16-007622 Robert Grimsley vs. Pam Stewart, As Commissioner Of Education Status: Closed Recommended Order on Thursday, April 20, 2017.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT EUGENE GRIMSLEY ,

Petitioner,

vs. Case No. 16 - 7622PL

PAM STEWART, AS

COMMISSIONER OF EDUCATION ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on March 7, 2017,

via video teleconference in Tallahassee and Pensacola, Florida,

before Yolonda Y. Green, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Robert E. Grimsley, pro se

2220 Gloria Circle, Apartment 179

Pensacola, Florida 32514

For Respondent: J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

STATEMENT OF THE ISSUE

Whether Petitioner demonstrated entitlement to a Florida

educatorÓs certificate .

PRELIMINARY STATEMENT

On October 12, 2016, the C ommissioner of Education issued a

four - count Notice of Reasons setting forth her determination

that Petitioner was not entitled to a Florida educatorÓs

certificate , and identifying the statutory and regulatory

violations warranting her determination.

On November 7, 2016, Petitioner filed an Election of Rights

requesting a formal hearing. The record is silent as to when

t he Notice of Reasons was served on Petitioner. However, there

has been no allegation that the request for hearing was not

timely filed.

On December 30, 2016, this case was referred to the

Division for a final administrative hearing.

On January 5, 2017, the undersigned issued a Notice of

Hearing scheduling the final hearing for March 7, 2017, via

teleconference in Tallahassee and Pensacola, Florida. The

hearing was held as scheduled.

On February 3, 2017, Respondent filed an Unopposed Motion

for Leave to Amend Notice of Reasons, and the undersigned

granted the motion.

At final hearing, Petitioner testified on his own behalf

and offered no exhibits. Respondent presented the testimony of :

Andre Buckley, a Florida Sta te University (FSU) police officer;

L ieutenant ( Lt . ) Jason King, Motor Vehicle Division of Highway

Patrol in Panama City, Florida ; and Randy Kossec, the Program

Director of the F lorida Board of Education O ffice of

Professional Practices Services (Professional Practices

Services) . RespondentÓs E xhibits R - 1, R - 2, R - 5, and R - 6 were

admitted in evidence without objection.

A one - volume Transcript of th e proceeding was filed on

March 16, 2017. On March 20, 2017, a correcte d T ranscript was

filed and the deadline for filing proposed recommended orders

was changed to March 30, 2017. B oth parties timely filed

Proposed Recommended Orders which have been considered by the

undersigned in the preparation of this Recommended Order.

PetitionerÓs application for licensure is governed by the

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

See Lavernia v. DepÓt of Pro f Ól Reg. , 616 So. 2d 53, 54 (Fla.

1 st DCA 1993). Therefore, all statutory references shall be to

the 2016 Florida Statu t es, unless otherwise indicated.

FINDINGS OF FACT

1 . Respondent, Pam Stewart, as Commissioner of Education,

is authorized to issue Florida educatorÓs certificate s to

persons seeking certification to become school teachers in the

state of Florida.

2 . Petitioner , Robert Grimsley, is a high school teacher

who teaches liberal arts and algebra. He is in his first year

of teaching and currently teaches at Washington High School in

Pensacola, F lorida. He seeks to obtain an e ducatorÓs

c ertificate to continue teaching.

3 . On June 6, 2 016 , Petitioner submitted an on - line

application for a Florida E ducatorÓ s C ertificate in mathematics

(g rades 6 - 12) . The application included a section for ÐC riminal

offense record (s) (R eport any record other than sealed or

expunged in th is section. ) Ñ Under that section , was the

following question: ÐHave you ever entered into a pretrial

diversion program or deferred prosecution program related to a

criminal offense?Ñ

4 . In his application, Petitioner answered affirmatively

that he had entered int o a pretrial diversion program related to

a criminal offense . Based on the fields provided in the

application, h e disclosed the following criminal offense as

indicated below:

City Where Date of

Arrested State Arrest Charge(s) Disposition

Less Than Community

Tallahassee FL 1/2015 20 Grams Service

5. Petitioner did not disclose any other offenses in the

application.

