09-006633PL Dr. Eric J. Smith, As Commissioner Of Education vs. Daniel Presmy Status: Closed Recommended Order on Wednesday, May 19, 2010.

Summary: Conviction of battery on child in 2007 disqualified Respondent from holding educator certificate under 2008 law. Respondent also violated Section1012.795(1)(e) and (i), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-6633PL

)

DANIEL PRESMY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Larry J. Sartin, an Administrative

Law Judge of the Division of Administrative Hearings, on a

stipulated record.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Thomas L. Johnson, Esquire

Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Daniel

Presmy, committed the violations alleged in a five-count

Administrative Complaint issued by Petitioner, Dr. Eric J.

Smith, as Commissioner of Education, on March 30, 2009, and, if

so, what disciplinary action should be taken against his Florida

educator’s certificate.

PRELIMINARY STATEMENT

On March 30, 2009, a five-count Administrative Complaint,

Education Practices Commission Case No. 089-0426, was issued by

Petitioner, Dr. Eric J. Smith, as Commissioner of Education,

against Respondent, Daniel Presmy, who holds a Florida

educator’s certificate. It is alleged in the Administrative

Complaint that Respondent violated the following provisions of

Florida law: Section 1012.795(1)(f), Florida Statutes

(Count 1); Section 1012.795(1)(g), Florida Statutes (Count 2);

Section 1012.795(1)(j), Florida Statutes (Count 3); Section

1012.795(1)(n), Florida Statutes, by having been disqualified

from qualification for an educator’s certificate under Section

1012.315, Florida Statutes (Count 4); and Florida Administrative

reasonable effort to protect the student from conditions harmful

to learning and/or to the student’s mental health and/or

physical healthy and/or safety” (Count 5).

On or about May 26, 2009, Respondent, through counsel,

filed an executed Election of Rights form selecting a

“settlement option” and a formal administrative hearing should

settlement not be reached. On December 7, 2009, Petitioner

filed the Administrative Complaint, Respondent’s Election of

Rights form, and a letter requesting that an administrative law

judge be assigned to hear the matter. The request for hearing

was designated DOAH Case No. 09-6633PL and was assigned to the

undersigned.

On December 14, 2009, the final hearing of this matter was

scheduled for January 29, 2010, by Notice of Hearing by Video

Teleconference.

On January 15, 2010, a Joint Request for Joint Status

Conference was filed, in which it was represented, in pertinent

part:

. . . .

2. There is no dispute regarding the

material allegations; however, there are

legal issues regarding the application of

Section 1012.315, Florida Statute[s,] which

remain for a determination.

3. The parties are willing to dispense

with the formal hearing and stipulate to the

material allegations and instead submit

their respective Briefs/Proposed Recommended

Orders on the remaining legal issues.

. . . .

On January 26, 2010, the status conference requested by the

parties was conducted by telephone. After discussing the

matter, it was agreed that the final hearing would be cancelled,

that the parties would be given until March 1, 2010, to file

proposed recommended orders, that responses to the proposed

recommended orders would be filed by March 15, 2010, and that a

recommended order would be issued thereafter. An Order

memorializing the status conference was entered February 9,

2010.

Three extensions of the date for filing proposed

recommended orders were subsequently requested and granted

without objection. Ultimately, proposed recommended orders were

to be filed on or before March 23, 2010, and responses thereto

were to be filed on or before April 6, 2010.

Both parties filed a Proposed Recommended Order timely.

After reviewing the Proposed Recommended Orders, it was realized

that there were issues concerning the alleged statutory

violations cited in the Administrative Complaint. Petitioner

had cited to the letter of the subsections of the pertinent

provisions of Florida Statutes as they appear in the 2008-2009

versions of Florida Statutes rather than the version in effect

in 2006 and 2007 when the alleged offenses took place.

Petitioner quoted, however, the actual language of the alleged

statutory violations from the 2006 and 2007 version of Florida

Statutes. Therefore, a conference was held by telephone with

the parties during which this apparent scrivener’s error was

pointed out and the parties were requested to address the error

in their responses to the Proposed Recommended Orders.

