13-000410TTS St. Lucie County School Board vs. John Contoupe Status: Closed Recommended Order on Thursday, November 7, 2013.

Summary: Respondent's misdemeanor conviction resulted in a violation of adopted School Board policy; as a necessary consequence, Respondent is guilty of misconduct in office. Recommend termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 0410TTS

JOHN CONTOUPE ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hear ing was held in this case

before Edward T. Bauer, an Administrative Law Judge of the

Division of Administrative Hearings, on June 7 and August 23,

2013, by video teleconference at sites in Tallahassee and Port

St. Lucie, Florida.

APPEARANCES

For Petitioner : Leslie Jennings Beuttell, Esquire

David Miklas, Esquire

Richeson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: Thomas L. Johnson, Esquire

Nicholas Anthony Caggia, Esquire

Law Office of Thomas Johnson, P.A.

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent' s

employment with the St. Lucie County School Board.

PRELIMINARY STATEMENT

On or about January 8, 2013, Petitioner St. Lucie County

School Board ("Petitioner" or "School Board") provided written

notification to Respondent that it intended to initiate

proce edings to terminate his employment. Thereafter, Petitioner

executed a "Statement of Charges and Petition for Termination"

("Complaint"), which alleged, among other things, that Respondent

was guilty of misconduct in office, immorality, and/or gross

insubo rdination; the Complaint further alleged that Respondent

had run afoul of multiple School Board rules. Respondent timely

requested a formal administrative hearing to contest Petitioner's

action, and, on January 24, 2013, the matter was referred to the

Div ision of Administrative Hearings ("DOAH") for further

proceedings.

As noted above, the final hearing was held on June 7 and

August 23, 2013, during which Petitioner presented the testimony

of six witnesses (Mary Boyle, Marianne McCullough, Susan

Ranew, Gail Richards, Dr. Mark Rendell, and Dr. Jennifer Lawrence

McQuiddy) and introduced 40 exhibits: 1 through 21; 22

(pages 392 - 393 and 396 - 399); 23A (pages 14 - 16); 24A; 26

through 38; 39 (pages 72 - 74); 40; and 41. Respondent testified

on his own behalf, ca lled one other witness (James Hall), and

introduced eight exhibits: 3; 4; 6 through 10; and 12. At the

conclusion of the hearing, the undersigned granted the parties'

request to extend the proposed recommended order deadline

to 30 days from the filing of the transcript with DOAH.

The final hearing Transcript was filed on September 13,

2013. Both parties timely filed proposed recommended orders,

which the undersigned has considered in the preparat ion of this

Recommended Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

specific conduct at issue.

FINDING S OF FACT

I. The Parties/Background

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schoo ls within

St. Lucie County, Florida.

2. In or around 1987, Respondent graduated from Florida

Atlantic University with a bachelor of science degree in

education. It is undisputed that Respondent holds no other

professional degree, much less one that would permit him to

utilize the title "doctor." (The significance of this point will

be illustrated shortly .)

3. The following year, in 1988, the School Board hired

Respondent as a classroom teacher, a position he has held since

that time. By all appearances , Respondent's employment with the

School Board proceeded without incident for more than 20 years,

during which period he earned favorable performance evaluations

and recei ved no disciplinary sanctions.

4. In October of 2011, and as a minor bump in the ro ad, the

principal of Port St. Lucie High School ("PSLHS"), Dr. Mark

Rendell, issued Respondent a "letter of concern" after he

received information that Respondent had criticized a PSLHS

graduate in a Facebook posting. Among other things,

Dr. Rendell's let ter cautioned Respondent that communications

with members of the public should be "carried out in an ethical

and professional manner," and that educators are held to a

"higher standard than other citizens."

5. Respondent's real troubles with the School Bo ard began

on May 18, 2012, with his arrest in Okeechobee County in

connection with several criminal offenses ÏÏ charges to which he

would later plead no contest. The conduct that led to the arrest

is fully explicated below; suffice it to say for the moment that

Respondent allegedly utilized an inauthentic animal inspection

certificate in connection with his sale (and shipment) of a dog

to an out - of - state purchaser, Gail Richards.

6. The School Board's ensuing investigation into

Respondent's behavior, which culminated in the filing of the

instant Complaint, uncovered other instances of alleged

wrongdoing, namely: that Respondent had sold and shipped animals

with bogus inspection records in two transactions that preceded

the sale to Ms. Richards; and that, in connection with his

service as a dog judge for the American Kennel Club, Respondent

had misrepresented his educational qualifications by using the

title "doctor." The undersigned begins with the facts relating

to Respondent's transactions with Ms. Richar ds and the other

purchasers.

