13-002501 Torreya Landrea Davis vs. Pam Stewart, As Commissioner Of Education Status: Closed Recommended Order on Friday, December 13, 2013.

Summary: Petitioner demonstrated entitlement to issuance of an Educator's Certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TORREYA LANDREA DAVIS ,

Petitioner ,

vs. Case No. 13 - 2501

PAM STEWART, AS COMMISSIONER OF

EDUCATION ,

Respondent .

/

RECOMMENDED ORDER

This case was heard on September 2 7 , 201 3 , in Tallahassee,

Florida, before E. Gary Early, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jamison Jessup, Qualified Representative

557 Noremac Avenue

De ltona , Florida 32 738

For Respondent: John M. Leace , Esquire

Brooks, LeBoeuf, Bennett, Foster

& Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 3230 1

STATEMENT OF THE ISSUE

Whether Petitioner demonstrated entitlement to issuance of

a Florida Educator Ó s Certificate .

PRELIMINARY STATEMENT

On September 19, 2012 , the Commissioner of Education

e ntered a 10 - count Notice of Reasons setting forth her

determination that Petitioner was not entitled to issuance of a

Florida Educator Ó s Certificate, and identifying the statutory

and regulatory violations warranting her determination.

On October 15, 2012 , Respondent filed an election of rights

by which s he requested a formal hearing. The record is silent

as to when the Notice of Reasons was served on Respondent,

though there has been no suggestion that the request for hearing

was not timely filed. The election of rights requested a period

within which to explore settlement before the matter was

referred to for a formal hearing.

On July 5, 2013, this case was referred to the Division of

Administrative Hearings for a formal administrative h earing.

The final hearing was noticed for August 23, 2013 . On August 6,

2013 , Petitioner , through her qualified representative, filed a n

unopposed Motion to Continu e Final Hearing . The motion was

granted, and the hearing was rescheduled for September 27, 2013.

On September 20, 2013, the parties filed their witness and

exhibi t lists in accordance with the O rder of prehearing

instructions . Thereafter, the hearing was held as scheduled.

At the final hearing , Respondent testified on h er own

behalf . Joint Exhibit 1, consisting of the Judgment in a

Criminal Case for the offense of Conspiracy to Distribute

Marijuana, and Petitioner Ós Exhibit 2 , consisting of

PetitionerÓs Application for Florida EducatorÓs Certificate,

were received in evidence.

A one - volume T ranscript of the proceedings was filed on

October 23, 2013. A Joint Motion for Extension of Time to File

Proposed Recommende d Order was filed by the parties and granted

by the undersigned. Both parties thereafter timely filed

P roposed Recommended O rders which have been duly considered by

the undersigned in the preparation of this Recommended Order.

Petitioner's application fo r licensure is governed by the

law in effect at the time the final licensure decision is made.

See Lavernia v. DepÓt of ProfÓl Reg. , 6 16 So. 2d 53 , 54 (Fla.

1st DCA 199 3 ). Therefore, all references to the Florida

Statutes shall be to the 2013 Florida Statutes, unless otherwise

indicated.

FINDINGS OF FACT

1. Respondent , as Commissioner of the Florida Department

of Education, is charged with the duty to issue Florida

E ducator's C ertificate s to persons seeking authorization to

become school teachers in the state of Florida.

2. Petitioner is a second - grade teacher. She is in her

third year of teaching. Pending action on her application for

an E ducator's Certificate, Petitioner has taught under the

authority of temporary Statement s of Eligibility. She currently

teaches at George W. Monroe Elementary School in Quincy,

Florida.

3 . On or about April 17, 2012, Petitioner submitted an on -

line application for a Florida E ducator's Certificate in

Elementary Education . The application included a field with the

heading ÐCRIMINAL OFFENSE RECORD(S)(Report any record other than

sealed or expunged in this section).

4 . In her application, Petitioner disclosed the following

cr iminal offenses, their dates, and their dispositions:

Affray - June 2002 - Probation

Conspiracy to Possess Marijuana - August

2006 - Guilty/Adjudicated

Petty Theft - April 2000 - Pretrial

Diversion

Disorderly Conduct - February 2001 -

Probation

DWLS - February 2001 - Probation

5 . In conjunction with her application, Petitioner

submitted information to substantiate those offenses that she

could remember, as well as a set of fingerprints.

6 . Included in PetitionerÓs submittals to Respondent w as a

copy of the Judgment in a Criminal Case, United States of

America v. Torreya Haynes , Case No. 4:06cr10 - 03(S), from the

United States District Court for the Northern District of

Florida, dated August 3, 2006. Petitioner stipulated that she

is the person identified in the Judgment as Torreya Haynes. The

acts upon which the Judgment was based concluded on August 15,

2005. The Judgment established that Petitioner pled guilty to

the offense of Conspiracy to Distribute Marijuana, and was

sentenced to a thre e - year term of probation and payment of a

special monetary assessment of one - hundred dollars.

