08-000714 Corinne Housley vs. Dr. Eric J. Smith, As Commissioner Of Education Status: Closed Recommended Order on Monday, August 11, 2008.

Summary: The denial of educator`s certificate for applicant lacking good moral character is based upon her criminal history and for severely beating her son with the buckle-end of a belt on one occasion and for regularly beating her sons when she became angry.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORINNE HOUSLEY, )

)

Petitioner, )

)

vs. ) Case No. 08-0714

)

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on June 12, 2008, by video

teleconference with sites in Jacksonville and in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

For Respondent: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for

a Florida educator's certificate should be granted.

PRELIMINARY STATEMENT

On September 5, 2007, the Commissioner of Education issued

a Notice of Reasons denying Petitioner's application for a

Florida educator's certificate, and Petitioner requested an

administrative hearing regarding that denial. On February 12,

2008, the Education Practices Commission transferred this case

to the Division of Administrative Hearings to conduct the

evidentiary proceeding.

At the commencement of the final hearing, Respondent's

motion to amend the style of this cause to reflect that Dr. Eric

J. Smith is now the Commissioner of Education was granted.

Petitioner testified on her own behalf. Respondent

presented the testimony of Jo Kathryn Crawford, Jeffrey W.

Lavenau, William D. Zeleski, and Thomas F. Crumley.

Additionally, Petitioner's Exhibits numbered 1-8 were admitted

in evidence.

The transcript of the final hearing was filed on July 8,

2008, and the parties' proposed recommended orders were filed on

July 23, 2008.

FINDINGS OF FACT

1. Petitioner is an applicant for a Florida educator's

certificate from the Florida Department of Education.

2. On May 19, 1997, Petitioner was adjudicated guilty of

driving under the influence of alcohol. She was sentenced to

six months' probation. She was also required to perform 50

hours of community service and to pay $1,245 in fines and court

costs. Her driver's license was revoked, and she was required

to attend DUI school.

3. Petitioner is the mother of two sons. On July 31,

2000, William was eight years of age and Jeffrey was 12 1/2.

4. William and Jeffrey had lived primarily with Jo Kathryn

Crawford, Petitioner's mother and their grandmother, since the

middle of 1998.

5. During the weekend prior to Monday, July 31, 2000,

Petitioner had called her mother's home a number of times during

which she was drunk and belligerent. Even so, arrangements were

made for Petitioner to pick up William Monday morning to take

him to a doctor's appointment after which she would take both

William and Jeffrey to her "new" home.

6. Her new home was a home which Jacksonville Habitat had

built for her and had deeded to her in October 1999. She did

not move into the home at that time but had continued to live in

a trailer park. She wanted to spend her first night with

William and Jeffrey in the home and wanted them to help her with

the moving-in chores.

7. On Monday, July 31, 2000, she picked up William and

took him to his medical appointment. When she brought William

back to his grandmother's home, William was hungry, and his

grandmother insisted on fixing lunch for him. Petitioner was

annoyed at having to wait, but she did. She then left with

William and Jeffrey, saying that she would return them the next

morning, Tuesday.

8. While Petitioner and her sons were eating dinner that

evening at her new home, Petitioner became angry because William

crawled under the table and was shaking it. When William got

out from under the table to go to the bedroom he would be

sharing with Jeffrey, he knocked over a pile of clothes.

9. Petitioner became highly irritated and then enraged,

yelling and chasing William down the hallway. She caught up

with him at the doorway to the bedroom, grabbed a belt, and

started swinging it indiscriminately at William with the buckle

end toward the child. William was crying and begging her to

stop. He was also trying to get away from her.

10. Petitioner was using severe blows with the full range

of motion of her arm, and the belt buckle hit William multiple

times. The belt was moving fast, and Petitioner was inflicting

severe blows, while still screaming at William. Jeffrey, who

was also in the bedroom, could even hear the belt hitting

William but felt powerless to do anything to help his brother.

During this episode Petitioner remained enraged and lacked any

self-control.

11. When the beating was over, Petitioner did not attend

to William. Jeffrey was the one who rendered comfort to his

brother and put a Band-Aid on his brother's finger, where the

stem of the belt buckle had pierced or cut it.

12. Petitioner did not return the boys to their

grandmother's home until Wednesday. The grandmother asked

William about the Band-Aid on his finger. William did not want

to tell her what happened to his finger, but over the course of

the afternoon he told his grandmother what had happened at

Petitioner's home. Jeffrey confirmed what William told his

grandmother.

13. The grandmother raised William's shirt. He had marks

and bruises on his back and front. There were long, red welts

on his back and on his side. Some marks were large, some were

small, some were round, and some were distinctively the shape of

a belt buckle. There were dark blue and purple bruises on his

lower buttocks on both sides and on his elbow. There was a

round mark like a pencil eraser above his right knee. There

were longer bruises in his front groin area. On his upper leg

were round, large, black and red bruises.

