directed him to a r ehabilitation program and to

Alcoholics Anonymous. Mr. Turner also suggested that

Respondent not try to come to school on the morning of January

18, 2001, and that they continue their conversation at some

future date when Respondent was sober. Respondent asked

Mr. Turner to give him a wakeup call at 5:00 a.m. on January

18, 2001. Mr. Turner made that call intending to remind

Respondent to stay home that day but Respondent did not answer

the phone.

7. On January 18, 2001, around 8:15 a.m. Mr. Turner sa w

Respondent at the school outside the cafeteria. Respondent

approached Mr. Turner and said good morning and placed a

Catholic missal into Mr. Turner's hands. Respondent then went

to this classroom. Respondent was observed by Mr. Turner

walking across t he courtyard and up the hall in a straight

line without staggering. When Respondent greeted Mr. Turner

on that morning the greeting was short by not slurred.

Nothing in Respondent's conduct made Mr. Turner believe that

Respondent should be reported as co nstituting a danger to

himself or others at that time. Mr. Turner's impression of

Respondent on January 18, 2001, was misplaced, for reasons

that will be discussed.

8. Respondent acknowledges that on the night of January

17, 2001, he had been drinking. He describes the amount that

he drank as "a couple of drinks." David Beard, a friend of

the Respondent, indicated that Respondent and Mr. Beard had a

couple of drinks. They were drinking bourbon.

9. In addition to the alcohol which Respondent consum ed

on the night of January 17, 2001, Respondent was also taking

medication. That medication had been prescribed by Asa L.

Godbey, Jr., M.D., a physician practicing outpatient

psychiatry with adults.

10. Dr. Godbey had first seen Respondent in 1997.

Dr . Godbey diagnosed Respondent as having dysthymic disorder,

a chronic non - psychotic depression.

11. As of January 18, 2001, Dr. Godbey had prescribed

Amitriptyline and Prozac, anti - depressant medications and

Xanax, which is a benzodiazepine, used to help with anxiety

when patients are depressed. Xanax is a non - depressant. In

1999 Dr. Godbey had prescribed Respondent Ritalin, a mild

stimulant to address episodes of acute severe depression.

Dr. Godbey was aware that Respondent had been treated for

migrain e headaches in the past by the use of small doses of

narcotics. This refers to Tylenol No. 3 PRN.

12. The record reveals that on January 17, 2001, and on

the morning of January 18, 2001, Respondent took some

medications prescribed for him. The exact med ications taken

on those dates is not clear from the record. In this

connection, Dr. Godbey had told Respondent that he should not

drink alcohol because he does not handle it well. As the

doctor explained, alcohol by itself prevents deep sleep, a

particul ar problem for people who are depressed. As

Dr. Godbey explained, Respondent does not metabolize alcohol

as well as some people. So it can be a real problem for him.

As Dr. Godbey established, the mixing of alcoholic beverages

and the drugs prescribed f or Respondent is a problem. It

worsens depression.

13. Respondent's testimony that "he did not know to what

extent" his use of alcohol presented a problem for him, given

Dr. Godbey's advice against using alcohol, does not create

forgiveness for his mis conduct.

The January 18, 2001 Incident at School:

14. Linda Karol Yon is a speech language pathologist at

Chiefland Elementary. This is a position that she has held

for 27 years. Before the incident at issue Ms. Yon and

Respondent would carpool fro m Gainesville to Chiefland on work

days. Ms. Yon drove Respondent and herself to work on January

18, 2001.

15. Ms. Yon drove Respondent and herself on the day in

question because Respondent called her and said that he was

not feeling really well. In particular Respondent told

Ms. Yon that he had been out the night before with friends.

He said that he had had a lot to drink. In essence,

Respondent's description indicated he was hung over.

16. On the morning of January 18, 2001, as they drove to

school Respondent was very chatty. He was talking about the

evening before when he celebrated the birthday of his friend.

17. On January 18, 2001, Respondent conducted his 8:30

a.m. class, at Chiefland Elementary.