6. T here was no definition of Ðarrest dateÑ provided in

the application. Mr. Kossec , program d irector of Professional

Practices Services , testified that Petitioner could have

included the date s for his Notice to Appear. However, t he

application did not indicate that such an option was available

to applicants .

7 . On August 3, 2016 , Professional Practices Services sent

Petitioner a letter requesting additional information regarding

his criminal offense s so it could conduct an investigation of

his criminal history . He submitted documents reflecting two

offenses for which he completed a pretrial diversion program.

8 . The submissio ns included the ÐNo InformationÑ for each

offense , which disclosed the following :

a. Case No. 14 - 0000 0 4MMA (related to

January 31, 2013 offense) ; Disposition:

No Information due to completed Misdemeanor

Diversion Program (filed on February 24,

2014).

b. Case No. 15MM00158 (related to

January 20, 2015 offense) ; Disposition:

No Information due to completed Diversion

Program (filed on March 6, 2015).

9 . The parties stipulated to the following facts regarding

PetitionerÓs criminal history and application:

a. On or abou t December 31, 2013, Applicant

illegally possessed marijuana, as a result

of the aforementioned conduct, the Applicant

was issued a Notice to Appear by law

enforcement for a criminal violation.

Applicant was charged with Possess ion of

Marijuana and entered into a pre - trial [sic]

diversionary program.

b. On or about January 20, 2015, Applicant

illegally possessed marijuana, as a result

of the aforementioned conduct, law

enforcement arrested Applicant for

possessing marijuana. A pplicant was charged

with Possession of Marijuana and entered

into a pre - trial [sic] diversionary program.

c. On or about June 6, 2016, Applicant

submitted an application for an educatorÓs

certificate. In said application,

Applicant was asked the foll owing question:

ÐHave you ever entered into a pretrial

diversion program or deferred prosecution

program related to a criminal offense?Ñ

Applicant failed to disclose the fact that

he entered into a pre - trial [sic]

diversionary program for the December 31 ,

2013 -- Marijuana Possession arrest.

10 . There is no dispute that Petitioner had two criminal

offenses for which he participated in a pretrial diversion

program. At hearing, Petitioner testified that he did not list

the December 2013 offense on the application because he received

a Notice to Appear for that offense. Petitioner testified that

he did not understand that being released with a Notice to

Appear 1/ was an arres t because he was not physically arrested .

1 1 . The two officers involved in the respective arrests

testified at hearing and described their detainment of

Petitioner. On December 31, 2013, Lt. King stopped PetitionerÓs

vehicle for driving in excess of the posted speed limit. He

ultimately found marijuana in the vehicle. Lt. K ing r ead

Petitioner his rights, is sued him a Notice to Appear , and

released him . Lt. King did not hand cuff Petitioner at any point

during the traffic stop .

12 . Lt. King testified that he explained to Petitioner

that although he was not being physically handcuffed and

transported to the local jail, he was pla ced under arrest.

Petitioner did not recall any explanation that a Notice to

Appear is still an arrest. Lt. KingÓs offense report, completed

on the same date as the incident, did not reference any

explanation to Petitioner that the Notice to Appear was an

actual arrest. PetitionerÓs testimony is found to be credible.

13 . The detainment for the second incident was different

from the first. On January 20, 2015, Officer Andre Buckley , a

FSU police officer, responded to a complaint of the smell of

burnt marijuana coming from a restroom on the campus of FSU.

Officer Buckley arrived at the suspected restroom and confir med

the smell of burnt marijuana. After discovering Petitioner in

the restroom and in possession of marijuana , Officer Buckley

placed Petitioner in handcuffs. Another officer transported

Petitioner to the Leon County jail for booking .

14 . Despite PetitionerÓs mistaken belief regarding the

December 2013 arrest, he was indeed arrested.

15 . The facts here demonstrate that Petitioner did not

understand that he was arrested for the December 2013 offense

and , as a result, was confused re garding whethe r he sh ould

include the offense in the application . T here was no effort to

conceal his participation in the pre trial diversion program for

the December 2013 offense because he submitted documents

reflecting the information upon request . The undersigned finds

that he simply made an error when completing the application.

