91-005289 Betty Castor, As Commissioner Of Education vs. Michael R. Lawless Status: Closed Recommended Order on Thursday, February 13, 1992.

Summary: Teacher not guilty of gross immorality, moral turpitude or other conduct as a result of Rule 11. A plea agreement in fed. is plea of convenience.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5289

)

MICHAEL R. LAWLESS, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before

Daniel Manry, a duly designated Hearing Officer of the Division of

Administrative Hearings, on December 3, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Margaret E. O'Sullivan, Esquire

Education Practices Commission

301 Florida Education Center

325 West Gaines Street, Suite 352

Tallahassee, Florida 32399-0400

For Respondent: Jesse J. McCrary, Esquire

McCrary Blizzard & Mosley

2800 Biscayne Boulevard, Eighth Floor

Miami, Florida 33137-4500

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent is

guilty of the allegations in the Administrative Complaint and, if so, what, if

any, disciplinary action should be taken against his teaching certificate.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint against Respondent on July

24, 1991. Respondent requested a formal hearing on August 14, 1991. The matter

was referred to the Division of Administrative Hearings on August 22, 1991, for

assignment of a hearing officer and assigned to Hearing Officer William J.

Kendrick on August 27,1991. A formal hearing was scheduled for December 3,

1991, pursuant to a Notice of Hearing issued on September 10, 1991. The matter

was transferred to the undersigned prior to the formal hearing. At the formal

hearing, Petitioner presented the testimony of Desmond Patrick Grey, Jr.,

Assistant Superintendent for the Office of Professional Standards, School Board

of Dade County. Petitioner submitted five exhibits for admission in evidence.

Petitioner's exhibits were admitted in evidence without objection. 1/

Respondent presented the testimony of four witnesses 2/ and submitted no

exhibits for admission in evidence.

A transcript of the formal hearing was requested by Petitioner and filed

with the undersigned on December 19, 1991. The parties timely filed their

proposed findings of fact and conclusions of law on January 6, 1992. The

parties' proposed findings of fact are addressed in the Appendix to this

Recommended Order.

FINDINGS OF FACT

1. Respondent is the holder of a valid teaching certificate from the State

of Florida, number 385162. Respondent's teaching certificate is valid through

June 30, 1995. Respondent is certified to teach math in grades 1-12.

2. Respondent has been a teacher at Southridge Senior High School in Dade

County, Florida (" Southridge") from 1975 through 1990. During that time,

Respondent taught advanced mathematics, trigonometry, and calculus. Respondent

was an inspirational teacher to his students and was rated as an above- average

teacher by his Department Head and Principle.

3. Respondent pled guilty on November 6, 1989, to a federal charge of

using a communication facility for the commission of a felony. Respondent sent

a package of cocaine by United States Parcel Service to an individual in

Michigan on or about November 7, 1986. An indictment was entered in the Eastern

District of Michigan on January 22, 1990, 3/ charging Respondent with two

counts of use of a communication facility for the commission of a felony, in

violation of 21 USC Section 843(b), one count of possession with intent to

distribute cocaine, in violation of 21 USC Section 841(a)(1), and two counts of

possession of cocaine in violation of 21 USC Section 844(a).

4. Respondent entered into a Rule 11 Plea Agreement 4/ in which

Respondent pled guilty to a single count of using a communication facility for

the commission of a felony. The remaining counts against Respondent were

dismissed. A judgment was entered against Respondent on August 8, 1990.

Sentencing was withheld, and Respondent was placed on probation for two years.

During the period of probation, Respondent was required to reside in a community

treatment center with a work release program for three months, and to pay a fine

of $1,000. Respondent successfully completed his probation.

5. In August, 1990, Respondent notified Dr. Fred Rogers, the Principal at

Southridge, of the criminal judgment entered against him. Dr. Rogers notified

the Office of Professional Standards that Respondent had been convicted of a

drug related offense.

6. The Office of Professional Standards conducted an investigation and

confirmed Respondent's conviction through the official court records. During

the investigation, Respondent was removed from direct contact with students and

placed in an alternative position in a district regional office. Respondent did

not engage in illegal activity while on duty at Southridge or while otherwise

involved with the school. 5/

7. The Dade County School Board (the "School Board") initiated a dismissal

proceeding against Respondent. In School Board of Dade County v. Lawless, DOAH

Case No. 90-7092 (Final Order April 5, 1991), Hearing Officer Linda M. Rigot

concluded 6/ that the School Board had failed to prove that Respondent was

guilty of immorality as defined in Florida Administrative Code Rule 6B-4.009(2)

but that the School Board had demonstrated that the Respondent had been

convicted of a crime involving moral turpitude as defined in Rule 6B-4.009(6).

Hearing Officer Rigot recommended that Respondent be suspended without pay from

October 24, 1990, through the close of the 1990-1991 school year, and that

Respondent be reinstated to his position at the beginning of the following

school year.