18. Early in the morning on the date in question

Respondent went to the office of the principal of Chiefland

Elementary School, Michael Ice. While in the office

Respondent handed Mr. Ice a piece of paper stating that the

paper had been put in his mailbox and he believed it belonged

to Mr. I ce. Respondent then left. The paper was a letter

which had been written from Respondent to Mr. Ice requesting

Mr. Ice to check into Respondent's user I.D. and password for

the school computer system used to enter grades. The letter

was from October 2000 . Although Mr. Ice considered the

provision of the letter at that time as being "kind of

strange," Mr. Ice called the school data center to inquire

about the matters set forth in the correspondence. Mr. Ice

was told that there was nothing wrong with the user I.D. and

password. Under the circumstances Mr. Ice decided to go to

Respondent's classroom to talk to Respondent about the letter.

19. When Mr. Ice arrived at Respondent's classroom the

students in attendance were getting ready to leave the music

class. Their regular teacher was coming to pick them up.

Once in the room Mr. Ice showed Respondent the letter and

asked what it was about, any why was Respondent asking him to

respond to something that was from earlier in the year.

Respondent asked the principal to come from the classroom into

Respondent's office which is connected to the classroom. Once

in the office Respondent asked the principal to look at his

desk. The principal complied. Then Respondent asked the

principal to come out with Respo ndent into the classroom.

Once they returned to the classroom Respondent put his hands

up in the air and said "and this is my classroom." Mr. Ice

observed the Respondent to be "a little giddy." Mr. Ice

questioned the Respondent in more detail about the letter and

asked Respondent to go back to the principal's office and talk

about it. Then Respondent started telling the principal about

Respondent's alarm clocks, that he had three alarm clocks that

he was having problems with and that he was having a pro blem

with an alarm system at his house. Respondent remarked about

something with his telephones. Respondent was going on and on

about those subjects. None of those topics was in relation to

the reason for the principal's visit to Respondent's

classroom. Those extraneous remarks were unsolicited.

20. Mr. Ice considered that there was a problem with

Respondent and realizing that another class would be coming

into the music room within 5 to 10 minutes, he asked

Respondent to stay in the principal's offic e while he arranged

to contact the next teacher bringing students to the music

room and instruct the teacher to not escort the students to

Respondent's classroom. Respondent did not conduct his next

class.

21. Mr. Ice also believed that he needed to ca ll the

School District's Director of Personnel, Dr. Leila Pratt.

Mr. Ice called Dr. Pratt and explained his perceptions of the

problem with Respondent and she agreed to come to the school.

The reason why Mr. Ice called Dr. Pratt was that he had

smelled a n odor on Respondent's breath, that Respondent had

slurred speech and that Respondent was believed to be under

the influence of drugs or overly medicated.

22. Respondent came back to the principal's office.

23. Once in the principal's office Mr. Ic e asked

Respondent to be seated and Respondent sat down while they

waited for Dr. Pratt to arrive. Somewhere between half an

hour and 45 minutes after Respondent arrived at Mr. Ice's

office, Dr. Platt arrived at the school.

24. In the interim, Mr . Ice asked Respondent if he was

taking something or if he was on something. Respondent took a

metal pill box and opened it up and showed its contents to

Mr. Ice. Mr. Ice observed about half a dozen different kinds

of pills in the box. Mr. Ice remembers the Respondent telling

him that one pill was Ritalin and one was Phenergan, both

items that had been prescribed for Respondent. Respondent did

not specify among the pills that he showed Mr. Ice which pills

he was taking. While waiting for Dr. Pratt to a rrive

Respondent began to get really sleepy. He would lean back.

He would talk to the principal with his eyes closed and his

speech became slower and sometimes slurred.

25. Dr. Pratt arrived at the school around 10:30. After

Dr. Pratt arrived Mr. Ice went with her to a separate room

from Respondent to discuss the situation.

26. Upon returning to the room where Respondent was,

Dr. Pratt heard Respondent talking about his medication and

about his alarm clocks. She observed his speech as very slow

and d eliberate, giving the appearance that Respondent was

having difficulty concentrating and focusing on what he was

saying. Dr. Pratt observed the pills laid out by Respondent.

Dr. Pratt asked Respondent if he was seeing more than one

physician, given the n umber of drugs that she observed. She

wanted to know whether Respondent's physicians were aware of

the drugs being prescribed by the other physician. Respondent

was able to respond appropriately to questions asked but he

interjected things that were irre levant to the conversation.