7 . The parties stipulated to the following facts regarding

PetitionerÓs criminal record :

a. On or about March 5, 2000, the Applicant

was arrested and charged with Petit Theft in

Leon County, Florida. The Applicant entered

into a pre - trial diversion program and a ÐNo

InformationÑ was filed on the charge.

b. On or about July 20, 2000, the Applicant

was arrested and charged with Affray in Leon

County. The Appl icant entered into a pre -

trial diversion program and a ÐNo

InformationÑ was filed on the charge.

c. On or about August 20, 2001, the

Applicant was arrested and charged with

Disorderly Conduct/Affray in Leon County,

Florida. The Applicant entered into a pre -

trial diversion program and a ÐNo

InformationÑ was filed on the charge.

d. On or about June 9, 2004, the Applicant

was arrested and charged with Battery in

Leon County, Florida. On or about

November 15, 2004, the Applicant pled nolo

contendere to th e charge and the court

withheld adjudication.

e. On or about August 4, 2004, the

Applicant was arrested and charged with

Possession of Marijuana in Leon County,

Florida. On or about November 15, 2004, the

Applicant pled nolo contendere to the charge

and the court withheld adjudication.

f. On or about February 2, 2005, the

Applicant was arrested in Miami - Dade County,

Florida, and charged with Possession of

Cannabis. The Applicant entered into a pre -

trial diversion program called ÐCourt

OptionsÑ and the charge was nolle prossed.

8 . In addition to the foregoing, Petitioner testified that

she did not list a 2001 arrest for passing a worthless bank

check, to which she pled no contest and received probation.

9 . Petitioner did not list the offenses in su b - paragraphs

7. b. through 7. f. and in paragraph 8. in the application .

10 . On September 19, 2012, Respondent served Petitioner

with a 10 - count Notice of Reasons advising her that her

application for a Florida Educator's Certificate was denied .

11 . Petitioner timely filed an Election of Rights that

requested a formal hearing.

12 . Petitioner will be unable to continue to teach

students in Florida without a valid EducatorÓs Certificate.

Thus, Petitioner is substantially affected by the intended

decision to deny her certification , and has standing to contest

the intended action .

13 . F rom her March 5, 2000 arrest for Petit Theft, which

occurred when she was 19 years of age, until the August 15,

2005 , dat e of the conclusion of the offense of conspiracy to

distribute marijuana, which occurred when she had just turned 25

years of age, Petitioner was arrested and enter ed into some form

of official disposition of the offenses on, at best count,

twelve occasion s . Despite the relatively light n ature of the

dispositions, generally consisting of pretrial diversion or

probation, the charges were serious, including multiple drug

charges, battery, and affray. ÐChaoticÑ would be an apt

description of those years of P etitionerÓs life.

1 4 . In her application for an EducatorÓs Certificate,

Petitioner answered truthfully that she had criminal offenses in

her background, and listed what she remembered. Petitioner

testified that she completed the application from mem ory and

thought she had answered the questions posed, but did not try to

recover paperwork or records from the clerk of court.

Petitioner understood that her fingerprints submitted with her

application would provide the Department with access to her

compl ete criminal record, and expected that the background check

would disclose her record in the application process.

1 5 . A review of the application form shows there to be

five spaces for information to be entered. There was no

evidence that additional spaces were provided. It is not known

how offenses were to be listed if they numbered more than five.

1 6 . Petitioner listed her federal conviction as

Ð conspiracy to possess marijuana, Ñ and indicated that she was

adjudicated guilty. Petitioner testifie d that she had

originally been charged with conspiracy to both possess and

distribute marijuana. She was convicted of conspiracy to

distribute marijuana, but confused the charges when filling out

the application. Petitioner provided Respondent with a cop y of

the conviction , which plainly identified the offense for which

she was convicted . There was no effort to conceal or falsify

the nature of the conviction. Rather, the error was just that,

an error.

1 7 . In the more than eight years that have passed since

the conclusion of the last acts that constituted the conspiracy

to distribute marijuana, Petitioner appears to have turned a

corner. PetitionerÓs actions since 2005 show a consistent

pattern of personal stability and accomplishment, with no

evidenc e of criminal activity. She married, and has a child

with a second on the way. She is active with her school, her

family, and her church. She went back to school and earned a

MasterÓs Degree in Public Administration. She has taught for

more than two ye ars without incident or complaint. Petitioner

expressed a sincere interest and concern for the children under

her tutelage. PetitionerÓs testimony that ÐIÓve grown up . IÓm

not the same person that I was before,Ñ was convincing, and

leads to the conclusi on that she has substantially rehabilitated

herself. Based on PetitionerÓs demeanor and sincerity at the

hearing, the undersigned finds her testimony to be credible and

worthy of belief.