16 . Both misdemeanor criminal offense s occurred while

Petitioner was a college student. Since completing the

diversi on programs, he has earned his Bachelor of Science degree

in Statistics . In his lett er to the Professional Practice

Services dated July 20, 2016, he indicated that he has

discontinued using drugs. Further, h e has taught for

approximately one year without incid ent .

17. PetitionerÓs actions demonstrate that Petitioner had

no intent to conceal his record, engaged in no fraudulent

conduct in completing the application , and did not fail to

maintain honesty in the submission of the application so as to

warrant denial of an educatorÓs certificate .

CONCLUSION S OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto. §§ 120.569 and 120.57(1), Fla. 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 alleg ations of

misconduct against teachers and licensure applicants. See

§ 1012.796(6) , Fla. Stat .

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 he sa tisfies the applicable

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

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

22 . Although Petitioner has the ultimate burden

notwithstanding, Respondent has the burden of presenting

evidence of any statu tory or regulatory violations alleged in

the Notice of Reasons as sufficient to warrant denial of the

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

Compre hensive Med. Access, Inc. v. Off. of Ins. Reg. , 983 So. 2d

45 (Fla. 1st DCA 2008).

23 . Petit ioner applied for an educatorÓs certificate in

m athematics . The criteria for licensure are found in section

1012.56(2) , Florida Statutes . There has been no allegation that

Petitioner does not meet the basic requirements.

Alleged Statutory Violations

24 . In the Notice of Reasons, Respondent denied

PetitionerÓs application for an educatorÓs certificate based on

alleged violations of s ection 1012.795(1)(a) and (j) and Florida

Administrative Code Rule 6A - 10.081(2)(c)1 . and (8) .

25 . Section 1012.56(12)(a) provides:

The Department of Education may deny an

applicant a certificate if the department

possesses evidence satisfactory to it that

the applicant has committed an act or acts,

or that a situation exists, for which the

Education Practices Commission would be

authorized to revoke a teaching certificate.

26 . Section 1012.795(1) 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, the reby 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 su bsection (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 capacit y

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:

(a) Obtained or attempted to obtain an

educator certificate by fraudulent means.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

Count 1

27 . As a basis for the denial of PetitionerÓs application

for an educatorÓs certificate , Count 1 alleges that:

The applicant is in violation of section

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

Applicant obtained or attempted to obtain a

teaching certificate b y fraudulent means.

28 . In order to demonstrate that an individual performed

an act fraudulently, there is a requisite degree of deliberative

intent. See Fla. Bar v. Forrester , 818 S o. 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 th e necessary element of intent.Ó

Further, this Court has held that Òin order to satisfy the

element of intent it must only be shown that the conduct was

delibe rate or knowing.ÓÑ (internal citations omitted)). The

error in PetitionerÓs application was based on his confusion

regarding the information requested. It was not suggestive of

deliberate intent to submit fraudulent information. Thus, rule

6A - 10.081(2) (c)8 . does not warrant denial of Petitioner's

application for an educatorÓs certificate .

Count 2

29 . As a basis for denial of PetitionerÓs application for

an educatorÓs certificate , Count 2 alleges that:

The Applicant is in violation of section

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

Applicant has violated Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

30 . Although listed as a separate count, it is clear that

no specific act is alleged in Count 2. Rather, Count 2 takes

those acts which were made the b ases for denial in Counts 3

and 4, and adopts them as grounds for denial of an application.

Thus, the substance of Count 2 is as set forth in Counts 3

and 4. Therefore, the analysis of Co unts 3 and 4 is applicable

to C ount 2 . As set forth in detail below, there is no basis to

warrant denial of PetitionerÓs application as there is

insufficient evidence to demonstrate that he violated Principles

of Professional Conduct as alleged in the Not ice of Reasons.

Alleged Rule Violations

31 . Rule 61A - 10.081(2) provides in pertinent part:

(2) Florida educators shall comply with the

following disciplinary principles.