II. Transactions at Issue

7. At all times relevant to this proceeding, Respondent

bred and sold animals ÏÏ specifically, cats and longhaired

dachshunds ÏÏ under the moniker "Aviance Show Dogs." Respondent's

activities in this regard, which occurred during his employment

with the School Board, occasionally involved the shipment of

animals by commercial aircraft to out - of - state purchasers.

8. The School Board alleges, and Respondent does not

dispute, that an animal shipped fro m state to state via a

commercial airline must be accompanied by a health inspection

certificate, a document formally known as a "Certificate for

Interstate or International Movement of Small Animals"

(hereinafter "inspection certificate"). The pre - printe d language

of an inspection certificate solicits, among other information,

the name and contact information of the animal's owner, a

description of the animal, the identity and address of the

purchaser, and, most important, a certification from a licensed

veterinarian that the animal has been vaccinated for rabies, as

well as examined and found to be free from clinical signs of

contagious disease.

9. As alluded to previously, the School Board contends

that, in connection with three separate transactions th at

occurred over a span of 19 months, Respondent utilized inspection

certificates that were fraudulent or otherwise illegitimate. The

first transaction in question, which took place in late February

or early March of 2009, involved Respondent's sale and s hipment

of a dachshund (named "Uno") to co - purchasers who resided in the

state of Texas. Oddly, the dachshund, which Respondent shipped

from Florida by commercial airline, was accompanied by a "State

of California Department of Food and Agriculture" inspe ction

certificate. Even more peculiar is the fact that,

notwithstanding Respondent's admission in this proceeding that

Uno had never been to California, the inspection certificate's

handwritten entries indicated: that Uno was evaluated for signs

of conta gious disease at the Santa Clara Pet Hospital on

February 28, 2009; that "Jennifer W. Lawrence," a California

veterinarian, performed the examination (the inspection

certificate bears what purports to be her signature); that

Dr. Lawrence holds California l icense number 12620; and that, on

the date of the examination, a ra bies vaccine was administered.

10. As it happens, there is a Dr. Jennifer Lawrence who

holds license number 12620 and practices veterinary medicine at

the Santa Clara Pet Hospital in Santa Clara, California; the

problem, though, is that Dr. Lawrence ÏÏ who, prior to this

proceeding, had never heard of Respondent ÏÏ credibly testified

that she neither examined Uno nor signed the inspection form.

What is more, Dr. Lawrence's testimony establishe s that Uno has

never been examined or treated by any veterinarian employed at

the Santa Clara Pet Hospital. In other words, the veterinary

information handwritten on the face of Uno's inspection

certificate is false .

11. Three months later, on June 5, 20 09, Respondent shipped

a cat named "Beau" by commercial aircraft from Florida to a

purchaser in Texas. The "State of California" inspection

certificate accompanying the shipment listed Respondent's name

and address, the purchaser's contact information, an d the cat's

name, age, and gender. Although the inspection certificate's

handwritten notations also indicate that Dr. Jennifer Lawrence

examined Beau at the Santa Clara Pet Hospital (on June 4, 2009,

a day Respondent concedes 1 / he was not in California),

Dr. Lawrence's credible testimony establishes, once again, that

she did not sign the certificate, and, further, that the animal

in question had never been evaluated or vaccinated by any

veterinarian at her clinic.

12. By all appearances, the two transacti ons discussed

above did not result in any direct, adverse consequences to

Respondent; the same cannot be said for the next sale at issue,

which involved Respondent's shipment of a dachshund (identified

as "Jackson") to Ms. Richards. It is undisputed that, on or

about October 16, 2010, Respondent shipped Jackson by commercial

airline from Florida to Missouri, where Ms. Richards resided. As

with the other sales, Jackson was accompanied by a "State of

California" inspection certificate that included Responde nt's

name and contact information, the name of the purchaser, and a

description of the dog. The face of the inspection certificate

also indicated that "Dr. Drew Lawrence" had examined and

vaccinated Jackson at the "San Jose Animal Hospital" on

October 14 , 2010. (Whether such a veterinarian or clinic

actually exists is of no moment, for Respondent admits that

Jackson was never examined by a "Drew Lawrence" in the state of

California or anywhere else. 2 / )

13. The peculiarities of Jackson's inspection cert ificate

did not go unnoticed: a short time after delivery,

Ms. Richards contacted Respondent and inquired about the

handwritten notations regarding the dog's purported examination

and vaccination. Dissatisfied with Respondent's explanation,

Ms. Richards ultimately filed a complaint with the Florida

Department of Agriculture.