27. Dr. Pratt decided that she would call for a drug

test of Respondent to determine his condition. She contacted

a facility in Ocala, Florida, that was affiliated with the

school district to have that group send someone over to

administer a drug test to Respondent.

28. Respondent had expressed the desire to go back to

his classroom but Dr. Pratt and Mr. Ice did not feel that that

was an appropriate choice. Respondent wanted to get his

belongings. He left to accomplish that task. That moment was

when the decision was made to have Respondent drug tested.

The basis which Dr. Pratt had for having the test performed

was her concern about his capability to teach that day based

upon his slurred speech and difficulty concentratin g. She

believed that something he was taking had impaired his

functioning.

29. When the subject of the drug test was brought up

with Respondent, at first he said that he would not take the

test and that he would rather resign his position at the

sc hool. He was allowed to talk to the union representative

outside the presence of the school administrators on the

subject of the drug test. After that conversation he

indicated his willingness to take the test. Eventually he

refused, stating that to tak e the test was against his

principles.

30. The person to perform the drug test did not arrive

until around 1 p.m. to 1:30 p.m. Before the arrival

Respondent appeared very sleepy and put his head down on the

desk in the principal's office where he had ret urned. While

Mr. Ice and Dr. Pratt continued to talk, Respondent would

involve himself in the conversation by discussing matters that

were not relevant to the conversation.

31. Believing that Respondent was uncomfortable sitting

in the principal's offi ce, Mr. Ice asked the Respondent if he

would rather go to Ms. Yon's classroom. Ms. Yon has a small

classroom and a private office adjacent to the classroom.

Respondent agreed to go to Ms. Yon's room. He was escorted to

that room.

32. Respondent left Ms. Yon's office and went to the

classroom of Mary Kay Warner, a third grade teacher.

33. Ms. Warner has taught elementary education at

Chiefland Elementary for about 18 years. Ms. Warner

encountered Respondent in the hall around 12:30 p.m. After a

few casual remarks Ms. Warner invited Respondent to come to

her room and watch a science demonstration. While in the hall

Ms. Warner describes Respondent's demeanor as being "rather

sad." She assumed that he was "down in the dumps."

34. Once in Ms. Warner' s room Respondent sat down at a

table and the science demonstration commenced with the

students. Respondent began to say things and ask questions

and to participate in the demonstration. Respondent

encouraged Ms. Warner to call on a particular student an d then

asked some questions about some of the statements Ms. Warner

made during the demonstration. Respondent commented that it

was hot in the room. Respondent asked some questions about a

mistake Ms. Warner made concerning telephone wires as

contrasted with electrical wires. Ms. Warner had not

anticipated Respondent being part of the science

demonstration. When Respondent would interrupt the

presentation Ms. Warner tried to go along with what he

interjected to make the lesson appear normal for the chil dren.

It was not normal. At some point Ms. Warner began to notice

that Respondent "was not himself." She was concerned that

Respondent might be embarrassed in front of the students and

she did not wish the children to know that Respondent was

experien cing problems.

35. In addition to commenting about its being hot in the

room and asking Ms. Warner if she thought it was hot in the

room, Respondent sat in her chair and rolled the chair across

the room.

36. Having become concerned about Respondent 's conduct,

Ms. Warner left the room and contacted a teacher next door.

She asked that teacher to have an administrator intervene in a

manner that would not involve Ms. Warner asking Respondent to

leave the room and be overheard by the students. Ms. Warn er

made this arrangement out of concern that she did not know how

Respondent would act if she asked him to leave the room.

37. Ms. Warner took the children to the playground,

telling them they were going to recess. It was not the normal

time for recess . Although this departed from the normal

routine the children did not seem to realize that there was a

problem with Respondent.

38. Respondent left Ms. Warner's class after the

children had departed. Later in the day Respondent spoke to

Ms. Warner and s aid, "Did you narc on me? Somebody narced on

me."

39. Mr. Ice is the administrator that went to

Ms. Warner's classroom to escort Respondent from the room. He

observed Respondent sitting at Ms. Warner's desk looking very

tired, his eyes opening an d closing. Mr. Ice told Respondent

that they needed to go back to the principal's office and they

did.

