06-005297 Anitra Grant vs. John Winn, As Commissioner Of Education Status: Closed Recommended Order on Thursday, August 30, 2007.

Summary: Petitioner abandoned her classroom and endangered the safety of her students. Recommend that the Education Practices Commission grant an application for a temporary teacher`s certificate and place Petitioner on a two-year probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANITRA GRANT , )

)

Petitioner, )

)

vs. ) Case No. 06 - 5297

)

JEANINE BLOMBERG , )

as COMMISSIONER OF EDUCATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hea ring was held in this case

on Ma y 1 5, 200 7 , in Miami, Florida, before Patricia M. Hart, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Dedrick Straghn, Esquire

26 Southwest 5th Avenue

Delray Beach, Florida 33444

For Respondent: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort La uderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether the Petitioner's application for a temporary

Florida's Educator's Certific ate should be granted or denied for

the reasons set forth in the Amended Notice of Reasons filed

March 8, 2007.

PRELIMINARY STATEMENT

In a letter dated February 17, 2005, John L. Winn, then

Commissioner of Education ("Commissioner") , notified Anitra

Grant that her application for a Florida Educator's Certificate

had been denied pursuant to Section 1012.56(10), Florida

Statutes (2005), on the grounds that , as set forth in the Notice

of Reasons accompanying the letter, she had "committed an act or

acts or . . . a situation exists for which the Education

Practices Commission would be authorized to revoke a teaching

certificate." I n the eight - count Notice of Reasons transmitted

with the February 17, 2005, letter , Commissioner Winn charged as

follows :

(a) Count 1: Ms. Grant was in violation of

"Section 1012.56(2)(e), Florida Statutes, which requires that

the holder of a Florida Edu cator's Certificate be of good moral

character";

(b) Count 2: Ms. Grant was in violation of

Section 1012.56(10)(a), Florida Statutes, which allows the

Department of Education to "deny an Applicant a certificate if

the department possesses evidence satisf actory to it that the

Applicant has committed an act or acts, or that a situation

exists for which the Education Practices Commission would be

authorized to revoke a teaching certificate";

(c) Count 3: Ms. Grant was in violation of

"Section 1012.795(1)(c ), Florida Statutes, in that she has been

guilty of gross immorality or an act involving moral turpitude";

(d) Count 4: Ms. Grant was in violation of

" Section 1012.795(1)(f), Florida Statutes, in that she has been

found guilty of personal conduct which s eriously reduces her

effectiveness as an employee of the school board";

(e) Count 5: Ms. Grant was in violation of

" Section 1012.795(1)(i), Florida Statutes, in that she has

violated the Principles of Professional Conduct for the

Education Profession pre scribed by State Board of Education

rules";

(f) Count 6: Ms. Grant was " in violation of Rule 6B -

1.006(3)(a), Florida Administrative Code, in that Applicant has

failed to make reasonable effort to protect the student from

conditions harmful to learning an d/or to the student's mental

he alth and/or physical health and /or safety";

(g) Count 7: Ms. Grant was " in violation of Rule 6B -

1.0 06(3)(e ), Florida Administrative Code, 1 in that Applicant has

intentionally exposed a student to unnecessary embarrassment o r

disparagement"; and

(h) Count 8: Ms. Grant was " in violation of Rule 6B -

1.006(5)(d), Florida Administrative Code, in that Applicant has

engaged in harassment or discriminatory conduct which

unreasonably interfered with an individual's performance of

pr ofessional or work responsibilities or with the orderly

processes or education of which created a hostile, intimidating,

abusive, offensive, or oppressive environment; and further,

failed to make reasonable effort to assure that each individual

was protect ed from such harassment or discrimination."

The violations were based on allegation s that , on or about

October 24, 2001, Ms. Grant improperly disciplined a sixth - grade

student and directed profanity at the student ; that , on or about

October 25, 2001, she r efused to allow three students entrance

into her classroom because they were late even though she had

been directed by an assistant principal to do so ; that she left

the school campus and left her students unattended; that she

directed profanity at a teach er and an assistant principal as

she was leaving campus; that she failed to report to work on

October 26 and 29, 2001; and that she failed to inform school

admin istrators that she would not report for work on those days.

Ms. Grant timely disputed the charg es and requested an

administrative hearing. The Commissioner transmitted the matter

to the Division of Administrative Hearings for assignment of an

administrative law judge. Pursuant to notice, after several

continuances, the final hearing was held on Ma y 15, 2007.