CONCLUSIONS OF LAW

A. Jurisdiction .

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

t he parties thereto . §§ 120.569 and 120.57(1), Fl a. Stat.

19 . The Department of Education is the state agency

responsible for licensure of instructional personnel for the

public schools. § 1012.55, Fla. Stat.

20 . The Commissioner of Education is the state officer

responsible for investigating and prosecuting allegations of

misconduct against teachers. See § 1012.796(6).

B. Burden of Proof

21 . As the party seeking issuance of an EducatorÓs

Certificate, Petitioner has the burden of proving by a

preponderance of evidence that she satisfies the applicable

standards and requirements. Dep't of Banking & Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996).

22 . PetitionerÓs ultimate burden notwithstanding,

Respondent has the burden of presenting evidence of any

statutory or regulatory violations alleged in the Notice of

Reasons as sufficient to warrant denial of the application.

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

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

2008).

23 . Petitioner applied for an EducatorÓs Certificate in

Elementary Education. The criteria for licensure are found in

section 1012.56(2). Except for the requirement in section

1012.56(2)(e) that a certificate holder Ðbe of good moral

character,Ñ there has been no allegation that Petitioner does

not meet the basic requirements.

24 . The re is little dispute as to the offenses that form

the basis for Counts 1 through 10. The application of the

licensing standards to those facts remains for disposition.

C. Analysis

Count 1

25 . Count 1 alleges that Ð[t]he Applicant 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 Certificat e if the

Applicant has been convicted of a disqualifying offense.Ñ

26 . Section 1012.315 provides in pertinent part:

Disqualification from employment. Ï A person

is ineligible for educator certification, .

. . if the person . . . 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

severity.

* * *

(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).

27 . Section 1012.56(10)(a) provides that Ð[e]ach person

who seeks certification . . . must not be ineligible for such

certification under section 1012.315. Ñ

28 . Petitioner was not convicted of a felony offense

directly listed in chapter 893. Thus, t he issue for

determination is whether Petitioner's 2006 conviction for

conspiracy to distribute marijuana under federal law would

constitute a felony offense under chapter 893.

29 . When statutes require the examination of foreign

judgments in comparison with Florida crimes, the elements of the

federal criminal acts mus t be compared with corresponding

elements of the Florida Statute . See , e.g. , 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 similar to the elements of an

enumerated Florida offense); Dawson v. Dep't of High. Saf. &

Motor Veh. , 19 So. 3d 1001 (Fla. 4th DCA 2009), rev. den ied , 33

So. 3d 35 (Fla. 2010)(for purposes of revoking Florida Driver's

license on basis of New York DWAI con viction, the elements of

the out - of - state conviction must satisfy the statutory elements

of the Florida's DUI statute).

30 . Petitioner was convicted of a conspiracy to violat e 21

U.S.C. section 841(a)(1) , which provides that :

Except as authorized by thi s subchapter, it

shall be unlawful for any person knowingly

or intentionally Ï

(1) to manufacture, distribute, or

dispense, or possess with intent to

manufacture, distribute, or dispense, a

controlled substance ;. . . [ 1 / ]

31 . A Ðcontrolled substanceÑ is defined as Ða drug or

other substance, or immediate precursor, included in schedule I,

II, III, IV, or V of part B o f this subchapter. 21 U.S.C.

§ 802(6).

32 . Marijuana is a substance included in subsection

(c)(10) of schedule I. 21 U.S.C. § 812(c).

33 . Marijuana is defined, in pertinent part, as:

all parts of the plant Cannabis sativa L.,

whether growing or not; the seeds thereof;

the resin extracted from any part of such

plant; and every compound, manufacture,

salt, derivative, mixture, or preparation of

such plant, its seeds or resin . . . .

21 U.S.C. § 802(16).

34 . ÐThe term ÒdistributeÓ means to deliver (other than by

administering or dispensing) a controlled substance or a listed

chemical.Ñ 21 U.S.C. £ 802(11).

35 . ÐThe terms Òde liverÓ or ÒdeliveryÓ mean the actual,

constructive, or attempted transfer of a controlled substance or

a listed chemical, whether or not there exists an agency

relationship.Ñ 21 U.S.C. £ 802(8) .

36 . In order to be considered as a disqualifying offense,

t he elements of the federal crime must next be compared with the

elements of the corresponding offense in section 1012.315.

