08-006171PL John L. Winn, As Commissioner Of Education vs. Daniel W. Gardiner Status: Closed Recommended Order on Friday, April 17, 2009.

Summary: Petitioner demonstrated Counts 2-5 of the Amended Administrative Complaint by showing that Respondent provided false information on an application with the Department,

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 08-6171PL

)

DANIEL W. GARDINER, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 3, 2009, a duly-noticed hearing was held in

Gainesville, Florida, before Administrative Law Judge Lisa

Shearer Nelson of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Todd Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Daniel Gardiner, pro se

504 Northwest 97th Terrace

Gainesville, Florida 32607

STATEMENT OF THE ISSUES

The issues to be determined in this proceeding are whether

the Respondent committed the acts alleged in the Amended

Administrative Complaint and, if so, what penalty should be

imposed?

PRELIMINARY STATEMENT

On August 17, 2008, John L. Winn as Commissioner of

Education (the Commissioner) filed a seven-count Administrative

Complaint against Respondent alleging violations of Section

1012.795, Florida Statutes, 1/ and Florida Administrative Code

Rule 6B-1.006. The factual allegations in the Administrative

Complaint asserted that Respondent entered a restricted area in a

state park to engage in sexual activity, for which he was

arrested; that the criminal charges were nolle prossed following

Respondent's completion of a pre-trial intervention program; and

that when Respondent applied for a Florida Educator's certificate

in 2002, he failed to acknowledge his criminal background as

required by law. The Administrative Complaint further alleged

that during the 2004-2005 year, Respondent repeatedly engaged in

inappropriate and unprofessional conduct with students and

parents, and that during the pendency of the school district's

investigation of this conduct, Respondent repeatedly violated

lawful directives issued by superiors concerning his presence on

school board property and contacting school board employees.

Respondent filed an Election of Rights form on August 30,

2008, indicating that he disputed the factual allegations in the

Administrative Complaint and requested a disputed fact hearing.

On December 10, 2009, the matter was forwarded to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The case was assigned to the undersigned and on December 19,

2008, a Notice of Hearing was issued scheduling the case to be

heard on March 3, 2009. A request for a continuance filed by

Petitioner was denied, and the case proceeded as scheduled. On

the day before hearing, Respondent filed an Amended Motion for

Dismissal, which was denied at the commencement of the hearing.

On March 2, 2009, Petitioner also filed a Motion to Amend the

Administrative Complaint. The Motion sought to eliminate those

factual allegations related to the 2004-2005 school year and

Respondent's violation of directives during the investigation of

the 2004-2005 school-year conduct, and to allege additional

statutory and rule violations with respect to the remaining

conduct.

After discussion of the proposed amendment at the

commencement of the hearing, Respondent did not object to the

amendment of the Administrative Complaint and the Motion to Amend

was granted. Respondent was also given the opportunity to have

the case continued in light of the amendments, and chose to go

forward with the hearing.

Petitioner presented the testimony of Respondent, and

presented Petitioner's Exhibits 1-2, which were admitted.

Respondent testified on his own behalf and presented no exhibits.

The Transcript was filed with the Division on March 24, 2009, and

both parties timely filed Proposed Recommended Orders. Both

submissions have been carefully considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations in the Amended

Administrative Complaint, Respondent held Florida Educator's

Certificate 726297, covering the areas of biology and technology

education, which was valid through June 30, 2006. 2/

2. At all times relevant to these proceedings, Respondent

was employed as a teacher at Fort Clark Middle School in the

Alachua County School District.

3. On or about December 22, 1999, Respondent was given a

Citation/Notice to Appear by the Department of Environmental

Protection, Division of Law Enforcement, at the Paynes Prairie

Preserve, and charged with trespass in a restricted area, a

misdemeanor offense. The case was docketed as State of Florida

v. Daniel Gardiner , Case No. 99-14490-MMA (Eighth Judicial

Circuit, in and for Alachua County, Florida).

4. On March 28, 2000, Respondent entered into an agreement

for deferred prosecution of the criminal charge (the Deferred

Prosecution Agreement). The Deferred Prosecution Agreement

provided in pertinent part:

It appearing that you have committed

offenses(s) against the State of Florida

referenced above and it further appearing

after an investigation of those offense(s)

and your background that the best interests

of justice will be served by the following

procedures:

On the authority of ROD SMITH as State

Attorney for Alachua County, Florida,

prosecution in this matter will be deferred

for a period of 6 months from the date

hereof, and your bond(s), if any, returned

now, PROVIDED you agree to do (sic) fully

abide by the following terms and conditions

during said period:

(1) You shall refrain from violating any

federal or state law or county municipal

ordinance. If arrested, you shall

immediately inform the State Attorney's

Office in writing of the charge, and promptly

advise in writing of the final disposition of

the charge (i.e., dismissed, plea of guilty

or not guilty by a judge or jury).