14. The grandmother took pictures of the marks on

William's body. The next day, August 3, 2000, she consulted an

attorney to find out what she should do. She then went to the

Jacksonville Beach Police Department, where she spoke with

Detective Tommy Crumley and showed him the pictures. Crumley

contacted the abuse hotline. He then went to the grandmother's

home, looked at William's bruises, took pictures, and talked to

both boys separately. At final hearing, he described the

bruises, categorized them as severe, and thought they appeared

to be painful.

15. Prior to July 31, 2000, Petitioner beat William when

he made her mad. Although William was unable to quantify the

number of times, he described the number as being "a lot." He

did not tell his grandmother about the source of the bruises he

had from those occasions.

16. Prior to July 31, 2000, and as far back as Jeffrey can

remember, Petitioner also beat Jeffrey. She beat him twice on

some days and not at all on other days. It depended upon her

mood and her temper. When beating him, Petitioner used her

hands, a belt, or a wooden spoon.

17. Prior to July 31, 2000, Petitioner beat her sons

whenever they did something that made her angry, even for

spilling a drink. The beatings were severe, and she did not

care where her blows landed. Although the beatings left

bruises, the children told no one for fear of being hit even

more.

18. On August 4, 2000, Petitioner was arrested and charged

with aggravated child abuse, a felony. She was also later

charged with contributing to the delinquency of a minor, a

misdemeanor.

19. Pursuant to a plea agreement, on August 14, 2001, the

charge of aggravated child abuse was dismissed, and Petitioner

pled guilty to contributing to the delinquency of a minor. She

was placed on probation with special conditions for a period of

12 months. Petitioner completed her probation early.

20. Both of Petitioner's sons were in psychological

therapy throughout high school.

21. Until they saw each other at the final hearing in this

cause, Petitioner had not seen either of her sons since she

returned them to the grandmother's house on August 3, 2000.

22. The grandmother has had legal custody of Petitioner's

sons since August 7, 2000. They continue to live with their

grandmother. Jeffrey, who is now 20, is a junior in college,

majoring in chemistry. He also works at Marsh Landing Country

Club. William, who is now 16, was, at the time of the final

hearing, temporarily residing at Impact House, a juvenile

detention facility, where he had been for 10 days for violation

of probation.

23. Even though Petitioner does not possess a teaching

certificate, she has been employed as an ESE teacher by the

Duval County Public Schools in Jacksonville since March 2007.

She is assigned to middle-school exceptional student education

classes. She has been re-appointed for the coming school year.

24. Petitioner explains the marks she made on William's

body by suggesting that maybe he got the bruises from playing or

roughhousing with his brother or maybe his grandmother hit him

with a wooden spoon. She explains the cut on William's finger

by saying the belt slipped out of her hand while she was

"swatting" him and fell, hitting him on the finger. It is clear

that, even after eight years, Petitioner does not understand the

shocking and inappropriate nature of her behavior. Further, she

has still not accepted responsibility for her actions.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

26. The Notice of Reasons for the denial of Petitioner's

application for licensure contains six counts and alleges that

she lacks good moral character and that she has committed acts

or that a situation exists which would be grounds for revocation

of her license if she had one.

27. Petitioner, as an applicant for licensure, has the

burden of proving by a preponderance of the evidence that she

satisfies the statutory requirements for a teaching certificate.

Dept. of Banking & Finance, Div. of Securities and Investor

Protection v. Osborne Stern , 670 So. 2d 932 (Fla. 1996). One of

those requirements is that Petitioner be of good moral

character. § 1012.56(2)(e), Fla. Stat.

28. In Zemour, Inc. v. State Div. of Beverage , 347 So. 2d

1102 (Fla. 1st DCA 1977), the Court defined "moral character" in

connection with an application for licensure as follows:

Moral character . . . means not only the

ability to distinguish between right and

wrong, but the character to observe the

difference; and 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.

Id. at 1105.

29. Petitioner has failed to prove by a preponderance of

the evidence that she has good moral character; rather,

Respondent has clearly proven that she does not. Her malicious

and indiscriminate beating of her son William on July 31, 2000,

is shocking. Beating him in a rage with the buckle end of a

belt is unacceptable under any circumstances. That Petitioner

would beat her sons on a regular basis because they did

something that made her angry is beyond understanding. That she

still, 8 years later, does not recognize that beating and

injuring her sons is wrong constitutes convincing evidence that

she does not have good moral character, as alleged in Count 1.

30. Counts 2 through 6 allege that Petitioner is guilty of

conduct for which her teaching certificate, if she had one,

could be revoked. The burden of proving those allegations is,

therefore, on the Respondent. Dept. of Banking & Finance, Div.

of Securities and Investor Protection v. Osborne Stern, supra.

The factual basis for these counts is her criminal history:

both her conviction for driving under the influence and her

conviction for contributing to the delinquency of a minor

relating to her beating her son on July 31, 2000.