37 . Section 893.13, Florida Statutes (2005) , the statute

in effect at the time of the offense, 2 / provide s in pertinent

part:

Prohibited acts; penalties. Ï

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

and chapter 499, it is unlawful for any

person to . . . deliver , or possess with

intent to . . . deliver, a controlled

substance. Any person who violates this

provision with resp ect 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 degree, punishable as

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

775.084.

38 . A Ðcontrolled substanceÑ is defined as Ð any substance

named or described in Schedules I - V of s. 893.03. Ñ § 893.13(4),

Fla. Stat. (2005).

39 . Cannabis is a substance included in schedule I.

§ 893.03(1)(c)7., Fla. Stat. (2005).

40 . ÐCanna bisÑ is defined as Ðall parts of any plant of

the genus Cannabis , whether growing or not; the seeds thereof;

the resin extracted from any part of the plant; and every

compound, manufacture, salt, derivative, mixture, or preparation

of the plant or its seed s or resin.Ñ £ 893.02(3), Fla. Stat.

(2005). Ð Cannabis Ñ and Ð marijuana Ñ are synonymous.

41 . ÐÒDistributeÓ means to deliver, other than by

administering or dispensing, a controlled substance.Ñ

§ 893.02(7), Fla. Stat. (2005).

42 . Ð Ò Deliver Ó o r Ò delivery Ó means the actual,

constructive, or attempted transfer from one person to another

of a controlled substance, whether or not there is an agency

relationship . Ñ § 893.02(5), Fla. Stat. (2005).

43 . Based on the foregoing, the federal offense of

distribution of marijuana is equivalent to the Florida offense

of delivery of a controlled substance (cannabis) under chapter

893, and is therefore an offense prohibited by sections

1012.315(1)(qq) and 1012.315(3) .

44 . Petitioner was not convict ed of distributing

marijuana. Rather, she was convicted of a conspiracy to

distribute marijuana.

45 . S ection 777.04(3), Florida Statutes (2005) provide s

that Ð[a] person who agrees, conspires, combines, or

confederates with another person or persons t o commit any

offense commits the offense of criminal conspiracy, ranked for

purposes of sentencing as provided in subsection (4).Ñ 3 /

46 . Section 777.04(4)(d), Florida Statutes (2005) ,

provided, in pertinent part, that:

(d) Except as otherwise provided i n s.

104.091(2), s. 370.12(1), s. 828.125(2), or

s. 849.25(4), if the offense attempted,

solicited, or conspired to is a:

1. Felony of the second degree;

* * *

the offense of criminal attempt, criminal

solicitation, or criminal conspiracy is a

felony of the third degree, punishable as

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

775.084.

47 . Since delivery of marijuana is a second - degree felony

in Florida , a c onspiracy to deliver marijuana 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).

48 . The federal c onviction of conspiracy to deliver

marijuana would be the equivalent of a third - degree felony if

the case had be en tried under Florida law , and is therefore not

a disqualifying offense under section 1012.315(1) .

49 . In summary, Petitioner's conviction of conspiracy to

distribute marijuana in violation of federal law is not an

offense prohibited by section 1012.315(1)(qq), in that it is a

felony of the third degree.

50 . Based on the foregoing, Respondent failed to prove

that denial of Petitioner's application for an Educator's

Certificate was warranted for the reasons set forth in Count I.

Count 2

51 . Section 1012.56(2)(e), provides that Ð[t]o be eligible

to seek certification, a person must: (e) Be of good moral

character.Ñ

52 . The difficult y in fairly applying a subjective and

imprecise standard as Ð good moral charac ter Ñ has been recognized

by the Florida Supreme Court, which has held that :

The inherent 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 Stat es 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 unlimi ted 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 arbi trary and discriminatory denial of

the right to practice law.

In re Fla. Bd. of Bar Examiners , 373 So. 2d 890, 891 (Fla.

1979) .

53 . The imprecision of the Ðgood moral characterÑ standard

does not, however, restrict its application. In Fl orida B oar d

of Bar Examiners , 364 So. 2d 454, 458 (Fla. 1978), the Florida

Supreme Court held that:

a finding of a lack of Ðgood moral

characterÑ should not be restricted to those

acts that reflect moral turpitude. A more

appropriate definition of the phrase

requires an inclusion of acts and conduct

which would cause a reasonable man to have

substantial doubts about an individual's

honesty, fairness, and respect for the

rights of others and for the laws of the

state and nation.

