11-003431PL Dr. Eric J. Smith, As Commissioner Of Education vs. James King Mcintyre Status: Closed Recommended Order on Friday, November 18, 2011.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent was guilty of gross immorality or an act of moral turpitude. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3431 PL

)

JAMES KING MCINTYRE , )

)

Respondent . )

)

RECOMMENDED ORDER

This case was heard on September 19 , 2011, by video

teleconference at sites in Tallahassee, Florida and

Jacksonville, Florida, before E. Gary Early, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

For Respondent: Anthony D. Demma , Esquire

Meyer, Brooks , Demma and Blohm, P.A.

Post Office Box 1547

131 No r th Gadsden Street

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

W hether there are sufficien t grounds for the imposition of

disciplinary sanctions against RespondentÓs educatorÓs

certificate, and if so, the nature of the sanctions .

PRELIMINARY STATEMENT

On May 11 , 201 1 , the Department e xecuted an Administrative

Complaint against Respondent which alleged that on or about

October 7, 2010 , Respondent stole items valued at approximately

$10.00 from a department store, and was charged with Petit

Theft.

On June 16, 2011, Respondent filed an election of rights by

which he requested a formal h earing. The record is silent as to

when the Administrative Complaint was served on Respondent,

though there has been no suggestion that the request for hearing

was not timely filed.

The final hearing was noticed for September 19 , 2011. On

September 12 , 2011, the parties filed their pre - hearing

stipulation in which they stipulated to certain facts. Those

facts have been incorporated in this Recommended Order.

The hearing was held on September 19, 2011 as scheduled .

Petitioner presented the testimony of Roger L. Esckelson,

Assistant Manager of FredÓs Department Store; Christopher

Kopinski, a patrol officer with the City of Fernandina Beach

police department; and Dr. John Ruis, Superintendant for the

Nassau County Scho ol District . Respondent testified on his own

behalf , and o ffered RespondentÓs Composite Exhibit 1 , consisting

of RespondentÓs Classroom Teacher Performance Appraisals for the

preceding four school years, which was admitted into evidence.

On October 5, 20 11, counsel for Petitioner filed a motion

requesting that Proposed Recommended Orders be filed thirty days

from the filing of the transcript. The motion was unopposed.

Good cause having been shown, the motion was granted.

A Transcript of the proceedings was filed on October 13 ,

2011. Both parties timely filed P roposed Recommended O rders

which have been duly considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, as Commissioner of the Florida Department

of Education, is charged with the duty to investigate and take

disciplinary action against individuals who hold a Florida

educator's certificate an d are alleged to have violated s ection

1012.795, Florida Statutes, and the DepartmentÓs rules

esta blishing standards of teacher conduct.

2. Respondent holds an educatorÓs certificate, N o. 726067 ,

covering the areas of biology and general science, issued by the

Florida Department of Education.

3. At all times material to this proceeding, Respondent

wa s employed as a science teacher at Callahan Middle School in

Nassau County, Florida.

4. Respondent was first employed by the Nassau County

School Board in 1995. He taught special education courses for

his first two years, and Ðat - riskÑ classes for the fo llowing two

years. Since then he has taught middle school science.

5. In addition to his normal teaching duties, Respondent

has coached the middle school football team and the boys and

girls track teams for 11 years.

6. Respondent is a capable and competent teacher, and has

a good reputation. Respondent has not previously been the

subject of a disciplinary proceeding.

7 . On October 7, 2010, at the end of the school day,

Res p ondent went to the FredÓs discount department store located

at 22 South 8 th Street , Fernandina Beach, Florida. The pur pose

of the visit was to purchase reading glasses to replace a pair

that was broken that day at the school.

8. Respondent testified that he entered FredÓs and went

immediately to the glasses disp lay. Since the glasses were

inexpensive - - $4.95 a pair - - he decided to buy 2 pairs. After

selecting the glasses, Respondent noticed a display of candy.

