07-003592PL
John L. Winn, As Commissioner Of Education vs.
Virginia Bryan Martin
Status: Closed
Recommended Order on Wednesday, February 13, 2008.
Recommended Order on Wednesday, February 13, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JOHN L. WINN, AS COMMISSIONER )
14OF EDUCATION , )
17)
18Petitioner , )
20)
21vs. ) Case No. 07 - 3592PL
28)
29VIRGINIA BRYAN MARTIN , )
33)
34Respondent . )
37)
38RECOMMENDE D ORDER
41Pursuant to notice, the final hearing in this case was held
52on November 29, 2007, in Bartow, Florida, before Jeff B. Clark,
63Administrative Law Judge of the Division of Administrative
71Hearings.
72APPEARANCES
73For Petitioner: Ron Weaver, Esquire
78Post Office Box 5675
82Douglasville, Georgia 30154 - 0012
87For Respondent: Edward Gay, Esquire
921516 East Concord Street
96Orlando, Florida 32803
99STATEMENT OF THE ISSUE S
104Whether Respondent , Virginia Bryan Martin, is guilty of the
113act s alleged in the Administrative Complaint dated April 16,
1232007, and, if so, should her Florida Professional Educator's
132Certificate be disciplined.
135PRELIMINARY STATEMENT
137On April 16, 2007, Petitioner, John L. Winn, Commissioner
146of Education, authored an Adm inistrative Complaint that alleged
155violations of Subsections 1012.795(1)(c) and (e) and (2),
163Florida Statutes, in that Respondent, Virginia Bryan Martin,
171operated a motor vehicle while under the influence of alcohol on
182two occasions, both resulting in arre sts for Driving Under the
193Influence ("DUI"). One instance resulted in a plea of nolo
205contendere to a reduced charge of reckless driving; the other
215resulted in a plea of nolo contendere to DUI and an adjudication
227of guilty.
229Based on these two incidents, it was alleged that
238Respondent was guilty of gross immorality or an act involving
248moral turpitude , having been convicted of a misdemeanor, felony,
257or other criminal charge. As a result of the allegations in the
269Administrative Complaint, Petitioner recommend ed to the
276Educational Practices Commission ("EPC") that Respondent's
284Florida Professional Educator's Certificate be sanctioned.
290Respondent, through her attorney, timely responded to the
298Administrative Complaint , requesting a formal hearing. On
305August 8, 2 007, EPC forwarded the case to the Division of
317Administrative Hearings. On the same day, August 8, 2007, the
327parties were sent an Initial Order requesting, among other
336things, suggestions for mutually convenient dates for a final
345hearing. Based on the re sponse of the parties, the case was
357scheduled for final hearing on October 18, 2007, in Tampa,
367Florida. On October 2, 2007, Respondent requested a
375continuance; the request was unopposed. The case was continued
384to November 29, 2007.
388On October 12, 2007, t he parties jointly moved to have the
400case moved from Tampa, Florida , to Polk County, Florida. This
410motion was granted. The case was heard as rescheduled on
420November 29, 2007 , in Bartow, Florida.
426At the final hearing, Petitioner presented the testimony of
435two witnesses: Michael Lewis and Ricky Dubose, both Lakeland
444police officers. Petitioner offered a videotape of an incident
453that occurred on April 25, 2007 , which resulted in Respondent's
463arrest for DUI. At the hearing, Respondent orally entered a
473Moti on i n Limine directed to the prohibition of the videotape
485and testimony regarding the incident. Ruling was reserved on
494Respondent's motion ; however, the videotape was viewed, in part,
503and the two police officers testified. The videotape was marked
513as Pet itioner's Exhibit 1, but has been retained by Petitioner's
524counsel.
525In relation to the Motion in Limine, t he appropriate party
536was directed to file a written motion in limine, a response, and
548a rebuttal, as set forth in an Order Regarding Post - Hearing
560Subm ittals dated December 7, 2007. Ultimately, on January 9,
5702008, Respondent's Motion i n Limine was denied.
578At the hearing, Respondent testified and presented three
586additional witnesses: Kenneth Strong, Kendra Hightower, and
593Brenda Hardman. Respondent subm itted six exhibits that were
602received into evidence and marked Respondent's Exhibits 1
610through 6.
612The T ranscript of the proceedings was filed on December 5,
6232007. The parties agreed to file proposed recommended orders on
633or before January 30, 2008; this agreement was ratified by the
644undersigned. Both parties timely filed Proposed Recommended
651Orders.
652FINDINGS OF FACT
655Based on the oral and documentary evidence presented at the
665final hearing, the following F indings of F act are made:
6761. Respondent holds Fl orida Professional Educator's
683Certificate No. 624273, covering the areas of e ducational m edia
694s pecialist, e lementary e ducation, m iddle g rades i ntegrated
706c urriculum, f amily and c onsumer s cience, and e xceptional s tudent
720e ducation.