(2) Your execution of this instrument shall

constitute a withdrawal of any demand for

speedy trial previously filed by you pursuant

to Florida Statute 918.015 and Fla.R.Cr.Pr.

3.191, and a stipulation that the periods of

time established by said Rule for trial and

any other rights conferred upon you by said

Rule are waived.

* * *

(5) SPECIAL CONDITIONS, if any:

1. Donate $150.00 to Newberry High School

Academy of Criminal Justice Scholarship Fund,

. . . .

2. Perform 24 hours of Community Service . .

. .

3. You shall not enter any state parks.

* * *

If you comply with these conditions during

the period of deferred prosecution, the

charge(s) referred to above will be

dismissed.

The period of deferred prosecution may be

shortened or terminated early by the State

Attorney. . . .

5. Respondent was represented by counsel in connection with

the Deferred Prosecution Agreement, and signed a statement

acknowledging that he understood the conditions of the Agreement

and had received advice from his attorney regarding the matter.

6. On or about July 11, 2000, the Assistant State Attorney

entered a nolle proseque/no information with respect to the

above-referenced charge, and the charge was dismissed based upon

Respondent's completion of the Deferred Prosecution Agreement.

7. Respondent reported his Deferred Prosecution Agreement

to the assistant principal of Fort Clark Middle School. He did

so because he believed it was required under what he referred to

as the educator's Code of Ethics.

8. The Principles of Professional Conduct for the Education

Profession are adopted by rule at Florida Administrative Code

Rule 6B-1.006, and are in the Chapter referred to as the Code of

Ethics of the Education Profession in Florida. The reporting

requirement with respect to criminal proceedings provides the

following:

(4) Obligation to the profession of

education requires that the individual:

* * *

(m) Shall self-report within forty-eight

(48) hours to appropriate authorities (as

determined by the district) any

arrests/charges involving the abuse of a

child or the sale and/or possession of a

controlled substance. . . . In addition,

shall self-report any conviction, finding of

guilt, withholding of adjudication,

commitment to a pretrial diversion program,

or entering a plea of guilty or Nolo

Contendre for any criminal offense other than

a minor traffic violation with forty-eight

(48) hours after the final judgment. . . .

9. On or about January 18, 2002, Respondent submitted an

application to the Florida Department of Education to add an

additional subject to his certification. The application

contained the following question:

28. Have you ever been convicted, found

guilty, had adjudication withheld, entered a

pretrial diversion program, or pled guilty or

nolo contendere (no contest) to a criminal

offense other than a minor traffic violation

(DUI is NOT a minor traffic violation)?

Failure to answer this question accurately

could cause denial or a certificate.

10. Respondent answered question 28 "no." The text of the

rule quoted above that identifies what conduct triggers self-

reporting, and the text of the question on the application

submitted to the Department, are virtually identical.

11. The application contained the following statement:

I hereby certify that I subscribe to and will

uphold the principles incorporated in the

Constitutions of the United States of America

and the State of Florida. I understand that

Florida Statutes provide for revocation of an

Educator's Certificate if evidence and proof

are established that the certificate has been

obtained by fraudulent means. I further

certify that all information pertaining to

this application is true, correct, and

complete.

12. Respondent signed the application, and his signature is

notarized.

13. Respondent did not consult his attorney before signing

and submitting the application. His testimony that he did not

believe that pretrial intervention encompassed a deferred

prosecution agreement is not credible.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2008).

15. This is a penal proceeding in which Petitioner seeks to

impose discipline against Respondent's ability to maintain a

teaching certificate. Petitioner has the burden to prove the

allegations against Respondent by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); § 120.57(1)(j), Fla. Stat. (2008). Clear and

convincing evidence is defined as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting , Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

16. The Amended Administrative Complaint contains the

following factual allegations:

3. On or about December 22, 1999, Respondent

entered a restricted area in a state park to

engage in sexual activity. Respondent was

issued a notice to appear on the charge of

Trespass in Restricted Area. On or about

July 11, 2000, the state attorney's office

nolle prossed the case following Respondent's

completion of a pre-trial intervention

program.

4. On his application for a Florida

Educator's Certificate date January 18, 2002,

Applicant failed to acknowledge his criminal

background as required by Florida law and in

conflict with his sworn statement on the

application that all information provided was

true, correct and complete in that he failed

to acknowledge his 1999 charge.

17. The Commissioner did not demonstrate by clear and

convincing evidence that Respondent entered a restricted area in

a state park for the purpose of engaging in sexual activity. The

only evidence of this allegation is the hearsay statement of the

law enforcement officer contained in the narrative of the

incident report. This type of hearsay statement, standing alone,

is insufficient to support a finding of fact. Scott v.

