11-002799 Cappi Arroyo vs. Dr. Eric J. Smith, As Commissioner Of Education Status: Closed Recommended Order on Thursday, May 31, 2012.

Summary: Petitioner's federal conviction for distribution of cocaine makes her ineligible for a Florida educator's certificate under section 1012.315, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPPI A RROYO , )

)

Petitioner, )

)

vs. ) Case No. 11 - 2799

)

DR. ERIC J. SMITH, )

AS C OMMISSIONER OF EDUCATION , )

)

Respondent. )

)

RECOMMENDED ORDER

On December 6, 2011 , a duly - noticed hearing was held in

Ocala , Florida, before F. Scott Boyd, an Administrative Law

Judge assigned by the Division of Administrative Hearings .

APPEARANCES

For Petitioner: Peter J. Caldwell, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Ron Weaver, Esquire

P ost O ffice Box 5675

Douglasville , Georgia 3 015 4

STATEMENT OF THE ISSUE

W hether Petitioner ' s application for a Florida Educator ' s

Certificate should be granted or denied for the reasons set

forth in the Notice of Reasons issued by Respondent on

December 13 , 2010.

PRELIMINARY STATEMENT

Respondent notified Petitioner on December 13, 2010 , that

the Department of Education intended to deny h er application for

a Florida Educator ' s Certificate. The Notice of Reasons cited

six alleged statutory violations as grounds for the denial , as

discussed below.

Petitioner requested formal hearing and on June 3, 2011 ,

t he matter was referred to the Division of Administrative

Hearings. The hearing was originally set for August 9, 2011.

The hearing was continued, a cha nge of venue was granted, and

the case was placed in abeyance.

On October 7, 2011, Respondent ' s unopposed Request for

Judicial Notice of the judgment in the underlying criminal case

relevant to this hearing was granted.

The final hearing was re - schedul ed for December 6, 2011.

At hearing, Petitioner requested official recognition of

Chapter 2008 - 108, Laws of Florida, two District Court of Appeal

cases, and an Educational Practices Commission case, which was

granted. At Respondent ' s request, official rec ognition was also

given to the Federal Controlled Substances Act, 21 U.S.C.

§§ 841(a)(1) and 21 U.S.C. s. 846 (1986), and Rule 11 of the

Federal Rules of Criminal Procedure. Petitioner testified on

her o w n behalf and presented the testimony of Miriam Needham,

Troy Sanford, Marian Lambeth and Elinor Evans . Petitioner ' s

Exhibits P - 1 through P - 9 were admitted without objection.

Respondent offered the testimony of Elinor Evans and Marian

Lambeth , and offered Respondents Exhibits R - 1 through R - 4, which

w ere admitted without objection. Exhibit R - 3 was admitted as

evidence of the guilty plea and essential elements , but not as

evidence of specific facts peculiar to Petitioner ' s case, as

discussed below . Requests to take official recognition of the

Public A ccess to Court Electronic Documents (PACER) website and

a printed page from the PACER website containing case history

information on the criminal case pertinent to this hearing were

denied, as discussed below. Respondent was granted permission

to late - fil e a transcript of the plea colloquy for Petitioner ' s

underlying criminal case as Exhibit R - 7. On January 3, 2012,

Respondent filed a Request for Official Recognition of an 83 -

page court file of Petitioner ' s federal criminal case, noting

that the transcrip t of the plea colloquy was not available.

Petitioner filed no objection to the request, but argued in her

Proposed Recommended Order that it should not be considered.

The 83 - page court record is not admitted, as discussed below.

The Transcript of the hearing was filed on January 10,

2012. Petitioner filed t wo unopposed motions to extend the time

to file Proposed Recommended Orders , which were granted.

P roposed Recommended Orders were filed by the parties on

March 23, 2012, and were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the evidence presented at hearing, the following

Findings of Fact are made:

1 . Ms. Cappi Cay Arroyo 1/ was born in Boulder, Colorado, on

September 16, 1964.

2 . On or about Augus t 22, 1986, Ms. Arroyo knowingly and

intentionally distributed cocaine to another person, kn o w ing

that what was distributed was cocaine or some other prohibited

drug . From 1984 until in or about December 1986, she willfully

and knowingly entered into an a greement to accomplish the

illegal objective of the distribution of cocaine, with the

intent to commit the offense of distribution of cocaine.

3 . Ms. Arroyo pled guilty pursuant to a plea agreement and

was convicted of the offenses of distributing cocain e under 21

U.S.C. § 841(a)(1) and of conspiracy to distribute cocaine under

21 U.S.C. § 846 in the United States District Court for the

District of Hawaii.

4 . Ms. Arroyo committ ed act s involving moral turpitude.

5 . On January 28, 1988, Ms. Arroyo was s entenced to two

years imprisonment with a Special Parole Term of three years,

with the execution of the sentence suspended and Ms. Arroyo

placed on probation for a period of five years, on the condition

that she pay a fine of $500.00 and serve 100 hours of community

service.

6 . On April 3, 1991, Ms. Arroyo was discharged from

probation.

7 . Ms. Arroyo later returned to Colorado. She attended

Colorado Christian University and received her Bachelor ' s Degree

in Computer Information Systems in 2002. She beg an working at

Grand Junction High S chool in 2005 as a Library Media

Specialist , where she worked until 2010 . She received her

Master ' s Degree in Educational Media in 2006 from the University

of Northern Colorado. She received an Outstanding Educator for

2007 award given by the Grand Junction Area Chamber of Commerce,

and was selected as the Outstanding Teacher by the students of

the Class of 2009.

8 . The Ethics in Education A ct, creating s ection 1012.315,

Florida Statutes , and adding the phrase " as defin ed by rule of

the State Board of Education " to section 1012.795(1)(d), became

effective on July 1, 2008.

9. On June 3, 2010, Ms. Arroyo submitted an on - line

application for a Florida Educator ' s Certificate as an

Educational Media Specialist. On the appl ication, she provided

her social security number and answered " Yes " to a question

asking if she had ever been convicted of a criminal offense.

She filled in the " Charges " block with the words " Drug Charges "

and the " Disposition " block with the word " Proba tion. " By

June 9, 2010, the Bureau of Educator ' s Certification had

received the application, the evidence of her bachelor ' s degree,

the grades transcript, and the fee .

10 . Ms. Arroyo me ets the basic requirements for licensure.

She was at least 18 year s of age at the time of her application;

she submitted an electronically authenticated affidavit that

stated she would uphold the principles incorporated in the

Constitution of the United States and the Constitution of the

State of Florida and that the inf ormation provided in her

application was true, accurate, and complete ; she documented her

receipt of a b achelor ' s degree from an accredited institution

and a m aster ' s degree ; she submitted to background screening ;

she is of good moral character; she is com petent and capable of

performing the duties, functions, and responsibilities of an

educator ; she holds a valid professional standard teaching

certificate issued by the State of Colorado, demonstrating her

mastery of general knowledge, mastery of subject ar ea knowledge,

and mastery of professional preparation and education

competence.

1 1 . The Department of Education is the state agency

responsible for licensure of instructional personnel for the

public schools.

12 . On or about July 7, 2010 , the Bureau of Educator

Certification of the Department of Education issued Ms. Arroyo

an Official Statement of Status of Eligibility . This s tatement

advis ed Ms. Arroyo that she was eligible for a three - year

nonrenewable Temporary Certificate upon receipt by the Bure au

of: 1) documentation showing verification of employment ; 2) a

request for issuance of certificate on the appropriate

certification form from a Florida public school ; and 3) results

of her fingerprint processing, noting that if there was a

criminal offe nse, her file would be referred to Professional

Practices Services for further review and that issuance of her

Temporary Certificate would be contingent on the results of that

review. The Statement included some additional requirements for

the issuance of a Florida Educator ' s Certificate valid for five

years covering Educational Media Specialist (Prekindergarten -

Grade 12) .

