13-000740PL Tony Bennett, As Commissioner Of Education vs. Alexander Roy Status: Closed Recommended Order on Friday, August 2, 2013.

Summary: Respondent is disqualified from holding a teacher's certificate based on his convictions for enticing a child to commit a sexual act and for possession of child pornography. Recommend revocation.

Case No. 13-0740PL

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TONY BENNETT, AS COMMISSIONER OF

EDUCATION,

RECOMMENDED ORDER

Petitioner,

vs.

ALEXANDER ROY,

Respondent.

/

On July 2, 2013, a duly-noticed hearing was conducted in

Tallahassee, Florida, with arrangements for Respondent to appear

by telephone, by Lisa Shearer Nelson, an administrative law judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

387 Lakeside Drive

Defuniak Springs, Florida 32435

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Alexander

(n), Florida Statutes (2011). If violations are found, the

appropriate penalty must be determined.

PRELIMINARY STATEMENT

On October 24, 2012, Petitioner, as Commissioner of

Education, filed an Administrative Complaint against Respondent,

Florida Statutes. The factual allegations forming the basis for

the charges against Respondent are that he was convicted of one

count of Enticing and Attempting to Entice a Minor to Engage in

Sexual Activity in violation of 18 U.S.C. section 2422(b) and

four counts of Possession of Child Pornography in violation of 18

U.S.C. section 2252(a)(4)(B). Respondent filed an Election of

Rights form disputing the allegations in the Administrative

Complaint and requesting a hearing pursuant to section 120.57(1),

Florida Statutes. On February 27, 2013, the case was forwarded

to the Division of Administrative Hearings for assignment of an

administrative law judge.

Respondent is currently incarcerated in Arizona. He

apparently has no access to Florida legal documents, and argued

repeatedly that this lack of access required a continuance of

this case until no sooner than 30 days after his appeal to the

Eleventh Circuit Court of Appeals is complete. Respondent’s

request for a continuance on this basis was denied; however,

copies of the relevant statutes identified in the Administrative

Complaint as well as the Uniform Rules and Florida Rules of Civil

Procedure related to discovery were provided to him.

Motion practice in this case was extensive. The motions,

responses, and rulings related to these motions are readily

available on the docket.

The case was originally scheduled for hearing May 9, 2013.

However, on May 1, 2013, the case was continued and on May 16,

2013, it was rescheduled for July 2, 2013, with arrangements for

Respondent to participate by telephone.

On June 24, 2013, Petitioner filed a Motion to Amend

Administrative Complaint to Update Caption and Correct

Scrivener’s Error, which was granted by Order dated June 24,

2013. The Amended Administrative Complaint was filed with the

Division on June 25, 2013. The style of the case is amended to

reflect Tony Bennett as Commissioner of Education.

On July 2, 2013, the hearing commenced as scheduled. Prior

arrangements were made for Respondent to call in to a “meet-me”

teleconference number; however, he did not do so. A recess was

taken to inquire of prison officials whether Respondent was still

available. While trying to reach Counselor Pino, Respondent’s

classification officer at the facility, Division staff received a

phone call from the classification officer stating that

Respondent had declined to participate in the hearing. A second

telephone call was placed to the facility from the hearing room,

and Counselor Pino confirmed that he had spoken with Respondent

that morning and that Respondent indicated that he did not intend

to participate in the proceeding. The undersigned inquired

whether there was any impediment to Respondent’s participation

caused by his incarceration and was informed that there was not.

Notwithstanding Respondent’s decision, Petitioner elected to

present his case. No witnesses were called to testify, however,

Petitioner’s Exhibits 1-3 were admitted into evidence.

Petitioner’s Exhibits 2 and 3 are the depositions of Detective

Charlie Longson and Maurice Bonner, respectively. Respondent did

not appear for either deposition. The depositions were noticed

on April 8, 2013, and took place April 18 and 19.