Prior to the hearing, the Commissioner requested leave to

amend the Notice of Reasons. The request was granted in an

Order dated March 16, 2007, and the Amended Notice of Reasons

filed March 8, 2007, was acce pted as the charging document in

th is case. Neither the factual basis for the charges nor the

charges themselves were altered in the Amended Notice of

Reasons; the only amendment was an expanded recitation of the

possible sanctions that could be imposed were Ms. Grant to be

found guilty of the charges on which the denial of her license

was based. 2

At the hearing, the Commissioner presented her evidence

first and presented the testimony of Detective Derrick Gordon,

Robert Perez, Lena Sierra, Edward G. Robinson, Mariana M.

Gonzalez, and Lourd es Delgado. Respondent's Exhibits 1 through

6, 16 and 17, 21 and 22, 24, and 27 were offered and received

into evidence. Ms. Grant testified in her own behalf and

presented the testimony of Michelle McCray; Petitioner's

Exhibits 1 through 3 were offered and received into evidence.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on June 15, 2007, and,

after having been granted an extension of time, the parties

timely filed proposed findings of fact and co nclusions of law,

which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of f act are made: 3

1. The Commissioner is the state agent responsible for

investigating and prosecuting complaints against teachers. See

§ 1012.796(6), Fla. Stat. (2007 ) . 4 The Education Practices

Commission is the state agency responsible for imposing

disci pline on teachers, including the denial of an application

for an educator's certificate. See § 1012.796(7)(a), Fla. Stat.

2 . Ms. Grant was employed as a teacher by the Miami - Dade

County School Board during the 2000 - 2001 and 2001 - 2002 school

years. Ms. G rant did not teach in the Miami - Dade County public

school system subsequent to October 25, 2001.

3 . Ms. Grant held a temporary teaching certificate under

which she taught at all times material to this proceeding.

Ms. Grant is currently not employed but i s taking college

courses.

4 . Ms. Grant 's first year as a teacher was the 2000 - 2001

school year, and she taught in the Miami - Dade County school

system at Shenandoah Middle School . Ms. Grant ha s a degree in

mathematics, but she did not have a degree in edu cation and had

no teaching experience when she began teaching at Shenandoah

Middle School. Ms. Grant's first year as a teacher was very

difficult and stressful for her. Nonetheless, she received a

satisfactory evaluation for the 2000 - 2001 school year.

5 . Ms. Grant returned to Shenandoah Middle School for the

2001 - 2002 school year and taught mathematics to sixth graders.

6 . On October 24, 2001, Ms. Grant was taking her class

back to her classroom from lunch when several s tudents in the

line began to misb ehave and engage in "horseplay." O ne student

was tripping, kicking, and/ or stepping on the feet of another

student , and Ms. Grant told the student several times to stop

playing around . The student continued to trip, kick, and/ or

step o n the feet of the o ther student , who was getting angry .

Ms. Grant saw that the two students were about to get into an

altercation and that other students in the line were becoming

agitated and were pushing one another. Ms. Grant decided that

she needed to intervene to calm the class down and to prevent

harm to the students, and she briefly grabbed either the arm or

the shirt of the student who was tripping, kicking or stepping

on the feet of the other student to restrain him from engaging

in disruptive behavior.

7 . A n other incident involving Ms. Grant occurred at

Shenandoah Middle School on the morning of October 25, 2001 .

There was a disturbance at the school and the principal , Lourdes

Delgado, made an announcement requesting that the teachers keep

all students inside the ir classrooms. Ms. Delgado sent the

school's assistant principals to patrol the hallways and make

sure all of the students were in classrooms.

8 . Mariana Gonzalez, an assistant principal at Shenandoah

Middle School, was on her way to the second floor of the

building when she noticed several children standing in the

hallway outside Ms. Grant's classroom. Ms. Gonzalez approached

the children and asked why they were in the hallway. The

children responded that Ms. Grant had told them to stay outside

the cla ssroom door.

9 . The door to Ms. Grant's classroom was closed.

Ms. Gonzalez knocked on the door and asked Ms. Grant to take the

children inside. Ms. Grant refused because they had been a

minute late to class. Ms. Gonzalez again asked Ms. Grant to

take t he children into the classroom, explaining that the halls

had to be cleared and that she had to go upstairs and could not

stay with the children. Ms. Grant again refused to allow the

children inside the classroom because they had been late to

class. Ms. Grant told Ms. Gonzalez that she should take the

children with her. Ms. Gonzalez could not take the children,

and she told them to go inside Ms. Grant's classroom and wait

for her . Ms. Gonzalez observed that Ms. Grant was angry, and

she told Ms. Grant th at she would be back to deal with the

situation. Ms. Gonzalez closed the door to Ms. Grant's

classroom and left to go to the second floor.

10 . When Ms. Gonzalez returned from the second floor, she

went to the office and told Ms. Delgado about the problem she

had had with Ms. Grant. Ms. Gonzalez and Ms. Delgado were on

their way to Ms. Grant's classroom when they saw Ms. Grant

walking down the hall leading out of the building to the east

parking lot of the school. Ms. Grant did not address

Ms. Gonzalez o r Ms. Delgado, she just stated in a loud voice

that she was "tired of t his" and that she was leaving.

