09-003048 Corey Hodges vs. Dr. Eric J. Smith, As Commissioner Of Education Status: Closed Recommended Order on Wednesday, December 2, 2009.

Summary: Recommend grant of application for an educator's certificate where Petitioner proved he met the criteria and Department failed to prove he introduced marijuana into a correctional facility as alleged in its Notice of Reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COREY HODGES, )

)

Petitioner, )

)

vs. ) Case No. 09-3048

)

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by T. Kent

Wetherell, II, the assigned Administrative Law Judge of the

Division of Administrative Hearings, on September 1, 2009, in

Bunnell, Florida. Upon Judge Wetherell's elevation to the

District Court of Appeal, First District, this cause was

transferred to Administrative Law Judge Linda M. Rigot for entry

of a recommended order.

APPEARANCES

For Petitioner: Sidney M. Nowell, Esquire

Justin T. Peterson, Esquire

Nowell & Associates, P.A.

1100 East Moody Boulevard

Post Office Box 819

Bunnell, Florida 32110-0819

For Respondent: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner’s application for

an educator’s certificate should be granted.

PRELIMINARY STATEMENT

In a Notice of Reasons dated March 30, 2009, the Department

of Education (Department) gave notice of its intent to deny

Petitioner’s application for an educator’s certificate. On

April 24, 2009, Petitioner filed with the Department an Election

of Rights form in which he requested an administrative hearing

regarding that denial. On June 8, 2009, the Department

transferred this matter to the Division of Administrative

Hearings to conduct the hearing requested by Petitioner.

The final hearing was initially scheduled for July 30,

2009, but was re-scheduled for September 1, 2009, based upon the

Department’s unopposed motion. At the commencement of the

hearing, the Department made an ore tenus motion to amend the

Notice of Reasons to remove Counts 3 and 7 as grounds for denial

of Petitioner’s application. Petitioner had no objection, and

the motion was granted. Similarly, the Department's ore tenus

motion to correct the statutory citation in Count 2 was

unopposed and granted.

Petitioner testified on his own behalf and also presented

the testimony of Terry N. Thomas, Nicole Marine, Diane Thomas,

and Lawrence C. Smith. The Department presented the testimony

of Darrel Grabner and Jerry N. Livingston, Jr. Petitioner’s

Exhibit numbered 1 was received in evidence, as were the

Department’s Exhibits numbered 1 through 10.

The parties were afforded 28 days from the date on which

the Transcript of the final hearing was filed by which to file

their proposed recommended orders. The Transcript was filed on

September 16, 2009. A September 24, 2009, unopposed Motion to

Extend Time to File Proposed Order until October 23, 2009, was

granted by Order entered September 25, 2009. A subsequent

unopposed Motion to Extend Time to File Proposed Order until

November 2, 2009, was granted by Order entered October 21, 2009.

Both parties timely filed their proposed recommended orders, and

those documents have been considered in the entry of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is 31 years old. He has lived in Florida

for the past 11 years.

2. Petitioner works at a rehabilitation center that

provides services to individuals with substance abuse problems.

He has worked in that job for about a year. As a client

advocate, he works with children 16 years of age and older.

3. For ten years Petitioner has served as a volunteer

basketball coach in the Flagler County Police Athletic League

(PAL). He currently coaches the high-school-aged girls' travel

team. Over the years he has coached boys and girls in the

fourth grade through the twelfth grade.

4. For three or four years Petitioner has been a volunteer

in a church-based youth ministry program. He supervises,

mentors, and provides encouragement to the children in the

program.

5. Petitioner applied for an educator’s certificate so

that he can coach basketball at the high school level. He does

not need the certificate to continue coaching in the PAL, but he

needs the certificate to work or even volunteer as a high school

coach.

6. Petitioner was employed as a certified correctional

officer at Tomoka Correctional Institution (TCI) for about four

years, until September 23, 2007. TCI is a state prison in

Volusia County, Florida, operated by the Florida Department of

Corrections (DOC).

7. As Petitioner was driving to work at TCI on

September 23, 2007, he saw a team of DOC investigators

conducting a drug interdiction at the facility. He pulled his

car over to the side of the facility’s entrance road and threw a

small package out of the car window before proceeding to the

parking lot. TCI staff saw Petitioner throw the package from

his car and informed the DOC investigators. The DOC

investigators went to the area and recovered the package.

8. The package contained marijuana. It was in a plastic

baggie and had been tightly wrapped in paper towels and then

covered with medical tape.

9. The manner in which the marijuana was wrapped is

consistent with the most common way that drugs are packaged when

they are smuggled into a prison. The package was small enough

and flat enough to be hidden in a man's boot or around his

crotch area and not be detected during a cursory pat-down

search.