Department of Professional Regulation , 603 So. 2d 519 (Fla. 1st

DCA 1992); Harris v. Game and Fresh Water Fish Commission , 495

So. 2d 806 (Fla. 1st DCA 1986).

18. Petitioner did demonstrate by clear and convincing

evidence, however, that Respondent was issued a notice to appear

on the charge of trespass of a restricted area; that the charges

were nolle prossed after successful completion of a pretrial

intervention program; and that Respondent failed to acknowledge

the participation in the pretrial intervention program in his

application filed with the Department of Education January 18,

2002.

19. Respondent claimed at hearing that he did not

understand his participation in the Deferred Prosecution

Agreement to be the same as pretrial intervention. His testimony

on this issue is not credible. First, Section 948.048, Florida

Statutes (2008), authorizes and describes pretrial intervention

programs. It provides in pertinent part:

(2) Any first offender . . . who is charged

with any misdemeanor or felony of the third

degree is eligible for release to the

pretrial intervention program on the approval

of the administrator of the program and the

consent of the victim, the state attorney,

and the judge who presided at the initial

appearance hearing of the offender. However,

the defendant may not be released to the

pretrial intervention program unless, after

consultation of his or her attorney, he or

she has voluntarily agreed to such program

and has knowingly and intelligently waived

his or her right to a speedy trial for the

period of his or her diversion . . . .

(3) The criminal charges against an offender

admitted to the program shall be continued

without final disposition for a period of 90

days after the date the offender was released

to the program, if the offender's

participation in the program is satisfactory,

and for an additional 90 days upon the

request of the program administrator and

consent of the state attorney, if the

offender's participation in the program is

satisfactory.

(4) Resumption of pending criminal

proceedings shall be undertaken at any time

if the program administrator or state

attorney finds that the offender is not

fulfilling his or her obligations under this

plan or if the public interest so requires.

. . .

(5) At the end of the intervention period,

the administrator shall recommend:

(a) That the case revert to normal channels

for prosecution in instances in which the

offender's participation in the program has

been unsatisfactory;

(b) That the offender is in need of further

supervision; or

(c) That dismissal of charges without

prejudice shall be entered in instances in

which prosecution is not deemed necessary.

The state attorney shall make the final

determination has to whether the prosecution

shall continue.

20. The terms of the Deferred Prosecution Agreement track

the requirements of Section 948.08. Respondent was counseled on

the requirements of the Deferred Prosecution Agreement, which he

signed, and he knew that entry into the Agreement meant that,

prior to trial on the criminal charges against him, he was

provided an alternative to prosecution.

21. Second, Respondent admitted that he notified the

assistant principal at the middle school where he taught that he

had entered a Deferred Prosecution Agreement because he thought

he was required to do so by the rules governing the conduct of

teachers. Like the application, the Rule 6B-1.006 uses the term

pretrial diversion program. For Respondent to claim that he did

not understand the term to include a deferred prosecution

agreement when he had already self-reported based upon a rule

using the same language as the application is not credible.

22. Count I of the Amended Administrative Complaint alleges

that Respondent is in violation of Section 1012.795(1)(d),

Florida Statutes, which authorizes discipline for being guilty of

gross immorality or an act involving moral turpitude as defined

by rule of the State Board of Education. Immorality and moral

turpitude are both defined in Florida Administrative Code Rule

6B-4.009:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties;

which, according to accepted standards of the

time a man owes to his or her fellow man or

to society in general, and the doing of the

act itself and not its prohibition by statute

fixes the moral turpitude.

23. Petitioner asserts that Respondent engaged in an act of

gross immorality by entering into an area of a public park for

the purpose of engaging in sexual activity. As stated above,

there is no clear and convincing evidence that Respondent

trespassed for the purpose of engaging in sexual activity. The

evidence only supports the finding that he was given a citation

for trespass in a restricted area. This violation does not rise

to the level of gross immorality, or a crime of moral turpitude.

Accordingly, Count I of the Amended Administrative Complaint

should be dismissed.

24. Count II charges Respondent with violating Section

1012.795(1)(j), Florida Statutes, which prohibits violations of

the Principles of Professional Conduct for the Education

Profession prescribed by the State Board of Education rules.

Violation of the applicable rule provisions are charged in Counts

IV and V of the Amended Administrative Complaint. As discussed

below, Petitioner has demonstrated violation of the rule

provisions alleged. Accordingly, Count II of the Amended

Administrative Complaint has been proven by clear and convincing

evidence.