13 . Mroy Sanford, the p rincipal at Horizon Academy at

Marion Oaks, a school in the Marion County School District,

interviewed Ms . Arroyo for a media specialist position at the

school in August of 2010. At the end of th at interview, she

began to tell Mr. Sanford of her conviction, but he stopped her

and told her that it was the Human Resources Department that

checked into applicant ' s backgrounds.

14 . When Mr. Sanford later talked to the Human Resources

Department, he advised them that he was recommending someone for

the position who had indicated she had something in her

background, and asked to be told if it would hinder her

appoi ntment. The Human Resources Department had further

conversations with Mr. Sanford, telling him about a criminal

conviction, but stating that because it had occurred over ten

years ago, it should not be a limiting factor.

15 . Ms. Arroyo was hired at Hori zon Academy and worked

there during the 2010 - 2011 and 2011 - 2012 academic years as a

library media specialist.

16 . Ms. Arroyo has excellent knowledge of her subject area

and exhibits great enthusiasm in encouraging students to become

life - long readers.

17 . Ms. Arroyo has effectively become a " co - teacher " with

many of the classroom teachers and has helped them craft

research projects that are meaningful to students.

18 . Horizon Academy has a high percentage of minority

students, some of whom are un derprivileged. Ms. Arroyo has made

special efforts to get books into the hands of students who have

never read a book before. She has created a culture of reading

at Horizon Academy. Her efforts at her school have caused the

library circulation to drama tically increase, which has had an

effect on the district - wide data. Ms. Arroyo re - arranged the

library to accommodate more students. Ms. Arroyo was selected

as the Horizon Academy teacher of the year.

1 9. Ms. Arroyo became a member of the Library of C ongress

Teaching with Primary Sources Mentor Program, one of only 19

educators from across the United States with such membership .

20 . Ms. Arroyo has helped children with lost or overdue

books who are not permitted to withdraw books from the library

by loaning them her personal books. She has purchased books

from the Book Fair and given them to underprivileged students.

She has given Christmas gifts to needy children who might

otherwise not receive any gifts.

21 . When Ms. Arroyo came to Horizon Acad emy, it was a " C "

school, but it is now an " A " school. The p rincipal believes

that there was a direct link between Ms. Arroyo ' s efforts and

the improvement of the school.

22 . On October 13, 2010 , the Department of Education

received background check info rmation on Ms. Arroyo from the

Federal Bureau of Investigation and the Florida Department of

Law Enforcement.

23 . On October 19, 2010 , Ms. Arroyo ' s file was referred to

the Bureau of Professional Practice Services for consideration

of the background infor mation regarding her conviction.

24 . On October 22, 2010, Ms. Arroyo was sent a letter from

Ms. Ellie Evans, Applicant Investigator of the Bureau, advising

Ms. Arroyo that her application had been referred to the Bureau

of Professional Practices Services because of her criminal

history, and requesting further information regarding

Ms. Arroyo ' s conviction.

25 . On November 16, 2010, the Department received from

Ms. Arroyo copies of a judgment in her criminal case, United

States v. Cappi C. Eminger , Case No . CR87 - 01061 - 03, from the

United States District Court for the District of Hawaii, dated

January 28, 1988, consisting of three pages, and including an

Order Terminating Probation Prior to Original Expiration Date in

the same case filed April 8, 1991, consi sting of one page.

26 . On December 13, 2010, Commissioner of Education Eric

Smith sent Ms. Arroyo a letter advising her that her application

for a Florida Educator ' s Certificate was denied, attaching a

Notice of Reasons, and advising her of her right to a hearing on

the intended action. Ms. Arroyo requested a formal hearing.

27. Ms. Arroyo will be unable to pursue a career teaching

students in Florida without educator certification. Ms. Arroyo

is substantially affected by the intended decision to den y her

certification.

2 8 . On or about March 23, 2011, the Bureau issued

Ms. Arroyo a second Official Statement of Status of Eligibility .

This statement a dvis ed Ms. Arroyo that her Colorado Teaching

Certificate had been received and that she was eligible for a

Florida Educator ' s Certificate valid for five years upon receipt

of c learance to issue the certificate from the Bureau of

Professional Practices Services.

2 9 . On or about June 8, 2011, Ms. Arroyo applied to the

Florida Office of Executive Clemency f or a pardon of her

convictions. Ms. Arroyo also applied to the President of the

United States for a pardon.

30 . On October 28, 2011, the Department received from

Petitioner a notice of intent to rely on the default license

provision in section 120.60(1), Florida Statutes.

3 1 . Although the charges of statutory violations drafted

by Respondent as grounds for the denial of her application could

have been crafted with more care, Petitioner was not prejudiced

in preparing her defense.

3 2 . Hearing was held on December 6, 2011.

3 3 . At hearing, Petitioner testified that she did not

distribute cocaine and that she did not conspire to distribute

cocaine, maintaining that her guilty plea was the result of

coercion and intimidation by Drug Enforcement Administra tion

(DEA) agents. Her testimony on these points was not credible.

She testified that the DEA agents took her vehicle and showed up

at her house with guns. She testified that there were 33

charges in the indictment. She testified that she told the DEA

agents that it was her ex - boyfriend who had distributed cocaine.

She said that the DEA agents told her that she was guilty simply

because she was aware of what he did, even if she did not

distribute cocaine herself. Petitioner testified that she could

no t remember whether her attorney advised her about entering

into the plea agreement. At another point in her testimony she

testified that her attorney did not advise her as to the guilty

plea. She was somewhat evasive during cross - examination as to

her ap pearance before the judge when pleading guilty. She later

said that she did no t remember that appearance at all. She

testified she did not remember the judge asking her if she

knowingly and intentionally distributed 55.2 grams of cocaine.

Petitioner did testify that she believed what the DEA agents had

told her and signed a plea agreement that she was guilty of 2 of

the 33 charges, based only upon this mistaken belief.

3 4 . Ms. Arroyo ' s testimony and selective memories about

these long - ago events seeme d to be shaped more by convenience

than candor. Ms. Arroyo failed to prove her guilty plea

resulted from threats, coercion, or fraud ulent means.

3 5 . Despite the fact that Ms. Arroyo distributed cocaine

and conspired to distribute cocaine and her selectiv e memories

and lack of credibility concerning those events, she is of good

moral character. A few isolated events are not determinative of

her character today. Ms. Arroyo ' s actions since her youthful

criminal activity show a consistent pattern of persona l

accomplishment and public service over a very long period of

time, with no evidence of any other criminal activity.

Ms. Arroyo has substantially rehabilitated herself. Her receipt

of several education awards demonstrates that she is a dedicated

and acc omplished professional. Testimony at hearing established

that Ms. Arroyo exhibits a compassionate and generous attitude

toward students, especially the underprivileged.

3 6 . On January 3, 2012, Respondent filed certified cop ies

of records of the United St ates District Court for the District

of Hawaii, including sentencing minutes, the indictment, a

superseding indictment, sentencing memorandum, and other

documents, requesting their official recognition and admission

as a late - filed exhibit .

3 7 . The State Board of Education has not defined the te r m

" gross immorality " by rule, and there was no evidence presented

that Ms. Arroyo ' s behavior met any rule definition of that term.