7222. During all times materi al to the allegations of
732misconduct, Respondent was employed at Brandon Alternative
739School in the Hillsborough County School District.
7463. In the early morning hours of April 25, 2004,
756Respondent was arrested for DUI by Officer Michael Smith of the
767Lakela nd Police Department. Officer Smith videotaped
774Respondent's erratic driving and the following police stop.
7824. The videotape and testimony revealed that Respondent
790was driving her automobile while under the influence of alcohol.
800Although initially denied , Respondent acknowledged coming from a
808bar. She was abusive and threatening to the officer and her
819daughter , who arrived on the scene of Respondent's arrest.
8285. Respondent's conduct was, in short, reprehensible.
8356. On November 5, 2004, Respondent was c harged with DUI
846incidental to a motor vehicle accident that occurred in
855Lakeland, Florida. Both vehicles were damaged to such an extent
865that they were not drivable. Respondent was charged with
874careless driving , in addition to DUI.
8807. At the hearing, Res pondent admitted that prior to the
891accident , she had drunk so much that she was "feeling no pain."
903In addition, she minimized the accident, denied fault, and
912denied that she had been charge d with a driving infraction.
9238. The November 5, 2004, DUI acciden t occurred while the
934legal resolution of the April 25, 2004, DUI was still pending.
9459. Respondent's judgment and veracity are subject to
953serious question.
95510. Respondent pled nolo contendere to a reduced charge of
965reckless driving on the April 25, 2004 DUI. On the November 25,
9772004 DUI , she pled nolo contendere . The c ourt found her guilty
990of DUI. She was sentenced to a treatment program, served 25
1001days in jail, paid $732.50 in fines and costs , and attended a
1013DUI and Victim Impact C lass.
101911. Nothing o ffered by Respondent as mitigating her
1028behavior is accepted a s credible.
1034CONCLUSIONS OF LAW
103712. The Division of Administrative Hearings has
1044jurisdiction over the parties and the subject matter in
1053accordance with Section 120.569 and Subsection 120.57(1),
1060F lorida Statutes (2007).
106413. Subsection 1012.795(1), Florida Statutes, reads, in
1071pertinent part, as follows:
1075(1) The Education Practices Commission
1080may suspend the educator certificate of any
1087person as defined in s. 1012.01(2) or (3)
1095for a period of time not to exceed 3 years,
1105thereby denying that person the right to
1112teach for that period of time, after which
1120the holder may return to teaching as
1127provided in subsection (4); may revoke the
1134educator certificate of any person, thereby
1140denying that person the right to teach for a
1149period of time not to exceed 10 years, with
1158reinstatement subject to the provisions of
1164subsection (4); may revoke permanently the
1170educator certificate of any person; . . . or
1179may impose any other penalty provided by
1186law, provided i t can be shown that the
1195person:
1196(c) Has been guilty of gross immorality
1203or an act involving moral turpitude. [Count
12101 of the Administrative Complaint . ]
1217* * *
1220(e) Has been convicted of a misdemeanor,
1227felony, or any other criminal charge, ot her
1235than a minor traffic violation. [Count 2 of
1243the Administrative Complaint . ]
124814. Subsection 1012.795(2), Florida Statutes, reads, in
1255pertinent part, as follows:
1259(2) The plea of guilty in any court, the
1268decision of guilty by any court, . . . shall
1278be pr ima facie proof of grounds for
1286revocation of the certificate. . . [Count 3
1294of the Administrative Complaint]
129815. Because Respondent's teaching certificate is at risk
1306of being sanctioned, Petitioner bears the burden of proving the
1316allegations in the Adminis trative Complaint by clear and
1325convincing evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla.
13351987). The definition of clear and convincing evidence is found
1345in the case of Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA
13591983).
136016. The Administrative Complaint in this case charged
1368violations of Subsections 1012.795(1)(c) and (e), and
13751012.795(2), Florida Statutes, as set forth hereinabove.
138217. As the C ourt has held, "by virtue of their leadership
1394capacity, teachers are traditionally held to a high mor al
1404standard in a community." Adams vs. Professional Practices
1412Council , 46 So. 2d 1170, 1171 (Fla. 1st DCA 1981). As a
1424teacher, it is not necessary that Respondent "be charged with or
1435convicted of a crime in order to be subject to revocation of a
1448certific ate based on conduct reflecting gross immorality or
1457moral turpitude. . . ." Walton v. Turlington , 444 So. 2d 1082,
14691084 (Fla. 1st DCA 1984).
147418. To understand the meaning of "gross immorality" or
"1483moral turpitude , " resort is made to provisions within Flo rida
1493Administrative Code Chapter 6B - 4 .
150019. Florida Administrative Code Rule 6B.4009(2) defines
1507immorality as:
1509[C]onduct that is inconsistent with
1514standards of public conscience and good
1520morals. It is conduct sufficiently
1525notorious to bring the individual concerned
1531or the educational profession into public
1537disgrace or disrespect and impair the
1543individual's service in the community.
