07-003592PL John L. Winn, As Commissioner Of Education vs. Virginia Bryan Martin Status: Closed Recommended Order on Wednesday, February 13, 2008.

Summary: Respondent had two DUIs. One was reduced to reckless driving; Respondent was found guilty of the other count. Although the violations were not found to be gross immorality, Respondent`s Educator`s Certificate should be disciplined.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, AS COMMISSIONER )

OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 07 - 3592PL

)

VIRGINIA BRYAN MARTIN , )

)

Respondent . )

)

RECOMMENDE D ORDER

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

on November 29, 2007, in Bartow, Florida, before Jeff B. Clark,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

For Respondent: Edward Gay, Esquire

1516 East Concord Street

Orlando, Florida 32803

STATEMENT OF THE ISSUE S

Whether Respondent , Virginia Bryan Martin, is guilty of the

act s alleged in the Administrative Complaint dated April 16,

2007, and, if so, should her Florida Professional Educator's

Certificate be disciplined.

PRELIMINARY STATEMENT

On April 16, 2007, Petitioner, John L. Winn, Commissioner

of Education, authored an Adm inistrative Complaint that alleged

violations of Subsections 1012.795(1)(c) and (e) and (2),

Florida Statutes, in that Respondent, Virginia Bryan Martin,

operated a motor vehicle while under the influence of alcohol on

two occasions, both resulting in arre sts for Driving Under the

Influence ("DUI"). One instance resulted in a plea of nolo

contendere to a reduced charge of reckless driving; the other

resulted in a plea of nolo contendere to DUI and an adjudication

of guilty.

Based on these two incidents, it was alleged that

Respondent was guilty of gross immorality or an act involving

moral turpitude , having been convicted of a misdemeanor, felony,

or other criminal charge. As a result of the allegations in the

Administrative Complaint, Petitioner recommend ed to the

Educational Practices Commission ("EPC") that Respondent's

Florida Professional Educator's Certificate be sanctioned.

Respondent, through her attorney, timely responded to the

Administrative Complaint , requesting a formal hearing. On

August 8, 2 007, EPC forwarded the case to the Division of

Administrative Hearings. On the same day, August 8, 2007, the

parties were sent an Initial Order requesting, among other

things, suggestions for mutually convenient dates for a final

hearing. Based on the re sponse of the parties, the case was

scheduled for final hearing on October 18, 2007, in Tampa,

Florida. On October 2, 2007, Respondent requested a

continuance; the request was unopposed. The case was continued

to November 29, 2007.

On October 12, 2007, t he parties jointly moved to have the

case moved from Tampa, Florida , to Polk County, Florida. This

motion was granted. The case was heard as rescheduled on

November 29, 2007 , in Bartow, Florida.

At the final hearing, Petitioner presented the testimony of

two witnesses: Michael Lewis and Ricky Dubose, both Lakeland

police officers. Petitioner offered a videotape of an incident

that occurred on April 25, 2007 , which resulted in Respondent's

arrest for DUI. At the hearing, Respondent orally entered a

Moti on i n Limine directed to the prohibition of the videotape

and testimony regarding the incident. Ruling was reserved on

Respondent's motion ; however, the videotape was viewed, in part,

and the two police officers testified. The videotape was marked

as Pet itioner's Exhibit 1, but has been retained by Petitioner's

counsel.

In relation to the Motion in Limine, t he appropriate party

was directed to file a written motion in limine, a response, and

a rebuttal, as set forth in an Order Regarding Post - Hearing

Subm ittals dated December 7, 2007. Ultimately, on January 9,

2008, Respondent's Motion i n Limine was denied.

At the hearing, Respondent testified and presented three

additional witnesses: Kenneth Strong, Kendra Hightower, and

Brenda Hardman. Respondent subm itted six exhibits that were

received into evidence and marked Respondent's Exhibits 1

through 6.

The T ranscript of the proceedings was filed on December 5,

2007. The parties agreed to file proposed recommended orders on

or before January 30, 2008; this agreement was ratified by the

undersigned. Both parties timely filed Proposed Recommended

Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following F indings of F act are made:

1. Respondent holds Fl orida Professional Educator's

Certificate No. 624273, covering the areas of e ducational m edia

s pecialist, e lementary e ducation, m iddle g rades i ntegrated

c urriculum, f amily and c onsumer s cience, and e xceptional s tudent

e ducation.

2. During all times materi al to the allegations of

misconduct, Respondent was employed at Brandon Alternative

School in the Hillsborough County School District.

3. In the early morning hours of April 25, 2004,

Respondent was arrested for DUI by Officer Michael Smith of the

Lakela nd Police Department. Officer Smith videotaped

Respondent's erratic driving and the following police stop.

4. The videotape and testimony revealed that Respondent

was driving her automobile while under the influence of alcohol.