C ONCLUSIONS OF LAW

38 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

3 9 . The Department of Education is the state agency

responsible for licensure of instructional personnel for the

public schools . § 1012.55 , Fla. Stat. (2011). 2/

40 . The Commissioner is the state agent responsible for

investigating and prosecuting allegations of misconduct against

teachers. See § 1012.796(6) .

41 . Under section 1012.55(1), e ducational m edia

s pecialist s must hold educator c ertification from the Department

of Education .

42 . Media specialists are defined as instructional

personnel under section 1012.01(2)(c). Under section

1012.32(1), instructional personnel must not be ineligible for

employment under section 1012.315 .

43 . The Department of Education may deny an applicant an

educator ' s certificate if the D epartment finds that an applicant

is ineligible for licensure or if it possesses evidence that the

applicant committed an act for which the Education Practices

Commission (EPC) could revoke a teaching certificate.

§§ 1012.315, 1012.56(12).

44 . Petitioner is substantially affected by the

Department ' s intended decision to deny her a Florida Educator ' s

Certificate and she has standing to maintain this proceeding.

45 . As the party seeking certification, Petitioner has the

burden of proving by a preponderance of evidence that she

satisfies the statutory requirements for a teaching certificate.

Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 199 6). However, Respondent has the burden of present ing

evidence of any statutory violations alleged in the Notice of

Reasons as sufficient to warrant denial of the application.

Osborne Stern & Co. , 670 So. 2d at 934 ; Comprehensive Medical

Access, Inc. v. O ff. of Ins. Reg. , 983 So. 2d 45 (Fla. 1 st DCA

2008) .

46 . Although it is not entirely clear that all of the

counts alleged in the Notice of Reasons constitute statutory

violations within the meaning of Osborne Stern , this Recommended

Order will consider wh ether Petitioner meets the basic statutory

requirements for a teaching certificate without regard to the

allegations contained in Respondent ' s Notice of Reasons ,

followed by examination of each count alleged by the Department.

First, however, t here are t h ree preliminary matters to be

considered: the admissibility of the late - filed court records ,

Petitioner ' s guilty plea as an admission of elements of the

offenses , and the default licensure provisions of chapter 120.

Court Records

47 . At hearing, a print - o ut of an internet page from the

Public Access to Court Electronic Documents (PACER) website that

contained case history notations relating to Petitioner ' s

federal criminal case, including the fact that Petitioner was

sworn, advised of rights, and " voir dir ed " by the Court, as well

as a statement that " The Court finds that the deft is competent

to enter pleas of guilty " was denied official recognition.

Official recognition was also denied to a description of the

PACER site.

48 . The PACER web page was off ered not to establish court

dates and events, but rather for the purpose of establishing

that Petitioner ' s guilty plea was done knowingly. Any sworn

testimony of Petitioner before the court that was contrary to

her testimony at the December 6, 2011, heari ng would be

admissible to impeach Petitioner ' s testimony at trial. However,

simple notation s on a website, not a court document, that

Petitioner was " voir dired " and " competent to enter a plea " are

hearsay statement s that are not admissible to impeach

Pet itioner.

4 9. Respondent was granted the opportunity to obtain, if

available, and submit as late - filed E xhibit R - 7 , the plea

colloquy from Petitioner ' s case. Under section 90.202(6),

Florida Statutes, a court may take judicial notice of records of

any court of the United States . A dministrative law judges may

give such records official recognition. A transcript of the

plea colloquy would also be hearsay , but would constitute

statements by Petitioner herself, and so would be admissible as

a hearsay exce ption . Dufour v. State , 69 So. 3 d 235 (Fla.

2011)(judicial recognition of court record does not render all

that is in the record admissible, and documents in the file

still subject to rules of evidence ) ; Simcox v. City of Hollywood

Police Officers ' Ret. S ys. , 988 So. 2d 731, 734 (Fla. 4th DCA

2008) (defendant ' s admissions during plea colloquy admissible in

subsequent administrative proceeding on forfeiture of

retirement).

50 . The plea colloquy was unavailable, however.

Respondent instead offered as late - f iled Exhibit R - 7 some 83

pages contained in the court record of Petitioner ' s criminal

case , including the grand jury indictment, a superseding

indictment, a sentencing memorandum, and sentencing minutes, in

addition to the judgment itself, which was alread y admitted at

hearing .

51 . Admission of these 83 pages as Exhibit R - 7 is denied ,

and these documents will not be considered in this Recommended

Order . First, a s noted earlier, documents contained within a

court file are subject to the same rules of evid ence to which

all other evidence must adhere. These documents are hearsay,

and no exception appears applicable , so they would not be

sufficient in themselves to support a finding. Second, the

documents go far beyond the limited authorization at hearing t o

file a late - filed exhibit in lieu of the PACER information

regarding the voir dire .

Guilty Plea as Admission

52 . The website statement that " deft is competent to enter

pleas of guilty " was offered by Respondent to counter

Petitioner ' s testimony at hear ing that she did not distribute

cocaine or conspire to distribute cocaine. Although this effort

was not successful, and further there was no testimony from any

person present at the commission of the offenses some 26 years

ago, competent evidence of the e ssential facts necessarily

underlying the offenses was admitted.

53 . The general rule is that a judgment of conviction from

a criminal case is inadmissible as evidence in a civil case to

establish the truth of the facts upon which th at conviction was

ba sed. Trucking Employees of North Jersey Welfare Fund, Inc. v.

Romano , 450 So. 2d 843 (Fla. 1984) (criminal jury conviction for

fraud and misrepresentation not admissible in subsequent civil

action for breach of fiduciary duty and conspiracy to defraud to

prove truth of the underlying facts ); Stevens v. Duke , 42 So. 2d

361 (Fla. 1949)( convi ction for violation of traffic law in

connection with accident not admissible in subsequent civil

trial).

54 . Petitioner argues this general rule applies even when

the judgment is based upon a guilty plea, quoting Williams v.

Commissioner of Education , 613 So. 2d 97, 99 (Fla. 1 st DCA

1993): " The law is well established that a judgment of

conviction on a criminal offense, whether based on a plea of

guilty or nolo contendere, is not admissible in a subsequent

civil proceeding as proof of the facts on whic h it is based. "

Although th is reference in the Williams case to " a plea of

guilty " appears to be dicta because only a plea of nolo

contendere was involved there , other cases have cited this

statement in Williams as authority to apply the general rule to

c ases involving a guilty plea. See Russell S. Lawler v. DMS ,

Case No. 07 - 2192 (Fla. DOAH Jan. 30, 2008); Winn v. Stewart ,

Case No. 06 - 3527PL (Fla. DOAH Jan. 24, 2007; Fla. EPC May 25,

2007).

55 . However, the greater weight of Florida authority

allows a ju dgment of conviction based upon a guilty plea to be

admitted as evidence in a civil case to establish the truth of

the facts upon which the conviction was based. A s noted by the

Florida Supreme Court in Boshnack v. World Wide Rent - A - Car,

Inc. , 195 So. 2d 216, 218 (Fla. 1967) , " [A] judgment of

conviction in a criminal prosecution cannot be given in evidence

in a civil action to establish the truth of the facts on which

it is rendered, but . . . [there are] certain recognized

exceptions to said rule, one of which is that a judgment entered

in a criminal prosecution on a plea of guilty may be introduced

in a civil action to establish an admission against interest. "

Accord Chimerakis v. Evans , 221 So. 2d 735, 736 (Fla. 1969) .