On April 29, 2013, Respondent requested copies of the

depositions, and Petitioner supplied the depositions to

Respondent on April 30, 2013. No motion for protective order was

filed prior to the taking of the depositions, and no objection

was entered with respect to their admissibility before, during,

or after the hearing. Accordingly, both depositions have been

admitted and have been considered in the preparation of this

Recommended Order.

The Transcript of the hearing was filed with the Division

July 19, 2013, making the deadline for filing proposed

recommended orders July 29, 2013. Petitioner filed his Proposed

Recommended Order on July 23, 2013. To date, no post-hearing

submission has been filed by Respondent.

All references are to the 2011 version of the Florida

Statutes unless otherwise indicated.

FINDINGS OF FACT

1. Respondent holds Florida Educator Certificate 1035877,

covering the areas of mathematics, middle grades integrated

curriculum, and social studies, which is valid through June 2015.

2. At all times material to the allegations in the

Administrative Complaint, Respondent was employed by the

St. Lucie County School Board (SLCSB) as a mathematics teacher at

Manatee Elementary School, also known as Manatee K-8 School.

3. On or about January 13, 2012, Respondent was arrested in

Osceola County, Florida, as the result of allegations that

Respondent used an internet provider and “knowingly persuaded,

induced, enticed and coerced an individual who had not attained

the age of eighteen years, to engage in sexual activity.”

4. The allegations were based on the probable cause

affidavit of Kevin Kulp, Special Agent for the Florida Department

of Law Enforcement, who worked on the undercover operation giving

rise to Respondent’s arrest, which stated that Respondent

contacted a person on-line that he believed to be the mother of a

13-year-old girl in order to have sex with both the mother and

police officers.

5. As a result of Respondent’s arrest, a search warrant was

executed to search Respondent’s residence in St. Lucie County,

Florida. According to Detective Longson, the search revealed

that Respondent possessed approximately 75-100 images of minors

engaged in explicit sexual conduct. The analysis of the

information seized at Respondent’s home also included photos and

videos of a teenage girl, approximately 16 years old, engaged in

explicit sexual acts with Respondent.

6. On January 17, 2012, as a result of his arrest,

Respondent was placed on temporary duty assignment at his home.

7. On or about March 5, 2012, Respondent was charged by

indictment with one count of Enticing and Attempting to Entice a

Minor to Engage in Sexual Activity in violation of 18 U.S.C.

§ 2422(b), and four counts of Possession of Child Pornography in

containing the same charges was filed May 31, 2012.

8. On March 27, 2012, he was suspended without pay by the

SLCSB because of the federal criminal charges against him. On

April 10, 2012, Respondent was terminated from his employment by

the SLCSB, based upon his inability to report for work because of

his imprisonment.

9. On or about June 15, 2012, Respondent was tried in

federal court before a jury. He was found guilty of all five

counts.

10. On September 12, 2012, United States District Court

Judge K. Michael Moore adjudicated Respondent guilty on all five

counts, and sentenced him to life in prison as to Count 1, and

120 months of incarceration as to each of Counts 2 through 5,

with the penalty for all five counts to be served concurrently.

Upon release, Respondent is to be placed on probation for life, a

condition of which is to comply with the requirements of the Sex

Offender Registration and Notification Act (42 U.S.C. § 16901. et

seq. ), as directed by the probation officer, the Bureau of

Prisons, or any state sex offender agency in a state in which he

resides, works, is a student, or was convicted of a qualifying

offense.

11. Also included in the Special Conditions of Supervision

are that Respondent may not possess or use any computer, with the

exception of pre-approved use in connection with authorized

employment; that Respondent shall not have personal, mail,

telephone, or computer contact with children under the age of 18;

that Respondent shall not be involved in any children’s or youth

organization; and that Respondent shall participate in a sex

offender program.

12. Respondent’s arrest, prosecution, and conviction were

covered by the media, in the newspaper and on the radio,

television, and internet.