As a reward for students scoring 90 or above on an assignment,

Respondent places them in the Ðsmart y partyÑ and allows them to

take a piece of candy from a supply he keeps . He was low on

candy, and decided to buy some to replenish his stock . He

picked up three large bags of candy, and given that he was

running out of space in his hands, placed the gla sses in his

left pants pocket. On his way to th e checkout line, Respondent

noticed that FredÓs had a sale on dog food. He picked up a bag

of dog food, slung it on his shoulder, and proceeded to the

checkout line.

9. When he reached the checkout line, Respondent testified

that he forgot about the glasses in his pocket, and proceeded to

pay for the candy and dog food with a credit card. The candy

was placed in a plastic ÐT - sack .Ñ He exited the store with his

plastic bag and dog food, whereupon an alarm sounded. Not

thinking the alarm was a result of his action, Respondent

continued towards his car. As he was about halfway to his car,

the cashier came to the door and said ÐHey honey, that might be

you. That sometimes happens with dog food.Ñ Responden t

testified that he turned to walk back in and at that time

noticed Mr. Esckelson, who was returning from assisting a

customer in the parking lot, walking about four steps in front

of Respondent.

10. As he was about halfway back to the store, Respondent

testified that he remembered the glasses in his pocket , and that

he had forgotten to pay for them. He knew that FredÓs had a

reputation for implementing an aggressive, Ðhard - coreÑ policy

against shoplifters, and in a split - second and ill - conceived

decisio n , decided to toss the glasses into a nearby display of

mums . In his haste, he thought that he had grabbed both pairs

of glasses from his pocket and tossed them into the flowers.

However, he managed to grab only one pair, while the second pair

remained i n his pocket without his knowledge.

11. Respondent testified that his action was observed by

Mr. Esckelson , despite his being a few steps in front of

Respondent , who then said ÐOK, get in here.Ñ Mr. Esckelson

asked what Respondent threw, and he replied that he threw

glasses. Respondent was asked to stand by the register, and

Mr. Esckelson advised the cashier to call the police.

Respondent testified that he spoke with Mr. Esckelson, and

asked , Ðis there any way to make this right? Ñ He told Mr.

Esckelso n that he had taken the glasses out of the store by

accident, and wanted to pay for them. RespondentÓs intent in

making that statement was to offer payment, and was not an

attempt to bribe Mr. Esckelson. The offer was, in any event,

declined.

12. Althou gh Respondent had his Nassau County School

District employee badge attached to his belt on the right side

of his pants, Respondent testified that there was no discussion

regarding his employment as a teacher.

13. When the police arrived, Respondent was t aken into

custody almost immediately. The two officers at the scene

arrived in separate cars. Officer Kopinski, who was first on

the scene, had separate conver sations with Respondent and

Mr. Esckelson. Officer Kozak arrived sometime after and took

contr ol of the situation since FredÓs was in his zone. Officer

Kopinski, who testified at the hearing, had little independent

recollection of the events, his testimony being based almost

exclusively on Office KozakÓs arrest report to which he referred

frequent ly during the hearing to refresh his recollection. The

arrest report was not entered in evidence by either party .

Officer Kopinski could not recall whether Mr. Esckelson provided

him with the pair of glasses at the time of his placing

Respondent in custo dy.

14. Respondent testified that when he was being placed in

handcuffs, the officer, having noticed his school district

identification badge, asked if Respondent was a school district

employee. Respondent replied that he was a school teacher , and

that t he arrest would be a bad situation for him.

15. Respondent testified that as he was being escorted

from the store to the police car, Mr. Esckelson was searching in

the display of flowers for the glasses he had thrown.

Respondent told Mr. Esckelson where he had thrown the glasses ,

at which time he was able to locate and retrieve them .

16. Prior to his being plac ed in the police car for

transport, Respondent w as searched. At that time, Officer

Kopinski discovered the second pair of glasses in RespondentÓs

pants pocket, and returned them to Mr. Esckelson. Officer

Kopinski testified, based on th e police report , that Respondent

also had $12.20 and several credit cards in his possession.