56 . All of the District Courts have recognized this

exception to the general rule . Carter v. Rukab , 437 So. 2d 761,

7 63 (Fla. 1 st DCA 1983)(while admission of guilt to

decriminalized traffic offense through payment of civil penalty

by mail could not be used as evidence in any subsequent

proceeding, this was due to statutory exception ; usually a plea

of guilty in another proceeding constitutes an admission) ; Nunez

v. Gonzalez , 456 So. 2d 1336, 1338 (Fla. 2d DCA 1984)(general

rule is that a judgment of conviction in a criminal prosecution

cannot be considered as evidence in a civil action to establish

truth of the facts upo n which it was rendered, but if a judgment

is based upon a guilty plea, the judgment may be considered as

evidence of these facts because it is an admission) ; Metro. Dade

County v. Wilkey , 414 So. 2d 269, 271 (Fla. 3d DCA 1982)(while

judgment based upon gu ilty plea is admissible, that is because

it is an admission against interest, and if a guilty verdict is

not admissible, neither is an indictment, which is less

substantial ); Nell v. Int ' l Union, Local # 675 , 427 So. 2d 798,

800 (Fla. 4 th DCA 1983) (eviden ce of a prior guilty plea in a

criminal proceeding is permitted as an admission against

interest in a civil action, but prior criminal judgment not

based on a plea of guilty is not admission ) ; Estate of Wallace

v. Fisher , 567 So. 2d 505, 508 (Fla. 5 th DCA 1990) (voluntary and

knowing guilty plea to traffic ordinance admissible in civil

action as an admission, by implication, of the conduct

prohibited by the ordinance , but police citation is not

admissible ). See also Charles W. Ehrhardt, Florida Evidence

§ 803.22a (2011 ed.)( " A plea of guilty is usually admissible

under section 90.803(18) as an admission by a party - opponent

when offered against the party who made the plea. " )

57 . Th is " guilty plea exception " created in Boshnack is

the current law in Florida 3 / and is evidently consistent with the

rule in most states. See the updated cases and discussion in

the annotation at 18 A.L.R.2d 1287 (1951), Conviction or

Acquittal as Evidence of the Facts on which it was Based in

Civil Action ( " In civil actions where one of the issues is the

guilt of a person conv icted of a criminal offense, or some fact

necessarily involved in the determination of such guilt, the

courts are agreed that it is proper to admit evidence of the

person ' s plea of guilty to the criminal offense. " ).

58 . There are limitations on use of a guilty plea . While

a judgment on a guilty plea provides evidence of the facts

necessary to prove the elements of the conviction , it is n ot

evidence of any fact except those necessarily involved in the

determination of guilt, and does not establish even t he

necessary facts conclusively . Ha tfield v. York , 354 So. 2d 426,

427 (Fla. 4th DCA 1978) (guilty plea does not establish the truth

of facts necessarily involved in the determination of guilt as a

matter of law , but is competent evidence as an admission a gainst

interest that can be considered by the trier of fact).

5 9. In the instant case, the guilty plea admission is the

more convincing evidence of those facts necessarily involved in

the determination of guilt, because Petitioner ' s countervailing

testi mony that she did not distribute cocaine or conspire to do

so was not credible and is rejected.

Default Licensure

60 . On or about October 28, 2011, the agency clerk of

Respondent received from Petitioner a notice that Petitioner

intended to rely on the de fault license provisions of chapter

120 .

61 . Section 120.60(1) , Florida Statutes, provides in

relevant part:

An application for a license must be

approved or denied within 90 days after

receipt of a completed application unless a

shorter period of time f or agency action is

provided by law. The 90 - day time period is

tolled by the initiation of a proceeding

under ss. 120.569 and 120.57 . Any

application for a license which is not

approved or denied within the 90 - day or

shorte r time period, within 15 days after

conclusion of a public hearing held on the

application, or within 45 days after a

recommended order is submitted to the agency

and the parties, whichever action and

timeframe is latest and applicable, is

considered appro ved unless the recommended

order recommends that the agency deny the

license. Subject to the satisfactory

completion of an examination if required as

a prerequisite to licensure, any license

that is considered approved shall be issued

and may include such reasonable conditions

as are authorized by law. Any applicant for

licensure seeking to claim licensure by

default under this subsection shall notify

the agency clerk of the licensing agency, in

writing, of the intent to rely upon the

default license prov ision of this

subsection, and may not take any action

based upon the default license until after

receipt of such notice by the agency clerk.

62 . However, s ection 1012.56(1), entitled Educator

certification requirements, somewhat modifies the provisio ns of

section 120.60 with respect to default licensure. It provides

in relevant part :

(1) APPLICATION. Ï Each person seeking

certification pursuant to this chapter shall

submit a completed application containing

the applicant ' s social security number to

the Department of Education and remit the

fee required pursuant to s. 1012.59 and

rules of the State Board of Education.

* * *

Pursuant to s. 120.60, the department shall

issue within 90 calendar days after the

stamped receipte d date of the completed

application:

(a) If the applicant meets the

requirements, a professional certificate

covering the classification, level, and area

for which the applicant is deemed qualified

and a document explaining the requirements

for renewal o f the professional certificate;

(b) If the applicant meets the requirements

and if requested by an employing school

district or an employing private school with

a professional education competence

demonstration program pursuant to paragraphs

(6)(f) and ( 8)(b), a temporary certificate

covering the classification, level, and area

for which the applicant is deemed qualified

and an official statement of status of

eligibility; or

(c) If an applicant does not meet the

requirements for either certificate, an

o fficial statement of status of eligibility.

The statement of status of eligibility must

advise the applicant of any qualifications

that must be completed to qualify for

certification. Each statement of status of

eligibility is valid for 3 years after its

date of issuance, except as provided in

paragraph (2)(d).

63 . Trumping the more general default licensure provision

of section 120.60(1), s ection 1 012 .56(1) thus does not require

the issuance of a Teaching Certificate within ninety days of

receipt of a completed application , but instead only requires

that the D epartment issue one of three documents within that

time frame: a Professional Certificate ; a Temporary Certificate ;

or a Statement of Status of Eligibility. Even if Petitioner ' s

application is d eemed complete as of June 3, 2010, the earliest

possible date, the Statement of Status of Eligibility was issued

to Petitioner by the Department on or about July 7, 2010, well

within 90 day s . The Department subsequently issued a Revised

Statement of Statu s of Eligibility on or about March 23, 2011,

indicating that a Professional Certificate could be issued upon

clearance from the Bureau of Professional Practices Services.

Under the Education Code, issuance of a Statement of Status of

Eligibility permits t he Department and the applicant to continue

working toward certification for a period of up to three years,

unless the applicant fails to provide background screening

information within 90 days of request under section

1012.56(2)(d).

64 . Petitioner is not entitled to issuance of a default

Florida Educator ' s Certificate under section 120.60(1).

Basic E ligibility Requirements

65 . Petitioner applied for certification as an Educational

Media Specialist. The e ligibility requirements for this

position are fo und in section 1012.56(2) . It is undisputed that

Petitioner meets al most all of these requirements. The

Department asserts that Petitioner did not prove that she is of

good moral character.

66 . The Florida Supreme Court, in the case of In re Fla.

Bd. of Bar Examiners , 373 So. 2d 890, 891 (Fla. 1979) consider ed

the standard of " good moral character " noting:

The inh erent defects of a standard of " good

moral character " standing alone, and the

saving grace of a history of judicial

construction have each been recognized by

the United States Supreme Court. In

Konigsberg v. State Bar of California , 353

U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810

(1957), the court described the term " good

moral character " as " unusually ambiguous "

and held in pertinent part: It can be

defined in an almost unlimited number of

ways for any definition will necessarily

reflect the attitudes, experiences, and

prejudices of the definer.