14. Thereafter, on June 7, 2012, the State of Florida

charged Respondent by information with three criminal offenses,

all of which related to the transaction with Ms. Richards. In

p articular, Respondent was charged with: forgery of a

certificate of veterinary inspection, a third degree felony 3 /

(Count I); failure to inoculate a dog or cat transported/offered

for sale, a first degree misdemeanor (Count II); and failure to

include a h ealth certificate with a dog or cat offered for sale,

a first degree misdemeanor 4 / (Count III). Some six months later,

on December 5, 2012, Respondent reached a plea agreement with the

State, the terms of which called for the dismissal of

Count II and th e entry of no contest pleas to Counts I and III.

Pursuant to the terms of the agreement, Respondent was

adjudicated guilty of the misdemeanor charge and sentenced to a

probationary term of 12 months. With respect to the felony

offense, the adjudication o f guilt was withheld and Respondent

was placed on probation for five years; as a special condition of

that probation, Respondent was ordered to make restitution to

Ms. Richards in the amount of $2,050 ÏÏ Jackson's approximate

purchase price.

15. Although R espondent does not deny that the three

inspection certificates at issue contained illegitimate

veterinary information, he asseverates that the inauthentic

entries were made without his knowledge or involvement. In

particular, Respondent claims that the th ree animals in question

were examined at his residence (in Okeechobee County) by a

veterinarian who operated a mobile clinic; that the veterinarian

supplied the inspection certificates; that he (Respondent) filled

out some of the information on each of the forms, such as his

name and address, the identities of the purchasers, and the names

of the animals; and that the mobile veterinarian was responsible

for the bogus vaccination and examination entries, which

Respondent asserts he never saw.

16. For a mult itude of reasons, Respondent's explanation is

rejected. First, Respondent's claim that he has no recollection

of the mobile veterinarian's identity or the name of the clinic

(a business he purportedly used on at least three occasions over

a span of more t han 19 months) is dubious at best. Further, it

is highly improbable that Respondent could have managed to fill

out some of the information at the top of each form ÏÏ which he

concedes he did ÏÏ without taking notice of the headers reading

"State of California ." If that were not enough, Respondent's

version of the events contemplates, incredibly, that the mobile

veterinarian, on his or her own accord and without Respondent's

involvement, affixed (to two of the forms) "Jennifer Lawrence"

and "Santa Clara Pet Ho spital" ÏÏ a veterinarian and animal clinic

used by Margaret Peat, a longtime acquaintance of Respondent's

and a person with whom Respondent has co - owned various animals. 5 /

17. Finally, the record contains written statements from

Respondent, albeit in conne ction with different transactions than

the three at issue in this matter, which reflect his willingness

to utilize illegitimate inspection certificates. For instance,

on March 1, 2010, Respondent posted, via Facebook, the following

message to Ms. Peat con cerning an impending shipment of two dogs,

"Blossom" and "Dimitri":

That would be the perfect home for Blossie.

I have a show 12 - 14 of March but I can run

her to the airport any other day. I'd like

to ship Dimitri at the same time to you so

that I can co mbine the trip and the shipping.

. . . PBI is the airport, use West Palm

Beach and use Continental or Delta. I think

both do prepay. I will use two of the blank

health certificates you gave me so there will

not be a charge for that . . . .

Petitioner' s Exhibit 23A, p. 16 (emphasis added). Subsequently,

on April 19 and May 3, 2011, Respondent wrote as follows to a

buyer identified as Jacqulyn Waggoner:

Sorry for the delay. . . . I can have [the

dog] out this Friday. The crate you used is

way too smal l so I'll buy the next size up.

I will do a health certificate from another

dog so expenses will stay at a minimum.

* * *

So is [the flight] paid and confirmed? I'm

sending [the dog] with a fake health

certificate so you don't have a charge on

that.

P etitioner's Exhibit 22, pp. 392 - 393; 399 (emphasis added). 6 /

18. Based upon the findings detailed above, it is

determined that Respondent was aware of, and responsible for, the

illegitimate notations to the three inspection certificates in

question. 7 /

III. Other Allegations

19. As noted previously, the Complaint further alleges that

Respondent has inappropriately utilized the title "doctor" in

connection with his service as a dog judge for the American

Kennel Club ("AKC"), and that such conduct occurr ed during his

term of employment with the School Board.