Although Officer Kopinski had no independent recollection of the

money and cards , and the police report is not in evidence,

Respondent did not dispute that he had that amount in his

possession.

17. Mr. EsckelsonÓs testimony differed in several respects

from that of Respondent. Mr. Esckelson testified that at the

time of the incident, he was in the parking lot returning a

train of shopping carts to the store. As Respondent was exiting

the store, Mr. Esckelson was approximately 15 feet from the door

heading in . When the alarm went off, Mr. Esckelson testified

that Respondent was pushing the door open with his left hand,

and as soon as he opened the door, he removed an object from his

right pants pocket , later found to be a pair of glasses, and

tossed it into the display of mums. Mr. Esckelson asked

Respondent to return to th e store, and immediately retrieved the

glasses from the display . He asked Respondent to stand by

register 2, which was subject to video surveillance, and

signaled the clerk to call the police.

18. Although Mr. Esckelson indicated that he said nothing

t o Respondent, he testified that Respondent asked if there was

Ðanything we ca n do to take care of this now?Ñ and later stated

that Ðyou canÓt arrest me, IÓm a teacher.Ñ Mr. Esckelson

testified that he advised the police officers of RespondentÓs

statements . Officer Kopinski could not corroborate either of

those statement s .

1 9 . Mr. Esckelson could not recall whether Respondent was

carrying a large bag of dog food. He recalled asking the clerk

what Respondent had purchased, but could not remember what the

clerk told him. However, there are no sensor tags on dog food

that would have caused the alarm to trigger.

20. Mr. Esckelson confirmed that FredÓs has a policy of

discouraging shoplifting, and will always prosecute when

shoplifters are caught. Over the years that he worked for

FredÓs, Mr. EsckelsonÓs involvement with shoplifters, though not

routine, was still relatively frequent.

2 1 . Despite the differences in their descriptions of the

events, differences which for the most part were as to

peripheral matters, b oth Respondent and Mr. Esckelson appeared

to be forthright and credible. As to the material elements of

the event, their testimony was generally consistent. However,

Mr. Esckelson had no involvement in RespondentÓs matter from the

time of the i ncident until he received a subpoena on August 11,

2011. As was the case with Officer Kopinski, who had almost no

independent recollection of the incident, it stands to reason

that Mr. EsckelsonÓs memory of the incident would blur over

time, particularly since he was involved with recurring

incidents of a similar nature in the intervening period.

Respondent on the other hand would be expected to retain a more

vi vid memory of the incident given its singular affect on him.

22. The differences in Respondent Ós and Mr. EsckelsonÓs

testimony do little to affect the outcome of this case. For

example, whether Mr. Es c kelson was returning carts to the store

or returning to the store from assisting a customer, whether the

glasses were found before or after the poli ce arrived, and

whether the glasses were removed from Respondent Ós left or right

pocket have little to do with the salient facts of the case.

Those and other similarly insignificant differences in the

testimony were more likely due to the passage of time than to an

attempt to obfuscate the facts of the incident. However, the

testimony of Respondent is found to be a more accurate statement

of the facts of the incident.

2 3 . At the time of the incident, there were customers and

employees in FredÓs. Respon dent was acquainted with several of

the store clerks from previous times at which he shopped at

FredÓs. There was no evidence offered to indicate that

Respondent knew any one clerk from another other than from a

purely employee/customer standpoint, nor wa s there any evidence

offered that any customer or employee who witnessed the events

knew Respondent, or was aware that he was a school teacher .

2 4 . Within a short period after his arrest, Respondent

called John Ruis, the Superintendant of S chools for Na ssau

County , to advise him of the situation. His first calls were

over the weekend, at which time he left messages. By the time

Respondent spoke with Mr. Ruis, Mr. Ruis had been notified of

the arrest, having received a computer notification.