40. When Mr. Ice and Respondent returned to the

principal's office, Mr. Ice expressed the opinion that

Respondent would not be capable of teaching hi s classes at

that juncture. That opinion is accepted. As a consequence

another portion of Respondent's class schedule for the day was

cancelled.

41. After returning to the office the person to

administer the drug test arrived. In that context Dr. Pratt

explained the school district's policy that if Respondent did

not take the blood test to detect drugs, his refusal would be

considered as an indication of a positive result in the test.

42. Ultimately when Respondent declined the drug test,

Mr. Ice to ld Respondent that given his condition Respondent

was going to have to leave the school campus. Arrangements

were made with Ms. Yon to take Respondent home. Respondent

initially agreed to leave the campus with Ms. Yon. Respondent

went to the door of the principal's office after Ms. Yon left

to go to her car. Respondent bumped into a metal folding

chair at the door, sat down in it and said that leaving was

against his principles and he was not going to leave. He

repeated those remarks. He was kind of s low - moving at that

point in time and a little bit defiant. Respondent kept

drinking water as he had been and commented that his throat

was very, very dry. He had taken off his shoes as he was

sitting there. He moved from the metal chair back to a small

table in the principal's office and sat down at that location.

Others pleaded with Respondent to leave, to just go home with

Linda, referring to Ms. Yon. Respondent kept saying "No," it

was against his principles.

43. Having refused to take the dru g test, having refused

to go home with Ms. Yon, Mr. Ice told Respondent that he was

going to have to call the city police and have the police

remove Respondent from the campus. Dr. Pratt agreed with this

choice. Respondent still would not cooperate. Mr. Ice called

the Chiefland Police Department and Officer Russ Hamm was

dispatched to the school.

44. A conversation ensued between Mr. Ice and Officer

Hamm in which it was agreed that Officer Hamm would try to

persuade Respondent to leave. Officer Hamm made a

considerable effort to persuade Respondent to leave the

campus. There was a concern that Respondent be gone from the

campus before the school ended to avoid students seeing

Respondent in his state. Finally when it was decided that

Respondent woul d have to be physically removed, he did not

cooperate with that choice either. Officer Hamm told the

Respondent that he was under arrest and that he was going to

be placed in handcuffs. Respondent said no, that he did not

have to comply. While Officer H amm was putting the handcuffs

on Respondent, the Respondent did not cooperate and had to be

wrestled to the ground. In effect one handcuff was placed on

Respondent and Officer Hamm had to wrestle the other arm

around and get the second arm handcuffed. Th is took place

over a minute or two. Officer Hamm had spent 10 to 15 minutes

trying to persuade Respondent to leave before making the

arrest for trespassing. Once outside, Respondent refused to

get into the patrol car. This prompted Officer Hamm to use a

taser gun which gained Respondent's cooperation.

45. Officer Hamm tried for several minutes to persuade

Respondent to get into the patrol car before using the taser

gun. In that time Officer Hamm told Respondent that school

was about to let out and t here was no reason to excite

everyone and have

all the kids seeing Respondent in handcuffs given that he was

a teacher. Respondent was then taken from the campus in the

police car. He departed around 2:00 p.m.

46. Had Respondent cooperated with the of ficer, he would

have been placed in the patrol car and driven from the campus

before the bell rang concluding the school day. The

consequence of Respondent's acts, not cooperating in the

attempt by Officer Hamm and the school administrators to

escort him out the back door before the school day ended and

into the police car, and away from the school, was that the

students were able to see Respondent being placed in the

police car.

47. Mr. Ice observed that Respondent was able to

comprehend the nature of the discussions on the date in

question concerning the questions and answers related to

Respondent's state. To that extent Respondent was coherent.

48. Mr. Ice expressed the opinion that Respondent, based

upon his observati on, was unable to perform his functions as a

School Board employee on that day and that he was

incapacitated to the extent of being incapable of doing his

job and should not have been in the presence of children.

That opinion is accepted.

49. Mr. Ice rec eived questions from teachers and staff

members about the incident but not from parents. The record

does not reveal that the questions related to Respondent's

future effectiveness as a teacher.