Such a vague qualification, which is easily

adapted to fit personal views and

predilections, can be a dangerous instrument

for arbitrary and discriminatory denial of

the right to practice law.

67 . While the parties cited no judicial decisions

interpreting " good moral character " for purposes of section

1 012.56(2) (e), and research revealed none, se veral

a dministrative orders in educator certification cases have

relied upon the d iscussion in Zemour, Inc. v. State Div. of

Beverage , 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977), which

stated :

Moral character, as used in this statute,

means not only the ability to distinguish

between right and wrong, but the character

to observe the difference; the observance of

the rules of right conduct, and conduct

which indicates and establishes the

qualities generally acceptable to the

populace for positions of trust and

confi dence. An isolated unlawful act or

acts of indiscretion wherever committed do

not necessarily establish bad moral

character. But, as shown by the evidence

here, repeated acts in violation of law

wherever committed and generally condemned

by law abiding p eople, over a long period of

time, evinces the sort of mind and

establishes the sort of character that . . .

should not be entrusted . . . .

Hodge v. Smith , Case No. 11 - 3318 (Fla. DOAH Sep t. 29, 2011;

Fla. EPC Jan . 11, 2012) ; Housley v. Smith , Case No. 0 8 - 714

(Fla. DOAH Aug . 11, 2008); Grant v. Blomberg , Case No. 06 -

5297 (Fla. DOAH Aug . 30, 2007; Fla. EPC Dec . 7, 2007);

Santana v. Winn , Case No. 05 - 1302 (Fla. DOAH Aug 22, 2005;

Fla. EPC Feb . 21, 2006).

68 . The Florida Supreme Court has recognized that acts of

moral turpitude can indicate a lack of good moral character.

Fla. Bd. of Bar Examiners , 364 So. 2d 454, 458 (Fla. 1978)( while

acts which historically constitute an act of moral turpitude

justify a finding of a lack of good moral character , other

c onduct that does not involve moral turpitude may also

demonstrate lack of good moral character). As discussed below

under Count 4, Petitioner ' s acts of distributing cocaine and

conspiring to distribute cocaine were acts involving moral

turpitude.

6 9. Als o troubling is Petitioner ' s testimony at hearing.

Petitioner was evasive, had convenient lapses of memory, and

failed to accept responsibility for her prior acts of

distribution of cocaine and conspiracy to distribute cocaine.

70 . T he fact that Petition er only indicated " probation " in

the small " disposition " block on her application form and did

not provide more detailed information about her suspended

sentence and that she had to pay a $500 fine and perform 100

hours of community service is not further evidence of lack of

good moral character. Petitioner disclosed the fact of her

prior criminal conviction, indicated that she was convicted on

drug charges , and described the fundamental element of its

disposition . She was not required to do more. Petiti oner also

disclosed that she had a criminal conviction in her job

interview s and she cooperated fully in providing the Department

all requested information about her convictions.

71 . The apparently isolated criminal acts that took place

over 25 years ago , and Petitioner ' s failure to completely

acknowledge them, are not conclusive evidence that Petitioner

lack s good moral character, however . Bachynsky v. Dep ' t of

Prof ' l Reg. , 471 So. 2d 1305, 1311 (Fla. 1st DCA 1985)(isolated

unlawful acts of indiscretio n do not necessarily establish bad

moral character) .

72 . These crimes were committed when Petitioner was 21

years old or younger , and there is no evidence indicating any

subsequent criminal activity of any kind .

73 . Substantial evidence of Petitioner ' s good moral

character was introduced at hearing. Her actions since her

youthful criminal activity show a consistent pattern of personal

accomplishment and public service over a very long period of

time , indicating rehabilitation. Petitioner ' s receipt of

several education awards demonstrate s that she is a dedicated

and accomplished professional. Testimony at hearing established

that Petitioner exhibits a c ompassionate and generous attitude

toward students , especially the underprivileged.

74 . Petitioner prov ed that she is of good moral character.

75 . Petitioner has thus proven her basic entitlement to

licensure, but for the six counts alleging statutory violations

said to justify denial of Petitioner ' s application .

C ount 1

76 . Count 1 charges, " The App licant is in violation of

Section 1012.315, Florida Statutes, and Section 1012.56(10),

Florida Statutes, which require the Department of Education to

deny an Applicant a Florida Educator ' s Certificate if the

Applicant has been convicted of a disqualifying offense. "

77 . Section 1012.315 provides in relevant part :

Disqualification from employment. Ï 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.

1002.39 or s. 1002.395, if the person,

instructional personnel, or school

administrator has been convicted of:

(1) Any felony offense prohibited under any

of the following statutes:

* * *

( qq) Chapter 893, relating to drug abuse

prevention and control, if the offense was a

felony of the second degree or greater

seve rity.

* * *

(3) Any criminal act committed in another

state or under federal law which, if

committed in this state, constitutes an

offense prohibited under any statute listed

in subsection (1) or subsection (2).

78 . Section 10 12.56(10) similarly provides that e ach

person who seeks certification must not be ineligible for such

certification under s ection 1012.315.

7 9. Petitioner applied for certification as an Educational

Media Specialist. As noted earlier, u nder section

1012 .01(2)(c), these positions are instructional personnel,

therefore Petitioner is subject to the requirements of sections

1012.315 and 1012.56(10).

80 . No evidence was presented that Petitioner has been

convicted of a felony offense under chapter 893. The issue for

determination is whether or not Petitioner ' s 1988 conviction

u nder federal law comes within the prohibition of subsection

( 3 ) , that is, whether Petitioner has been convicted of a

criminal act committed under federal law which, if committed in

thi s state , constitutes a felony offense under chapter 893.

81 . Petitioner first argues that her actual conduct in

1988 did not constitute an offense under federal law, and, more

importantly for current purposes, under Florida law. She

testified that it wa s her boyfriend who in fact was distributing

cocaine. She testified that she was never guilty of either

distributing cocaine or conspiring to do so, and that she only

pled guilty based upon her mistaken belief, coerced by the

police, that her knowledge of his criminal activity made her

guil t y of the se criminal acts. Petitioner asserts that

Respondent offered no competent evidence of her actual conduct

in 1988 , and asserts that Respondent therefore failed to prove

that her actions at that time would consti tute an offense under

Florida law.

82 . S ection 1012.315(3) does not require that the specific

facts underlying Petitioner ' s federal criminal conviction be re -

proven in a miniature criminal trial con ducted within an

administrative hearing . When statutes r equire the examination

of foreign judgments in comparison with Florida crimes, it is

the elements of the federal criminal act s which are compared

with those of the Florida Statute , not the specific historical

facts peculiar to the particular defendant ' s ca se . See , e.g. ,

Carpenter v. State , 785 So. 2d 1182, 1204 - 1205 (Fla. 2001)( in

considering previous out - of - state conviction as aggravating

circumstance, inappropriate to review underlying facts to

determine if they would constitute felony under Florida law,

only conviction for offense that was felony in foreign state may

be considered); Robinson v. State , 692 So. 2d 883, 886 - 87 (Fla.