In addition to the issue concerning the correct alleged

statutory violations, a dispute also arose concerning exactly

what “facts” have been stipulated to. Respondent takes the

position that the agreed facts include Findings of Fact made in

the Recommended Order in School Board of Palm Beach County,

Florida v. Daniel Presmy , DOAH Case No. 07-5125, which was

entered August 11, 2008 (hereinafter referred to as the “School

Board Decision”). Petitioner takes the position that only the

facts alleged in the Administrative Complaint were stipulated

to. Exactly what “facts” have been stipulated to was not

clearly enunciated by the parties in any pleading or conference

held by the undersigned. It has ultimately been concluded in

this Recommended Order, however, that including the findings

made in the School Board Decision will not materially impact the

ultimate recommendation in this Recommended Order.

After granting further extensions of time to file responses

to the Proposed Recommended Orders, on April 20, 2010,

Petitioner filed Petitioner’s Response to the Respondent’s

Proposed Recommended Order/Petitioner’s Motion to Amend

Counts 1, 2, & 3 of the Administrative Complaint. The same day

Respondent filed Respondent’s Reply to Petitioner’s Proposed

Recommended Order.

No response has been filed by Respondent to Petitioner’s

Motion to Amend Counts 1, 2, & 3 of the Administrative

Complaint. Therefore, that Motion is hereby granted.

Accordingly, at issue in this case is whether Respondent

violated the following provisions of Florida law: Section

1012.795(1)(e), Florida Statutes (2007)(Count 1); Section

1012.795(1)(f), Florida Statutes (2007)(Count 2); Section

1012.795(1)(i), Florida Statutes (2007)(Count 3); Section

1012.795(1)(n), Florida Statutes (2008-2009), by having been

disqualified from educator certification under Section 1012.315,

Florida Statutes (Count 4); and Florida Administrative Code Rule

6B-1.006(3)(a), in that “Respondent has failed to make

reasonable effort to protect the student from conditions harmful

to learning and/or to the student’s mental health and/or

physical healthy and/or safety” (Count 5).

The Proposed Recommended Orders and the responses thereto

filed by the parties have been fully considered in preparing

this Recommended Order.

FINDINGS OF FACT

1. The following findings of fact were alleged in the

Administrative Complaint and stipulated to by the parties:

1. The Respondent holds Florida

Educator’s Certificate 850876, covering the

area of Elementary Education, which was

valid through June 30, 2008.

2. At all times pertinent hereto, the

Respondent was employed as a Third Grade

Teacher at Roosevelt elementary School in

the Palm Beach County School District.

3. On or about December 11, 2006,

Respondent struck D.H., a twelve-year-old

male student, against the will of D.H. On

or about July 30, 2007, Respondent pled and

the court adjudicated him guilty of one

count of Battery in violation of Florida

Statutes Section 784.03.

4. Conviction of Battery in violation of

Florida Statutes Section 784.03 when the

victim is a minor now disqualifies an

individual from holding an Educator’s

Certificate under Section 1012.315 of the

Florida Statutes.

2. The following findings of fact were made in the School

Board Decision:

1. Daniel Presmy (hereinafter "Presmy" or

"Respondent") has been a teacher for six

years with Palm Beach County School Board

(hereinafter "School Board"). He has always

taught elementary students.

2. Presmy has had no prior disciplinary

action taken against him by the

Superintendent of Palm Beach County School

Board or the School Board.

3. Presmy was a certified teacher in the

School Board of Palm Beach County.

4. On December 11, 2006, while in his

classroom Presmy was teaching his third-

grade class, and three students who were not

students in his classroom showed up and

disrupted the class. Presmy requested that

the students leave his room. The students

did not leave upon the initial request. One

student informed Presmy that a student in

the class had his eraser. Presmy then asked

his class who had the eraser. Subsequently,

an eraser flew to the front of the classroom

and fell on the floor. Presmy picked up the

eraser and handed the eraser to the student

who had requested it.

5. Presmy turned back to his class and

was hit on the temple with the eraser.

Presmy turned back around toward the student

who he had given the eraser to and the

student raised his hand. Again, Presmy told

the student to leave. The student continued

to stand in the middle of the doorway to

Presmy's classroom and would not leave.

6. While Presmy remained in his

classroom, he used his fingertips to push

the student's head and told the student

(hereinafter "student victim") to "leave and

don't come back here." Presmy "didn't think

that [he] was doing anything wrong by

telling him to leave with a gesture to

leave."

7. Presmy's reaction of touching the

student was inappropriate. However, no

evidence was demonstrated that the student

was hurt during the incident.