8. The Final Order of the School Board accepted the recommended order in

Lawless. Respondent was suspended for one year and reinstated to his teaching

position at the beginning of the 1991-1992 school year.

9. Respondent's conduct and the criminal judgment entered against him did

not bring Respondent or his profession into public disgrace or disrespect.

There was little or no notoriety in the local community concerning Respondent's

criminal offense. The limited notoriety that occurred was the result of the

disciplinary proceeding brought by the School Board. There was little or no

notoriety among Respondent's colleagues, students, parents or the general

public. Respondent's conduct was not base, vile, or depraved. 7/

10. Respondent's conduct and the ensuing criminal judgment against him did

not reduce, to any extent, Respondent's effectiveness either as an employee of

the School Board or as a teacher in the classroom and did not impair

Respondent's service to the community. Respondent's effectiveness as a teacher

and his professional reputation were not impaired by his conduct or the criminal

judgment against him. Respondent's reputation, character, competence, and

performance in and out of the classroom are regarded as exceptional by

Respondent's Department Head, by his Principal, and by his former students.

Respondent is a valuable asset to the School Board, Southridge, and the

community they serve.

11. During the time Respondent was suspended from his teaching duties, the

mathematics department at Southridge experienced a decline in math scores in

advanced placement tests. Competent advanced math teachers are difficult to

obtain. Superior math teachers are even rarer. Both the Math Department Head

and Principal at Southridge want Respondent to continue his teaching duties at

Southridge.

12. Respondent has no substance abuse problem. Respondent has never been

enrolled in the Employee Assistance Program (" EAP") operated by the School

Board. The EAP is operated by the School Board for the purpose of assisting

teachers with substance abuse problems in overcoming their dependency and

returning them to the classroom as effective teachers. Respondent has returned

to the classroom, is an effective teacher, has never had and does not now have a

substance abuse problem.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this proceeding pursuant to Section 120.57(1),

Florida Statutes. The parties were duly noticed for the formal hearing.

14. Petitioner has the burden of proof in this proceeding. Where an

agency seeks to revoke a professional license, the evidence must be clear and

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

15. Section 231.28(1)(f), Florida Statutes, provides in relevant part that

the Education Practices Commission (the "Commission") may suspend a person's

teaching certificate for up to three years, revoke a person's teaching

certificate for up to 10 years, revoke a person's teaching certificate

permanently, or impose any other penalty provided by law if the Commission can

show that such person:

. . . has been found guilty of personal conduct which

seriously reduces that person's effectiveness as an

employee of the school board . . . .

16. Respondent's conduct and the criminal judgment entered against him did

not reduce, to any extent, Respondent's effectiveness as an employee of the Dade

County School Board (the "School Board") within the meaning of Section

231.28(1)(f), Florida Statutes. Respondent's reputation, character, competence,

and performance in and out of the classroom are regarded as exceptional by

Respondent's Department Head, by his Principal, and by his former students.

Both the Math Department Head and Principal at Southridge want Respondent to

continue his teaching duties at Southridge.

17. Section 231.28(1)(c), Florida Statutes, provides in relevant part that

the Commission may suspend or revoke a person's teaching certificate if the

Commission can show that such person:

. . . has been guilty of gross immorality or an act

involving moral turpitude . . . .

18. Petitioner failed to show by clear and convincing evidence that

Respondent is guilty of "gross immorality. "Florida Administrative Code Rule

6B-4.009(2) defines the term "immorality" 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 to the community.

19. Petitioner failed to prove by clear and convincing evidence that

Respondent's conduct was "grossly immoral." While a felonious act is

inconsistent with the public conscience and good morals, Respondent's conduct

failed to satisfy the other two elements of immorality established in Florida

Administrative Code Rule 6B-4.009(2). Respondent's conduct was not sufficiently

notorious to bring either Respondent or the teaching profession into public

disgrace or disrespect and did not impair his service to the community within

the meaning of Rule 6B-4.009(2). Even if Respondent's conduct was "immoral"

within the meaning of Florida Administrative Code Rule 6B-4.009(2), it was not

"grossly" immoral within the meaning of Section 231.28(1)(c), Florida Statutes.

20. Section 231.28(1)(c), Florida Statutes, also provides that the

Commission may suspend or revoke a person's teaching certificate if the person

has been found guilty of an act of moral turpitude. Florida Administrative Code

Rule 6B- 4.009(6) defines moral turpitude as:

. . . 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 itselfand not its

prohibition by statute fixes the moral turpitude.

