18-005314 Luis Amarante vs. Pam Stewart, As Commissioner Of Education Status: Closed Recommended Order on Monday, January 14, 2019.

Summary: Pet. did not establish that he met the criteria for issuance of an educator's certificate as a result of his conviction for federal conspiracy to commit money laundering and his failure to disclose such on his application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS AMARANTE ,

Petitioner ,

vs. Case No. 1 8 - 5314

RICHARD CORCORAN , AS

COMMISSIONER OF EDUCATION , 1/

Respondent .

/

RECOMMENDED ORDER

This case was heard on December 10, 201 8 , in Tallahassee,

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

assigned by the Division of Administrative Hearings (ÐDOAHÑ) .

APPEARANCES

For Petitioner: Luis Amarante, pro se

Apartment 229

1 Cond ominio Los Naranjales

Carolina, Puerto Rico 00985 - 5879

For Respondent: J. David Holder, Esquire

J. David Holder, P.A.

300 Fox Meadow Lane

Thomasville, Georgia 31757

STATEMENT OF THE ISSUE

Whether Petitioner demonstrated entitlement to issuance of

a Florida Educator Ó s Certificate .

PRELIMINARY STATEMENT

On February 13, 2017 , the Commissioner of Education e ntered

a five - count Notice of Reasons setting forth the determination

that Petitioner was not entitled to issuance of a Florida

Educator Ó s Certificate and identifying the statutory and

regulatory violations warranting the Commiss ionerÓs

determination , all of which were related to a 1999 federal

conviction for Conspiracy to Commit Money Laundering, and

PetitionerÓs subsequent failure to disclose the conviction on

his 2016 application for a Florida EducatorÓs Certificate .

On March 17, 2017 , Respondent filed an election of rights

by which 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 time ly filed. The election of rights requested a period

within which to explore settlement before the matter was

referred to DOAH for a formal hearing.

On October 4 , 201 8 , this case was referred to the Division

of Administrative Hearings for a formal administrative h earing.

The referral included an excerpt of a meeting of the Education

Practices Commission in which PetitionerÓs application was being

considered. It was ap parently determined that the matter

involved disputed issues of fact, thus warranting its referral

to DOAH. The final hearing was noticed for December 10, 2018.

On November 26, 2018, Respondent filed its witness and

exhibit lists, and a Joint Stateme nt of Undisputed Facts. The

final hearing was , thereafter , held as scheduled.

At the final hearing , Petitioner testified on h is own

behalf . Respondent offered the testimony of Morgan Thompson,

program d irector for the Department of Education. RespondentÓs

Exhibits 1 through 11 were received in evidence.

On December 13, 2018, Petitioner filed several documents

reflecting his performance as a teacher in Puerto Rico. Those

documents, having been filed after the close of the record, have

not been considered.

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

December 14, 2018 . Respondent filed its P roposed Recommended

O rder on December 26, 2018, which ha s been duly considered by

the undersigned in the preparation of this Recommended Order.

Petitioner did not file a post - hearing submittal.

Petitioner's application for 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 ). Th erefore, all statutory references shall

be to Florida Statutes (2018) , 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 S tate of Florida.

2. Petitioner is a current resident of Puerto Rico.

Petitioner was convicted of federal conspiracy to commit money

laundering on October 26, 1999 , and sentenced to a term of

imprisonment of 46 months, with credit for time served.

Petitioner was release d from prison in April 2001 . He began

teaching physical education in Puerto Rico, starting in

August 2001. He has taught continuously in Puerto Rico for the

past 17 years without incident.

Stipulated Facts

3 . Petitioner was charged with multiple criminal offenses

in the case of United States of America v. Luis Amarante , a/k/a

Chiqui, a/k/a El Grandote, et al. , Criminal Case No. 98 - 189(HL).

4 . P etitioner pled guilty to one count of conspiracy to

commit money laundering in the case of United States of America

v. Luis Amarante, a/k/a Chiqui, a/k/a El Grandote, et al. ,

Criminal Case No. 98 - 189 (HL).

5 . Petitioner was found guilty of one count of conspiracy

to commit money laundering in the case of United States v. Luis

Amarante, a/k/a Chiqui, a/k/a El Grandote, et al. , Criminal

Case 98 - 189(HL).

6 . Petitioner was sentenced to serve 46 months in priso n

based upon his plea agreement entered in the case of United

States of America v. Luis A marante, a/k/a Chiqui, a/k/a

El Grandote, et al. , Criminal Case 98 - 189(HL).