11 . Robert Perez, a teacher at Shenandoah Middle School,

encountered Ms. Grant in the school parking lot. Ms. Grant was

standing in the parking lot, vis ibly upset. Mr. Perez noticed

that a vehicle was blocking Ms. Grant's car so she could not

leave the parking lot, and Ms. Grant loudly asked Mr. Perez:

"Is this your fucking damn truck?" Mr. Perez responded that it

was not his truck and walked away as M s. Grant continued to

speak.

12 . Ms. Grant left the parking lot and went to the main

lobby of the school's attendance office. Dr. Edward Robinson,

an assistant principal at Shenandoah Middle School, was

conducting a parent conference in his office, which was adjacent

to the main lobby of the attendance office. He heard a

commotion, and, when he went out into the office lobby to

investigate the source of the commotion, Ms. Grant demanded that

he make an announcement over the public address system that the

vehicle blocking her car in the parking lot needed to be moved.

13 . Dr. Robinson told Ms. Grant he needed Ms. Delgado's

permission to make such an announcement because it was during

the instructional part of the school day. Ms. Grant insisted

that he im mediately get permission to make the announcement.

When Dr. Robinson asked Ms. Grant to be patient, she called him

an "Uncle Tom," which he found extremely offensive.

14 . At this point, Dr. Robinson asked Ms. Grant to move

into a private office. She ref used . She remained in the main

lobby of the attendance office, demanding that someone make an

announcement about the vehicle blocking her car , stating that

she wanted to "get out of here."

15 . Ms. Grant also stated , while standing in the main

lobby of th e attendance office, that she was tired of the

"motherfucking" school , and she also used the word "fuck"

several times during her outburst , although never directed at

Dr. Robinson or any individual .

1 6 . Ms. Grant's use of profanity in the office area was

overheard in part by at least one teacher, and several school

employees came out of their offices to investigate the source of

the commotion. Ms. Grant's voice was loud enough to be heard

throughout the office area , in which there were parents and

student s. 5

17. Dr. Robinson eventually found the person whose car was

blocking Ms. Grant's, the vehicle was moved, and Ms. Grant left

the school.

18 . Ms. Grant left Shenandoah Middle School on October 25,

2001, without permission, and she left her classroom una ttended.

It was necessary to obtain an emergency substitute teacher, and

Ms. Gonzalez supervised the students in Ms. Grant's classroom

until a substitute was available.

19 . If a teacher is not able to attend school on a

particular day, school policy requ ires that he or she call in as

early as possible to report their absence so that the school can

obtain a substitute teacher to cover the absent teacher's

classroom.

20 . Ms. Grant did not show up at school on October 26,

2001, and she did not telephone the school to report that she

would not be coming in. Ms. Grant did not show up at school on

October 27, 2001, but she telephoned at around 11:00 a.m. to

request six days' sick leave. It was necessary for the school

to obtain emergency coverage of Ms. Grant 's classroom.

21 . Ms. Grant did not return to the Shenandoah Middle

School campus after October 25, 2001, except to collect her

personal belongings from her classroom.

22 . A Preliminary Personnel Investigation was completed on

December 19, 2001, regardin g the incident that allegedly took

place on October 24, 2001 , during which Ms. Grant was accused of

having grabbed a student's shirt and having pushed him into a

wall. The investigator took the statements of witnesses and of

Ms. Grant and concluded that t he charges that Ms. Grant

inflicted corporal punishment on a student in violation of

Miami - Dade County School Board Rules 6Gx13 - 5D - 1.07 and 6Gx13 - 4A -

1. 21 were substantiated.

23 . A Preliminary Personnel Investigation was completed on

January 14, 2002, rega rding the incident that took place on

October 25, 2001. The investigator took statements from

witnesses and concluded that the charges that Ms. Grant left her

classroom unattended and used profanity in front of Dr. Robinson

and Mr. Perez in violation of M iami - Dade County School Board

Rule 6Gx13 - 4A - 1.21 were substantiated.

24 . On February 7, 2002, Ms. Delgado recommended to the

Miami - Dade County School Board's Regional Superintendent that

Ms. Grant's employment with the Miami - Dade County School Board

be te rminated. Ms. Delgado had no personal knowledge of the

October 24, 2001, incident and had very little personal

knowledge about Ms. Grant's behavior on October 25, 2001.

Consequently, Ms. Delgado based her termination recommendation

on the information con tained in the two Preliminary Personnel

Investigation reports and the conclusions of the investigators

that the charges against Ms. Grant were substantiated.

