09-000621PL John L. Winn, As Commissioner Of Education vs. Ronald Rosen Status: Closed Recommended Order on Tuesday, March 9, 2010.

Summary: Respondent was convicted of lewd and lascivious conduct toward his female students; consequently, Petitioner has established grounds for permanently revoking Respondent's teaching certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-0621PL

)

RONALD ROSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on January 8, 2010, in Tallahassee, Florida, before J. D.

Parrish, an Administrative Law Judge, of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett

& Foster

863 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Joan Stewart, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

1012.795(1)(i), and 1012.795(2), Florida Statutes (2006),

and Florida Administrative Code Rules 6B-1.006(3)(a),

6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(h), and,

if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On April 3, 2006, John L. Winn, as Commissioner of

Education (Petitioner), filed a nine-count Administrative

Complaint against Ronald Rosen (Respondent), alleging that he

violated the provisions of Florida law noted above. The

Respondent timely disputed the factual allegations of the

complaint and executed an Election of Rights that chose the

"Settlement Option" with "Formal Hearing" if settlement could

not be reached. The parties were unable to reach a settlement.

On February 5, 2009, the matter was forwarded to the

Division of Administrative Hearings (DOAH) for formal

proceedings. On March 23, 2009, Respondent filed a Motion to

Hold DOAH Proceedings in Abeyance pending the resolution of

related criminal proceedings. By order entered March 25, 2009,

the case was placed in abeyance and the parties were directed to

file a status report by June 1, 2009. Thereafter the case

continued in abeyance until September 1, 2009. A Notice of

Hearing was entered September 3, 2009, that set the case for

hearing on January 8, 2010. Respondent continued to oppose the

instant case being tried because he has filed for post-

conviction relief and those efforts have not been exhausted.

The parties' Joint Motion to Change Venue was granted on

December 15, 2009.

At the final hearing neither party presented witnesses.

Both submitted documentary evidence that was marked and received

into evidence as Petitioner's Exhibits 1-15 and Respondent's

Exhibits 1-5. The Transcript of the hearing was filed with DOAH

on January 25, 2010. The parties were granted ten days’ leave

within which to file their proposed recommended orders.

Petitioner filed a Proposed Recommended Order on January 29,

2010. Respondent's Proposed Recommended Order was filed on

February 4, 2010. Both have been fully considered in the

preparation of this order.

FINDINGS OF FACT

1. Petitioner, on behalf of the Education Practices

Commission, is charged with the responsibility of certifying and

regulating public school teachers in Florida.

2. Respondent held Florida Educator’s Certificate 345797,

covering the area of elementary education grades 1 through 6.

His certificate expired on June 30, 2005.

3. At all times material to the allegations in the

Administrative Complaint, Respondent was employed as a public

school teacher in Brevard County, Florida. All underlying

conduct that resulted in criminal charges against Respondent

occurred in the Respondent's classroom setting.

4. On or about January 31, 2001, Respondent was arrested

in Brevard County, Florida, and charged with making

inappropriate contact with his students. More specifically, the

allegations stated that Respondent had improperly touched the

breasts and/or buttocks of four of his sixth-grade students.

5. Prior to the arrest, one of the students in

Respondent's class had written a note to her guidance counselor

asking that Respondent be told not to touch her anymore.

Thereafter, on investigation, other students claimed that

Respondent had also touched them inappropriately.

6. Several months passed and Respondent was formally

charged with multiple felony counts of lewd or lascivious

molestation. The charges are not disputed. The female students

involved in the allegations were 11 or 12 years old at the time

of the incidents. Each student testified at the criminal trial.

7. The jury trial resulted in convictions for multiple

counts of lewd and lascivious molestation as well as misdemeanor

battery.

8. On January 31, 2005, the trial court adjudicated

Respondent guilty and sentenced him to concurrent terms of 231

months for each of the lewd or lascivious molestation

convictions and twelve months for the misdemeanor battery

conviction. Respondent timely appealed the convictions and

sentence.

9. On September 8, 2006, the Fifth District Court of

Appeal affirmed the guilty judgments and sentences. The court's

Mandate was issued on November 17, 2006.

10. The Florida Supreme Court declined discretionary

review of Respondent's appeal.

11. Respondent now seeks post-conviction relief pursuant

to Rule 3.850, Florida Rules of Criminal Procedure. It is

expected that Respondent's challenge based upon ineffective

trial counsel will be resolved after an evidentiary review of

the facts pertaining to the advice the trial lawyers gave

Respondent. Respondent's counsel suggests that had he known of

the potential results flowing from conviction, he would have

elected to take the plea offered by the state that would not

have left him with a felony conviction or jail time.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57, Fla.

Stat. (2009).

13. Subsection 1012.795, Florida Statutes (2006) (the

version of the statute in effect at the times relevant to this

case), gives the Education Practices Commission the authority to

suspend or revoke the teaching certificate of any person, or to

impose any penalty provided by law, if the person is guilty of

certain specified acts. Pertinent to this proceeding are the

following provisions of that law:

(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 5 years,

thereby denying that person the right to

teach or otherwise be employed by a district

school board or public school in any

capacity requiring direct contact with

students 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 or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students 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 thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; or may

impose any other penalty provided by law,

provided it can be shown that the person:

* * *

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(e) Has been convicted of a misdemeanor,

felony, or any other criminal charge, other

than a minor traffic violation.

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

* * *

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

decision of guilty by any court, the

forfeiture by the teaching certificate

holder of a bond in any court of law, or the

written acknowledgment, duly witnessed, of

offenses listed in subsection (1) to the

district school superintendent or a duly

appointed representative of such

superintendent or to the district school

board shall be prima facie proof of grounds

for revocation of the certificate as listed

in subsection (1) in the absence of proof by

the certificate holder that the plea of

guilty, forfeiture of bond, or admission of

guilt was caused by threats, coercion, or

fraudulent means.

14. Petitioner alleged that Respondent violated the

foregoing provisions. Additionally, Petitioner maintains that

Respondent's conduct also constitutes a violation of

administrative rules governing the actions of educators in

Florida. More specifically, Petitioner has alleged that

Respondent violated Florida Administrative Code Rules

6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and

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

provides, in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(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 embarrassment or

disparagement.

* * *

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

15. Petitioner has the burden to establish the allegations

in the Administrative Complaint by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

16. Petitioner demonstrated that the Respondent was

convicted of a felony constituting moral turpitude and failed in

his appeal to over-turn that conviction. In response, the

Respondent maintains that he was provided ineffective criminal

counsel and, should he prevail on the remedy now sought in the

criminal case, he should not lose his certificate permanently

due to the criminal proceeding.

17. Petitioner has established by clear and convincing

evidence that Respondent's conviction constitutes a violation of

state law and the rules governing teacher conduct. The jury in

the criminal case assessed the Respondent's actions and found

him guilty of felony conduct: lewd and lascivious behavior

toward minor female students. That conviction alone supports

the revocation of Respondent's certificate such that additional

conclusions are unnecessary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

Respondent guilty of being convicted of a felony constituting

moral turpitude and permanently revoking his teaching

certificate.

DONE AND ENTERED this 9th day of March, 2010, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 9th day of March, 2010.

COPIES FURNISHED :

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Department of Education

Education Practices Commission

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Joan Stewart, Esquire

FEA/United

300 East Park Avenue

Tallahassee, Florida 32301

Marian Lambeth, Bureau Chief

Bureau of Professional Practice Services

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.