7 . Petitioner submitted an application for a Florida

EducatorÓs C ertificate on July 13, 2 016. On the application,

Petitioner answered ÐnoÑ to the questions:

ÐHave you ever been convicted of a criminal

offense?Ñ

ÐHave you ever been found guilty of a criminal

offense?Ñ

ÐHave you ever pled guilty to a criminal

offense?Ñ

8 . The answer of Ðno Ñ to each of these questions was

false.

9 . Petitioner submitted written responses to RespondentÓs

Request for Admissions on November 6, 2018, in which he affirmed

in writing his statements set forth above.

Facts Adduced at Hearing

10 . Immediately below PetitionerÓs electronic signature on

his application was the following:

WARNING: GIVING FALSE INFORMATION IN ORDER

TO OBTAIN OR RENEW A FLORIDA EDUCATORÓS

CERTIFICATE IS A CRIMINAL OFFENSE UNDER

FLORIDA LAW. ANYONE GIVING FALSE

INFORMATION ON THIS AFFIDAVIT IS S UBJECT TO

CRIMINAL PROSECUTION, AS WELL AS

DISCIPLINARY ACTION BY THE EDUCATION

PRACTICES COMMISSION.

11 . Petitioner was not able to convincingly explain why he

would have checked ÐnoÑ for three separate questions regarding

his criminal conviction on the electronic application. His

testimony ranged from an unsuccessful attempt to change his

answer to the question before he submitted it via his telephone,

to a misunderstanding as to the period of time for which

information was being requested.

12 . There was no evidence that Peti tioner contact ed the

Department of Education to correct, amend, or withdraw his

application.

13 . Petitioner gave no indicatio n of an inability to

perform the duties of a physical education teacher. The crime

for which he was convicted was non - violent in nature, and

occurred more than 20 years ago. He testified that he Ðtalk[s]

with young people and I explain what I did, you kn ow, trying to

-- they donÓt do the same, you know, that they continue in the

right path.Ñ Petitioner appeared to be sincere in his desire to

teach with the benefit of his experience.

14 . Despite the foregoing, it is PetitionerÓs burden to

demo n strate his entitlement to an EducatorÓs Certificate.

Petitioner testi fied as to his 17 years of teaching in Puerto

Rico -- which testimony is entitled to some degree of weight, as

the passage of time can be persuasive evidence of rehabilitation

and good c haracter . The application includes the jurisdiction,

certificate numbers, and dates of expiration for his Puerto Rico

TeacherÓs Certificate. The evidence that Petitioner has been

certified to teach and has been employed as a physical education

teacher in Puerto Rico was not disputed by Respondent.

15 . Th e testimony offered by Petitioner at the formal

hearing failed to provide any explanation or c ontrition for his

criminal conduct. He offered no specific proof of his good

moral character in the form o f admissible references from

employers or coworkers to substantiate his testimony.

CONCLUSIONS OF LAW

A. Jurisdiction .

16 . 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.

17 . The Department of Education is the state agency

responsible for licensure of instructional personnel for the

public schools. § 1012.55, Fla. Stat.

18 . The Commissioner of Education is the state officer

respo nsible for investigating and prosecuting allegations of

misconduct against teachers and applicants for E ducatorÓs

C ertificates . See § 1012.796(6) , Fla. Stat .

B. Burden of Proof

19 . As the party seeking issuance of an EducatorÓs

Certificate, Petitioner has the burden of proving by a

preponderance of evidence that he satisfies the applicable

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

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

20 . PetitionerÓs ultimate burden notwithstan ding,

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 Stern & Co. , 670 So. 2d at 934; Comp . Med . Access, Inc.

v. Off. o f Ins. Reg. , 983 So. 2d 45 (Fla. 1st DCA 2008).

21 . The criteria for an EducatorÓs Certificate are

established in section 1012.56(2) , Florida Statutes . 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.

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

the basis for Counts 1 through 5 of the Notice of Reason s . The

application of the licensing standards to those facts remains

for disposition.

C. Analysis

Count 1

23 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 1 of the Notice of Reasons

alleges that:

T he Applicant is in violation of section

1012.56(2)(e), Florida Statutes, which

requires that the holder of a Florida

Educator's Certificate be of good moral

character .

24 . The difficult y in fairly applying a subjective and

imprecise standard as Ð good moral character 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 Unit ed States 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 unlimited 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 arbitrary and discriminatory denial of

the right to practice law.

In re Fla. Bd. of Bar Exam Ór s , 373 So. 2d 890, 891 (Fla. 1979) .

