11-001263PL Dr. Eric J. Smith, As Commissioner Of Education vs. Casey Griffith Status: Closed Recommended Order on Friday, June 10, 2011.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated section 1012.795(1)(d) and (f). Recommend suspension, probation, evaluation and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 11 - 1263PL

)

CASEY GRIFFITH, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 25, 2011, a hea ring was held in Ocala , Florida ,

pursuant to the authority set forth in s ections 120.569 and

120.57(1), Florida Statutes. The case was consider ed by Lisa

Shearer Nelson , Administrative Law Judge.

APPEARANCES

For Petitioner: Brent McNeal, Esquire

Department of Education

325 West Gaines Street

Turlington Building, Room 1244

Tallahassee, Florida 32399 - 04 00

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway, 19 North, Room 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

section 101 2.795(1)(d) and (f), Florida Statutes (2008), as

alleged in the Administrative Complaint, and if so, what penalty

should be imposed?

PRELIMINARY STATEMENT

On December 15, 2009, Petitioner, Dr. Eric Smith, as

Commissioner of Education (Petitioner), filed a two - count

Administrative Complaint charging Respondent , Casey Griffith

(Respondent or Mr. Griffith) with violating section

101 2 .795(1)(d) and (f). Respondent executed an Election of

Rights form on January 8, 2010, disputing the allegations in the

Admini strative Complaint and requesting an administrative hearing

pursuant to section 120.57(1), Florida Statutes. On March 11,

2011, Petitioner referred the case to the Division of

Administrative Hearings for assignment of an administrative law

judge.

On Marc h 18, 2011 , a Notice of Hearing was issued scheduling

the case to be heard April 25, 2011, and the case proceeded as

scheduled. The parties filed a Joint Pre - Hearing Stipulation in

which they stipulated to the majority of the facts in the

Administrative C omplaint and, where relevant, those stipulated

facts have been included below. The parties stipulated that

Respondent violated section 1012.795(1)(f), in that he was

adjudicated guilty of a criminal charge other than a minor

traffic violation. What remai ned in dispute is whether

Respondent committed gross immorality by his actions leading to

his arrest and adjudication of guilt.

Petitioner presented the testimony of Officer Carla Whitley,

and Petitioner's Exhibits 1 - 7 were admitted into evidence.

Respo ndent presented the testimony of Susan Martelli, Kevin

Helms, Jarrod Hickman, and Eula Walker, and testified on his own

behalf. Respondent's Exhibit number 1 was admitted into

evidence, and Respondent was allowed to late - file Respondent's

Exhibit 2, and d id so.

The Transcript of the hearing was filed May 9, 2011.

Petitioner filed its Proposed Recommended Order on May 19, 2011,

and Respondent filed his Proposed Recommended Order on May 20,

2011. Both submissions have been carefully considered in the

prep aration of this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations in the

Administrative Complaint, Respondent has been a licensed teacher

in the State of Florida, having been issued Florida Educator's

Certificate 1021431. H is certificate covers the area of social

science, and expires on June 30, 2011.

2. During the 2008 - 2009 school year, Respondent was a

teacher and coach at Florida State University School in

Tallahassee, Florida.

3. While attending college, Respondent pla yed football for

the University of Florida. During his football career,

Respondent suffered several injuries, including five concussions

and injuries to his shoulder, hand, knee and ankle. Several of

these injuries required surgery, and as a result, Resp ondent was

prescribed a series of pain medications and developed a tolerance

for them . Respondent continues to have surgeries related to his

football injuries and continues to take pain medication.

4. On January 17, 2009, Respondent went on a lunch dat e.

During the date, he consumed some alcoholic drinks. At the time

of the lunch date, Respondent was also taking pain killers and

did not think that these medications impaired his ability to

function. However, as a result of the drinks at lunch and/ or

d rinks consumed the night before, coupled with the use of

painkillers, Respondent was impaired.

5. Respondent does not remember the incident described

below, before waking up in the Leon County Jail medical ward.

6. As acknowledged by Respondent, the ulti mate facts of the

incident giving rise to his arrest are not in dispute.

Respondent was intoxicated or otherwise impaired when he became

involved in a verbal confrontation with his neighbor , Jordan

Thompson, while the neighbor and his uncle , Gene Thompson , were

attempting to secure a cable to the side of the neighbor's

residence. Respondent was upset about the amount of noise he

perceived the neighbor to be making.

7. Respondent knew most of his neighbors and felt he had a

good relationship with them, bu t did not know this particular

neighbor.

8. Respondent threatened his neighbor, s houting profanities

at him, and the threats by Respondent caused Thompson and his

uncle to go inside his home. Respondent returned to his own

home, came back outside with a shotgun, approached the neighbor's

house and continued to threaten Jordan and his uncle with shotgun

in hand .

9. Jordan Thompson's aunt, Kathleen, was inside the home

and called 911. Respondent was arrested and charged with one

count of aggravated ass ault with deadly weapon without intent to

kill, a felony. All three of the Thompsons were very frightened

by the incident.

10. After his arrest, at some time over the weekend ,

R espondent notified administrative authorities at the school

where he worked o f the incident, and he was placed on

administrative leave. At the end of the school semester, he was

notified that, along with 47 other teachers, his contract would

not be renewed.

11. The incident was reported in the local newspaper and

the website of a local television station. At least one witness

who testified at hearing read about the arrest in the newspaper.

Respondent acknowledged that his call to the school was motivated

in part so that the school could "distance" itself from the

event.

1 2 . On or about April 2, 2009, the charges against

Respondent were amended to misdemeanor charges for trespass;

improper exhibition of a dangerous weapon; and using a firearm

while under the influence.