54 . In applying the term Ðgood moral character,Ñ a number

of recommended and final orders in educator certification cases

ha ve relied upon the standard set forth 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 c haracter

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

confidence. An isolated unlawful act or

acts of ind iscretion 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 people, over a long period of

time, evinces the sort of mind and

establishes the sort of character that . . .

should not be entrusted . . . .

Cappi Arroyo v. Dr. Eric J. Smith, as Comm'r of Educ. , Case No.

11 - 2799 (Fla. DOAH May 31, 2012; Fla. EPC Nov. 13, 2012);

Natasha Hodge v. Dr. Eric J. Smith, as Comm'r of Educ. , Case No.

11 - 3318 (Fla. DOAH Sept. 29, 2011; Fla. EPC Jan. 11, 2012);

Anitra Grant v. John Winn, as Comm'r of Educ. , Case No. 06 - 5297

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

v. John Winn, as Comm'r of Educ. , Case No. 05 - 1302 (Fla. DOAH

Aug 22, 2005; Fla. EPC Feb. 21, 2006).

55 . Section 1012.56(2)(e), which requires that a person

seeking certification Ð[b]e of good moral characterÑ is written

in the present tense. Thus, the issue for determination under

section 1012 .56(2)(e) is whether Petitioner is presently of good

moral character, not whether she committed acts that would

suggest a lack of moral character at the time of their

commission .

56 . As set forth in the findings of fact herein, t he

evidence is convincing that Petitioner has abandoned the way of

life that led her to troubles during the years from 2000 to

2005, and that her conduct since that time demonstrates she has

substantially rehabilitated herself.

57 . Based on the record developed in this proceeding,

Petitioner has proven, by a preponderance of the evidence, that

she is currently of good moral character , and her past acts

should not make her ineligible for an EducatorÓs C e rtificate

under section 1012.56(2)(e).

Count 3

58 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 3 alleges that:

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 th e

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.

59 . Although listed as a se parate count, it is clear that

no specific act is alleged as a part of Count 3 itself. Rather,

Count 3 takes those acts listed as grounds for revocation in

section 1012.795(1) , which acts were made the bases for denial

in Counts 4 through 7, and adopts th em as grounds for denial of

an application. Thus, the substance of Count 3 is as set forth

in Counts 4 through 7 .

60 . The basis for Count 3 being those standards set forth

in Counts 4 through 7, the analysis of the substance of Counts 4

through 7 shal l stand as being applicable to Count 3.

Count 4

61 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 4 alleges that:

The Applicant is in violation of Section

1012.795(1)(d), Florida Statutes, in that

she has bee n guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

62 . As set forth in the analysis of Count 3 above,

although Count 4 alleges Petitioner violated section

1012.795(1)(d), an applicant who does not hold an Educator's

Certificate cannot violate that provision, but rather is subject

to denial of an application through the adoption of the

revocation standards in section 1012.56(12)(a). Although Counts

4 through 7 may be technically deficient for failing to

incorporate section 1012.56(12)(a), the substance of the bases

for denial were clear, and Petitioner was n ot prejudiced in

preparing her defense.

63 . The Ethics in Education Act, Chapter 2008 - 108, §32,

Laws of Florida, amended section 1012.795(1)(d) to add the

phrase Ðas defined by rule of the State Board of Education , Ñ

creating the statute as it appears at present.

Gross Immorality

64 . In Cappi Arroyo v. Dr. Eric J. Smith, as Commissioner

of Educ ation , Case No. 11 - 2799, ¶109 (Fla. DOAH May 31, 2012;

Fla. EPC Nov. 13, 2012), Judge F. Scott Boyd analyzed the effect

of the 20 08 legislative amendment of section 1012.795(1)(d) as

follows:

The Ethics in Education Act, Chapter 2008 -

108, Laws of Florida , added the phrase " as

defined by rule of the State Board of

Education" to what now appears as section

1012.795(1)(d). It is uncle ar whether this

new language modifies only "an act involving

moral turpitude" or if it instead modifies

the entire phrase "gross immorality or an

act involving moral 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 , 377 So. 2d 663, 668 (Fla. 1979)(where

criminal statute is ambiguous, construction

most favorable to accused should be

a dopted). See also § 775.021, Fla. Stat.

("The provisions of this code and offenses

defined by other statutes shall be strictly

constru ed; when the language is susceptible

of differing constructions, it shall be

construed most favorably to the accused.").

This portion of the statute is thus only

violated if an educator is guilty of gross

immorality as defined by rule of the State

Board o f Education . (emphasis added).

65 . The F inal O rder in Arroyo v. Smith accepted Judge

BoydÓs recommended order , and it was Ð adopted in full and

becomes the Final Order of the Education Practices Commission . Ñ

That F inal O rder, and the conclusions of the recommended order

adopted thereby, will therefore be applied in this case.