25 . At its meeting on June 19, 2002, the Miami - Dade County

School Board took action to suspend Ms . Grant and initiate

dismissal proceedings against her. Ms. Grant did not request a

hearing, and the dismissal became final.

26 . In Dr. Robinson's opinion, Ms. Grant's actions on

October 25, 2001, were the result of a number of stress factors

that had ac cumulated throughout her time at Shenandoah Middle

School. During both the 2000 - 2001 and the 2001 - 2002 school

years, Ms. Grant asked Dr. Robinson and others for assistance on

a number of occasions, but she felt that she was not given the

assistance that s he needed by other teachers and by

administrators in learning techniques of classroom management

and in dealing with the problems she had communi cating with

students' parents. 6 Although Dr. Robinson tried to help

Ms. Grant deal with classroom management a nd with irate parents,

he was not the administrator responsible for the sixth grade and

so was unable to spend a lot of time working with her.

27 . During the year and a half that Ms. Grant taught at

Shenandoah Middle School prior to October 25, 2001, neit her

Dr. Robinson nor Ms. Gonzalez, both assistant principals,

observed Ms. Grant behaving in an unprofessional or

inappropriate manner, nor had they heard any complaints of

Ms. Grant's acting in an unprofessional or inappropriate manner

towards students, f ellow teachers, or parents.

28 . Ms. Grant taught at a Broward County high school

during the 2004 - 2005 school year, beginning shortly before

Christmas break and continuing for the remainder of the school

year. She then moved to Palm Beach County and taugh t at

Atlantic Community High School during the 2005 - 2006 school year.

She received an overall "Satisfactory" evaluation for the 2005 -

2006 school year, and was found "acceptable" in all evaluation

categories.

29 . During the 2005 - 2006 school year, Ms. Gran t acted as a

mentor to a new teacher at Atlantic Community High School and

provided a great deal of assistance to this teacher, even after

she left the school on maternity leave. During the year she

taught in the classroom next to Ms. Grant's, the new tea cher did

not hear any complaints about Ms. Grant from either students or

teac hers, and she never saw Ms. Grant behave in an

unprofessional or disrespectful manner toward students,

teachers, or administrators.

Findings of Ultimate Facts 7

30 . The Commissio ner failed to introduce any credible

evidence to support the allegation s in the Amended Notice of

Reasons that Ms. Grant improperly disciplined a student by

grabbing his shirt and pushing him into a wall, causing him to

sustain minor injuries, and with hav ing directed profanity at

the student. The only evidence the Commissioner present ed was

the Preliminary Personnel Investigative report completed

December 19, 2001 , and the testimony of Ms. Delgado . The victim

and witness statements, the statement summari es, and the

conclusions of the investigator contained in the Preliminary

Personnel Investigation report are hearsay that cannot support a

finding of fact. See § 120.57(1)(c), Fla. Stat. Ms. Delgado

had no personal knowledge of the incident and relied for her

recommendation of termination exclusively on the information

contained in the Preliminary Personnel Investigation report and

the conclusion that the charges were substantiated. The only

direct evidence of this incident was presented by Ms. Grant, and

this evidence establishes that Ms. Grant briefly restrained the

student in order to prevent him from harming or causing harm to

other students.

31 . The evidence presented by the Commissioner is not

sufficient to establish that Ms. G rant lacks good moral

character. Ms. Grant's behavior in using profanity in front of

Mr. Perez in the parking lot and in the lobby of the attendance

office on October 25, 2001, was unprofessional and unacceptable,

no matter how stressful she found her teaching job at Shenandoa h

Middle School and no matter how upset Ms. Grant was at

Ms. Gonzalez's placing the three tardy students inside her

classroom. Ample evidence was presented, however, to establish

that Ms. Grant had not previously exhibited any unprofessional

behavior whil e teaching at Shenandoah Middle School ; that

Ms. Grant has taught successfully in both the Broward County and

Palm Beach County public school systems subsequent to the events

at issue herein; and that Ms. Grant is looked upon as a mentor

by at least one be ginning teacher. Ms. Grant's behavior at

Shenandoah Middle School on October 25, 2001, was an isolated

incident and does not constitute a sufficient basis on which to

find that she lacks good moral character. The totality of the

evidence presented is suf ficient to establish that, under the

circumstances presented in this case, Ms. Grant possesses good

moral character.

32 . The Commissioner failed to present sufficient evidence

to establish that the acts committed by Ms. Grant on October 25,

2001, constitu te acts of gross immorality or of moral turpitude.

Ms. Grant's behavior, while unprofessional and unacceptable in a

school setting, was not so flagrantly inconsistent with the

public co nscience and moral standards as to be grossly immoral

and did not exhi bit the vileness, baseness or depravity required

for acts of moral turpitude.