25. Count III of the Amended Administrative Complaint

charges that Respondent violated Section 1012.795(1)(a), Florida

Statutes, by obtaining or attempting to obtain an educator

certificate by fraudulent means. No evidence was presented to

show whether Respondent actually received the additional subject

certification sought by his January 18, 2002, application.

However, it is clear that he was seeking an additional area of

certification by means of his application.

26. The essential elements of a fraud claim in a civil

proceeding are 1) a false statement concerning a material fact,

including nondisclosure when a duty exists to disclose; 2) made

with knowledge that the representation (or omission) is false and

with the intention of inducing another's reliance on the

representation or omission; and 3) consequent injury to the other

party acting in reliance on the false representation. Cohen v.

Kravit Estate Buyers, Inc. , 843 So. 2d 989, 991 (Fla. 4th DCA

2003). In a disciplinary context, there is no need to prove

actual injury, because it is the potential for injury or reliance

that is sought to be prevented. Major v. Department of

Professional Regulation , 531 So. 2d 411 (Fla. 3d DCA 1988); Britt

v. Department of Professional Regulation , 492 So. 2d 697 (Fla.

1st DCA 1986), overruled on other grounds , Department of

Professional Regulation v. Bernal , 531 So. 2d 967 (Fla. 1988).

27. The Commissioner has demonstrated by clear and

convincing evidence that Respondent falsely answered question 28

"no" when he knew he had entered into a pretrial diversion

program by virtue of the Deferred Prosecution Agreement, and had

previously reported his participation as required by Rule 6B-

1.006(5)(m). He made the false statement on an application,

which he certified to be true, correct and complete, submitted

for the purpose of obtaining certification in an additional

teaching area. He clearly intended for the Department to rely on

the information furnished. Count III has been demonstrated by

clear and convincing evidence.

28. Count IV of the Amended Administrative Complaint

alleges that Respondent violated Florida Administrative Code Rule

6B-1.006(5)(a), by failing to maintain honesty in his

professional dealings. By showing that Respondent submitted

information that he knew to be false in a certification

application, the Department has demonstrated a violation of Count

IV by clear and convincing evidence. The same fraudulent

response also forms a basis for the violation alleged as Count V,

by submitting fraudulent information on a document in connection

with professional activities, prohibited by Florida

Administrative Code Rule 6B-1.006(5)(h).

29. Section 1012.796(7), Florida Statutes, provides the

range of lawful penalties for violations of Section 1012.795:

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a teaching

certificate. . . .

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine not

to exceed $2,000 for each count or separate

offense.

(d) Placement of the teacher . . . on

probation and subject to such conditions as

the commission may specify including

requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

employment or termination of employment in

the state in any public or private position

requiring a Florida educator's certificate.

2. Have his or her immediate supervisor

submit annual performance reports to the

investigative office in the Department of

Education.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher . . . in

writing, with a copy to be placed in the

certification file of such person.

(g) Imposition of an administrative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal, which

sanction bars that person from applying for a

new certificate for a period of 10 years or

less, or permanently.

(h) Refer the teacher, . . . to the recovery

network program provided in s. 1012.798 under

such terms and conditions as the commission

may specify.

30. Petitioner has suggested that an appropriate penalty

would be a letter of reprimand in Respondent's file, an

administrative fine of $500.00, and a two-year probationary

period. Based upon the representations of both parties,

Respondent's certification expired in June of 2006. While

Section 1012.796(7)(d) clearly authorizes probation, it appears

to be intended for those persons who have an active certificate

and are working in the teaching field. That does not appear to

be the case in this instance.

31. Section 796(7)(g), by contrast, is reserved for a

person, such as Respondent, whose teaching certificate was active

at the time of the offenses alleged but has expired in the

interim.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered finding Respondent to be

guilty of the violations alleged in Counts II-V and dismissing

Count I of the Amended Administrative Complaint; imposing a

reprimand, a $500.00 fine, and an administrative sanction barring

Respondent from applying for a new certificate for a period of

six months.

DONE AND ENTERED this 17th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 2009.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to those provisions applicable to the violations

alleged in the Amended Administrative Complaint, i.e. , the 2004

codification of the Florida Statutes.

2/ No evidence was presented at hearing regarding Respondent's

certificate number, the areas of certification or the expiration

date of his certificate. However, both parties have submitted

identical proposed findings of fact regarding this information.

No dispute regarding the accuracy of this finding appears to

exist, and it is considered a stipulated fact.

COPIES FURNISHED:

Todd Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Daniel Gardiner

504 Northwest 97th Terrace

Gainesville, Florida 32607

Deborah K. Kearney, General Counsel

Department of Education

325 West Gaines Street, Suite 1244

Tallahassee, Florida 32399-0400

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224

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.