09-005392PL Dr. Eric J. Smith, As Commissioner Of Education vs. Tina Adams Status: Closed Recommended Order on Thursday, February 18, 2010.

Summary: Respondent's reckless driving charge was found to be a minor traffic offense. Recommend no disciplinary action be taken against Respondent's teaching certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-5392PL

)

TINA ADAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on December 3, 2009, in New Port Richey, Florida, before Jeff B.

Clark, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Joseph J. Registrato, Esquire

2607 North 15th Street

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether it is appropriate for Petitioner to discipline

Respondent's Florida educator's certificate for acts alleged in

Petitioner's Administrative Complaint dated May 28, 2009.

PRELIMINARY STATEMENT

On May 28, 2009, Petitioner, Dr. Eric J. Smith,

Commissioner of Education, filed an Administrative Complaint

that contained allegations alleging violation of Subsections

1012.795(1)(d) and 1012.795(1)(f), Florida Statutes (2008),

advising Respondent, Tina Ramette Adams, that he was seeking

disciplinary sanctions against her Florida educator’s

certificate.

On July 13, 2009, Respondent requested an administrative

hearing. On September 15, 2009, Petitioner forwarded the case

to the Division of Administrative Hearings for assignment of an

Administrative Law Judge.

On October 5, 2009, an Initial Order was sent to both

parties requesting, inter alia , mutually convenient dates for

the final hearing. Based on the response of the parties on

October 13, 2009, the case was scheduled for final hearing on

December 3, 2009, in New Port Richey, Florida.

The hearing took place as scheduled on December 3, 2009.

Petitioner presented two witnesses: Deputies Matthew Kadel and

David Riffe. Petitioner submitted two exhibits that were

received into evidence and marked Petitioner's Exhibits 1 and 2.

At the hearing, Respondent testified in her own behalf.

Respondent did not offer any exhibits.

The Transcript of Proceedings was filed on December 11,

2009. Both parties timely submitted Proposed Recommended

Orders.

All statutory references are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Respondent holds Florida Professional Educator's

Certificate No. 999830, covering the area of elementary

education, which is valid through June 30, 2010.

2. Petitioner is the head of the state agency responsible

for certifying and regulating public school teachers in Florida.

3. On August 1, 2008, Respondent was operating a motor

vehicle in which her three children were passengers in Pasco

County, Florida, in an erratic manner, causing law enforcement

officers to stop the vehicle.

4. Upon stopping Respondent’s vehicle, the law enforcement

officers observed Respondent exhibiting multiple indicators of

impairment.

5. Respondent advised the law enforcement officers that

she was taking five prescription medications: Soma, Clonazepam,

Oxycondone, Prozac, and Fentanal.

6. Respondent was arrested for driving under the influence

and taken to a local hospital for medical clearance. She was

subsequently booked at the Land O'Lakes Detention Center.

7. On November 20, 2008, Respondent entered a plea of no

contest to an amended charge of reckless driving.

8. The law enforcement officers presented clear and

convincing evidence that Respondent operated a motor vehicle

while impaired by prescription medications.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57, Fla. Stat. (2009); Sublett v. District

School Board of Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA

1993).

10. Section 1012.795, Florida Statutes, reads, in

pertinent part, as follows:

(1) The Education Practices Commission

may suspend the educator certificate of any

person as defined in s. 1012.01(2) or

(3) for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or a

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 up to ten 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 or notice by the Department of

Revenue relating to the payment of child

support; or may impose any other penalty

provided by law, if the person:

* * *

(d) Has been guilty of gross immorality

or an act involving moral turpitude as

defined by the State Board of Education.

* * *

(f) Has been convicted or found guilty

of, or entered a plea of guilty to,

regardless of adjudication of guilt, a

misdemeanor, or any other criminal charge,

other than a minor traffic violation.

11. Because Respondent's Florida educator’s certificate is

at risk of being sanctioned, Petitioner bears the burden of

proving the allegations in the Administrative Complaint by clear

and convincing evidence. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The definition of clear and convincing evidence is

found in the case of Slomowitz v. Walker , 429 So. 2d 797 (Fla.