33 . The Commissioner failed to present any evidence to

establish that Ms. Grant 's conduct on October 25, 2001, would

red uce her current or future effectiveness as a school board

employee. The evidence does establish that Ms. Grant has been

an effective employee of the Palm Beach County School Board ,

having received a satisfactory evaluation for the 2005 - 2006

school year.

34 . The evidence presented by the Commissioner is not

suf ficient to establish that , by briefly restraining an unruly

student on October 24, 2001, Ms. Grant exposed any student to

unnecessary embarrassment or disparagement. Nor is the evidence

presented by the Commissioner sufficient to establish that

Ms. Grant engaged in harassment of or discriminatory conduct

toward a colleague when she call ed Dr . Robinson an "Uncle Tom"

and us ed profanity in front of Mr. Perez in the parking lot and

in front of Dr. Robinson and other staff members in the lobby of

the attendanc e office . Ms. Grant did not direct profanity at

any individual , and her insistence that the car blocking her car

in the parking lot be moved did not rise to the level of

harassment . A lthough Dr. Robinson was deeply offended by

Ms. Grant's calling him an "Uncle Tom," the Commissioner failed

to present any evidence that Dr. Robinson considered this remark

discriminatory.

35 . The evidence presented by the Commissioner is

sufficient to establish that, by abandoning the students in her

classroom on October 25 , 2001, Ms. Grant failed to m ake

reasonable efforts to protect her students' safety.

36 . The Commissioner also presented sufficient evidence,

through the testimony of Ms. Delgado, to establish that

Ms. Grant failed to report to work at Shenandoah Middle S chool

on October 26 and 27 , 2001, and was late calling in on

October 27, 2001, and that her failure to report to work or call

the school timely violated the school's procedures. Although

this conduct may have provided a basis on which Ms. Grant's

employme nt with the Miami - Dade County School Board was

terminated, this conduct does not constitute a violation which

would allow the revocation of a teacher's certificate .

37 . Finally, it is undisputed that Ms. Grant's employment

with the Miami - Dade County Schoo l Board was terminated in or

about June 19, 2002. 8 Ms. Grant's termination does not, however,

constitute a violation for which a teacher's certificate may be

revoked.

CONCLUSIONS OF LAW

38 . The Division of Administrative Hearings has

jurisdiction over t he subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 1 20.57(1),

Florida Statutes .

39 . Because Ms. Grant has applied for a temporary

teacher's certificate, she has the burden of proving by a

preponderance of the evidence that she meets all the

requirements for receiving such certificate. See Department of

Banking & Fin. v. Osborne Stern , 670 So. 2d 932, 934 (Fla.

1996)("[W]hile the burden of producing evidence may shift

between the parties in an application dispu te proceeding, the

burden of persuasion remains upon the applicant to prove her

entitlement to the license."); § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proc eedings

or except as otherwise provided by statute . . . ."). The

preponderance of the evidence standard requires proof by "the

greater weight of the evidence," Black's Law Dictionary 1201

(7th ed. 1999), or evidence that "more likely than not" tends to

p rove a certain proposition. See Gross v. Lyons , 763 So. 2d

276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v.

State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) quoting

Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

Count 1: Good moral cha racter

40 . Based on the factual allegations in the Amended Notice

of Reasons, the Commissioner charged that Ms. Grant did not meet

the standard in Section 1012.56(2)(e), Florida Statutes, 9 that an

applicant for certi fica tion as an educator in Florida "[b ] e of

good moral character."

41 . "Good moral character " has been defined by the court

in Zemour, Inc. v. State Div. of Beverage , 347 So. 2d 1102, 1105

(Fla. 1st DCA 1977), as follows:

Moral character, . . . means not only the

ability to distinguish betw een right and

wrong, but the character to observe the

difference; the observance of the rules of

right conduct, and conduct which indicates

and establishes the qualities generally

acceptable to the populace for positions of

trust and confidence. An isolat ed unlawful

act or acts of indiscretion wherever

committed do not necessarily establish bad

moral character.

The court in Zemour also indicated that the lack of good moral

character can be shown by " repeated acts in violation of law

wherever committed and generally condemned by law abiding

people, over a long period of time ." See also Bachynsky v.

State, Dep't of Professional Regulation, Bd . of Medical

Examiners , 471 So. 2d 1305, 1311 (Fla. 1st DCA 1985)("[A] n

isolated unlawful act or acts of indiscretion wherever committed

do not necessarily establish bad moral character. ")

42 . Based on the findings of fact herein and the legal

standard stated above , Ms. Grant has sustained her burden of

prov ing by a preponderance of the evidence that she possesses

good moral character . Section 1012.56(2)(e), Florida Statutes,

therefore, does not bar the approval of her application for a

temporary teacher's certificate.