50. Mr. Ice expressed the opinion that Respondent's

behav ior created a condition that would be harmful to the

students' learning at Chiefland Elementary. Specifically,

Mr. Ice expressed the opinion that a teacher under the

influence of something in front of children undermines what is

trying to be accomplished in their education. That opinion is

accepted.

51. Dr. Pratt did not have any contact from parents

concerning the incident nor from teachers or staff. Persons

at the school district office were aware of the incident.

Dr. Pratt expressed the opinion th at Respondent lost his

effectiveness as a teacher, given that the community in which

Respondent taught was small in size. Dr. Pratt points out

that several teachers were involved in this incident and the

kids were being dismissed from the school at the ti me that

Respondent was being placed in the police car.

52. Mr. Ice when asked whether Respondent would be an

effective teacher after the incident on January 18, 2001,

testified "I don't know. I don't know if he could." By

contrast Mr. Ice executed a f orm involving prospective

employment provided by the School Board of Alachua County

dated April 18, 2001, speaking of Respondent's excellence as a

teacher. Respondent was no longer employed at Chiefland

Elementary following the January 18, 2001 incident. In

explaining the reference provided to Alachua County, Mr. Ice

indicated that he did not want to see Respondent's life ruined

and considered the items in the personal reference form to be

related to Respondent's abilities in the classroom. Mr. Ice

would not wish to have Respondent return to Chiefland

Elementary, given the assumed knowledge of the community about

the events of January 18, 2001. Mr. Ice is not certain if the

conduct displayed by Respondent on January 18, 2001, would

happen again. General ly speaking, Mr. Ice has expressed the

opinion that if the circumstances evidenced on the date in

question could be addressed, Mr. Ice feels that Respondent

could be an effective teacher elsewhere.

53. Respondent admits that he had taken prescribed

medi cation the same day he drank alcohol. That date was

January 17, 2001. He took medication the next morning. He

did not specify the medication by name that he took on those

dates.

54. Respondent's claim that he "blacked out" and that he

is not certain what happened after the principal visited his

classroom is not believed. The facts that Respondent does

remember and testified about beyond the encounter early in the

morning in his classroom with Mr. Ice belie that claim. In

particular, Respondent's rat her detailed explanation of what

transpired in Ms. Warner's classroom in which he acknowledges

participating in the lesson, raising his hand, rolling in the

chair across the classroom, telling Ms. Warner to call upon a

certain student and the students bein g removed from the

classroom confirm his awareness of later events in the day.

55. The remarks attributable to Dr. Godbey in his sworn

statement concerning the adverse effect which the medication

prescribed would have on Respondent in combination with

alc ohol, particularly their influence on Respondent's conduct

are matters of conjecture. He made assumptions about the

combination of drugs and when they were taken through an

hypothesis, that is not precisely grounded on facts

established in the record. Ev en if one accepts that the

medications and alcohol led Respondent to act in the manner

found in the facts, it does not excuse his conduct.

Respondent determined to take the medications in a combination

that is not clear from the record and to mix them wit h

alcohol, when he had been specifically warned by Dr. Godbey

that he should not drink alcohol, which when mixed with the

anti - depressant drugs prescribed creates a problem.

56. Dr. Godbey goes so far in his treatment summary as

to explain the January 1 8, 2001 incident by report to the

doctor from another source (presumably the North Florida

Regional Medical Center) as a psychotic episode. At the same

time Dr. Godbey acknowledges that the exact cause of the

psychotic episode has remained uncertain.

57 . Nothing in the diagnosis within the treatment

summary by Dr. Godbey or other remarks attributable to the

doctor reveals that Respondent's illness is such that it

compelled him to act in the manner evidenced on January 18,

2001.

58. On the topic of alco hol, in receiving advise from

Dr. Godbey, whether Respondent was told merely not to drink

because he does not handle alcohol well, or was told not to

drink in combination with medication he was taking, is not

important. What matters is that Respondent of his own

volition chose to drink the alcohol and combine it with

medication leading to the results that have been explained in

which his conduct on January 18, 2001, was reprehensible and

inexcusable.

59. Mr. Doyle remains in treatment by Dr. Godbey. H e is

presently taking psychotropic medication that does not appear

to interfere with his cognitive functions, nor present an

impediment to his ability to teach. As of February 17, 2003,

Respondent was still being treated by Dr. Godbey through

individual p sychotherapy in addition to the prescription of

psychotropic medications.