1997)(for purposes of qualifying as a predicate offense under

habitual offender statute, elements of out - of - state offense must

be identical or functionally equivalent to the elements of an

enumerated Florida offense); Dautel v. State , 658 So. 2d 88, 91

(Fla. 1995)( for purposes of calculating points for sentencing

guidelines scoresheet, only elements of an out - of - state crime ,

not underlying facts , are used to determin e applicable Florida

crime); Hankins v. State , 42 So. 3d 871, 872 (Fla. 2nd DCA

2010)(for purposes of prison release reoffender statute, only

elements of New York offense should be considered, not a factual

description of defendant ' s acts in New York); Dawson v. Dep ' t of

High. Saf. & Motor Veh. , 19 So. 3d 1001 (Fla. 4 th DCA 2009),

rev. den. , 33 So. 3d 35 (Fla. 2010)( for purposes of revoking

Florida Driver ' s license on basis of New York DWAI conviction,

the elements of t he out - of - state conviction must satisfy the

statutory elements of the Florida ' s DUI statute) .

83 . In any event, in the instant case Petitioner ' s

judgment was based upon a guilty plea which was admitted into

evidence . Therefore, as discussed above , the g uilty plea itself

constitutes competent evidence of the essential facts necessary

to prove the elements of the crime. Under either analysis, it

is the elements of the offenses which must be examined.

84 . Petitioner was convicte d of violating s ection

84 1(a)(1) of Title 21 of the United States Code , for knowingly

or intentionally distribut ing cocaine , and also of violating

s ection 846 of Title 21, United States Code , for willfully and

knowingly conspiring to commit the same offense.

85 . At the time of her offense in 1986, t he crime of

d istribution of cocaine in violation of s ection 841(a)(1)

contain ed two elements: (1) knowingly distribut ing cocaine to

another person and (2) kn o w ing that what was distributed was

cocaine or some other prohibited drug . " Distributing " means

delivering or transferring possession of the cocaine to another

person, with or without any financial interest in that

transaction. United States v. Houston , 406 F.3d 1121, 1122 ( 9 th

Cir. Mont. 2005) cert . denied , 546 U.S. 914 (200 5).

86 . At the time of her offense in 1986, t o establish a

drug conspiracy the government had to prove : (1) an agreement

to accomplish an illegal objective; and (2) the intent to commit

the underlying offense. United States v. Reed , 575 F.3d 900,

923 (9th Cir. Cal. 2009) . In order to establish a violation of

section 846, the g overnment d id not have to prove the commission

of any overt acts in furtherance of the conspiracy. United

States v. Shabani , 513 U.S. 10, 15 (1994) .

87 . The elements of these f ederal crimes must next be

compared with the elements of relevant offenses prohibited under

the statute s listed in subsection (1) or subsection (2) of

section 1012.315 .

88 . The first Florida offense which must be considered

with regard to Petitioner ' s di stribution conviction is delivery

of cocaine. Section 893.13 , Florida Statutes , provides in

relevant part:

Prohibited acts; penalties. Ï

(1)(a) Except as authorized by this chapter

and chapter 499, it is unlawful for any

person to . . . deliver . . . a controlled

substance. Any person who violates this

provision with respect to:

* * *

1. A controlled substance named or

described in s. 893.03( 1)(a), (1)(b),

(1)(d), (2)(a), (2)(b), or (2)(c)4., commits

a felony of the second d egree, punishable as

provided in s. 775.082, s. 775.083, or s.

775.084 .

8 9. Section 893.02 , entitled Definitio ns, defines

some of the terms used in section 893.13 as follows:

(4) " Controlled substance " means any

substance named or described in Schedules I -

V of s. 893.03 . Laws controlling the

manufacture, distribution, preparation,

dispensing, or administration o f such

substances are drug abuse laws.

(6) " Deliver " or " delivery " means the

actual, constructive, or attempted transfer

from one person to another of a controlled

substance, whether or not there is an agency

relationship.

(8) " Distribute " means to deliver, other

than by administering or dispensing, a

controlled substance.

9 0 . Section 893.03(2)(a)4. goes on to provide that cocaine

is a schedule II drug. Cocaine is therefore a controlled

substance in Florida, the distribution or delivery of which i s a

second - degree felony. Knowledge of a controlled substance ' s

illicit nature is not an element of any offense under chapter

893. 4 / Instead, the lack of such knowledge may be raised as an

affirmative defense. See § 893.101(2) ; Hernandez v. State , 56

So . 3d 752, 759 (Fla. 2010) .

9 1 . Petitioner ' s conviction for distribution of cocaine in

violation of Title 21, U.S.C. § 841(a)(1) therefore require d

proof of every element necessary for conviction of a second

degree felony under section 893.13 (1)(a) 1. of the Florida

Statutes. Under section 1012.315(3), Petitioner ' s criminal act

of distribution of cocaine in violation of federal law , if

committed in Florida, would be an offense prohibited by

1012.315 (1)(qq) . Petitioner is therefore ineligible for

em ployment in any position that requires direct contact with

students.

9 2 . Petitioner argues that a violation of section 893.13

cannot make Petitioner ineligible for a Florida Teaching

Certificate under Shelton v. Dep artment of Corr ections , 802 F.

Supp . 2d 1289, 1294 (M.D. Fla. 2011) , which found th at this

statute violated the due process clause and was unconstitutional

on its face because it lacked the element of k nowledge or

intent . Florida courts have disagreed with the Shelton case,

however, and th e Florida Supreme Court is now considering the

issue. 5 / T h e constitutionality of this statute is not a question

t hat the Division of Administrative Hearings can decide. In the

instant case , it is noted that Petitioner ' s federal conviction

did require pro of beyond a reasonable doubt that she knew the

substance she distributed was illicit.

9 3 . A second offense which must be considered with regard

to Petitioner ' s distribution conviction is trafficking in

cocaine. Section 893.13 5(1)(b)1. , provides in releva nt part:

Any person who knowingly . . . delivers . .

. 28 grams or more of cocaine, as described

in s. 893.03 (2) (a)4., or of any mixture

containing cocaine, but less than 150

kilograms of cocaine or any such mixture,

commits a felony of the first degree, which

felony shall be known as " trafficking in

cocaine, " punishable as provided in s.

775.082 , s. 775.083 , or s. 775.084 .

9 4 . This offense is quite similar to section 893.13, but

adds one new element. In order to be convicted of trafficking

in cocaine, an additional element that the quantity of the

cocaine delivered was 28 grams or more must be proved . State v.

Dominguez , 509 So. 2d 917 (Fla. 1987).

9 5 . While Count 1 of the indictment, to which Petitioner

pled guilty, alleged that the amount of cocaine Petitioner

delivered was 55.2 grams, this was not actually an element of

the federal crime of distribution of cocaine for which she was

convicted. As noted earlier, i n interpreting 1012. 315(3), it is

the necessary elements of the offenses which must be compared ,

not the specific underlying facts of Petitioner ' s case , even if

Petitioner admitted those facts. Therefore, Petitioner ' s

conviction for distribution of cocaine in violation of Ti tle 21,

U.S.C. § 841(a)(1.) did not require proof of every element

necessary for conviction of the first - degree felony of

trafficking in cocaine under section 893.13 5 (1)( b )1. , Florida

Statutes.

9 6 . In light of Petitioner ' s federal conviction for

conspir acy to distribute cocaine, a nother Florida offense which

must be considered is conspiracy to deliver cocaine . Under

section 777.04(3), Florida Statutes, any person who conspires

with another person or persons to commit any offense commits the

offense of c riminal conspiracy , ranked for purposes of

sentencing under chapter 921 , Florida Statutes, as one level

below the ranking of the basic offense. § 7 77.04( 4)( a). Since

delivery of cocaine is a second - degree felony, a conviction of

criminal conspiracy to de liver cocaine becomes a third - degree

felony. § 777.04(4)(d ). Cf . Hernandez v. State , 56 So. 3d 752

(Fla. 2010) (attempt to commit a second - degree felony is

classified as a felony in the third degree).