66 . Judge Boyd correctly noted that Ð[t]he State Board of

Education has not defined the term Ògross immoralityÓ by rule.Ñ

Arroyo v. Smith at ¶110. The undersigned, having reviewed the

relevant rules promulgated by the State Board of Education

concurs with Judge Boyd, and finds that the State Board of

Education has not defined Ðgross immoralityÑ by rule.

67 . Respondent admitted in its pro posed recommended order,

at paragraph 16, that Ðgross immoralityÑ has not been defined by

rule. However, Respondent suggests that the term should be

applied in accordance with judicial and administrative cases

construing Ðgross immoralityÑ that were decid ed prior to the

legislative mandate that the term be defined by rule. Given the

2008 amendment of the statute, t hose cases are inapplicable to

the current standard established by the legislature .

68 . Based on the foregoing, Respondent failed to prove

that Petitioner was Ð guilty of gross immorality . . . as defined

by rule of the State Board of Education Ñ so as to warrant denial

of Petitioner's application for an Educator's Certificate.

Moral Turpitude

69 . The State Board of Education has , since the amendment

of rule 6A - 5.056 on July 8, 2012, defined Ðcrimes involving

moral turpitude Ñ in pertinent part as:

. . . offenses listed in Section 1012.315,

Florida Statutes, and the following crimes:

* * *

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

offense or an offense in another nation,

which, if committed in this state,

constitutes an offense prohibited under

Section 1012.315(6), Florida Statutes. [ 4 / ]

Fl a . Admin. Code R. 6A - 5.056(8) .

70 . As established in the analysis of Count 1 above, the

offense of c onspiracy to distribute marijuana is not a

disqualifying offense because it is not a felony of the second

degree or greater. Thus, section 1012.315(3) does not list a

Ðcrime involving moral turpitudeÑ that would disqualify

Petitioner from receiving an Edu catorÓs Certificate.

71 . There was no evidence that any of the other offenses

on PetitionerÓs record were specified in rule 6A - 5.056(8).

There was no evidence that any of the offenses on PetitionerÓs

record were listed in section 1012.315(1), which list s

disqualifying felonies ; 1012.315(2), which lists disqualifying

misdemeanors ; or 1012.315(4), which lists disqualifying juvenile

sex offenses . Thus, section 1012.315 does not list a Ðcrime

involving moral turpitudeÑ that would disqualify Petitioner from

receiving an EducatorÓs Certificate.

72 . Since the amendment of rule 6A - 5.056 to create a

defined list of Ðcrimes of moral turpitude,Ñ the more subjective

definition contained in the rule prior to its amendment on

July 8, 2012, and applied in earlier adm inistrative recommended

and final orders, is no longer appli cable .

73 . Based on the foregoing, Respondent failed to prove

that Petitioner was Ð guilty of . . . an act involving moral

turpitude as defined by rule of the State Board of EducationÑ so

as t o warrant denial of Petitioner's application for an

Educator's Certificate.

Count 5

74 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 5 alleges that:

The Applicant is in violation of Section

1012.795(1)(f), F lorida Statutes, in that

the Applicant has been convicted or found

guilty of, or entered a plea of guilty to,

regardless of adjudication of guilt, a

misdemeanor, felony, or any other criminal

charge, other than a minor traffic

violation.

75 . As set forth in the analysis of Count 3 above,

offenses that could lead to revocation under section

1012.795(1)(f) are applicable in a licensing proceeding pursuant

to section 1012.56(12)(a).

76 . Respondent proved that Petitioner was convicted of the

following offenses:

A c onviction for disorderly conduct , with an

arrest date of February 2001, and which

resulted in a sentence of probation.

A conviction for driving while license

suspended, with an arrest date of February

2001, and which resulted in a sentence of

probation.

A conviction for affray, with an arrest date

of June 2002, and which resulted in a

sentence of probation.

A Novembe r 15, 2004 plea of nolo contendere

to the charge of b attery, for which

adjudication was withheld.

A November 15, 2004 plea of nolo contendere

to the charge of Possession of Marijuana,

for which adjudication was withheld.

The previously discussed Aug ust 3, 2006 plea

and judgment of guilty to conspiracy to

distribute marijuana, resulting in a

sentence of probation.

77 . Petitioner did not argue or prove that her guilty plea

or other convictions were the result of threats, coercion, or

fraudulent me ans.

78 . Based on the foregoing, the evidence supports a

conclusion that Petitioner Ðhas been convicted or found guilty

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

of guilt, a misdemeanor, felony, or any other criminal charge.Ñ

79 . S ection 1012.56(12)(a) provides that the Department of

Education may deny an a pplicant a certificate for offenses

described in section 1012.795(1), not that it must do so.