60. From another perspective Respondent was taken to the

North Florida Regional Medical Center in Gainesville, Florida,

following the episode in question. The impression of that

facility was that the Respondent evidenced acute altered

mental status with psychosis and acute polysubstance abuse. A

urine toxicology screen performed during his stay at that

facility revealed Respondent was positive for amphetamines,

positive for benzo diazepines, positive for opiates, and

positive for tricyclics.

Leaving the Scene of an Accident Without Injuries

61. Respondent was charged in the County Court of the

Eighth Judicial Circuit for Alachua County, Florida, Case

No. 98 - 02397 - TC - A, State of Florida vsoy Kevin Doyle . The

offense charged was leaving the scene of an accident without

injuries in violation of Section 316.061, Florida Statutes.

The offense occurred on July 4, 1998, in Alachua County,

Florida. On October 1, 1998, Responden t pled nolo contendre

to the offense in open court. In that plea, which the Court

found to be freely, knowingly, and voluntarily entered, a

stipulation was reached by the parties acknowledging damage to

property other than to Respondent's vehicle. It was explained

and Respondent acknowledged that the maximum sentence in the

case was sixty days in jail, as well as a $500.00 fine. When

the matter was concluded, Respondent did not have any

questions or any statement in opposition to the plea which was

arran ged in his presence. Neither did his attorney. The

judge found Respondent guilty and withheld the adjudication

and placed Respondent on court - supervised probation for a

period of six months. There was no requirement to report

during the probationary per iod. Respondent was also ordered

to pay court costs in the amount of $244.00. Respondent was

required to complete 20 hours of community service and provide

proof of that service.

62. Subsequently, Respondent completed an application

for renewal of hi s professional Florida Educator's

Certificate. That application for renewal was made on October

19, 2000. The signature on the application was notarized. It

stated a reminder to Respondent of the consequences if he did

not make certain that the matters contained in the application

were true, correct, and complete and the consequences if

Respondent was not forthcoming in his answers to the questions

within the application, wherein the application form stated,

"I understand that Florida Statutes provide fo r revocation of

an Educator's Certificate if evidence and proof are

established that the certificate has been obtained by

fraudulent means. I further certify that all information

pertaining to this application is true, correct, and

complete."

63. Within the application was a question which stated:

Have you ever been convicted, found guilty,

had adjudication withheld, entered a

pretrial diversion program, or pled guilty

or nolo contendere (no contest) to a

criminal offense other than a minor traffic

violat ion (DUI is NOT a minor traffic

violation)? Failure to answer this

question accurately could cause denial of a

certificate.

A YES or NO answer is required by Florida

Law. If you check the YES box, you must

give the information requested for each

charge. Please attach a separate sheet if

you need more space.

Report any record other than SEALED or

EXPUNGED records in this section.

Notwithstanding the fact that Respondent had been found guilty

and had adjudication withheld following a plea of nolo

con tendre to the offense involving Section 316.061, Florida

Statutes, he did not acknowledge the plea and provide further

information. The offences related to Section 316.061, Florida

Statutes, are misdemeanors of the second degree, crimes

punishable as prov ided in Section 775.02 or 775.03, Florida

Statutes.

64. Respondent, in his testimony, indicated that no one

told him what was meant in the application to renew his

teaching certificate concerning the question pertaining to

criminal offenses where it exe mpted the reporting of minor

traffic violations. It was not necessary that the application

further define "minor traffic violation." It suffices that

Respondent appeared in the County Court for Alachua County,

Florida, in a criminal case and entered a pl ea of nolo

contendre to an offense involving a misdemeanor of the second

degree. Nothing in that process would reasonably lead

Respondent to conclude anything other than the fact that the

case before the court was more serious than a minor traffic

violati on. When Respondent answered the question in the

application in the negative, he failed to answer the question

candidly. He did this in a setting in which he knew or should

have known that adverse consequences would pertain for

providing a negative respo nse to the question. If Respondent

was unsure what was meant by the question which refers to a

minor traffic violation being exempt from disclosure, he

should have inquired as to the meaning. The hearing record

does not reveal that he made inquiry to cla rify the meaning of

that term before completing the application.