20. The first documented instance of such behavior occurred

in 2002, when Respondent submitted several applications to the

AKC for placement on its registry of dog judges. In one of the

applications , dated March 28, 2002, Respondent wrote his name as:

"John S. Contoupe, DR." The other application reads, similarly,

"John S. Contoupe DR." Not surprisingly, the AKC identifies

Respondent in its directory of judges as "Dr. John S. Contoupe."

21. Subse quently, in late 2010 or early 2011, Respondent

traveled to Russia to judge a dog show for an international

organization. Upon his return, Respondent drafted an article

(for a hunting publication of some sort) in which he described

his overseas experience . The article, which Respondent

disseminated to the publisher by e - mail using his School Board

account, contained the following closing: "Respectfully,

Dr. John S. Contoupe." 8 /

22. Respondent's inappropriate use of the title "doctor"

has not been limit ed to written expression. Indeed, an

acquaintance of Respondent's in the dog show community, Marianne

McCullough, credibly testified that, during their first meeting

in or around 2010, Respondent introduced himself as "doctor."

Ms. McCullough further rec ounted, again credibly, that she has

observed other persons address Respondent as "doctor" on various

occasions and that Respondent never corrected them. Another

witness called by the School Board, Mary Boyle (who likewise met

Respondent at a dog show rou ghly four years ago), testified

truthfully that she believed ÏÏ erroneously, as she later found

out ÏÏ that Respondent held a doctoral degree, that she would

introduce him to others as "doctor," and that Respondent never

corrected h er.

IV. Ultimate Findings

2 3. It is determined, as a matter of ultimate fact, that

Respondent is guilty of misconduct in office by virtue of his

violation of School Board Policy 6.301(3)(b)(vii), a provision

that subjects an employee to discipline, including termination,

upon a con viction for any criminal act that constitutes a

misdemeanor.

24. It is determined, as a matter of ultimate fact, that

Respondent is not guilty of immorality, as that offense is

defined by the State Board of Education. Although Respondent's

use of the tit le "doctor" and falsification of the inspection

certificates were unquestionably dishonest, there has been no

showing that such behavior, which occurred outside the presence

of students, brought the education profession into public

disgrace or impaired Res pondent's service to the community.

25. It is determined, as a matter of ultimate fact, that

Respondent is not guilty of gross insubordination.

26. It is determined, as a matter of ultimate fact, that

the disposition of Respondent's criminal offenses did not involve

a conviction for, or plea of guilty to, a cr ime involving moral

turpitude.

CONCLUSIONS OF LAW

I. Jurisdiction

27. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

II. The Burden and Standard of Proof

28. A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Altho ugh

the notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violat ed and the conduct which occasioned [said] violation."

Jacker v. Sch. Bd. of Dade Cnty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorgenson, J., concurring).

29. Once the school board, in its notice of specific

charges, has delineated the offenses allege d to justify

termination, those are the only grounds upon which dismissal may

be predicated. See Cottrill v. Dep't of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg. ,

625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Dep't of

Prof'l Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

30. In an administrative proceeding to suspend or dismiss a

member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of th e evidence, each element of the charged offense. McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

Sublett v. Sumter Cnty. Sch. Bd. , 664 So. 2d 1178, 1179 (Fla. 5th

DCA 1995). The preponderance of the evidence standard requires

proof by "the greater weight of the evidence" or evidence that

"more likely than not" tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000); see also

Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th Cir.

2005)(h olding trial court properly defined the preponderance of

the evidence standard as "such evidence as, when considered and

compared with that opposed to it, has more convincing force and

produces . . . [a] belief that what is sought to be proved is

more like ly true than not true").

31. The instructional staff member's guilt or innocence is

a question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491

(Fla. 1st DCA 1995).

III. The Charges Against Respondent

32. Pursuant to section 1012.33(6)(a), Florida Statutes,

Petitioner is authorized to suspend or dismiss a member of its

instructional staff for "just cause." Among other things, " just

cause" includes "immorality, misconduct in office, gross

insubordination . . . or being convicted or found guilty of, or

entering a plea of guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude." § 1012.33(1)(a),

Fla. St at. In addition, the violation of a school board rule can

supply just cause for an educator's dismissal. St. Lucie Cnty.

Sch. Bd. v. Baker , Case No. 02 - 973, 2002 Fla. Div. Adm. Hear.

LEXIS 1335, *61 (Fla. DOAH Dec. 31, 2002)("[O]ther wrongdoing,

such as the violation of a district school board rule, may also

constitute 'just cause'").