10. After Petitioner was told by DOC investigators that a

drug-sniffing dog alerted to his car, he voluntarily spoke to

the investigators and admitted that the package found next to

the entrance road was thrown there by him, that he knew it

contained marijuana, and that he threw it out of his car when he

saw the drug interdiction team at the facility. However,

Petitioner denied that he planned to sell or give the marijuana

to an inmate or anyone else “inside the walls” of the facility.

11. Petitioner told the DOC investigators, and he

testified at the final hearing, that he received the marijuana

the day before the incident while he was at a fundraising car

wash for his PAL basketball team. The children on the

basketball team were at the car wash when the marijuana was

delivered, as were Petitioner’s children.

12. Petitioner told the DOC investigators, and he

testified at the final hearing, that his sister-in-law called

him before the car wash and asked him to help her by allowing a

friend to bring marijuana for her to Petitioner at the car wash.

She said she would later pick it up from Petitioner.

13. Petitioner told the DOC investigators, and he

testified at the final hearing, that he did not give much

thought to her request because she was a family member and one

should always help out family members. When the marijuana was

delivered, Petitioner was at his car which was a distance away

from where the cars were being washed. He wrapped the marijuana

in paper towels and medical tape, which he had in his car from a

prior injury, so that his children, who were helping wash the

cars, would not see it when he drove them home in his car.

14. His sister-in-law did not come to pick up the

marijuana after the car wash. He forgot that the marijuana was

in his car until he was close to work the next day. When he saw

the interdiction team at TCI, he stopped and threw the marijuana

out of the car. He then drove into the parking lot, parked his

car, and went in to work.

15. Petitioner was immediately arrested after his

confession to the DOC investigators. He was charged with

possession of more than 20 grams of marijuana and introduction

of contraband into a state prison. Both of those charges are

felonies, but for reasons not explained in the record, the State

Attorney elected not to prosecute either of the charges.

16. Petitioner was immediately fired from TCI after his

arrest, and he subsequently lost his certification as a

correctional officer.

17. Petitioner testified that he understands that what he

did was wrong, that he is sorry for what he did, and that he

will never do it again. This testimony appeared to be sincere.

18. The character witnesses who testified on Petitioner’s

behalf at the final hearing all testified that Petitioner is a

good person and a good role model for the children that he

coaches and mentors; that this incident was out of character for

Petitioner; and that they have no concerns about Petitioner

working with children. This testimony was sincere and clearly

heartfelt.

19. Although the DOC investigators weighed the marijuana

while it was still wrapped and determined that it weighed 37.8

grams, they did not weigh the marijuana itself after removing it

from its packaging. There is no competent evidence in this

record as to the weight of the marijuana. Accordingly, it

cannot be determined whether the amount of marijuana Petitioner

threw from his car would have constituted a felony or a

misdemeanor.

20. Similarly, there is no competent evidence in this

record as to whether Petitioner was on the grounds of a state

prison when he threw the marijuana from his car. There are no

security fences, no checkpoints, and no security towers before

one reaches the signage for the correctional facility and its

attendant structures. Petitioner believed that he would have

been on prison property if he had passed by the signage for the

facility and had crossed the road surrounding the perimeter of

the prison. One of the DOC investigators testified that the

property boundary was several hundred yards before the entrance

sign. The photographs admitted in evidence visually suggest

that the correctional facility's property commences beyond the

sign and beyond the location where Petitioner threw out the

marijuana. There is no competent evidence as to whether

Petitioner was on state property with the marijuana in his

possession.

21. Petitioner denies that he intended to introduce

contraband into the correctional facility. Rather, his actions

in throwing the marijuana out of his car at a location he

believed to be outside of the facility's property suggest he did

not intend to bring the contraband onto the grounds of the

facility.

22. Petitioner has met the qualifications for obtaining an

educator's certificate to enable him to coach basketball on the

high-school level.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

24. Section 1012.56, Florida Statutes, provides that the

Department is the state agency responsible for determining

eligibility for an educator's certificate.

25. Petitioner has the burden to prove by a preponderance

of the evidence that he meets the applicable requirements for

certification. The Department has the burden to prove by a

preponderance of the evidence that Petitioner fails to meet the

criteria for the reasons set forth in its Notice of Reasons for

denial of Petitioner's application. See Dept. of Banking &

Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

Petitioner has met his burden of proving entitlement to an

educator's certificate, and the Department has failed to prove

that Petitioner's application should be denied.

26. The general criteria for certification are set forth

in Section 1012.56(2)(a)-(i), Florida Statutes. The only

criterion the Department contends that Petitioner does not meet

is paragraph (e), which requires the applicant to “[b]e of good

moral character.”