Prior Performance

65. When classroom teacher evaluations were performed on

March 17, 1998, and March 30, 1999, Respondent was found to

meet proficiency or above the expected level of perfo rmance.

In the school year 1999/2000, optional performance appraisal

form dated May 12, 2000, Respondent had been rated as having

exemplary overall performance.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction over th e parties and the subject matter in

accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

67. When the Administrative Complaint in this case was

brought, it charged violations of Section 231.2615(1)(c), (f),

and (i), Florida Statutes, within Counts 1 through 3,

respectively. The substantive provisions in those counts are

now found in Section 1012.795(1)(c), (f) and (i), Florida

Statutes. With this change, jurisdiction has been retained

over the allegations in the original Administrative Comp laint.

Solloway vs. Department of Professional Regulation , 421 So. 2d

573 (Fla. 3rd DCA 1982).

68. Petitioner bears the burden of proving the

allegations in the Administrative Complaint by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The definition of clear and convincing evidence

is found in the case Slomowitz v. Walker , 429 So. 2d 797 (Fla.

4th DCA 1983).

69. The consequence of any violation of counts alleged

in the Administrative Complaint is described at Section

1012.795(1), Florida Statutes, where it states that

Petitioner:

1012.795 Education Practices Commission;

authority to discipline. --

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

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); may revoke the

educator certificate of any person, there by

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); may revoke

permanently the educator certificate of any

person; . . . or to impose any other

penalty provi ded by the law provided it can

be shown that such person: . . .

70. Count 1 to the Administrative Complaint presently

charges Respondent of a violation of Section 1012.795(1)(c),

which alleges Respondent:

Has been guilty of gross immorality

or an act involving moral turpitude.

71. As the court has held, "by virtue of their

leadership capacity, teachers are traditionally held to a high

moral standard in a community." Adams vs. Professional

Practices Council , 46 So. 2d 1170, 1171 (Fla. 1st DC A 1981).

As a teacher, it is not necessary that Respondent ". . . be

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

revocation of a certificate based on conduct reflecting gross

immorality or moral turpitude. . . ." Walton v. Turlington ,

444 So. 2d 1082, 1084 (Fla. 1st DCA 1984).

72. To understand the meaning of "gross immorality" or

"moral turpitude", resort is made to provisions within

Chapter 6B - 4, Florida Administrative Code, defining terms for

the benefit of district school systems i n disciplining

instructional staff.

73. Rule 6B.4009(2), Florida Administrative Code,

defines immorality as:

[C]onduct that is inconsistent with

standards of public conscience and good

morals. It is conduct sufficiently

notorious to bring the individual concerned

or the educational profession into public

disgrace or disrespect and impair the

individual's service in the community.

For the conduct to be considered grossly immoral, it would

need to be a form of immorality that is obvious and

inexcusable.

74. In connection with the discipline to be imposed by

the district school system for its instructional staff "moral

turpitude" is defined at Rule 6B - 4.009(6), Florida

Administrative Code, as a:

Crime that is evidenced by an act of

baseness, vileness, or depravity in the

private and social duties which, according

to the accepted standards of the time, a

man owes to his or her fellowman or to

society in general, and the doing of the

act itself and not its prohibition by

statute fixes the moral turpitude.

A gain, it is not necessary that a crime be committed in order

to demonstrate moral turpitude.

75. When measured against these definitions,

Respondent's conduct at his school on January 18, 2001,

reached the level of gross immorality. His display on that

o ccasion was obvious and inexcusable and certainly immoral.

He chose to combine the prescribed medications with the

alcohol. He was sufficiently aware of his acts to be

responsible for them, but his conduct was not so severe as to

reflect moral turpitude. Respondent violated Section

1012.795(1)(c), Florida Statutes.

76. Count 2 to the Administrative Complaint charges

Respondent with a violation of Section 1012.795(1)(f), Florida

Statutes, in that Respondent allegedly:

Upon investigation, has been f ound guilty

of personal conduct which seriously reduces

that person's effectiveness as an employee

of the district school board.