9 7 . Conviction of criminal conspiracy to deliver co caine

is not a disqualifying offense under section 1012.315(1) because

a conspiracy conviction under section 777.04 is not separately

listed , and if considered as an offense under chapter 893, it

still constitutes only a third - degree felony.

9 8 . Petitione r next a sserts that section 1 012.315(3)

cannot be applied to her , citing Smith v. Faublas , 69 So. 3d

1075 (Fla. 1st DCA 2011) and Presmy v. Smith , 69 So. 3d 383

(Fla. 1st DCA 2011). These cases held that the Legislature did

not intend for section 1012. 795 (1)(n), authorizing the

Educational Practices Commission to permanently revoke the

educator certificate of any person who has been disqualified

from educator certification under section 1012.315, to apply

retroactively. Section 1012.795(1)(n) applies to p ersons who

already h old an educator certificate. Mr. Presmy and

Mr. Faublas held teaching certificates when the law was enacted.

Petitioner , by contrast, has never held a Florida Educator ' s

Certificate. She filed her application on June 3, 2010, well

af ter the effective date of section 1012.315 on July 1, 2008,

setting forth the requirements for all future applicants to be

eligible for educator certification. The statute is not being

applied retroactively to Petitioner .

9 9 . In summary, Petitioner ' s cri minal act of distribution

of cocaine in violation of federal law, if committed in Florida,

would be an offense prohibited by section 1012.315(1)(qq) , that

is, the second - degree felony of delivery of cocaine prohibited

by section 893.13(1)(a)1. Petitioner is therefore ineligible

for employment in any position that requires direct contact with

students.

100 . The disqualification from employment established by

section 1012.315 is conclusive; there are no provisions

affording an applicant the opportunity to demonstrate

rehabilitation or the D epartment an opportunity to exercise

discretion.

C ount 2

101 . Count 2 charges, " The Applicant is in violation of

Section 1012.56(2)(e), Florida Statutes, which requires that the

holder of a Florida Educator ' s Certifica te be of good moral

character. "

102 . In initial licensure proceeding s , the burden is upon

Petitioner to prove her eligibility, including her " good moral

character. " § 1012.56(2)(e). As discussed above under Basic

Eligibility Requirements, Petitioner met her burden to prove

that she is of good moral character.

C ount 3

103 . Count 3 charges, " The Applicant is in violation of

Section 1012.56(12)(a), Florida Statutes, which provides that

the Department of Education may deny an Applicant a certificate

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. "

104 . Section 1012.56(12) (a ) incorporates by general

r eference the acts and situations for which the EPC could revoke

an educator ' s certificate , and makes these also grounds for

denial of an application. The specific acts and situations are

listed in section 1012.795(1).

105 . Alth ough listed as a separate count, it is clear that

no specific act or situation is alleged as a part of Count 3

itself . Conversely, although Counts 4, 5 , and 6 do not mention

section 1012.56(12) (a) , the specific acts alleged in these

counts are grounds for denial of a n application for certificate,

if at all, only through the operation of section 1012.56(12) (a) .

C ount 4

106 . Count 4 charges, " The Applicant is in violation of

Section 1012.795(1)(d), Florida Statutes, in that she has been

guilty of gross i mmorality or an act involving moral turpitude

as defined by rule of the State Board of Education. "

107 . Although on its face Count 4 alleges Petitioner

violated section 1012.795(1)(d), an applicant who does not yet

hold an educator ' s certificate cannot ac tually violate that

provision , but instead is subject to application denial under

section 1012.56(12)(a) for the same act or situation that could

lead to revocation under section 1012 . 795(1)(d) , as just

discussed under Count 3 .

108 . Althoug h Count 4, as well as Counts 5 and 6 , is

t echnically deficient for this reason , i t is well settled that

an administrative complaint need not be cast with that degree of

technical nicety required in a criminal prosecution. Libby

Investigations v. Dep ' t of State , 685 S . 2d 69 (Fla. 1 st DCA

1996). An administrative complaint must only state the acts

complained of with sufficient specificity to allow a n applicant

a fair chance to prepare a defense. Davis v. Dep ' t of Prof.

Reg. , 457 So. 2d 1074 (Fla. 1 st DCA 1984). Thes e Counts

certainly might have been c rafted with more care, but the

alleg ations were clear and Petitioner was not prejudiced in

preparing her defense.

109 . The Ethics in Education Act, Chapter 2008 - 108, Laws

of Florida , added the phrase " as defined by rul e of the State

Board of Education " to what now appears as section

1012.795(1)(d) . I t is unclear whether t h is new language

modifies only " an act involving moral turpitude " or if it

instead modifies the entire phrase " gross immorality or an act

involving mo ral turpitude. " The absence of a comma after the

word " immorality " suggests that it modifies the entire phrase.

In any event, when construing penal statutes, any statutory

ambiguity should be resolved in favor of Petitioner. Cilento v.

State , 3 77 So. 2d 663 , 668 (Fla. 19 79 )( where criminal statute

is ambiguous, construction most favorable to accused should be

adopted) . See also § 775.021, Fla. Stat. ( " The provisions of

this code and offenses defined by other statutes shall be

strictly construed; when th e language is susceptible of

differing constructions, it shall be construed most favorably to

the accused. " ). Th is portion of the statute is thus only

violated if an educator is guilty of gross immorality as defined

by rule of the State Board of Education .

110 . T he State Board of Education has not d efined the te r m

" g ross immorality " by rule . No evidence was presented that

Petitioner ' s behavior met any such rule definition. No evidence

shows that Petitioner was guilty of gross immorality as defined

by rule of the State Board of Education .

111 . The State Board of Education has defined the term

" moral turpitude . " Florida Administrative Code R ule 6A -

5.056 (6) , entitled " Criteria for Suspension and Dismissal " has

long provided :

(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.

112 . This is almost identical to the definition of

moral turpitude adopted by the Florida Supreme Court in

Florida Bar v. Davis , 361 So. 2d 159 (Fla. 1978 )( " A crime

involves moral turpitude if it is an act of baseness,

vileness, or depravity in the private and social duties

which a man owes to his fellow men or to society in

general. Unless the offense is one which by its very

commission implies a base and depraved nature, the question

of mo ral turpitude depends not only on the nature of the

offense, but also on the attendant circumstances . . . . " ).

113 . Florida courts have noted that because attendant

circumstances must be considered , it is difficult to simply

compose a list of crimes that involve moral turpitude.

Milliken v. Dep ' t of Bus. & Prof ' l Reg. , 709 So. 2d 595

(Fla. 5th DCA 1998).

114 . The very fact that the perpetrator of a crime is an

educator working with students i s one such circumstance. I t has

been held that mere purchas e or possession of cocaine by an

educator , even without distribution, can constitute a crime of

moral turpitude , because the moral standards educators must

uphold to provide leadership to their students exceed those of

other professionals. Castor v. Pelae z , Case No. 90 - 1395 (Fla.

DOAH May 31, 1990). Accord Feldman v. Brogan , Case No. 98 - 2909

(Fla. DOAH Sep t. 16, 1998) (purchase of cocaine and possession

of pipe used for smoking cocaine by teacher was crime of moral

turpitude) ; Castor v. Thurston , Case No. 92 - 7063 (Fla. DOAH

Jul y 27, 1993)(purchase of crack cocaine by teacher is act of

gross immorality and moral turpitude) ; Castor v. Williams , Case

No. 89 - 506 (Fla. DOAH Jul y 17, 1989)(purchase of cocaine by

teacher was act involving gross immorality and mo ral turpitude) .