Count 2: Offenses for which a teaching certificate may be

revoked.

43 . Section 1012.56 (11) (a), Flor ida Statutes, 10 provides

that "[t] he Department of Education may deny an applicant a

certificate if the department possesses evidence satisfactory to

it that the applicant has committed an act or acts, or that a

situation exists, for which the Education Pra ctices Commission

would be authorized to revoke a teaching certificate. " The

Commissioner has included this as a separate count in the

Amended Notice of Reasons, but it is clear on the face of the

statute that this is not a separate ground for denial of a n

application for a teaching certificate. Rather, th e statute

incorporates the violations set forth in Section 1012.795,

Florida Statutes , for which disciplinary action may be taken

against a teacher and provides the Commissioner with the legal

authority to preliminarily deny Ms. Grant's application i f she

proves that Ms. Grant committed the violations set forth in

Counts 3, 4, and 5.

44 . Although the burden of proving entitlement to a

license or certificate always rests with the applicant, an

agency must prove by a preponderance of the evidence that the

applicant committed the violations on which the decision to deny

the application is based when the agency bases its decision on

acts that would support the revocation or suspension of a

license or certific ate or that would justify the imposition of

disciplinary sanctions . See Department of Banking & Fin. v.

Osborne Stern , 670 So. 2d 932, 934 (Fla. 1996)("[T]he Department

had the burden of presenting evidence that appellants

[applicants] violated certain st atutes and were thus unfit for

registration."); § 120.57(1)(j), Fla. Stat. ("Findings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute . . . .") T herefore, the

Commissioner bears the burden of proving that Ms. Grant

committed the statutory and rule violations set forth in the

Amended Notice of Reasons.

Count 3: Gross immorality and acts of moral turpitude

45 . Based on the factual allegations in t he Amended Notice

of Reasons, the Commissioner charged Ms. Grant in Count 3 with

violating Section 1012.795(1)(c), Florida Statutes, which

provides that a teacher may be disciplined if he or she "[h]as

been guilty of gross immorality or an act involving mo ral

turpitude. " Section 1012.795(1)(c) does not contain a

definition of gross immorality or of moral turpitude.

46 . "Immorality" is , however, defined in Florida

Administrative Code Rule 6B - 4.009(2) as "conduct that is

inconsistent with the standards of p ublic conscience and good

morals. " 11 "Gross immorality," by its terms, must inv olve

conduct more offensive than immoral conduct. "Gross immorality"

has been defined as follows:

[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

flagrant disregard of proper moral

standards." Education Practices Commission

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

Education 198 1).

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

(EPC Sept. 27, 1996). Taking these two definitions together,

then, it can be said that "gross immorality," as that term is

used in Section 1012.795(1)(c), Florida Statutes, involves

conduct th at is serious and flagrantly inconsistent with the

public conscience and proper moral standards.

47 . "Moral turpitude" has been defined in Florida

Administrative Code Rule 6B - 4.009(6) as a:

[c]rime that is evidenced by an act of

baseness, vileness, or dep ravity 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.

48 . The court in State ex rel. Tullidge v. Hollingsworth ,

146 So. 660, 661 (1933), observed that moral turpitude

involves the idea of inherent baseness or

depravity in the private social relations or

duties owed by man to man or by man to

society. . . . It ha s also been defined as

anything done contrary to justice, honesty,

principle, or good morals, though it often

involves the question of intent as when

unintentionally committed through error of

judgment when wrong was not contemplated.

49 . In Adams v. Pro fessional Practices Council , 406 So. 2d

1170 , 1172 (Fla. 1st DCA 1975), the court concluded that "[b]y

virtue of their leadership capacity, teachers are traditionally

held to a high moral standard in a community. "

50 . Even holding Ms. Grant to the high mo ral standard

applicable to teachers, based on the findings of fact herein and

the legal standards stated above , the Commissioner has failed to

prove by a preponderance of the evidence that Ms. Grant's

conduct on October 24, 2001, or on October 25, 2001, in volved

acts of gross immorality or of moral turpitude in violation of

Section 1012.795(1)(c), Florida Statutes.

Count 4: Conduct that seriously reduces effectiveness as an

employee of school board

51 . Based on the factual allegations in the Amended Noti ce

of Reasons, the Commissioner charged Ms. Grant in Count 4 with

violating Section 1012.795(1)(f), Florida Statutes, which

provides that a teacher may be disciplined if "[u] pon

investigation, [the teacher] has been found guilty of personal

conduct which s eriously reduces that person's effectiveness as

an employee of the district school board. " It is apparent from

the Legislature's use of the present tense that this statutory

provision applies to personal conduct that impairs a teacher's

current and, in th e context of an application for a teacher's

certificate, future ability to be an effective employee of a

school board.