This violation has not been shown. The opinions expressed by

the school principal and district director of personnel were

conclusory in nature. The actual consequences of the

misconduct concerning Respondent's ability to continue as an

effective employee of the school district has not been

established from the perspective of teachers, students,

parents, guardians, or t he overall community. See Braddock

vs. School Board of Nassau County , 455 So. 2d 394 (Fla. 1st

DCA 1984); and MacMillan vs. Nassau County School Board , 629

So. 2d 226 (Fla. 1st DCA 1993).

77. Count 3 to the Administrative Complaint charges

Respondent wit h the violation of Section 1012.795(1)(i),

Florida Statutes, wherein it is alleged that Respondent:

Has violated the Principles of Professional

Conduct for the Education Profession

prescribed by State Board of Education

rules.

For these purposes, the Pri nciples of Professional Conduct for

the Education Profession are particularly described in the

remaining counts to the Administrative Complaint. Therefore,

a violation of any count beyond Count 3 would also constitute

a violation of Count 3.

78. Count 4 to the Administrative Complaint charges

Respondent with a violation of Rule 6B - 1.006(3)(a), Florida

Administrative Code, which states his obligation to the

student requires that the Respondent:

Shall make reasonable effort to protect the

student from co nditions harmful to learning

and/or to the student's mental and/or

physical health and/or safety.

By his actions in Ms. Warner's class and outside the school

while being put in the police car, Respondent violated Rule

6B - 1.006(3)(a), Florida Administrati ve Code.

79. Count 5 to the Administrative Complaint charges

Respondent with a violation of Rule 6B - 1.006(5)(a), Florida

Administrative Code, which identifies Respondent's obligation

to his profession by requiring that he:

Shall maintain honesty in all professional

dealings.

80. Count 6 to the Administrative Complaint charges

Respondent with a violation of 6B - 1.006(5)(h), Florida

Administrative Code, which identifies his obligation to his

profession by requiring that Respondent:

Shall not submit fraudu lent information on

any document in connection with

professional activities.

81. In renewing his application for his educator's

certificate, Respondent failed to maintain honesty in his

professional dealings. He submitted false information on a

document in connection with his professional activities.

Therefore he violated Rule 6B - 1.006(5)(a)and (h), Florida

Administrative Code. He committed the violations by his

failure to disclose that in open court and under explanation

he had pled nolo contendre to a violation of Section 316.061,

Florida Statutes, had been found guilty, and had adjudication

withheld in connection with his leaving the scene of an

accident without injuries. This is a criminal offense,

punishable in court as a second degree misdemeanor pursuant to

Sections 775.082 and 775.083, Florida Statutes. Any

reasonable reading of the question in the application for

renewal of an educator's certificate pertaining to criminal

history would lead one to believe that the offense of leaving

the scene of an accident without injury is not a minor traffic

violation subject to exemption from disclosure. No indication

was made in the record that Respondent, before answering the

question concerning any criminal record, inquired of those

persons responsible for reviewing his application for renewal.

The purpose of that inquiry would have been to ascertain

whether prior precedent or policy would allow an applicant not

to disclose an offense in association with Section 316.061,

Florida Statutes, because it was a minor traffic violation. 2/

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law

reached, it is

RECOMMENDED:

That a final order be entered which finds Respondent in

violation of Count 1, and Counts 3 through 6; dismisses Count

2; an d revokes Respondent's educator's certificate for a

period of two years.

DONE AND ENTERED this 16th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, 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 16th day of July, 2003.

ENDNOTES

1/ This case commenced before the State of Florida, Education

Practices Commission, Case No. 001 - 1338 - A, Charlie Crist, as

Commissioner of Education, P etitioner vsoy Doyle,

Respondent . Charlie Crist now serves as Florida Attorney

General. Jim Horne is the Commissioner of Education. The

style in the case was corrected to reflect those changes.

2/ The case in Betty Castor v. Rick Sapp (Fla. Div . Admin.

Hrgs) Case No. 88 - 1653, is internally inconsistent in its

discussion of whether Section 316.061, Florida Statutes, is a

minor traffic violation or a criminal offense. Therefore, its

value as precedent is disregarded.

COPIES FURNISHED:

Ginger L. Barry, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Tallahassee, Florida 32301

H. B. Stivers, Esquire

Levine, Stivers, and Myers

245 East Virginia Street

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education P ractices 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 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 recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.