11 5 . D elivery of cocaine , or intent to d eliver cocaine , is

a more serious offense tha n simple possession . Offenses

involving delivery have been held to constitute a crime of moral

turpitude even within professions not working directly with

students . Milliken v. Dep ' t of Bus. & Prof ' l Reg. , 709 So. 2d

595 (Fla. 5 th DCA 1998)(possession of cocaine with intent to

distribute by real estate agent was crime of moral turpitude);

Dep ' t of Ins. v . Barker , Case No. 99 - 2478 (Fla. DOAH Sep t. 9,

1 999 ) (delivery of cocaine by insurance agent was crime of moral

turpitude).

116 . Section 1012.795(2) provides that a guilty plea to a

crime involving moral turpitude i s prima facie proof of grounds

for revocation of the certificate in the absence of proo f by the

certificate holder that the plea of guilty was caused by

threats, coercion, or fraudulent means. Petitioner failed to

prove her guilty plea resulted from threats, coercion, or

fraud ulent means.

117 . In distributing cocaine and conspiring to

dis tribute cocaine, Petitioner committed acts involving

moral turpitude as defined by rule of the State Board of

Education in violation of s ection 1012.795(1)(d) . As noted

above, this gives the Department of Education the authority

to deny Petitioner ' s appli cation under s ection

1012.56(12)(a) .

118 . However, section 1012.56(12)(a) provides that

the Department of Education may deny an Applicant a

certificate for such acts, not that it must do so. In the

case of Petitioner, who committed the se offenses over 25

years prior to applying for certification, has apparently

committed no further criminal offenses, has received two

college degrees, has been certified as an educator in

another state, and has been lauded for her performance as

an educator in both Colorado and Florida, the Educational

Practices Commission should not exercise its discretion to

deny Petitioner certification on the basis that Petitioner

committed an act of moral turpitude as defined by rule of

the State B oard of Education .

C ount 5

119 . Count 5 charges, " The Applicant is in violation

of Section 1012.795(1)(f), Florida Statutes, in that the

Applicant has been convicted or found guilty of, or entered

a plea o f guilty to, regardless of adjudication of guilt, a

misdemeanor, felony, or any other cr iminal charge, other

than a minor traffic violation. "

120 . As discussed above under Count 3, although on its

face Count 5 alleges that Petitioner violated section

1012.795(1)(f), an applicant who does not hold an educator ' s

certificate cannot actually vio late that provision, but instead

is subject to application denial under section 1012.56(12)(a)

for the same act or situation that could lead to revocation

under section 1012.795(1)(d). Again, while the complaint might

have been drafted more precisely , the allegation was clear and

Petitioner was not prejudiced in preparing her defense.

121 . Respondent proved that Petitioner entered a plea of

guilty and was convicted of the federal crimes of distribution

of cocaine and conspiracy to distribute cocaine, grou nds for

suspension or revocation of a Florida Educator ' s Certificate

under section 1012.795(1)(f).

122 . Section 1012.795(2) provides that a guilty plea to a

felony is prima facie proof of grounds for revocation of the

certificate in the absence of proof b y the certificate holder

that the plea of guilty was caused by threats, coercion, or

fraudulent means. Petitioner failed to prove her guilty plea

was caused by threats, coercion, or fraud ulent means.

123 . Again, denial of certification under section

101 2.56(12)(a) is discretionary , however . Petitioner ' s offenses

and guilty plea took place over 25 years ago. In light of the

evidence that Petitioner has long since turned her life around

a nd is now a responsible educator, the E PC should not exercise

its d iscretion to deny Petitioner certification on the basis

that Petitioner pled guilty to these offenses.

C ount 6

124 . Count 6 charges, " The Applicant is subject to Section

1012.795(1)(n), Florida Statutes, in that Applicant has been

disqualified from educ ator certification under 1012.315, Florida

Statutes. "

125 . It is true , as noted above in Count 3, that the

grounds for denial of an application for an educator ' s

certificate do incorporate by reference those grounds which

would cause an existing certifi cate to be revoked. It is also

true that the grounds for revocation of an existing certificate

incorporate by reference the ineligibility statute for new

applicants. However, it goes too far to read these two

provisions together in a circular fashion to multiply the

charges against an applicant. The charge that Petitioner is

ineligible under section 1012.315 has already been fully

addressed in Count 1. It adds nothing but confusion to charge

as a separate count that Petitioner ' s application for an

educa tor ' s certificate should also be denied because an existing

certificate holder would be subject to revocation for

ineligib ility under exactly the same statute.

126 . In summary, Petitioner is ineligib le for an

educator ' s certificate under the provisions o f section

1012.315(3), as alleged in Count 1.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is :

RECOMMENDED that the Education Practices Commission enter a

final order denying Petitioner ' s application for a Florid a

Educator ' s Certificate , without prejudice to her reapplication

should she later become eligible .

DONE AND ENTERED this 31s t day of M ay , 2012 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Ju dge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 1s t day of M ay, 2012.

ENDNOT ES

1/ Petitioner was unmarried at the time and she appears in the

court documents as Cappi C. E minger. In other documents

relating to later events, Petitioner is listed as Ms. Cappi

Castro. Petitioner testified as to her conviction, there is no

issue arising as a result of these different names, and

Petitioner is referred to throughout this Recommended Order

using her current name.

2 / All statutor y references are to the 201 1 Florida Statutes,

except as otherwise indicated. Since a final order has not yet

been issued in this case, Petitioner ' s application for licensure

is governed by the law in effect at the time the final licensure

decision is mad e. See Agency for Health Care Admin. v. Mount

Sinai Med. Ctr. , 690 So. 2d 689, 691 (Fla. 1st DCA 1997) . No

changes from the 2012 regular session appear relevant.

3 / Boshnack and other case law on this issue may be cited less

frequently in favor of sta tutory citation to sections 772.14 and

775.089(8), Florida Statutes, which allow a judgment based on a

guilty plea to be considered as evidence in certain civil

proceedings and estop the defendant from challenging in the

subsequent civil action those matte rs that were actually and

necessarily adjudicated in the earlier criminal proceeding. Cf.

City of Orlando v. Pineiro , 66 So. 3d 1064, 1074 (Fla. 5th DCA

2011)(citing both § 772.14, Fla. Stat. as well as the Boshnack

case for the proposition that i n civil actions where some fact

necessarily involved in the determination of such guilt is at

issue, plea of guilty is admissible).

4 / The Florida Supreme Court in McMillon v. State , 813 So. 2d 56

(Fla. 2002), held that knowledge of the illicit nature of a

sub stance is an element of the crime of sale of cocaine under

893.13(1)(a)1., even though this element is not explicitly

stated, and that the failure to instruct the jury on this

element when requested was error . In 2002, the Legislature

enacted section 893. 101, Florida Statutes, eliminating knowledge

of a controlled substance ' s illicit nature as an element of any

offense under chapter 893.

5/ The Shelton decision interpreted section 893.1 3, Florida

Statutes, as creating a strict liability felony by requiring a

defendant to prove lack of knowledge of the contraband

substance. Some Florida courts have disagreed, see Flagg v.

State , 74 So. 3d 138 (Fla. 1st DCA 2011) and cases cited

therein. The Second District case of State v. Adkins , 71 So. 3d

184 ( Fla. 2d DCA 2011), certified the question to the Florida

Supreme Court, where it is pending. State v. Adkins , No. SC11 -

1878 (Fla., filed Sept. 28, 2011).

COPIES FURNISHED:

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

ron@ronwe averlaw.com

Peter James Caldwell, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

[e-mail]

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlin gton Building, Suite 224

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, Flori da 32399 - 0400

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writte n 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.