33. In the Complaint, the School Board alleges that

Respondent is guilty of misconduct in office, immorality, gross

insubordination, a crime of moral turpitude, and/or viol ations of

multiple School Board rules, and that, as a consequence, just

cause exists to terminate his employment. Each offense is

discussed separately below, beginning with the charge of

misconduct in office.

A. Misconduct in Office

34. In its Proposed Recommended Order, the School Board

argues, inter alia, that Respondent is guilty of misconduct in

office by virtue of his December 5, 2012, misdemeanor conviction.

The disposition date of Respondent's criminal case is

significant, for the current definit ion of misconduct in office,

which took effect five months before the conviction, encompasses

violations of adopted school board rules:

(2) "Misconduct in Office" means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules ;

(d) Behavior that disrupts the student's

learning environment; or

(e) Behavior that reduces the teacher's

ability or his or her colleagues' ability to

effectively perform duties.

Fla. Admin. Code R. 6A - 5.056(2)(emphasis added). 9 /

35. In turn, and likewise in effect at the time of

Respondent's misdemeanor conviction, was School Board Policy

6.301(3)(b)(vii), which provides that employees of the St. Lucie

County Public Schools are subject to disciplinary action,

including termination, upon a "[c]onviction for a criminal act

that constitutes a misdemeanor."

36. Returning to the facts at hand, it is undisputed that,

on December 5, 2012, Respondent was adjudicated guilty of a

misdemeanor offense (specifically, section 828.29(3), Florida

Statutes). By virtue of that conviction, Respondent violated

School Board Policy 6.301(3)(b)(vii) and, as a necessary

consequence, rule 6A - 5.056(2) ÏÏ a provision which, as noted above,

defines misconduct in office to include a violation of an adopted

school board rule. As such, R espondent is guilty of misconduct

in office. 10 / See Miami - Dade Cnty. Sch. Bd. v. Brown , Case

No. 13 - 1890, 2013 Fla. Div. Adm. Hear. LEXIS 689, *12 - 13 (Fla.

DOAH Sept. 30, 2013)("Pursuant to rule 6A - 5.056(2)(c), the

violation of the foregoing School Board policies constitutes

misconduct in office."). In light of this conclusion, the

undersigned need not address the School Board's alternative

arguments in support of this charge.

B. Immorality

37. The School Board alleges, next, that Respondent's

conduct v is - à - vis the inspection certificates and his use of the

title doctor constitute acts of "immorality," which is defined

as:

[C]onduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct sufficiently notorious

to brin g the individual concerned or the

education profession into public disgrace or

disrespect and impair the individual's

service in the community.

Fla. Admin. Code R. 6B - 4.009(2). 1 1 /

38. Accordingly, in order to sustain a charge of

immorality, the School B oard must demonstrate: a) that he

engaged in behavior "inconsistent with the standards of public

conscience and good morals, and b) that the conduct was

sufficiently notorious so as to [1] disgrace the teaching

profession and [2] impair [Respondent's] ser vice in the

community." McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476,

477 (Fla. 2d DCA 1996).

39. The initial prong of the foregoing test has been

satisfied, as Respondent's falsification of the inspection

certificates is plainly incongruous with a ccepted moral

principles. See Filippi v. Smith , Case No. 07 - 4628, 2008 Fla.

Div. Adm. Hear. LEXIS 726 (Fla. DOAH June 20, 2008)(observing

that deceptive conduct is in conflict with widely accepted moral

principles); Miami - Dade Cnty. Sch. Bd. v. Singleton , Case

No. 07 - 0559, 2006 Fla. Div. Adm. Hear. LEXIS 614, *29 (Fla. DOAH

June 21, 2007)("[H]onesty and truth - telling are transcendent

principles of good behavior ÏÏ precepts of public morality ÏÏ which

are violated by deceptive behavior."). As explained above,

however, this does not end the inquiry: the charge of immorality

also requires evidence that the misconduct was sufficiently

notorious so as to bring the teaching profession into disgrace

and impair Respondent's service in the community.