27. Even if an applicant meets the criteria in Section

1012.56(2)(a)-(i), Florida Statutes, an application for

certification may be denied “if the department possesses

evidence satisfactory to it that the applicant has committed an

act or acts, or that a situation exists, for which the Education

Practices Commission would be authorized to revoke a teaching

certificate.” § 1012.56(12)(a), Fla. Stat.

28. The Education Practices Commission is authorized to

revoke an educator's certificate if the person:

(d) Has been guilty of gross

immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

§ 1012.795(1), Fla. Stat.

29. The Department’s rules do not include a definition of

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.

Fla. Admin. Code R. 6B-4.009(2).

30. The Department’s rules define “moral turpitude” 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 fellow man or to society

in general, and the doing of the act itself

and not its prohibition by statute fixes the

moral turpitude.

Fla. Admin. Code R. 6B-4.009(6).

31. The Principles of Professional Conduct for the

Education Profession in Florida provide in pertinent part:

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

Fla. Admin. Code R. 6B-1006.

32. The factual allegations forming the basis for the

Department's denial of Petitioner's application were two-fold:

(1) fraudulent information on Petitioner's application, and (2)

Petitioner's possession of and introduction of marijuana into a

correctional institution. At the commencement of the final

hearing the Department admitted that Petitioner had submitted no

fraudulent information and dismissed Count 3 and 7 of the Notice

of Reasons.

33. Count 1 of the Notice of Reasons alleges that

Petitioner lacks good moral character as required by Section

1012.56(2)(e), Florida Statutes. Petitioner has established his

good moral character. The only evidence proven by the

Department to show that Petitioner lacks good moral character is

Petitioner's admission that for one day he possessed an unknown

quantity of marijuana. Although Petitioner's agreement to do

his sister-in-law that favor cannot be justified, it cannot be

concluded that that single act defines his character.

34. Count 2, as amended, of the Notice of Reasons alleges

that Petitioner has violated Section 1012.56(12)(a), Florida

Statutes, because Petitioner has committed an act for which the

Education Practices Commission would be authorized to revoke his

certificate if he were certified. This Count is interrelated

with Counts 4 and 5, which allege that Petitioner is guilty of

violating Section 1012.795(d) and (j), Florida Statutes, because

he is guilty of gross immorality or an act involving moral

turpitude as defined by rule and/or of violating the Principles

of Professional Conduct.

35. Petitioner cannot be found guilty of gross immorality

as defined by rule since there is no rule providing a

definition, as is required by the statute. Further, the

definition of moral turpitude requires evidence of a crime or

conduct that is base, vile, or depraved. There is no competent

evidence that Petitioner intended to introduce contraband into a

correctional facility. Rather, the evidence indicates that

Petitioner intended to not introduce the contraband since he

threw it away. Further, only opinion testimony was offered as

to the boundaries of the property where the correctional

facility is located and as to whether Petitioner was within the

boundaries. The State Attorney declined to prosecute Petitioner

on this charge. Since neither the crime nor the conduct has

been proven, it cannot be said that the crime or conduct was

base, vile, or depraved.

36. Similarly, Petitioner was neither prosecuted for nor

convicted of possessing marijuana. Although he admitted to the

investigators at the time and during the final hearing in this

cause that he possessed the marijuana from one afternoon until

the next morning, that in and of itself cannot be considered

base, vile, or depraved. The Department's failure to prove the

quantity of marijuana must also be considered since the

Department argued at page 85 of the Transcript that there is a

big difference between felony possession and misdemeanor

possession.

37. The Department has, accordingly, failed to prove by a

preponderance of the evidence that Petitioner is guilty of gross

immorality or an act involving moral turpitude, as alleged in

Counts 2 and 4 of the Notice of Reasons.

38. Counts 2 and 5 are also interrelated in that the

Education Practices Commission would be authorized to revoke a

certificate for a violation of the Principles of Professional

Conduct. Count 6 provides the specific principle which the

Department alleges Petitioner has violated, and that is the

requirement that Petitioner maintain honesty in all professional

dealings. The Department argues that Petitioner violated this

principle by bringing contraband into a correctional

institution. Since there is not a preponderance of evidence

that Petitioner did so, then the Department has failed to prove

the allegations of Counts 2, 5, and 6, as alleged in the Notice

of Reasons.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department enter a final order

granting Petitioner’s application for an educator’s certificate.

DONE AND ENTERED this 2nd day of December, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of December, 2009.

COPIES FURNISHED :

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Sidney M. Nowell, Esquire

Justin T. Peterson, Esquire

Nowell & Associates, P.A.

1100 East Moody Boulevard

Post Office Box 819

Bunnell, Florida 32110-0819

Kathleen M. Richards, Executive 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

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399-0400

Mariam Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

325 West Gaines Street, Room 224-E

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.