5 2 . The Commissioner has failed to offer any evidence

establishing that Ms. Grant's conduct in October 2001, when she

was teaching in th e Miami - Dade County public school system,

would reduce her current or future eff ectiveness as an employee

of a school board . In addition, Ms. Grant's behavior on

October 24 and 25, 2001, while unprofessional and unacceptable

from a teacher, was not so ser iously deficient as to permit an

inference that her effectiveness as an employee of a school

board would be seriously reduced. See , e.g. , Purvis v. Marion

County School Board , 766 So. 2d 492, 497 - 98 (Fla. 5th DCA

2000)(An educator's impaired effectiveness under Florida

Administrative Code Rule 6B - 4.009(2) may be inferred from the

nature and seriousness of the conduct and that no direct

evidence of impaired effectiveness is necessary.) . Based on the

findings of fact herein, therefore, the Commissioner has f ailed

to prove that Ms. Grant 's conduct in October 2001, constituted a

violation of Section 1012.795(1)(f), Florida Statutes.

Count 5 : Violations of the Principles of Professional Conduct

for the Education Profession

5 3 . Based on the factual allegation s in the Amended Notice

of Reasons, the Commissioner charged Ms. Grant in Count 5 with

violating Section 1012.795(1)(i), Florida Statutes, which

provides that a teacher may be disciplined if he or she "[h] as

violated the Principles of Professional Conduct for the

Education Profession prescribed by State Board of Education

rules. " The Commissioner has included this as a separate count

in the Amended Notice of Reasons, but it is clear on the face of

the statute that this is not a separate ground for denial o f an

application for a teaching certificate. Rather, the statute

incorporates the provisions of Florida Administrative Code

Rule 6B - 1.006 applicable to educators in Florida and provides

the Commissioner with the legal authority to preliminarily deny

Ms. G rant's application if she proves that Ms. Grant committed

the violations set forth in Counts 6, 7, and 8.

Count s 6 , 7 and 8 : Violations of the Principles of Professional

Conduct for the Education Profession

54 . Based on the factual allegations in the Am ended Notice

of Reasons, the Commissio ner charged Ms. Grant in Count s 6, 7 ,

and 8 with having violated Florida Administrative Code Rule 6B -

1.006(3)(a) and (e), and 6B - 1.006(5)(d), which provide as

follows:

(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 embarrassme nt or

disparagement.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional o r work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such har assment

or discrimination.

55 . Based on the findings of fact herein, the Commissioner

has failed to prove by a preponderance of the evidence that

Ms. Grant violated Florida Administrative Code Rule 6B -

1.006(3)(e) or (5)(d).

56 . Based on the findings of fact herein, the Commissioner

has proven by preponderance of the evidence that, by abandoning

her students in the classroom on October 25, 2001, Ms. Grant

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

Ms. Grant not only failed to make reasonab le efforts to protect

her students' safety, she was responsible for creating an unsafe

environment in the classroom by walking out with no notice to

the administration of Shenandoah Middle School. Because she has

proven a violation of Florida Administrati ve Code Rule 6B -

1.006(3)(a), the Commissioner has also proven a violation of

Section 1012.795(1)(i), Florida Statutes.

57 . Section 1012.56(11)(a), Florida Statutes, gives the

Department of Education the discretion to de ny an application

for certificat ion if "the applicant has committed an act or

acts, or that a situation exists, for which the Education

Practices Commission would be authorized to revoke a teaching

certificate." Under the circumstances of this case, in which

the Commissioner has proven only one of the grounds on which she

based her preliminary decision to deny Ms. Grant's application

for a temporary educator's certificate, the Education Practices

Commission should exercise its discretion and grant Ms. Grant's

application . B ecause of the ser iousness of her abandonment of

her classroom on October 25, 2001, however, the Education

Practices Commission should immediately place her on probation.

See § 1012.796(7)(d), Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusio ns of

Law, it is RECOMMENDED that the Education Practices Commission

should enter a final order grant ing the application of Anitra

Grant for a temporary educator's certificate and plac ing her on

probation for a period of two years under such terms and

cond itions as the Education Practices Commission deems

appropriate.

DONE AND ENTERED this 30 th day of August , 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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

F iled with the Clerk of the

Division of Administrative Hearings

this 30 th day of August , 2007.

ENDNOTES

1 / Th e Amended Notice of Reasons refers to the incorrect

subsection of Florida Administrative Code Rule 6B - 1.006(3).

The reference should be to Florida Administrative Code Rule 6B -

1.006(3)(e) rather than Florida Administrative Code Rule 6B -

1.006(3)(c). This correction shall be made throughout this

Recommended Order.

2 / The Motion to Amend Notice of Reasons also included a notice

that Mr. Winn was no longer serving as the Florida Commissioner

of Education and that Jeanine Blomberg should be substituted as

In terim Commissioner of Education. This change is reflected in

the style of the case.