25 . The imprecision of the Ðgood moral characterÑ standard

does not, however, restrict it s 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

appropriat e 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.

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

of recommended and final orders in educator certification cases

have relied upon the standard set forth in Zemour, Inc. v. State

Div. of Beverage , 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977),

which sta ted:

Moral character, as used in this statute,

means not only the ability to distinguish

between right and wrong, but the character

to observe the difference; the observance of

the rules of right conduct, and conduct

which indicates and establishes the

qualitie s generally acceptable to the

populace for positions of trust and

confidence. An isolated unlawful act or

acts of indiscretion wherever committed do

not necessarily establish bad moral

character. But, as shown by the evidence

here, repeated acts in viola tion 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).

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

seeking certifi cation 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 he committed acts that would

suggest a lack of mor al character at the time of their

commission .

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

crime committed by Petitioner occurred more than 20 years ago.

There is nothing in the record to suggest that it was more than

an isolated chapter in his life. He paid his Ðdebt to society,Ñ

and there is no evidence of any subsequent acts or conduct that

would negatively reflect on PetitionerÓs character.

29 . The evidence adduced at the hearing regarding

PetitionerÓs failure to disclose his conviction on the

application suggested some degree of confusion . Though his

testimony was not particularly persuasive, it was not totally

unbelievable. I n any event the circ umstances were not so

egregious as to suggest an overall inability to distinguish

right from wrong.

30 . Based on the record developed in this proceeding,

Petitioner has demonstrated that he is currently of good moral

character as that term is used in section 1012.56(2)(e). Thus,

the allegations in C ount 1 do not warrant denial of Petitioner's

application for an Educator's Certificate.

Count 2

31 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 2 of the Not ice of Reasons

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 the

department possesses evidence satisfactory

to it that the App licant 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.

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

no specific act is alleged as a part of Count 2 itself. Rather,

Count 2 takes those acts listed as grounds for revocation in

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

in Counts 3 through 5 , and adopts them as grounds for denial of

an application. Thus, the substance of Count 2 is as set forth

in Counts 3 through 5 .

33 . The basis for Count 2 being those standards set forth

in Counts 3 through 5 , the analysis of the substance of Counts 3

through 5 shall stand as being applicable to Count 2 .

34 . Although Counts 3 through 5 alle ge that Petitioner

violated section 1012.795(1)(a), (d), and (f), an applicant who

does not hold an Educator's Certificate cannot violate those

provisions, but rath er is subject to denial of an application

through the adoption of the revocation standards in section

1012.56(12)(a). Although Counts 3 through 5 may be technically

deficient for failing to individually incorporate section

1012.56(12)(a), the substance of the bases for denial were

clear, particularly in light of the recitation of section

1012.56(12)(a) in Count 2, and Petitioner was not prejudiced in

preparing his defense.

Count 3

35 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 3 of the Notice of Reasons

alleges that:

The Applicant is in violation of section

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

Applicant obtained or attempted to obtain a

teaching certificate by fraudulent means.

36 . In general, misrepresentation requires an element of

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

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

attorney acted with dish onesty, misrepresentation, deceit, or

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

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

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

deliberate or knowing.ÓÑ ) (internal cit ations omitted).

37 . PetitionerÓs explanation for failing to disclose his

criminal conviction, despite the explicit instruction that he do

so, was not convincing. Thus, the allegation in C ount 3

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

Certificate.

Count 4

38 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 4 of the Notice of Reasons

alleges that:

The Applicant is in violation of Section

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

Ap plicant has been guilty of gross

immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

39 . Florida Administrative Code Rule 6A - 10.083 , in

pertinent part, defines Ðgross immoralityÑ and Ðmoral turpitudeÑ

as follows:

(1) For the purpose of section

1012.795(1)(d), F.S., the term gross

immorality shall be defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

that is serious, rather than minor in

nature, and which constitutes a flagrant

disregard for proper moral standards.

Further, the conduct brings the individual

concerned or the education profession into

public disgrace or disrespect and impairs

the individualÓs service in the community.

(2) Without limiting the conduct here

defined, conduct listed below in paragraphs

(2)(a) - (c), shall prompt review for gross

immorality. In determining whether the

conduct, act or omission meets the

definition of gross immorality, the factors

found in subsection (4) shall be considered.

(a) An act or omission, regardless of

whether the individual is charged with or

convicted of any criminal offense, which

would constitute a felony or a first degree

misdemeanor under the laws of the State of

Florida or equivalent law in another state

or U.S. Territory, or laws of the United

States of America.