2 5 . Respon dent asked to meet with Mr. Ruis to provide his

side of the story. When they me t , Respondent appeared to be

humiliated, humbled, and embarrassed. Respondent advised

Mr. Ruis of all pertinent facts of the incident, including the

fact that he tossed the gl asses into the flower display. He

asserted that his failure to pay for the glasses was

inadvertent.

2 6 . Mr. Ruis informed the principal of Callahan Middle

School and the school districtÓs personnel director of the

situation involving Respondent. Mr. Ruis did not know if any

other employee of the Nassau County School District knew of the

incident.

2 7 . It is not the practice of Mr. Ruis, as Superintendant,

to remove a teacher from the classroom in an alleged

disciplinary matter unless the teacher presents a threat of harm

to the students. When there is no perceived harm to students,

the district allows the legal sys tem to take its course.

Mr. Ruis determined that Respondent presented no threat to any

student, and he was therefore not removed. Respondent has

taught continuously since the incident with no subsequent

indication of any problem.

2 8 . As the judicial res olution of the incident, Respondent

entered into a deferred prosecution agreement, the precise terms

of which were not disclosed. The Petit Theft charge was

subsequently nolle prossed, and the record of RespondentÓs

arrest has since been expunged.

2 9 . T he conduct alleged was not known to anyone outside of

the arresting officers, the Superintendant, the principal of

Callahan Middle School, and the personnel director . Although

there were customers and employees of FredÓs in the store at the

time of Respon dentÓs arrest, there was no evidence that any of

them knew Respondent, or knew that he was a Nassau County School

District employee. There was no evidence that any student,

parent, or other teacher had any knowledge of RespondentÓs

arrest . There was no m edia coverage of the incident, and no

complaints filed with the school district regarding Respondent.

RespondentÓs conduct was not, in any sense of the term,

Ðnotorious.Ñ

30 . Respondent denied any intent to steal the glasses.

The testimony as to how the glasses came to be in his pocket

upon buying the candy and dog food is plausible. Other than his

split - second decision to toss the glasses into the flower

display - - a decision that Respondent stated was based upon his

knowledge of FredÓs aggressive stan ce on shoplifting - - there is

no direct evidenc e of intent to steal the glasses. While there

is evidence from which one could infer consciousness of guilt

from the circumstances of this case, RespondentÓs act of tossing

the glasses when he realized he had exited the store without

paying, under the particular facts and circumstances of this

case, does not rise to the level of clear and convincing

evidence of RespondentÓs intent to shoplift the glasses.

CONCLUSIONS OF LAW

A. Jurisdiction .

3 1 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

t he parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes.

B. Standards

3 2 . Section 1012.795(1), Florida Statutes, which

establ ishes the violations that subject a holder of an educator

certificate to disciplinary sanctions , provides , in pertinent

part, that :

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01 (2) or (3 )

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to te aching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

stude nts for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or publ ic school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

3 3 . Section 1012 .796(7) provides , in pertinent part, that:

1012.796 Complaints against teachers and

administrators; procedure:

* * *

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a teaching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicantÓs

application, for a specified period of time

or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the

investigative office i n the Department of

Education upon termination of employment in

the state in any public or private position

requiring an educator's certificate.

2. Have his or her immediate

supervisor submit annual performance reports

to the investigative office in the

Department of Education.

3. Pay to the commission within the

first 6 months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully

comply with all district school board

po licies, school rules, and State Board of

Education rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with

the terms of a final order entered by the

commission.

(e) Restric tion of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certification file of such person.

(g) Imposition of an admini strative

sanction, upon a person whose teaching

certificate has expired, for an act or acts

committed while that person possessed a

teaching certificate or an expired

certificate subject to late renewal, which

sanction bars that person from applying for

a new certificate for a period of 10 years

or less, or permanently.

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

C. The Burden a nd Standard of Proof .

3 4 . The Petitioner bears the burden of proving the

specific allegations of wrongdoing that support the charges

alleged in the Administrative Complaint by clear and convincing

evidence before disciplinary action may be taken against the

professional license of a teacher . Tenbroeck v. Castor , 640 So.