8. Presmy did not press the buzzer or

contact and ask for any assistance regarding

the incident because he didn't think it was

necessary.

9. On December 11, 2006, Officer Price

was paged regarding the incident and she

returned the call. She was informed that a

student reported that he had been hit by a

teacher at Roosevelt.

10. Price interviewed the student victim

and witnesses regarding the incident with

Presmy.

11. The School Board initiated an

investigation into the incident. During the

investigation, Respondent met with Detective

Walton. Presmy told the investigator that

he pushed the student victim in the head and

told him to leave. [Endnote omitted].

12. The investigator concluded his

investigation and presented the case to the

State Attorney’s Office for review. As a

result, Daniel Presmy was criminally charged

with Battery as a violation of Florida

Statutes.

13. On August 2, 2007, Presmy pled guilty

to the battery charge as a negotiated plea

agreement so as not to put himself and his

family through a lengthy trial and under the

advice of his lawyer. His sentence was 45

hours community service, 12 weeks of anger

management, 12 months of probation with

early termination after six months and a

$595 court fee.

14. Petitioner alleges Respondent, by his

conduct, violated School Board Policies

0.01, 1.013 and 3.12, and State Board of

Education Rules 6B-1.001 and 6B-1.006.

15. Subsequently, the School Board of

West Palm Beach County at a meeting on

October 24, 2007, voted to suspend Presmy

without pay effective October 25, 2007, and

initiated dismissal proceedings.

3. Although included as a Conclusion of Law in the School

Board Decision, the following fact was also found in the School

Board Decision: “There is no evidence that Presmy's physical

contact with the student in any way impaired his effectiveness

in the school system.”

CONCLUSIONS OF LAW

A. Jurisdiction .

4. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

B. The Burden and Standard of Proof .

5. Petitioner seeks to impose penalties against Mr. Presmy

pursuant to the Administrative Complaint that include the

suspension or revocation his Florida educator’s certificate.

Therefore, Petitioner has the burden of proving the specific

allegations of fact that support its charges by clear and

convincing evidence. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); and Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

6. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear 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 evidence 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

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Charges of the Administrative Complaint .

7. In the Administrative Complaint it is charged that

Mr. Presmy committed four acts for which Section 1012.795(1),

Florida Statutes, authorizes the Education Practices Commission

an educator’s certificates. The four disciplinable acts of

Section 1012.795(1), Florida Statutes, alleged to have been

violated in the original Administrative Complaint are Sections

1012.795(1)(f), (g), (j), and (n).

8. The Administrative Complaint also quotes the actual

statutory violation Petitioner believes Mr. Presmy violated. The

quoted statutory violations for the first three counts do not

match the letters of the subsection of Section 1012.795(1),

Florida Statutes, Mr. Presmy is alleged to have violated.

9. In its response to Mr. Presmy’s Proposed Recommended

Order, Petitioner filed a Motion to Amend the first three counts

of the Administrative Complaint to identify the correct letter

of the statutory violations Mr. Presmy allegedly violated.

Mr. Presmy has not responded to the Motion to Amend. Finding no

prejudice to Mr. Presmy, the Motion to Amend has been granted.

10. As alleged in the Administrative Complaint, as

amended, Mr. Presmy has been charged in Counts 1 through 3 with

having committed the following three violations of Section

1012.795(1), Florida Statutes (2007):

(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.

. . . .

11. In Count 4 of the Administrative Complaint, as

amended, it is alleged that Mr. Presmy also violated Section

1012.795(1)(n), Florida Statutes (2008-2009). This offense was

created in 2008, after the factual events at issue in this case.

Ch. 2008-108, § 32, Laws of Fla. 2008. Section 1012.795(1)(n),

Florida Statutes (2008-2009), defines the following

disciplinable offense: “[h]as been disqualified from educator

certification under s. 1012.315.”

12. Finally, Count 5 alleges that Mr. Presmy violated

Florida Administrative Code Rule 6B-1.006(3)(a), in that

“Respondent has failed to make reasonable effort to protect the

student from conditions harmful to learning and/or to the

student’s mental health and/or physical health and/or safety.”

This count simply specifies which of the Principles of

Professional Conduct for the Education Profession Mr. Presmy is

alleged to have failed to follow in violation of Section

1012.795(1)(i), Florida Statutes (2007). Florida Administrative

Code Rule 6B-1.-006(3)(a) does not authorize discipline and,

therefore, Count 5 is simply a sub-part of Count 3.