1 3 . On or about June 10, 2009, Respondent pled nolo

contend ere to the charges and the court adjudicated him guilty on

all counts. Respondent was sentenced to 30 days in jail, 12

months of probation, substance abuse counseling and any

recommended counseling or aftercare, random drug and alcohol

screenings, 60 days in jail work camp and payment of applicable

fines and fees. Respondent was also ordered to have no contact

with the victims and to change his address by August 2009.

1 4 . By all accounts, Respondent is a gifted teacher. He is

currently studying at Flori da State University working on his

doctorate in education.

1 5 . Respondent is embarrassed by his actions January 17,

2009, and regrets having acted as he did. However, he stopped

short of acknowledging that he should not mix drugs and alcohol,

especially at the doses to which he had become accustomed, and

seems to think that he could tolerate mixing the two.

1 6 . Colleagues with whom Respondent worked testified at

hearing o n his behalf . Of particular interest was the testimony

of Eula Walker, a support as sistant at Florida High whose

daughter had been one of Respondent's students. She, along with

other staff members who testified, believed that Respondent could

continue to be an effective teacher. She also had no hesitation

regarding his continuing to te ach her daughter following the

January 17, 2009 , incident.

CONCLUSIONS OF LAW

1 7 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

Statutes (2010) .

1 8 . This is a disciplinary action by Petitioner in which

Petitioner seeks to discipline Respondent's teaching certificate.

Petitioner bears the burden of proof to demonstrate the

allegations in the Administrative Complaint by clear an d

convincing evidence. Dep't of Banking and Fin. v. Osborne Stern

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

2d 292 (Fla. 1987).

1 9 . As stated by the Florida Supreme Court:

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 lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of th e

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

20 . T he Administrative Complaint charges Respondent with

violations of section 1012.795(1)(d) and (f). Section 1012.795

authorizes the Education Practices Commission to suspend, revoke,

or otherwise penalize a teaching certificate, provided it can be

shown tha t the holder of the certificate has committed any of the

violations enumerated.

2 1 . The parties have stipulated that Respondent violated

section 1012.795(1)(f), as charged in Count Two of the

Administrative Complaint, which makes it a disciplinary violat ion

when a certificateholder has "been convicted or found guilty of,

or entered a plea of guilty to, regardless of adjudication of

guilt, a misdemeanor, felony, or any other criminal charge, other

than a minor traffic violation." The remaining determinati on is

whether Respondent is guilty of the violation charged in Count

One. Count One of the Administrative Complaint charges

Respondent with "gross immorality or an act involving moral

turpitude as defined by rule of the State Board of Education," in

viola tion of section 1012.795(1)(d).

2 2 . The Education Practices Commission has not defined

"gross immorality" or "moral turpitude" for the purposes of

discipline to be imposed pursua nt to section 1012.795 . The

Commission has, however defined "immorality " and "moral

turpitude" for use by school districts in taking action against

instructional personnel in Florida Administrative Code Rule

6B - 4.009. This rule, which may provide guidance in this context,

provides in pertinent part:

(2) Immorality is defi ned 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 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.

2 3 . Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justic e, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated." State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

2 4 . It is clear that Respondent's conduct in this instance

was inconsistent with the standards of public conscience and good

morals. Given Respondent's own reaction to his behavior, and the

reports in the media, his conduct meets the definition of

immorality.

25. To constitute a violation of section 1012.795(1)(d),

however, the conduct must go a step further. It must involve an

act of misconduct that is serious, and which demonstrates a

flagrant disregard of proper moral standards. Brogan v .

Mansfield , No. 96 - 0286 (DOAH Aug. 1, 1996; EPC Oct. 18, 1996).

26. The conduct at issue here meets this higher standard ,

and it is found both as the ultimate finding of fact and

recommended conclusion of law that Respondent has committed gross

immorali ty as contemplated by section 1012.795. Respondent

voluntarily mixed alcohol and pain medication, and was admittedly

impaired at the time of the accident. B randishing a gun at one's

neighbors and shouting threats and profanities at them while

brandishing that gun is horrific behavior, impaired or not.

Moreover, the impairment in this case only adds to the

seriousness of Respondent's behavior given that Respondent

created the impairment by mixing drugs and alcohol.

27. Most troubling was Respondent's fa ilure to recognize

that, regardless of the tolerance built to the pain medications

he had been taking, mixing alcohol with narcotics is a dangerous

practice. Until such time as Respondent recognizes that the two

substances should not be mixed together, re gardless of his belief

regarding his ability to tolerate the combination, there can be

no assurance that the factors giving rise to this incident could

not recur.

28. By the same token, Respondent has significant support

in the educational community. F ormer colleagues and instructors

testified and/or wrote letters of support on his behalf.

Respondent truly wants to make a contribution to the education of

young people in his community.

29. The Education Practices Commission is issued

disciplinary guid elines for violations of section 1012.795 , and

has identified mitigating and aggravating factors to be

considered in determining the appropriate penalty . Fla. Admin.

Code R. 6B - 11.007. A penalty within the guideline ranges for the

violations found is app ropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Education Practices Commission enter a

final order finding that Respondent is found guilty of section

1012.795(1)(d) and (f) as charge d in Counts One and Two of the

Administrative Complaint; that his license be suspended for a

period of two years; that he be required to submit to an

evaluation by a qualified provider approved by the Florida

Recovery Network Program within 60 days of the entry of the

Commission's final order, and follow any recommended course of

treatment or counseling; that he be placed on probation for a

period of two employment years; and that he pay a fine of $500 to

the Commission.

DONE AND ENTERED this 10 th day of June, 2011, 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

(850) 488 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10 th day of June, 2011.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

C learwater, Florida 33761

Brent McNeal, Esquire

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 Buildin g, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

3 25 West Gaines Street

Tallahassee, Florida 32399 - 0400

Maria n 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 ri ght 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.