40. Regarding th e question of notoriety, the record is

devoid of proof that Respondent's conduct was generally or widely

known by students, parents, or other residents of St. Lucie

County. 1 2 / Broward Cnty. Sch. Bd. v. Deering , Case No. 05 - 2842,

2006 Fla. Div. Adm. Hear. LEXIS 367, *13 - 14 (Fla. DOAH July 31,

2006)(explaining, in the context an immorality charge, that the

term "notorious" means "generally known and talked of" or "widely

and unfavorably known."). At best, the evidence merely

demonstrates that Respondent's c onduct was known by a few School

Board employees, select members of the dog show community (none

of whom reside in St. Lucie County), and an out - of - state

veterinarian. 1 3/

41. Even assuming, arguendo, that Respondent's conduct

generated the requisite degre e of notoriety, the School Board has

failed to prove that Respondent's service in the community has

been impaired ÏÏ an element of the offense that cannot be inferred

in cases where, as here, the purported immoral conduct occurred

neither in the classroom no r in the presence of students. See

Walker v. Highlands Cnty. Sch. Bd. , 752 So. 2d 127, 128 (Fla. 2d

DCA 2000)(explaining that impairment cannot be inferred where

conduct was of a "private immoral nature"); Crist v. Mitchell ,

Case No. 02 - 2999PL, 2003 Fla. Div. Adm. Hear. LEXIS 263, *24 - 25

(Fla. DOAH Mar. 14, 2003)("[I]mpairment may be inferred if the

immoral conduct occurred in the classroom or in the presence of

students, but not if the misconduct was of a private nature not

involving students."). The Sch ool Board's principal evidence

regarding the issue of impairment ÏÏ the testimony of Dr . Rendell,

who opined that he has "lost confidence" in Respondent's ability

to carry out the duties of an educator and would not "feel

comfortable" returning him to the cl assroom ÏÏ is plainly

insufficient to discharge the School Board's burden. 1 4 / See

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 478 (Fla. 2d

DCA 1996)(reversing final order of dismissal where evidence

failed to demonstrate teacher's impaired effective ness in the

community; testimony from school officials was unsupported by

"specific information from students, parents, or coworkers");

MacMillan v. Nassau Cnty. Sch. Bd. , 629 So. 2d 226, 230 (Fla. 1st

DCA 1993)(holding superintendent's conclusory testimon y that

teacher's effectiveness had been seriously reduced was

insufficient to prove impairment); Okaloosa Cnty. Sch. Bd. v.

McIntosh , Case No. 08 - 3630, 2009 Fla. Div. Adm. Hear. LEXIS 1455,

*32, 49 (Fla. DOAH Apr. 1, 2009)(finding teacher not guilty of

imm orality where school board "did not present a single parent,

student or community resident . . . which would support a claim

that any misconduct was so serious as to impair his effectiveness

as an employee . . . . Rather, [the school board] relied

upon . . . conclusory testimony concerning lost effectiveness by

[teacher's principal and the school board's human resources

officer]").

42. For the reasons elucidated above, Respondent is not

guilty of immorality.

C. Gross Insubordination

43. As an additional charge, it is alleged in the Complaint

that Respondent is guilty of gross insubordination, an offense

that, during the time period relevant to this proceeding, was

defined as:

[A] constant or continuing intentional

refusal to obey a direct order, reasonab le in

nature, and given by and with proper

authority.

Fla. Admin. Code R. 6B - 4.009(4).

44. In its Proposed Recommended Order, the School Board

contends that Respondent's falsification of the inspection

certificates and use of the title "doctor" ran af oul of

Dr. Rendell's directive that dealings with members of the public

be "carried out in an ethical and professional manner."

45. The undersigned rejects this argument, for

Dr. Rendell's directive, although plainly reasonable, was issued

on October 19 , 2011, after the behavior at issue took place. (As

detailed earlier, the three transactions occurred on March 7,

2009, June 5, 2009, and October 16, 2010; the AKC applications

were submitted in 2002; the e - mail in which Respondent referred

to himself as "doctor" was sent in February 2011; and, with

respect to Respondent's oral use of "doctor," the witness

testimony merely establishes a general timeframe of 2010 or

later ÏÏ that is, the record does not support a specific finding

that Respondent engaged in su ch behavior on or after October 19,

2011.) As it is impossible to intentionally violate a directive

that, at the time of the conduct in question, had yet to be

issued, Respondent is not guilty of gross insubordination. See

Forehand v. Sch. Bd. of Gulf Cn ty. , 600 So. 2d 1187, 1193 (Fla.