13. Respondent’s conviction significantly impairs

Respondent’s effectiveness as a teacher in the community.

Respondent’s certification is for middle school grades. The

prohibition from having contact with children under the age of 18

makes it impossible for him to hold employment as a teacher in

the public school system. As stated by Maurice Bonner, the

Director of Personnel for St. Lucie County Schools, “[t]here is

absolutely no way that the students and the parents and the

community would have any faith in him being alone in a classroom

with kids even for one minute. And he would not be able to

effectively be in a classroom. Or be on campus, period, where

there are children present.” His testimony is credited.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.57(1), Florida Statutes

(2012).

15. This is a proceeding in which Petitioner seeks to

revoke Respondent’s educator certification. Because disciplinary

proceedings are considered penal in nature, Petitioner is

required to prove the allegations in the Administrative Complaint

by clear and convincing evidence. Dep’t of Banking & Fin. v.

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

Turlington , 510 So. 2d 292 (Fla. 1987).

16. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

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

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

17. The Amended Administrative Complaint makes the

following allegations in support of Petitioner’s decision to take

disciplinary action against Respondent’s educator’s certificate:

2. At all times pertinent hereto, the

Respondent was employed as a Mathematics

Teacher at Manatee Elementary School in the

St. Lucie County School District.

3. On or about January 13, 2012, the

Respondent was arrested in Osceola County,

Florida, as the result of allegations that

Respondent attempted to contact a minor

online and arrange for sexual activity with

the minor.

4. As a result of the Respondent’s arrest,

a search warrant was executed on the

Respondent’s residence in St. Lucie County,

Florida. The Respondent was found to be in

possession of images depicting minors

engaged in explicit sexual conduct. On or

about March 7, 2012, the Respondent was

arrested and charged with one count of

Enticing and Attempting to Entice a Minor to

Engage in Sexual Activity in violation of 18

U.S.C. § 2422(b) and four counts of

Possession of Child Pornography in violation

of 18 U.S.C. § 2252(a)(4)(B). On or about

September 12, 2012, the Respondent was

adjudicated guilty on all five counts.

5. Pursuant to Section 1012.795(2), Florida

Statutes, the plea of guilty in any court or

the decision of guilty by any court is prima

facie proof of grounds for the revocation or

other sanction of a teaching certificate.

6. The Respondent’s convictions under 18

U.S.C. § 2422(b), and 18 U.S.C. § 2252

(a)(4)(B) disqualify the Respondent from

certification pursuant to Sections

1012.315(1)(oo) and 1012.315(3), Florida

Statutes, in that the Respondent has been

convicted of acts that constitute a

violation of Chapter 847, Florida Statutes.

18. Petitioner has proven the factual allegations in

paragraphs two, three, and four by clear and convincing evidence.

19. Based upon these factual allegations, Petitioner asserts

in Counts One through Four that Respondent has violated section

1012.795(1)(d)(gross immorality or an act involving moral

found guilty of a misdemeanor, felony, or any other criminal

charge, other than a minor traffic violation); section

an employee of the school board); and section

1012.795(1)(n)(disqualification from educator certification under

section 1012.315).

20. Section 1012.795 authorizes the Education Practices

Commission to take action against the certifications of

instructors under certain enumerated circumstances. It provides

in pertinent part:

(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 teaching 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

students 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 public 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.

* * *

(f) 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.

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person’s effectiveness as an

employee of the district school board.

* * *

(n) Has been disqualified from educator

certification under s. 1012.315.

(2) The plea of guilty in any court, the

decision of guilty by any court, the

forfeiture by the teaching certificateholder

of a bond in any court of law, or the

written acknowledgment, duly witnessed, of

offenses listed in subsection (1) to the

district school superintendent or a duly

appointed representative of such

superintendent or to the district school

board shall be prima facie proof of grounds

for revocation of the certificate as listed

in subsection (1) in the absence of proof by

the certificateholder that the plea of

guilty, forfeiture of bond, or admission of

guilt was caused by threats, coercion, or

fraudulent means.