80 . It is generally established that the role of the

undersigned is Ðto provide fi ndings of fact to inform EPC's

exercise of its discretion, but not for the Administrative Law

Judge to determine whether the intended agency action to deny is

-- or, worse, a later, final agency action to deny would be --

an abuse of the discretion vested in DOE and EPC -- a matter

that is left to judicial review, if any.Ñ Luther Rodrick

Campbell v. Dr. Eric J. Smith, as Comm'r of Educ. , Case No. 11 -

4533, ¶104 (Fla. DOAH May 15, 2012; Fla. EPC Sept. 4, 2012).

81 . Petitioner demonstrated, by a prepondera nce of the

evidence, that she has substantially rehabilitated herself, and

that she is currently of good moral character . As set forth

herein, there was a lack of proof to establish any intentional

dishonesty , misrepresentation, or fraud in the a pplicatio n ,

gross immorality or moral turpitude as defined by rule of the

Department, or other factors that would bear negatively upon the

ability of Petitioner to perform the duties of an elementary

school teacher.

82 . For the reasons set forth herein, the Educ ational

Practices Commission should not deny Petitioner certification

under the broad auspices of section 1012.795(1)(f).

Count 6

83 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 6 alleges that:

The Applicant is in violation of section

1012.795(1)(k), Florida Statutes, in that

she has otherwise violated the provisions of

law, the penalty for which is the revocation

of the teaching certificate.

84 . By this count Respondent has alleged a basis for

de nial of PetitionerÓs application in a broad and general count

with little specificity. Thus, the undersigned concludes that

the only way this count can be addressed, consistent with

accepted tenets of due process, is to limit the Ðprovisions of

lawÑ alleg edly violated to those pled and identified with some

meaningful degree of specificity elsewhere.

85 . In addressing this count, the undersigned incorporates

the findings of fact and conclusions of law as to each of the

specific acts alleged elsewhere in t he Notice of Discipline.

Count 7

86 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 7 alleges that:

The Applicant is subject to Section

1012.795(1)(n), Florida Statutes, in that

Applicant has been disqualified from

educator certification under 1012.315,

Florida Statutes.

87 . The allegation that Petitioner is subject to

disqualification under section 1012.315 has been fully addressed

in Count 1. In short , Petitioner has not been convicted of any

felony offense listed in that section. Thus, section 1012.315

does not, either on its own or by application of section

1012.56(10)(a), provide a basis for de nial of PetitionerÓs

application for an EducatorÓs Certificate.

88 . Based on the foregoing, Respondent failed to prove

that Petitioner has been disqualified from educator

certification under 1012.315, Florida Statutes , so as to warrant

denial of Petiti oner's application for an Educator's Certificate

under section 1012.795(1)(n).

Count 8

89 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 8 alleges that:

The allegations of misconduct set forth

herein are in v iolation of Rule 6B -

1.006(5)(a), Florida Administrative C ode, in

that Applicant has failed to maintain

honesty in all professional dealings.

90 . Rule 6B - 1.006 was transferred on or about January 11,

2013, and now appears in the Florida Administrative Co de as rule

6A - 10.081. The specified rule is now numbered as rule 6A -

10.081(5)(a) .

91 . The basis for Count 8 is that Petitioner failed to

list all of her offenses as set forth herein in her application,

and that she misidentified her federal conviction f or conspiracy

to distribute marijuana as conspiracy to possess marijuana.

92 . The flaws in the application do not demonstrate that

Petitioner had any intent to conceal information or be less than

honest in completing the a pplication. She answered truthfully

that she had criminal offenses in her background. Petitioner

testified that she completed the application from memory and

thought she had answered the questions posed, but did not try to

recover paperwork or records from the clerk of court.

Petitioner understood that Respondent would have access to her

complete criminal history as a result of the submission of her

fingerprints and the background check . Therefore, there is no

evidence that she had any intent to answer less than hon estly in

the preparation of her application.

93 . With regard to the identification of the federal

conviction, Petitioner testified that she had originally been

charged with conspiracy to both possess and distribute

marijuana. She was convicted of conspi racy to distribute

marijuana, but confused the charges when filling out the

application. The fact that she provided a copy of the judgment

demonstrates that she had no intent to be dishonest in the

information provided to Respondent.

94 . P etitioner had more than a few arrests that, for the

most part, occurred more than a decade ago , so the potential for

confusion or even omission exists. The offenses omitted from

the a pplication were ones for which a Ðno informationÑ was

filed, a nolle prosequi of t he charge was made, or for which

adjudication was withheld. She testified generally that she

attempted to list those offenses that she had Ðbeen held

accountable for.Ñ On these facts, it is found only that

Petitioner filed an inaccurate application, but not that s he

filed an application with dishonest intent.