D. Count 1: Violation of Section 1012.795(1)(e), Florida

Statutes (2007) .

13. The parties stipulated that Mr. Presmy was adjudicated

guilty of b attery in violation of Section 784.03, Florida

Statutes, a misdemeanor of the first degree.

14. Petitioner has proved clearly and convincingly that

Mr. Presmy has violated Section 1012.795(1)(e), Florida Statutes

(2007), as alleged in the Administrative Complaint, as amended.

E. Count 2: Violation of Section 1012.795(1)(f), Florida

Statutes (2007) .

15. The parties stipulated that Mr. Presmy was adjudicated

guilty of battery and that he “ struck D.H., a twelve-year-old

male student, against the will of D.H..”

16. Respondent argues that the foregoing stipulated facts

and the facts found in the School Board Decision are inadequate

to find that “he has been found guilty of personal conduct which

seriously reduces that person’s effectiveness as an employee of

the district school board.”

17. Petitioner argues that Mr. Presmy’s loss of

effectiveness as an employee of the district school board can be

inferred based upon the criminal violation. See Purvis v. Marion

County School Board , 766 So. 2d 492 (Fla. 5th DCA 2000). While

Petitioner is correct in arguing that ineffectiveness may be

inferred in some cases, it is also true that not all conduct

supports such an inference. See Walker v. Highlands County

School Board , 752 So. 127, 128 (Fla. 2d DCA 2000).

18. In this matter, the facts which Petitioner has

stipulated to are simply insufficient to infer ineffectiveness,

even ignoring the Findings of Fact made in the School Board

Decision. If the facts found in the School Board Decision were

considered, Petitioner’s argument is even less convincing. Those

findings point out the reason why looking at only the crime for

which guilt has been found, without more, may not support an

inference of ineffectiveness.

19. Petitioner has failed to prove clearly and convincingly

that Mr. Presmy “ has been found guilty of personal conduct which

seriously reduces that person’s effectiveness as an employee of

the district school board” in violation of Section

1012.795(1)(f), Florida Statutes (2007).

F. Counts 3 and 5: Violation of Section 1012.795(1)(i),

Florida Statutes (2007) .

20. In Count 3 it is alleged that Mr. Presmy violated the

“ Principles of Professional Conduct for the Education Profession

. . . .” In Count 5, it is alleged that the specific Principle

violated is found in Florida Administrative Code Rule 6B-1.-

006(3)(a), which requires that certificate holders “make

reasonable effort to protect the student from conditions harmful

to learning and/or to the student’s mental health and/or physical

healthy and/or safety.”

21. In light of the fact that Mr. Presmy agrees that he

of battery on that student, Petitioner has proved clearly and

convincingly that Mr. Presmy failed to comply with Florida

Administrative Code Rule 6B-1.-006(3)(a), in violation of Section

1012.795(1)(i), Florida Statutes (2007).

G. Count 4: Violation of Section 1012.795(1)(n), Florida

Statutes (2008-2009) .

22. Section 1012.795(1)(n), Florida Statutes (2008-2009),

authorizes the EPC to take action against an educator’s

certificate if he or she “[h]as been disqualified from educator

certification under s. 1012.315.”

23. Section 1012.315(2)(a), Florida Statutes (2008-2009),

provides as follows:

A person is ineligible for educator

certification, and instructional personnel

and school administrators, as defined in s.

1012.01 , are ineligible for employment in

any position that requires direct contact

with students in a district school system,

charter school, or private school that

accepts scholarship students under s.

220.187 or s. 1002.39 , if the person,

instructional personnel, or school

administrator has been convicted of:

. . . .

(2) Any misdemeanor offense prohibited

under any of the following statutes:

(a)Section 784.03 , relating to battery, if

the victim of the offense was a minor.

24. The evidence proved clearly and convincingly that

Mr. Presmy has been convicted of a misdemeanor defined in

Section 1012.315(2)(a), Florida Statutes (2008-2009), that makes

employment in any position that requires direct contact with

students . . . .”

25. As a consequence of his ineligibility for

certification, the EPC is authorized by Section 1012.795(1)(n),

Florida Statutes (2008-2009), to impose discipline on his

educator’s certificate.