(b) An act or omission which results in the

intentional falsification of any document or

information submitted by an educator for the

purpose of inducing the Florida Departmen t

of Education to issue, reissue, or renew a

Florida educatorÓs certificate.

* * *

(3) For the purpose of sections

1012.795(1)(d) and 1012.796, F.S., an act of

moral turpitude shall be defined as a crime,

regardless of whether the individual is

charged or convicted, that is a felony or a

first degree misdemeanor under the laws of

the State of Florida or equivalent law in

another state or U.S. Territory, or laws of

the United States of America, 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 tim e, 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.

(4) The following factors shall be

considered in determining whether an act or

omission rises t o the level of gross

immorality or moral turpitude under

subsections (1), (2), and (3):

(a) The educatorÓs dishonesty or deception;

(b) The educatorÓs use, attempted use or

threatened use, of violence;

(c) The educatorÓs malice or cruelty;

(d) The educatorÓs deliberation,

premeditation, or contemplation of an act;

(e) The educatorÓs repeated behavior that

displays a disregard for law, order, or

human safety;

(f) The harm, injury or insult to the

victim;

(g) The age, ability or limitation of t he

victim;

(h) The benefit derived by the educator;

(i) The presence or absence of mitigating

factors, such as the educatorÓs age,

experience, mental illness, or actions in

self - defense.

40 . The evidence supports a conclusion that Petitioner

falsified the application for the purpose of inducing Respondent

to issue the Florida EducatorÓs Certificate. Based on the

foregoing, Petitioner was Ð guilty of gross immorality . . . as

defined by rule of the State Board of Education , Ñ i.e., Ðconduct

that is inconsistent with the standards of public conscience and

good morals . Ñ

41 . ÐMoral turpitudeÑ involves a different and , in the

view of the undersigned, more egregious standard than Ð gross

immorality .Ñ The crime in this case was Ðconspiracy to commit

money laundering.Ñ A review of the Second Superseding

Indictment demonstrates that Petitioner played a minor role in

the overall scheme. Although he pled guilty to the crime, and

was sentenced accordingly, Petitioner was not Ð guilty of . . .

an act involving moral turpitude as defined by rule of the State

Board of Education , Ñ i.e., Ðan act of baseness, vileness or

depravity . Ñ

42 . The conclusion that Petitioner engaged in conduct that

meets the definition of gross immorality -- both in the late

1990s and in conjunction with the submission of his application

for an Educator's Certificate -- warrant s denial of Petitioner's

application for an Educator's Certificate.

Count 5

43 . As a basis for the denial of PetitionerÓs application

for an EducatorÓs Certificate, Count 5 of the Notice of Reasons

alleges that:

The Applicant is in violation of Section

1012.795(1)(f), Florida 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

charg e, other than a minor traffic

violation.

44 . Respondent proved that Petitioner was found guilty of

the federal felony offense of conspiracy to commit money

laundering for which he was sentenced to serve 46 months in

prison .

45 . Petitioner did not arg ue or prove that h is conviction

were the result of threats, coercion, or fraudulent means.

Thus, the allegations in C ount 5 warrant denial of Petitioner's

application for an Educator's Certificate under the broad

auspices of section 1012.795(1)(f).

D. Conclusion

46 . Section 1012.56(12)(a) provides that the Department of

Education may deny an EducatorÓs Certificate for offenses

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

47 . PetitionerÓs demonstration of fitness was based

entirely on t he passage of time which, though not insignificant,

is not sufficient by itself to establish his fitness for an

EducatorÓs Certificate.

48 . For the reasons set forth herein, Respondent is

warranted in its decision to deny Petitioner Ós application for a

Florida EducatorÓs Certificate .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Education enter a

final order denying Petitioner, Luis AmaranteÓs application for

a Florida EducatorÓs Certificate .

DONE AND ENTERED this 14 th day of January , 201 9 , 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 14 th day of January , 201 9 .

ENDNOTE

1/ This case was previously styled with Pam Stewart as

Commissioner of Ed ucation. On January 8, 2019, Richard Corcoran

as sumed the office of Commissioner of Education, and the style

has been amended accordingly.

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)

Luis Amarante

Apartment 229

1 Condominio Los Naranjales

Carolina, Puerto Rico 00985 - 5879

J. David Holder, Esquire

J. David Holder, P.A.

300 Fox Meadow Lane

Thomasville, Georgia 31757

(eServed)

Marian Lambeth, Chief

Office of Professional

Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

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.