Count 9

95 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 9 alleges that:

The Applicant is in violation of Rule 6B -

1.006(5)(g), Florida Administrative Code, in

that she has misrepresented HIS/HER

professional qualifications.

96 . R ule 6B - 1.006(5)(g) was transferred, and is now

renumbered as rule 6A - 10.081(5)(g).

97 . As with Count 8, the basis for the allegation that

Petitioner misrepresented her professional qualifications is

that she failed to accurately list her criminal offenses in the

application for her EducatorÓs Certificate.

98 . In general, misrepresentation requires an element of

intent. See , e.g. , Fla. Bar v. Forrester , 818 So. 2d 477 , 483

(Fla. 2002)( Ð This Court has held that Òin order to find that an

attorney acted with dishonesty, misrepresentation, deceit, or

fraud, the Bar must show the necessary element of intent.ÓÑ

Further, this Court has held that Ò in order to satisfy the

elemen t of intent it must only be shown that the conduct was

deliberate or knowing. ÓÑ (internal citations omitted)).

99 . As set forth in the analysis of Count 8, PetitionerÓs

application was based on memory, which was imperfect but not

suggestive of a deliber ative intent to conceal, withhold, or

misrepresent the circumstances of her criminal background.

Thus, rule 6A - 10.081(5)(g) does not warrant denial of

Petitioner's application for an Educator's Certificate.

Count 10

100 . As a basis for the denial of Pe titionerÓs application

for an EducatorÓs Certificate, Count 10 alleges that:

The Applicant is in violation of Rule 6B -

1.006(5)(g), Florida Administrative Code, in

that she has submit[s] fraudulent

information on any document in connection

with professional activities.

101 . R ule 6B - 1.006(5)(h), was transferred, and is now

renumbered as rule 6A - 10.081(5)(h) .

102 . As with misrepresentation, in order to demonstrate

that an individual performed an act fraudulently, there is a

requisite degre e of deliberativ e intent. See Fla. Bar v.

Forrester , supra.

103 . As set forth in the analysis of Counts 8 and 9, the

errors in PetitionerÓs application were largely based on an

imperfect memory. They were not suggestive of a deliberative

intent to submit fraudulent information. Thus, rule 6A -

10.081(5)(h) does not warrant denial of Petitioner's application

for an Educator's Certificate.

D. Conclusion

104 . The application of the facts of this case to the

pertinent law and standards fails to demonstrate that grounds

exist for the denial of PetitionerÓs application for the reasons

set forth in Counts 1 through 4 and 6 through 10.

105 . As to Count 5, the evidence established that

Petitioner Ðhas been convicted or found guilty of, or entered a

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

misdemeanor, felony, or any other criminal charge.Ñ However,

the evidence w as equally convincing that Petitioner has

substantially rehabilitated herself, and that she is currently

of good moral character. Thus, the recommendation below to

issue a certificate is based on PetitionerÓs current ability to

comport herself in compliance with th e high moral and ethical

standards expected of a teacher in this state.

106 . Given the errors in the application, regardless of

the lack of intent, it is not unreasonable for the Education

Practices Commission to impose such reasonable conditions on

Peti tionerÓs EducatorÓs Certificate that will ensure her

continued attention to and compliance with the standards

necessary for maintaining the certificate in good standing, and

nothing in this recommended order should be construed as

limiting the Commis s ionÓs a bility to impose such conditions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order granting Petitioner, Torreya Landrea DavisÓs

application for an EducatorÓs Certificate, subject to such

reasonable conditions as will allow the Commission to monitor

and ensure Ms. DavisÓs continued attention to and compliance

with the standards necessary for maintaining the EducatorÓs

Certificate in good standing .

DONE AND ENTERED this 13th day of December , 201 3 , 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 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of December , 201 3 .

ENDNOTES

1/ The Judgment also cites 21 U.S.C. § 841(b)(1)(C). That

section establishes penalties for the offenses described in 21

U.S.C. § 841(a), and is not applicable to the elements of the

offense.

2/ A comparison of the relevant provisions of chapter 893 as it

existed in 2005 with the current corresponding sections reveal

no material differences.

3 / As with chapter 893, a comparison of the relevant provisions

of chapter 777 as it existed in 2005 with the current

corresponding sections reveal no material differences.

4 / There is no s ection 1012.315(6), Florida Statutes. The

undersigned presumes that the Department intended to cite to

section 1012.315(3) when it adopted the rule.

COPIES FURNISHED :

John M. Leace, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, 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 G aines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.