2d 164, 167 (Fla. 1 st DCA 1994); § 120.57(1)(j), Fla . Stat . ; see

also DepÓt of Banking & Fin. , Div. of Securities and Investor

Protection v. Osborne Stern and Co. , 670 S o. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Pou v. DepÓt

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

3 5 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof

e ntails both a qualitative and quantitative

standard. The evidence must be credible;

the memories of the witnesses must be clear

and without confusion; and the sum total of

the evidence must be of sufficient weight to

convince the trier of fact without

hesitancy .

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 testimony must be

precise and explicit and the witnesses

must be lacking in confusion as t o the

facts in issue. The evidence must be

of such weight that it produces in the

mind of the trier of fact a firm belief

or conviction, without hesitancy, as to

the truth of the allegations sought to

be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting , with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983) ) ; see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros.,

Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

3 6 . Sec tion 1012.795 is penal in nature, and must be

strictly construed , with any ambiguity construed against the

Petitioner. Penal statutes must be construed in terms of their

literal meaning, and words used by the Legislature may not be

expanded to broaden the application of such statutes. Latham v.

Fl a . CommÓ n on Ethics , 694 So.2d 83 (Fla. 1st DCA 1997); see

also Beckett v. DepÓt of Fin. Svc s . , 982 So. 2d 94, 100 (Fla.

1st DCA 2008; Dyer v. DepÓt of Ins. & Treasurer , 585 So. 2d

1009, 1013 (Fla. 1st DCA 1991).

3 7 . As leaders and role models in the c ommunity, teachers

are held to a high moral standard. Adams v. Prof'l Practices

Council , 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).

3 8 . T he Administrative Complaint charges Respondent with

violating section 1012.795(1)(d) by being guilty of gross

immoral ity or an act involving moral turpitude as defined by

rule of the Department.

3 9 . Section 1012.795(1)(d) does not define Ð gross

immorality Ñ or Ð an act involving moral turpitude Ñ . ÐGross

immoralityÑ is not defined by rule. However, Florida

Administrati ve Code Rule 6B - 4.009, which contains definitions

for use by school districts in disciplining instructional staff,

has been used as a tool for interpreting section 1012.795(1)(d),

Florida Statutes. John L. Winn, as Comm'r of Educ. v. Adela

Popescu , Case N o. 06 - 1620 (Fla. DOAH Aug. 23, 2006; Fla. EPC

Jan. 23, 2006); Jim Horne, as CommÓr of Educ. v . Mark S.

Sanchez , Case No. 04 - 0733PL (Fla. DOAH Oct. 29 , 2004; Fla. EPC

June 15, 2005); accord Dr. Eric J. Smith, as Comm'r of Educ. v.

Maria Elena Malvar , Case No. 10 - 2784 (Fla. DOAH Sept. 13, 2010;

Fla. EPC Jan. 11, 2011).

40 . R ule 6B - 4.009(2 ) , defines Ð immoralityÑ as:

. . . conduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct sufficiently notorious

to br ing the individual concerned or the

education profession into public disgrace or

disrespect and impair the individualÓs

service in the community.

4 1 . Ð Gross immorality Ñ has been described as an act of

misconduct that is serious, rather than minor in natu re; it is a

flagrant disregard of proper moral standards. Brogan v.

Mansfield , Case No. 96 - 0286 (Fla. DOAH Aug. 1, 1996; Fla. EPC

Oct. 18, 1996).

4 2 . Retail t heft is a crime that meets the definitions of

gross immorality and moral turpitude. See In re : Garrett , 613

So. 2d 463 (Fla. 1993) ; Broward Co. Sch. Bd. v. Rachel Von

Hagan , Case No. 11 - 0567 (Fla. DOAH June 12, 2011 ; Sch. Bd. of

Broward Co. Aug. 16 , 2011); Dr. Eric J. Smith, as Comm'r of

Educ. v. Seneka Rachel Arrington , Case No. 08 - 3475 (Fla. DOAH

Mar. 24, 2009 ; Fla. EPC J uly 13, 2009) .