Although initially denied , Respondent acknowledged coming from a

bar. She was abusive and threatening to the officer and her

daughter , who arrived on the scene of Respondent's arrest.

5. Respondent's conduct was, in short, reprehensible.

6. On November 5, 2004, Respondent was c harged with DUI

incidental to a motor vehicle accident that occurred in

Lakeland, Florida. Both vehicles were damaged to such an extent

that they were not drivable. Respondent was charged with

careless driving , in addition to DUI.

7. At the hearing, Res pondent admitted that prior to the

accident , she had drunk so much that she was "feeling no pain."

In addition, she minimized the accident, denied fault, and

denied that she had been charge d with a driving infraction.

8. The November 5, 2004, DUI acciden t occurred while the

legal resolution of the April 25, 2004, DUI was still pending.

9. Respondent's judgment and veracity are subject to

serious question.

10. Respondent pled nolo contendere to a reduced charge of

reckless driving on the April 25, 2004 DUI. On the November 25,

2004 DUI , she pled nolo contendere . The c ourt found her guilty

of DUI. She was sentenced to a treatment program, served 25

days in jail, paid $732.50 in fines and costs , and attended a

DUI and Victim Impact C lass.

11. Nothing o ffered by Respondent as mitigating her

behavior is accepted a s credible.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in

accordance with Section 120.569 and Subsection 120.57(1),

F lorida Statutes (2007).

13. Subsection 1012.795(1), Florida Statutes, reads, in

pertinent part, as follows:

(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, thereby

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

may impose any other penalty provided by

law, provided i t can be shown that the

person:

(c) Has been guilty of gross immorality

or an act involving moral turpitude. [Count

1 of the Administrative Complaint . ]

* * *

(e) Has been convicted of a misdemeanor,

felony, or any other criminal charge, ot her

than a minor traffic violation. [Count 2 of

the Administrative Complaint . ]

14. Subsection 1012.795(2), Florida Statutes, reads, in

pertinent part, as follows:

(2) The plea of guilty in any court, the

decision of guilty by any court, . . . shall

be pr ima facie proof of grounds for

revocation of the certificate. . . [Count 3

of the Administrative Complaint]

15. Because Respondent's teaching certificate is at risk

of being sanctioned, Petitioner bears the burden of proving the

allegations in the Adminis trative 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 of Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA

1983).

16. The Administrative Complaint in this case charged

violations of Subsections 1012.795(1)(c) and (e), and

1012.795(2), Florida Statutes, as set forth hereinabove.

17. As the C ourt has held, "by virtue of their leadership

capacity, teachers are traditionally held to a high mor al

standard in a community." Adams vs. Professional Practices

Council , 46 So. 2d 1170, 1171 (Fla. 1st DCA 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

certific ate based on conduct reflecting gross immorality or

moral turpitude. . . ." Walton v. Turlington , 444 So. 2d 1082,

1084 (Fla. 1st DCA 1984).

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

"moral turpitude , " resort is made to provisions within Flo rida

Administrative Code Chapter 6B - 4 .

19. Florida Administrative Code Rule 6B.4009(2) 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 inexcusabl e.

20. "Moral turpitude" is defined at 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 fellowman or to society

in general, and the doing of the act itself

and not its prohibition by statute fixes the

moral turpitude.

21. When measured against these definitions, Respondent's

conduct in abusively consuming alcoholic bever ages and then

operating a motor vehicle, even though done on two occasions,

does not reach the level of gross immorality. Her personal

conduct, particularly her vitriolic demeanor, is inexcusable.

Hopefully, having endured the humiliation of the video

ex hibition of her behavior and the profound consequences of her

egregious conduct, Respondent has learned greater self - control

in her use of alcohol. However unsavory Respondent's conduct,

Petitioner has failed to prove clearly and convincingly that

Respond ent violated Subsection 1012.795 (1) (c), Florida Statutes.

22. Respondent has been found guilty of DUI by a Florida

c ourt; DUI is not "a minor traffic violation." As a result,

Petitioner has proved clearly and convincingly that Respondent

violated Subsec tion 1012.795( 1 )(e) and (2) , Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, John L. Winn, Commissioner of

Education, issue a final order finding that :

1. Count 1 be dism issed;

2. Respondent be found guilty of Counts 2 and 3 ; and

3. Respondent's Florida Professional Educator's

Certificate be placed on probation for 24 months , during which

time she will be subject to rehabilitative conditions, as

determined appropriate b y the EPC.

DONE AND ENTERE D this 13th day of February , 2008 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 13th day of February , 2008 .

COPIES FURNISHED :

Kathleen M. Richards, Exec utive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tall ahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

E dward Gay, Esquire

1516 East Concord Stre et

Orlando, Florida 32803

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154 - 0012

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.