21. Section 1012.315, Florida Statutes (2012), the version

of the statute in effect at the time of Respondent’s conviction,

provided in pertinent part:

1012.315 Disqualification from employment.—A

person is ineligible for educator

certification, and instructional personnel

and school administrators, as defined in s.

1012.01, are ineligible for employment in

any position that requires direct contact

with students in a district school system,

charter school, or private school that

accepts scholarship students under s.

1002.39 or s. 1002.395, if the person,

instructional personnel, or school

administrator has been convicted of:

(1) Any felony offense prohibited under any

of the following statutes:

* * *

(oo) Chapter 847, relating to obscenity.

* * *

(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).

22. Count One of the Amended Administrative Complaint

charges Respondent with violation of section 1012.795(1)(d), which

makes it a basis for discipline when a certificate holder has been

guilty of gross immorality or an act involving moral turpitude as

defined by rule of the State Board of Education.

23. The Education Practices Commission has not defined

“gross immorality” or “moral turpitude” for the purpose of

discipline to be imposed pursuant to section 1012.795. However,

use by school districts when taking action against instructional

personnel in Florida Administrative Code Rule 6A-5.056 (previously

numbered as rule 6A-4.009). Rule 6A-5.056 defines these terms as

follows:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties;

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

24. In Florida Board of Bar Examiners, Re: G.W.L.

, 364 So.

2d 454 (Fla. 1978), the Supreme Court of Florida examined the

requirement of good moral character in considering a Florida Bar

applicant who had voluntarily discharged his student debts in

bankruptcy before they were actually due. The Court noted that

previously it had defined moral turpitude in State ex rel.

Tullidge v. Hollingsworth , 108 Fla. 607, 611, 146 So. 660, 661

(1933) by saying, "[m]oral turpitude involves the idea of

inherent baseness or depravity in the private social relations or

duties owed by man to man or by man to society . . . ." In

addressing what constitutes a lack of good moral character, the

Court stated:

In our view, a finding of a lack of

"good moral character" 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.

364 So. 2d at 458.

25. Petitioner has proven a violation as charged in Count

One by clear and convincing evidence, which requires a finding of

“gross immorality,” implicating even more egregious conduct.

There is no doubt that Respondent's actions cause "substantial

doubts about [Respondent's] honesty, fairness, and respect for the

rights of others and for the law of the state and nation." The

children in the videos have been no doubt victimized in a manner

that will affect them for the rest of their lives, and are of

similar ages as those children entrusted to his care in the

classroom. As stated in Department of Professional Regulation v.

Rosenberg , Case No. 89-5858, ¶ 14 (DOAH May 7, 1990; FREC June 19,

1990):

If individuals to not attempt to procure

[motion pictures containing sexual conduct

by children], it is reasonable to conclude

that fewer children will be subjected to

such exploitation and mistreatment. Adults

owe a duty to children not to debauch them

by placing them in pornographic films. The

support of the child pornography market is

morally despicable or abhorrent, and meets

Florida's definition of "moral turpitude."

See also Gallagher v. Rosenthall , DOAH Case No. 00-3888PL (DOAH

Jan. 10, 2001; EPC Apr. 23, 2001).

26. Count Two charges Respondent with violating section

1012.795(f), quoted in paragraph 20. Petitioner has proven this

Count by clear and convincing evidence, in that Respondent has

been convicted of five felonies in violation of 18 U.S.C.

sections 2422(b) and 2252(a)(4)(B).

27. Count Three charges Respondent with violating section

1012.795(1)(g), by being found guilty of personal conduct which

seriously reduces his effectiveness as an employee of the School

Board. Petitioner has proven this Count by clear and convincing

evidence. The media provided substantial coverage of his arrest

and conviction. There was credible testimony that his

effectiveness would be significantly impaired. Moreover, the

terms of his probation, should he ever be released from prison,

forbid him from having contact with children under 18. This

prohibition by definition makes it impossible for him to work as

a middle-school teacher.