Violation of any of these principles shall

subject the individual to revocation or

suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law.

* * *

(c) Obligation to the profession of

education requires that the individual:

1. Shall maintain honesty in all

professional dealings.

* * *

8. Shall not submit fraudulent information

on any document in connection with

professional activities.

Count 3

32 . As a basis for the denial of PetitionerÓs application

for an educatorÓs certificate , Count 3 alleges that:

The allegations of misconduct set forth

herein are in violation of Rule 6A -

10.081(2)(c)1, Florida Administrative Code,

in that Applicant has failed to maintain

honesty in all professional dealings.

33 . The basis for Count 3 is that Petitioner failed to

disclose on his application the fact that he entered into a

pretrial diversion program for the December 2013 offense.

34 . The errors in the application do not demonstrate that

Petitioner had any intent to conceal information or be less than

honest in com pleting the application. He answered truthfully

that he had participated in a pretrial diversion program, and

testified that he completed the application to the best of his

ability .

35 . Petitioner testified that he had participated in two

diversion programs . He credibly testified that he was confused

by the application because it requested an arrest date and

location . I t was not clear to him that a Notice to Appear is

also an arrest and thus, the December 2013 offense should have

been disclosed on the application . The fact that he provided a

copy of the Ð No Information Ñ pleadings for both cases to

Respondent demonstrates that he had no intent to be dishonest in

submission of his application . On these facts, it is found that

Petitioner filed an ina ccu rate application, but not that he

filed an application with dishonest intent.

36 . Respondent argues in her Proposed Recommend Order that

Petitioner failed to maintain honesty in all professional

dealings with police officers as allegations to support a

vi olation of rule 6A - 10.081 (2)(c)1. However, those facts were

not alleged in the Notice of Reasons. The refore , they can not be

considered when analyzing whether he violated the rule.

37 . It has been established that making reference to a

statutory viol ation without supporting factual allegations does

not place Respondent on notice of the charges against him.

Trevisani v. Dep't of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. Dep't of Ins. , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996)(reference to the statute without supporting

factual allegation insufficient to place Appellant on notice of

charges against him). Here, the Notice of Reasons fails to

allege any facts that Petitioner failed to maintain honesty in

his professional dealings with law enforcement or place

Petitioner on notice of the charges so he could defend himself.

Therefore, the undersigned will neither consider nor find a

violation related to any dealings with law enforcement as they

were not all eged in the Notice of Reasons and s uch a ruling

would be a violation of due process.

Count 4

38 . As a basis for the denial of PetitionerÓs application

for an educatorÓs certificate , Count 4 alleges that:

The Applicant is in violation of Rule 6A -

10.081(2)( c)8, Florida Administrative Code,

in that he has submitted fraudulent

information on a document in connection with

professional activities.

39 . In order to demonstrate that an individual performed

an act fraudulently, there is a requisite degree of deli berative

intent. See Fla. Bar v. Forrester , supra . As set forth in the

analysis of Count 1, the error in PetitionerÓs application was

based on his legitimate confusion regarding the information

requested based on the imprecision of RespondentÓs own form . It

was not suggestive of deliberate intent to submit fraudulent

information. Thus, rule 6A - 10.081(2)(c)8 . does not warrant

denial of Petitioner's application for an educatorÓs

certificate .

RECOMMENDATION

Based on the foregoing Findings of Fact and Concl usions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order granting Petitioner, Robert Eugen e

GrimsleyÓs, application for a Florida educatorÓs certificate .

DONE AND ENTERED this 20 th day of April, 2017, in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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

thi s 20 th day of April, 2017.

ENDNOTE

1/ Pursuant to Florida Criminal Procedure Rule 3.125 , u nless

indicated otherwise, no tice to appear means a written O rder

issued by a law enforcement officer in lieu of physical arrest

requiring a person accused of violating the law to appear in a

designated court or governmental office at a specified date and

time.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Robert E. Grimsley

2220 Gloria Circle, Apartment 179

Pensacola, Florida 32514

(eSe rved)

J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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

(eServed)

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.