31. While the burden of producing evidence may shift

between the parties during an application dispute proceeding,

the burden of persuasion remains on the applicant to prove

entitlement to the license she is seeking. Unlike the facts in

the Osborne Stern decision where the administrative agency

sought to impose administrative fines as a penalty for the

applicant's statutory violations, in this case Respondent does

not seek to take disciplinary action for Petitioner's statutory

violations but only makes those allegations as additional

reasons for denying Petitioner's application for licensure.

Therefore, Respondent does not have to prove its allegations by

clear and convincing evidence. Further, mitigating evidence

offered to impact a specific disciplinary penalty to be imposed

is irrelevant.

32. Count 2 of the Notice of Reasons alleges that

Petitioner has violated Section 1012.56(11)(a), Florida

Statutes, by committing an act or that a situation exists for

which her license could be revoked, if she were licensed. Count

2 is not an independent allegation because it relies upon

proving any of the counts which follow it. The specific

prohibited acts or situation charged are found in the charges

contained in Counts 3 through 6.

33. Count 3 alleges that Petitioner has violated Section

1012.795(1)(c), Florida Statutes, in that she is guilty of gross

immorality or an act involving moral turpitude. Count 4 alleges

that Petitioner has violated Section 1012.795(1)(e) in that she

has been convicted of a misdemeanor, felony, or other criminal

charge, other than a minor traffic violation. Count 5 alleges

that Petitioner has violated Section 1012.795(1)(f) by being

guilty of personal conduct which seriously reduces her

effectiveness as an employee of the district school board.

Lastly, Count 6 alleges that she has violated Section

1012.795(2), Florida Statutes, which provides that a plea of

guilty in any court or the decision of guilty by any court is

prima facie proof of grounds for revocation.

34. Respondent has failed to prove, as alleged in Count 5,

that Petitioner's personal conduct has seriously reduced her

effectiveness as an employee of the district school board.

Respondent offered no evidence as to that allegation. On the

other hand, Petitioner's Exhibits 1 and 3-5, admitted in

evidence without objection, suggest that her performance with

the Duval County Public Schools has been satisfactory.

35. Respondent has proven, however, the allegations in

Counts 3, 4, and 6 by Petitioner's two convictions and by

Petitioner's vile and depraved treatment of her own children.

36. In her proposed recommended order, Petitioner alleges

that the undersigned committed a material error in procedure by

not allowing Petitioner's witnesses to testify in this

proceeding. The discussion regarding these witnesses appears on

pages 107 and 108 of the Transcript. After Petitioner had

testified, Petitioner's attorney announced that he had

discovered during a break in the proceeding that three witnesses

had voluntarily appeared at the hearing asking if they could

testify on Petitioner's behalf. Petitioner's attorney

represented that their testimony would be "in the nature of

mitigation." Petitioner's attorney further explained that since

the undersigned had previously ruled that although mitigation

evidence was relevant in a disciplinary proceeding in

determining, after a finding of guilt, what penalty should be

imposed, it was not relevant in a licensure proceeding. The

Petitioner's attorney announced that since they would only be

offering mitigation evidence, he would not offer their

testimony. The witnesses were not identified at that time and

were not disclosed in the Joint Pre-Hearing Stipulation.

37. The referred-to prior ruling regarding mitigation is

found on pages 101 through 106 of the Transcript at which point

Respondent objected to the relevancy of Petitioner's attorney

asking her questions about the types of disabilities that the

exceptional education students she teaches have. Petitioner's

attorney's response was, essentially, that he was presenting

mitigation testimony. Although there was one mention of the

phrase "moral character" during Petitioner's attorney's extended

argument on the objection, the objection that Petitioner's

students' characteristics were not relevant to the issue of her

entitlement to licensure was sustained.

38. Section 1012.796(7), Florida Statutes, provides that a

denial of an application for an educator's certificate may

provide that the applicant may not re-apply for certification

and that the Department of Education may refuse to consider an

application from that applicant for a specified period of time

or permanently. Petitioner's repeated abusive treatment of her

own children, her continued failure to understand her morally-

wrong behavior, and her failure to acknowledge her

responsibility for her conduct must be considered. Her

testimony attempting to put responsibility on her mother for her

own conduct coupled with her testimony that the belt-buckle

marks were the result of the belt slipping out of her hand and

falling on her son must also be considered. It is clear that

placing children within Petitioner's control may well constitute

a dangerous situation for those children should one of them do

something which may cause Petitioner to become angry. Not only

should Petitioner's application for a teaching certificate be

denied, she should be permanently barred from re-applying.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying

Petitioner's application for a Florida educator's certificate,

permanently barring her from re-applying in the future, and

providing that the Department may refuse to consider a

subsequent application from her.

DONE AND ENTERED this 11th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2008.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

Thomas A. Delegal, III, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street

Jacksonville, Florida 32202

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.