28. Count Four charges Respondent with violating section

1012.795(1)(n), alleging that Respondent has been disqualified

from educator certification pursuant to section 1012.315.

Subsection 1012.315(3) provides that a person is ineligible for

educator certification if, among other prohibitions, the person

has been convicted of any criminal act committed in another state

or under federal law which, if committed in Florida, constitutes

a violation of a Florida offense listed in the statute.

29. Respondent was convicted of violating section 18 U.S.C.

2422(b). This section provides:

(b) Whoever, using the mail or any facility

or means of interstate or foreign commerce,

or within the special maritime or

territorial jurisdiction of the United

States knowingly persuades, induces,

entices, or coerces any individual who has

not attained the age of 18 years, to engage

in prostitution or any sexual activity for

which any person can be charged with a

criminal offense, or attempts to do so,

shall be fined under this title and

imprisoned not less than 10 years or for

life.

30. Within chapter 847, Florida Statutes, referenced in

section 1012.315(1)(oo), is section 847.0135(3), which provides:

(3) CERTAIN USES OF COMPUTER SERVICES OR

DEVICES PROHIBITED.—Any person who knowingly

uses a computer online service, Internet

service, local bulletin board service, or

any other device capable of electronic data

storage or transmission to:

(a) Seduce, solicit, lure, or entice, or

attempt to seduce, solicit, lure, or entice,

a child or another person believed by the

person to be a child, to commit any illegal

act described in chapter 794, chapter 800,

or chapter 827, or to otherwise engage in

any unlawful sexual conduct with a child or

with another person believed by the person

to be a child; or

(b) Solicit, lure, or entice, or attempt to

solicit, lure, or entice a parent, legal

guardian, or custodian of a child or a

person believed to be a parent, legal

guardian, or custodian of a child to consent

to the participation of such child in any

act described in chapter 794, chapter 800,

or chapter 827, or to otherwise engage in

any sexual conduct,

commits a felony of the third degree, . . .

31. The allegations forming the basis for Respondent’s

conviction under 18 U.S.C. § 2422(b) would also form a basis for

prosecution under section 847.0135, and is thus a disqualifying

offense under section 1012.315(3)(oo).

32. Petitioner asserts that Respondent’s conviction of four

violation of section 827.071(5), Florida Statutes, which is a

disqualifying offense under section 1012.315(1)(m). While

Petitioner’s analysis is correct, the only disqualifying offenses

alleged in the Amended Administrative Complaint are any offenses

in chapter 847, identified in section 1012.315(1)(oo). Respondent

was not charged with committing a disqualifying offense under

section 1012.315(1)(m). Respondent cannot be found guilty of

violations for which he was not charged. Trevisani v. Dep’t of

Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep’t of

Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep’t

of Prof. Reg. , 563 So. 2d 805 (Fla. 1st DCA 1990).

33. In this event, however, the ultimate result is the same.

Petitioner proved the violations in Counts One through Four by

clear and convincing evidence. Respondent’s convictions

disqualify him from holding a teaching certificate in Florida.

The Disciplinary Guidelines located at Florida Administrative Code

Rule 6B-11.007 provide for penalties ranging from probation to

revocation for those violations that do not expressly disqualify

him from holding a teaching certificate. In this instance, the

only appropriate penalty is permanent revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order finding Respondent guilty of all four Counts

in the Amended Administrative Complaint and permanently revoking

his certification.

DONE AND ENTERED this 2nd day of August, 2013, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of August, 2013.

COPIES FURNISHED:

David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

Alexander Roy, Register # 99238-004

United States Penitentiary

Post Office Box 24550

Tucson, Arizona 85734

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

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 Gaines 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.