4 3 . In order to discipline a teacher for immoral conduct

the factfinder must conclude: a) that the teacher engaged in

conduct inconsistent with the standards of public conscience and

good morals, and b) that the conduct was sufficiently notorious

so as to disgrace the teaching prof ession and impair the

teacher's service in the community. M cNeill v. Pinellas C ty .

Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996 ) , ( citing

McKinney v. Castor , 677 So. 2d 387 (Fla. 1 st DCA 1991) ) .

4 4 . The allegations underlying the violation are that

Ð [o]n or about October 7, 2010, in Nassau County, Florida, the

Respondent attempted to remove approximately $10.00 worth of

merchandise from a department store without paying for the

merchandise. The Respondent was charged with Petit Theft. On

or about Oc tober 18, 2010, the Respondent entered into a

deferred prosecution agreement and the charge was later nolle

prossed. The Administrative Complaint is devoid of any

allegation that the act was intentional, and such intent was not

proven.

4 5 . As to the elem ent of intent, an inference of innocent

inadvertence combined with a rash and panicked reaction is as

plausible as an inference of consciousness of guilt . While the

act of throwing the glasses into the flower display raises

suspicion, in the absence of mo re, and in the circumstances of

this case, it is merely a suspicion that does not support

disciplinary action against RespondentÓs license. See Tenbroeck

v. Castor , 640 So. 2d at 167.

4 6 . Petitioner has failed to prove that the act of leaving

FredÓs De partment Store with the glasses , without clear and

convincing evidence of the intent to commit an act of theft ,

constitutes a flagrant disregard of proper moral standards. In

addition, neither the conduct itself, nor the investigation or

interview of Respondent was in any sense of the term

Ðnotorious.Ñ Thus, in the absence of proof that the incident

was more than an oversight, Petitioner has failed to meet its

clear and convincing evidence burden of proof that the act was

one of gross immorality.

4 7 . Likewise, this incident cannot be considered conduct

involving moral turpitude. Rule 6B - 4.009(6) defines the term

Ðmoral turpitudeÑ as Ð 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 doi ng of the act itself and not its prohibition by statute

fixes the moral turpitude.Ñ Furthermore, moral turpitude has

been defined by the Supreme Court as

involv[ing] the idea of inherent baseness or

depravity in the private social relations or

duties owe d by man to man or by man to

society. . . . It has also been defined as

anything done contrary to justice, honesty,

principle or good morals, though it often

involves the question of intent as when

unintentionally committed through error of

judgment when wrong was not contemplated.

(citations omitted) (emphasis supplied)

State ex rel. Tullidge v. Hollingsworth , 108 Fla. 607, 611 (Fla.

1933)

4 8 . The evidence in this case was not clear and convincing

that Respondent intended to steal the reading glasses when he

exited FredÓs with his purchases. The act of taking the glasses

without paying for them, without proof of intent to steal the

glasses , did not show a Ðbaseness or depravityÑ so as to

constitute a n act involving moral turpitude . Rather, the facts

proven support a conclusion that this case falls into the

category of an act Ðunintentionally committed through error of

judgment when wrong was no t contemplated.Ñ

4 9 . Petitioner has failed to prove the statutory and rule

violations alleged in the Administrative Complaint by clear and

convincing evidence. Thus, Respondent is not guilty of the

violation alleged in the Administrative Complaint .

RECOMMENDATION

Upon consideration of the findings of fact and conclusions

of law reached herein , it is

RECOMMENDED that a final order be entered dismissing the

Administrative Complaint .

DONE AND ENTERED this 18th day of November , 2011, in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 18th day of November , 2011 .

COPIES FURNISHED :

J. David Holder, Esquire

J. David Holder, P.A.

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Anthony D. Demma, Esquire

Meyer, Brooks, Demma and Blo hm, P.A.

Post Office Box 1547

131 North Gadsden Street

Tallahassee, Florida 32302

Charles M. Beal, 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 exception s 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.