3 / In her proposed findings of fact, the Commissioner has dwelt

in detail on various inconsistencies between Ms. Grant's

testimony at the hearing; the summary of her sta tements found in

the two Preliminary Personnel Investigation reports completed by

the Miami - Dade County public school system investigators; the

statements of Ms. Grant in a letter she wrote to the Department

of Education dated October 24, 2002; and Ms. Gra nt's testimony

in her deposition taken March 6, 2007. The Commissioner states

that "her lack of candor" is "[p]erhaps more disturbing then

[sic] the unprofessional conduct toward her colleagues and

students." Respondent's Proposed Recommended Order at pa ge 11,

paragraph 44. There are no findings of fact in this Recommended

Order relating to such discrepancies, however, because the

discrepancies pointed out by the Commissioner on pages 11

through 15 of her Proposed Recommended Order are, for the most

part , not material to this proceeding. Ms. Grant's lack of

candor is not identified in the Amended Notice of Reasons as a

basis for the Commissioner's preliminary decision to deny her

application for a teaching certificate. The summaries of

Ms. Grant's "stat ements" included by the Miami - Dade County

School Board investigators in the Preliminary Personnel

Investigation reports are inadmissible hearsay and not

statements attributable to Ms. Grant. The inconsistencies in

Ms. Grant's various statements relate, fo r the most part, to

inconsequential matters or, with respect to the deposition

testimony, could be attributed to the fact that the events took

place in 2001 and Ms. Grant's deposition was taken in 2007.

And, finally, the events that occurred with respect to

Ms. Grant's termination of employment in 2002 are irrelevant to

this proceeding except to the extent that the Miami - Dade County

School Board based its decision to terminate Ms. Grant's

employment on the same conduct that formed the basis for the

Commiss ioner's preliminary decision to deny Ms. Grant's

application for a temporary teacher's certificate.

4 / All references herein to the Florida Statutes are to the 2007

edition unless otherwise noted.

5 / In her testimony at the hearing, Ms. Grant flatly de nied

calling Dr. Robinson an "Uncle Tom" and using profanity on

October 25, 2001. Ms. Grant's testimony on this point is

directly contradicted by several witnesses who personally

observed her behavior. Having considered Ms. Grant's testimony

and the test imony of the eye - witnesses, Ms. Grant's testimony

denying that she called Dr. Robinson an "Uncle Tom" and that she

used profanity on October 25, 2001, is rejected as unpersuasive.

6 / Many of the students at Shenandoah Middle School were

Hispanic, and Ms. Grant does not speak Spanish.

7 / "Whether a particular action constitutes a violation of a

rule [or statute] . . . 'is a factual question to be decided in

the context of the alleged violation.'" McKinney v. Castor , 667

So. 2d 387, 389 (Fla. 1st DCA 199 5)(quoting Langston v.

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

Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA

1985)(Whether there was a deviation from the required standard

of conduct is not a conclusion of law, it is an ulti mate finding

of fact within the fact - finding discretion of the hearing

officer.) In addition, the issue of whether an applicant for a

license or certificate has good moral character is a question of

fact to be decided by the administrative law judge. Pal amara v.

Dep't of Bus. & Prof, Regulation , 855 So. 2d 706, 708 (Fla. 4th

DCA 2003)(" In the context of professional and occupational

licensing, the question of what constitutes ' good moral

character ' has been held to be ordinarily a question of fact for

the trier of fact. ")(Citations omitted.)

8 / There is a dispute regarding whether Ms. Grant resigned as a

result of the recommendation that she be terminated from her

employment with the Miami - Dade County School Board or whether

the Miami - Dade County School Board took action against her, but

this dispute is irrelevant to resolution of the issues herein.

9 / The statutes in effect in 2007 are applicable in this

proceeding because a person's entitlement to a license or

certificate is determined at the time the final decision to

grant or deny the application is made. See Bruner v. Board of

Real Estate , 399 So. 2d 4 (Fla. 5th DCA 1981)(" The agency must

apply the law in effect at the time it makes its final

decision.").

10 / This subsection was previously numbere d subsection (10)(a).

11 / The definition of "immorality" in Florida Administrative

Code Rule 6B - 4.009(2) includes provisions that the conduct be

"sufficiently notorious [as] to bring the individual concerned

or the education profession into public disgrac e or disrespect

and impair the individual's service in the community." There is

no such provision in Section 1012.5795(1)(c), Florida Statutes.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Anitra Grant

706 New Lake Drive

Boynton Beach , Florida 33426

Dedrick D. Straghn, Esquire

26 Southwest 5th Avenue

Delray Beach, Florida 33444

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Education Standards

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.