4th DCA 1983).

12. Because the statute and rules providing grounds for

disciplining Respondent's Florida educator’s certificate are

penal in nature, they must be construed in favor of Respondent.

Rosario v. Burke , 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v.

Department of Professional Regulations , 348 So. 2d 923 (Fla. 1st

DCA 1977).

13. The Administrative Complaint in this case charged

violations of Subsection 1012.795, Florida Statutes, as follows:

On or about August 1, 2008, Respondent was

driving erratically while impaired by

medication. She failed to maintain a single

lane and failed to stop for more than one

mile after a law enforcement vehicle

attempted to stop her by signaling with

lights and sirens. When she exited the

vehicle, Respondent fell to the ground.

Three children were in the vehicle at the

time. Respondent was arrested and charged

with: Count 1, Driving Under the Influence,

and Count 2, Child Neglect/Endangerment. On

or about September 9, 2008, the state

attorney's office filed no information as to

Count 2. On or about November 20, 2008, the

court adjudicated Respondent guilty of

Reckless Driving, a lesser included offense,

as to Count 1.

14. Based on the allegations above, the Administrative

Complaint alleged that Respondent was guilty of gross immorality

or an act involving moral turpitude as defined by rule of the

State Board of Education.

15. Florida Administrative Code Rule 6B-4.009(2) 1 defines

"immorality" as:

[C]onduct that is inconsistent with

standards of public conscience and good

morals. It is conduct sufficiently

notorious to bring the individual concerned

or the educational profession into public

disgrace or disrespect and impair the

individual's service in the community.

16. "Moral turpitude" is defined at Florida Administrative

Code Rule 6B-4.009(6) 2 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 fellowman or to society

in general, and the doing of the act itself

and not its prohibition by statute fixes the

moral turpitude.

17. When measured against these definitions, Respondent's

conduct, while dangerous and inappropriate, does not reach the

level of gross immorality or an act of moral turpitude.

Cisneros v. School Board of Miami-Dade County, Florida , 990

So. 2d 1179 (Fla. 3d DCA 2008); Clark v. School Board of Lake

County, Florida , 596 So. 2d 735 (Fla. 5th DCA 1990).

18. Subsection 1012.795(1)(f), Florida Statutes,

referenced in paragraph 10, states, in pertinent part,

Has been convicted or found guilty of, or

entered a plea of guilty to, regardless of

adjudication of guilt, a misdemeanor, or any

other criminal charge, other than a minor

traffic violation.

19. Subsection 1012.795(2), Florida Statutes, states, in

pertinent part:

[T]he decision of guilty by any court . . .

shall be prima facie proof of grounds for

revocation of the certificate . . . .

20. A plea of nolo contendre is not conclusive grounds for

dismissal. Kinney v. Department of State, Division of

Licensing , 501 So. 2d 129 (Fla. 5th DCA 1987); Ayala v.

Department of Professional Regulation , 478 So. 2d 1116 (Fla. 1st

DCA 1985).

21. An examination of the factual circumstances in the

instant case when measured by the Cisneros and Clark cases,

supra , leads the undersigned to conclude that Respondent's

reckless driving charge is a "minor traffic offense."

22. Petitioner has failed to prove clearly and

convincingly that Respondent violated Subsections 1012.795(1)(d)

and (f), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Tina Ramette Adams, be found

not guilty of violating Subsections 1012.795(1)(d) and (f),

Florida Statutes, and that no disciplinary action be taken.

DONE AND ENTERED this 18th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 18th day of February, 2010.

ENDNOTES

1/ This definition is in the context of disciplinary action by a

school district, but is instructive in defining the term as used

in Section 1012.795, Florida Statutes.

2/ See Endnote 1.

COPIES FURNISHED :

Deborah Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Kathleen M. Richards, Executive Director

Education Practice Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Joseph J. Registrato, Esquire

2607 North 15th Street

Tampa, Florida 33605

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.