1st DCA 1992)(holding that gross insubordination requires proof

that the educator deliberately violated the directive at

issue). 1 5 /

D. Moral Turpitude

46. Turning to the School Board's final charge, it is

necessary to rec ite, once again, the outcome of Respondent's

criminal prosecution. As detailed previously, Respondent entered

pleas of no contest to two criminal offenses: failure to include

a health certificate with a dog offered for sale, a first degree

misdemeanor (s ection 828.29(3), Florida Statutes); and forgery of

a certificate of veterinary inspection, a third degree felony

(section 585.145(3), Florida Statutes). The sentencing court

adjudicated Respondent guilty of the misdemeanor offense, but

withheld the adjud ication of guilt with respect to the felony

charge. According to the School Board, this disposition resulted

in a conviction of a crime involving moral turpitude. The

undersigned disagrees.

47. Pursuant to section 1012.33(1)(a), "just cause" to

suspend or terminate employment includes instances where an

educator was "convicted or found guilty of, or enter[ed] a plea

of guilty to, regardless of adjudication of guilt, any crime

involving moral turpitude." In turn, Florida Administrative Code

Rule 6A - 5.056 (8), which was in effect on the date of Respondent's

sentencing, defines "crime involving moral turpitude" as follows:

(8) "Crimes involving moral turpitude" means

offenses listed in Section 1012.315, F.S.,

and the following crimes :

(a) Section 775.085, F.S., relating to

evidencing prejudice while committing

offense, if reclassified as a felony.

(b) Section 782.051, F.S., relating to

attempted felony murder.

(c) Section 782.09(1), F.S., relating to

killing of unborn quick child by injury to

mother.

(d) Section 787.06, F.S., relating to human

trafficking.

(e) Section 790.166, F.S., relating to

weapons of mass destruction.

(f) Section 838.015, F.S., relating to

bribery.

(g) Section 847.0135, F.S., relating to

computer pornography and/or travelin g to meet

a minor.

(h) Section 859.01, F.S., relating to

poisoning of food or water.

(i) Section 876.32, F.S., relating to

treason.

(j) An out - of - state offense, federal offense

or an offense in another nation, which, if

committed in this state, const itutes an

offense prohibited under Section 1012.315(6),

F.S.

(emphasis added).

48. By its plain terms, rule 6A - 5.056(8) provides an

exhaustive list of "crimes of moral turpitude" ÏÏ i.e., the

offenses identified in paragraphs (8)(a) through 8(j) or those

listed in section 1012.315, Florida Statutes. As neither crime

to which Respondent pleaded no contest is specifically enumerated

in section 1012.315 or the body of the rule, the instant charge

fails.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the St. Lucie County School Board enter a

final order finding Respondent: guilty of violating School Board

Policy 6.301(3)(b)(vii); guilty of violating Florida

Administrative Code Rule 6A - 5.056(2); not guilt y of immorality;

not guilty of gross insubordination; and not guilty of a crime of

moral turpitude. It is further RECOMMENDED that the School Board

terminate Respondent's employment.

DONE AND ENTERED this 7th day of November , 2013 , in

Tallahassee, Leon Co unty, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of November , 2013 .

ENDNOTE S

1/ See Petitioner's Exhibit 24A, p 63.

2 / See Petitioner's Exhibit 24A, pp. 45 - 46.

3 / § 5 85.145(3), Fla. Stat. (2010).

4 / § 828.2 9(3), Fla. Stat. (2010).

5 / See Petitioner's Exhibit 24A, p. 154; Final Hearing

Transcript, p. 313.

6 / Respondent's testimony that his statements to Ms. Peat and

Ms. Waggoner were merely "jokes" is rejected without further

discussion.

7 / In reaching this determination, the undersigned has refrained

from comparing the known examples of Respondent's handwriting

(e.g., the entries to the inspection certificates concerning

Respondent's address and the purchasers' identities) and the

illegitimate veterina ry notations. See Charles W. Ehrhardt,

Ehrhardt's Florida Evidence , § 901.4 (2008 ed.)(explaining that a

factfinder's comparison of a disputed writing with a genuine

exemplar is permitted only where an expert or skilled witness has

testified that the disp uted writing and the exemplar were written

by the same person); see also Proctor v. State , 97 So. 3d 313,

315 (Fla. 5th DCA 2012).

8 / See Petitioner's Exhibit 13.

9 / The current version of rule 6A - 5.056 took effect on July 8,

2012, and therefore appl ies to Respondent's December 5, 2012,

misdemeanor conviction. See Miami - Dade Cnty. Sch. Bd. v. Mobley ,

Case No. 12 - 1852, 2013 Fla. Div. Adm. Hear. LEXIS 225, *11 n.4

(Fla. DOAH Apr. 17, 2013)("The most recent amendment to

rule 6A - 5.056, adopted on July 8, 2012 . . . .").