1548For the conduct to be considered "grossly" immoral, it would
1558need to be a form of immorality that is obvious and inexcusabl e.
157120. "Moral turpitude" is defined at Florida Administrative
1579Code Rule 6B - 4.009(6) as a:
1586Crime that is evidenced by an act of
1594baseness, vileness, or depravity in the
1600private and social duties which, according
1606to the accepted standards of the time, a man
1615owes to his or her fellowman or to society
1624in general, and the doing of the act itself
1633and not its prohibition by statute fixes the
1641moral turpitude.
164321. When measured against these definitions, Respondent's
1650conduct in abusively consuming alcoholic bever ages and then
1659operating a motor vehicle, even though done on two occasions,
1669does not reach the level of gross immorality. Her personal
1679conduct, particularly her vitriolic demeanor, is inexcusable.
1686Hopefully, having endured the humiliation of the video
1694ex hibition of her behavior and the profound consequences of her
1705egregious conduct, Respondent has learned greater self - control
1714in her use of alcohol. However unsavory Respondent's conduct,
1723Petitioner has failed to prove clearly and convincingly that
1732Respond ent violated Subsection 1012.795 (1) (c), Florida Statutes.
174122. Respondent has been found guilty of DUI by a Florida
1752c ourt; DUI is not "a minor traffic violation." As a result,
1764Petitioner has proved clearly and convincingly that Respondent
1772violated Subsec tion 1012.795( 1 )(e) and (2) , Florida Statutes.
1782RECOMMENDATION
1783Based on the foregoing Findings of Fact and Conclusions of
1793Law, it is
1796RECOMMENDED that Petitioner, John L. Winn, Commissioner of
1804Education, issue a final order finding that :
18121. Count 1 be dism issed;
18182. Respondent be found guilty of Counts 2 and 3 ; and
18293. Respondent's Florida Professional Educator's
1834Certificate be placed on probation for 24 months , during which
1844time she will be subject to rehabilitative conditions, as
1853determined appropriate b y the EPC.
1859DONE AND ENTERE D this 13th day of February , 2008 , in
1870Tallahassee, Leon County, Florida.
1874S
1875JEFF B. CLARK
1878Administrative Law Judge
1881Division of Administrative Hearings
1885The DeSoto Building
18881230 Apalachee Parkway
1891Ta llahassee, Florida 32399 - 3060
1897(850) 488 - 9675 SUNCOM 278 - 9675
1905Fax Filing (850) 921 - 6847
1911www.doah.state.fl.us
1912Filed with the Clerk of the
1918Division of Administrative Hearings
1922this 13th day of February , 2008 .
1929COPIES FURNISHED :
1932Kathleen M. Richards, Exec utive Director
1938Education Practices Commission
1941Department of Education
1944325 West Gaines Street, Room 224
1950Tallahassee, Florida 32399 - 0400
1955Deborah K. Kearney, General Counsel
1960Department of Education
1963Turlington Building, Suite 1244
1967325 West Gaines Street
1971Tall ahassee, Florida 32399 - 0400
1977Marian Lambeth, Bureau Chief
1981Bureau of Professional Practices Services
1986Department of Education
1989Turlington Building, Suite 224 - E
1995325 West Gaines Street
1999Tallahassee, Florida 32399 - 0400
2004E dward Gay, Esquire
20081516 East Concord Stre et
2013Orlando, Florida 32803
2016Ron Weaver, Esquire
2019Post Office Box 5675
2023Douglasville, Georgia 30154 - 0012
2028NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2034All parties have the right to submit written exceptions within
204415 days from the date of this Recommended Order. Any exceptions
2055to this Recommended Order should be filed with the agency that
2066will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/20/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 02/15/2008
- Proceedings: Letter to Clerk from R. Weaver enclosing copy of video recording (video recording not available for viewing) filed.
- PDF:
- Date: 02/13/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 01/08/2008
- Proceedings: Respondent`s Rebuttal to Petitioner`s Response to Respondent`s Motion in Limine filed.
- Date: 12/05/2007
- Proceedings: Transcript filed.
- Date: 11/29/2007
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 11/27/2007
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
- PDF:
- Date: 10/23/2007
- Proceedings: Amended Order Granting Continuance and Re-scheduling Hearing (hearing set for November 29, 2007; 9:00 a.m.; Bartow, FL).
- PDF:
- Date: 10/05/2007
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for November 29, 2007; 9:00 a.m.; Tampa, FL).
- PDF:
- Date: 08/14/2007
- Proceedings: Notice of Hearing (hearing set for October 18, 2007; 9:00 a.m.; Tampa, FL).
Case Information
- Judge:
- JEFF B. CLARK
- Date Filed:
- 08/08/2007
- Date Assignment:
- 11/15/2007
- Last Docket Entry:
- 06/16/2008
- Location:
- Bartow, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Edward Gay, Esquire
Address of Record -
Kathleen M. Richards, Executive Director
Address of Record -
Ron Weaver, Esquire
Address of Record