26. Because Section 1012.795(1)(n), Florida Statutes

(2008-2009), was enacted after Mr. Presmy was adjudicated guilty

of battery, he argues that disciplining him for his 2007

conviction would constitute a prohibited retroactive application

of a statute. Mr. Presmy, however, bases this argument on the

fact that his “conviction of Battery” took place before Section

1012.795(1)(n), Florida Statutes (2008-2009), was enacted.

While true, Mr. Presmy ignores the fact that Section

1012.795(1)(n), Florida Statutes (2008-2009), does not authorize

discipline of his educator certification due to his conviction

for battery or the acts which led to his conviction. Section

1012.795(1)(n), Florida Statutes (2008), authorizes discipline

for his failure to remain eligible for certification, an act

which took place upon enactment of Section 1012.315(2)(a),

Florida Statutes.

27. Cases cited by Mr. Presmy are all distinguishable from

this matter and contrary to the decision in Cirnigliaro v.

Florida Police Standards and Training Commission , 409 So. 2d 80

(Fla. 1st DCA 1982). That decision, which supports Petitioner’s

position in this case, was explained in Taylor v. Department of

Professional Regulation, Board of Medical Examiners , 534 So. 2d

782, 784 (Fla. 1st DCA 1988), as follows:

In Cirnigliaro we held that the Commission

properly revoked Cirnigliaro’s police

officer’s certification due to his pre-

application conviction of a misdemeanor

involving moral turpitude. Appellee cites

Cirnigliaro as authority for the proposition

that it has jurisdiction over appellant’s

prelicensure conduct. Cirnigliaro , however,

involved not a disciplinary action for

misconduct but rather the revocation of

Cirnigliaro’s certificate pursuant to a

statutory mandate provide that a minimum

qualification for certification was that an

applicant must not have been convicted of a

felony or a misdemeanor involving moral

turpitude. Unlike appellant, Cirnigliaro

was not disciplined for any past misconduct

but rather was relieved of his certification

due to his present and continuing

disqualification for certification. . . .

28. While Section 1012.795(1)(n), Florida Statutes (2008-

2009), does not take into account events which took place prior

to its enactment, Section 1012.315, Florida Statutes, does have

the effect of disqualifying a person based upon convictions

which may have taken place prior to enactment of that section of

the law. The courts in Florida, however, have consistently

upheld disqualification from employment based upon convictions

occurring before the effective date of Chapter 435, Florida

Statutes, which was effective October 1, 1995. Sledge v.

Department of Children and Families , 861 So. 2d 1189 (Fla. 5th

DCA 2003); Heburn v. Department of Children and Families , 772

So. 2d 561 (Fla. 1st DCA 2000); and Phillips v. Department of

Juvenile Justice , 736 So. 2d 118 (Fla. 4th DCA 1999).

29. As explained in Petitioner’s Response to the

Respondent’s Proposed Recommended Order, the Legislature, in

enacting Section 1012.315, Florida Statutes, intended that

convictions which took place prior to enactment of that Section

were to be considered in determining whether an individual is

eligible for certification to teach in Florida.

30. Based upon the foregoing, it is concluded that

Petitioner has proved clearly and convincingly that Mr. Presmy

is in violation of Section 1012.795(1)(n), Florida Statutes

(2008-2009).

H. Penalty

31. Petitioner has requested the permanent revocation of

Mr. Presmy’s educator’s certificate. In light of the conclusion

that Mr. Presmy is in violation of Section 1012.795(1)(n),

Florida Statutes (2008-2009), in addition to his other

violations, permanent revocation is justified. No longer being

qualified for certification, revocation is the only reasonable

penalty to be imposed in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Education Practices Commission:

1. Finding that Daniel Presmy violated Sections

1012.795(1)(e) and (i), Florida Statutes (2007), and Section

1012.795(1)(n), Florida Statutes (2008-2009), as alleged in

Counts 1, 3/5, and 4 of the Administrative Complaint, as

amended;

2. Dismissing Count 2 of the Administrative Complaint, as

amended; and

3. Permanently revoking Mr. Presmy’s educator’s

certificate.

DONE AND ENTERED this 19th of May, 2010, in Tallahassee,

Leon County, Florida.

LARRY J. SARTIN

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 19th day of May, 2010.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Department of Education

Education Practices Commission

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Thomas Johnson, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

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

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 these cases.