1 0 / To be clear, and in response to a concern raised by

Respondent in his Proposed Recommend Order, the undersigned has

not concluded that the misdemeanor conviction renders him

"ineligible" for employment; rather, Respondent's convictio n

subjects him to discipline by the School Board, which may include

the termination of his instructional position. In the event

Respondent is ultimately terminated in this matter, he would be

free ÏÏ and statutorily eligible ÏÏ to seek employment with another

sch ool district.

1 1 / On July 8, 2012, rule 6B - 4.009 was revised and renumbered as

Florida Administrative Code Rule 6A - 5.056. However, as rule 6A -

5.056 was not in effect at the time of the alleged immoral acts

(i.e., Respondent's creation of the illegit imate certificates and

use of the title "doctor"), rule 6B - 4.009 controls with respect

to this particular charge. See Miami - Dade Cnty. Sch. Bd. v.

Mobley , Case No. 12 - 1852, 2013 Fla. Div. Adm. Hear. LEXIS 225,

*11 n.4 (Fla. DOAH Apr. 17, 2013)("The most r ecent amendment to

rule 6A - 5.056, adopted on July 8, 2012, does not apply to this

proceeding because the conduct at issue occurred before the

amendment's effective date."). However, and as noted elsewhere

in this Order, rule 6A - 5.056 applies to Respondent 's misdemeanor

conviction , which occurred on December 5, 2012.

1 2 / Susan Ranew, the School Board's assistant superintendent for

human resources, conceded that Respondent's arrest "didn't make

the paper in St. Lucie County," and, moreover, that the School

Board received no complaints from parents or students regarding

his behavior. See Final Hearing Transcript p. 207, line 19;

p. 216. Likewise, D r. Rendell testified as follows:

Q So you do have instances where parents of

students would come to you and share some

concerns about a teacher?

A Yes.

Q Was any of this ever one of those times?

Did anybody come to you and say Mr. Contoupe

is holding himself out as a doctor?

A No.

Q Did anybody ever come to you and say

Mr. Contoupe is out there forging health

certificates?

A No.

Fin al Hearing Transcript, p. 299.

1 3 / During the final hearing, the School Board attempted,

unsuccessfully, to introduce the May 23, 2012, edition of the

Okeechobee News, which included a brief mention ÏÏ in the bottom

corner of page seven ÏÏ of Respondent's arrest. (The undersigned

excluded the article due to the absence of evidence that the

Okeechobee News is circulated in St. Lucie County.) Even

assuming the article was admissible, the record evidence would

nevertheless rema in far short of establishing notoriety. See

Okaloosa Cnty. Sch. Bd. v. McIntosh , Case No. 08 - 3630, 2009 Fla.

Div. Adm. Hear. LEXIS 1455, *44 - 45 (concluding reports of

teacher's behavior in a "limited number of newspaper articles"

were insufficient to dem onstrate notoriety); endnote 12, supra .

1 4 / The School Board also presented the testimony of Susan Ranew,

who speculated, unpersuasively, that Respondent's conduct "could"

lead to reduced effectiveness if students learned of his

behavior. See Final Hear ing Transcript, p. 207, line 23.

However, the record is devoid of evidence that any student was

aware of Respondent's criminal offenses, the underlying misdeeds

that led to the charges, or his inappropriate use of the title

"doctor."

1 5 / Although not sp ecifically argued by the School Board, it

should be noted that Respondent's entry of no contest pleas (on

December 5, 2012, after the issuance of the directive) did not

rise to the level of gross insubordination. There is no evidence

that Respondent enter ed the plea with the deliberate intent to

violate Dr. Rendell's directive, see Forehand v. School Board of

Gulf County , 60 So. 2d 1187, 1193 (Fla. 1st DCA 1992), and, in

any event, an isolated act does not constitute a continuing

pattern of behavior. See Smith v. Sch. Bd. of Leon Cnty. , 405

So. 2d 183, 185 (Fla. 1st DCA 1981)("[Appellant's] actions did

not meet the definition of 'gross insubordination' since they

were . . . isolated . . . and could not have been deemed

'constant or continuing.'").

COPIES FURNISHED:

Leslie Jennings Beuttell, Esquire

David Miklas, Esquire

Richeson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

Thomas L. Johnson, Esquire

Nicholas Anthony Caggia, Esquire

Law Office of Thomas Johnson , P.A.

510 Vonderburg Dri ve , Suite 309

Brandon, Florida 33511

Genelle Zoratti Yost, Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947 - 5414

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gain es Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, 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 t o submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.