21. Petitioner failed to show by clear and convincing evidence that

Respondent is guilty of a crime evidenced by an act of moral turpitude within

the meaning of Section 231.28(1)(c), Florida Statutes, and Florida

Administrative Code Rule 6B-4.009(6). In Pearl v. Florida Board of Real Estate,

394 So.2d 189, 192 (Fla. 3d DCA 1981), the court found that mere possession of a

controlled substance is not a crime involving an act of moral turpitude. The

charge against Respondent of possession of cocaine was dismissed in the plea

agreement entered into in the federal case against Respondent. While the court

in Pearl cited cases finding that the sale of a controlled substance is an act

of moral turpitude, no evidence was presented during the formal hearing that

Respondent sold cocaine through the mail. 8/ Moreover, the act committed by

Respondent was not a base, vile, or depraved act within the meaning of Rule 6B-

4.009(6). 9/

22. In School Board of Dade County v. Lawless, DOAH Case No. 90-7092,

(Final Order April 5, 1991), Hearing Officer Linda M. Rigot concluded that the

School Board demonstrated that Respondent had been convicted of a crime

involving an act of moral turpitude as defined in Florida Administrative Code

Rule 6B-4.009(6). The doctrines of res judicata and collateral estoppel are

applicable to administrative proceedings. Hays v. State, Department of Business

Regulation, Division of Pari-Mutuel Wagering, 418 So.2d 331, 332 (Fla. 3d DCA

1982); Carol City Utilities, Inc. v. Miami Gardens Shopping Plaza, Inc., 165

So.2d 199, 200 (Fla. 3d DCA 1964). This proceeding, however, is not bound by

the conclusions reached in Lawless on the basis of either doctrine.

23. Under the doctrine of res judicata, a final judgment on the merits is

conclusive as to matters which were or could have been determined in the prior

proceeding and will bar a subsequent action between the same parties on the same

cause of action. McGregor v. Provident Trust Co. of Philadelphia, 162 So323,

327 (Fla. 1935); Wacaster v. Wacaster, 220 So.2d 914 (Fla. 4th DCA 1969). See

also Casines v. Murchek, 766 F.2d 1494, 1499 (11th Cir. 1985). The standard of

proof in Lawless was less than the standard of proof in this proceeding. In

Lawless, the School Board was able to prove its allegations by a preponderance

of the evidence. 10/ The allegations in this proceeding must be proven by clear

and convincing evidence. 11/ This proceeding does not involve the same parties.

The Petitioner in Lawless was the School Board. The Petitioner is this

proceeding is the Commission. The cause of action is also different. The cause

of action in Lawless sought to suspend or terminate Respondent's employment by

the School Board. The cause of action in this proceeding seeks to suspend or

revoke Respondent's teaching certificate. 12/

24. Respondent is not barred by the doctrine of collateral estoppel from

denying that he is guilty of a crime involving an act of moral turpitude. The

doctrine of collateral estoppel precludes a party from asserting in one

proceeding a position that is inconsistent with that party's position in a prior

proceeding. See, e.g., In re Holiday Isles, Ltd., 29 B.R. 827, 831 ( Bankr. S.D.

Fla. 1983); McKee v. State, 450 So.2d 563 (Fla. 3rd DCA 1984). Respondent has

not taken inconsistent positions in this proceeding and the proceeding in

Lawless. Respondent asserted in both proceedings that he had not been guilty of

a crime involving an act of moral turpitude.

25. Section 231.28(1)(e), Florida Statutes, provides in relevant part that

the Commission may suspend or revoke a person's teaching certificate if the

Commission can show that such person:

. . . has been convicted of a misdemeanor,felony, or

any other criminal charge, other than a minor

traffic violation . . . .

26. Petitioner showed by clear and convincing evidence that Respondent was

convicted of a felony in violation of Section 231.28(1)(e), Florida Statutes.

Respondent was adjudged guilty of a felony under federal law. The adjudication

of guilt was made after Respondent entered into a plea agreement in which

Respondent pled guilty to one count. The judgment of guilt dismissed the other

five counts against Respondent, withheld sentencing, and placed Respondent on

probation which Respondent successfully completed. 13/

27. Petitioner is not required to suspend or revoke Respondent's teaching

certificate as a result of Respondent's violation of Section 231.28(1)(e),

Florida Statutes. Section 231.28(1) authorizes the Commission to suspend or

revoke Respondent's teaching certificate under prescribed circumstances but does

not require such action. Section 231.28(1)(e) provides in relevant part that

the Commission ". . . shall have authority . . . " to suspend or revoke a

person's teaching certificate under certain circumstances. The quoted language

means that the Commission may suspend or revoke a teaching certificate but is

not required to do so. 14/

28. Section 231.28(2), Florida Statutes, provides in relevant part that a

plea of guilty in any court or a decision of guilt in any court:

. . . shall be prima facie proof of grounds for

revocation of the certificate . . . in the absence of

proof by the certificate holder that the plea of guilty

. . . was caused by threats, coercion, or fraudulent

means.

Respondent's plea of guilty in federal court constitutes prima facie proof of

grounds for revocation of Respondent's teaching certificate.

29. The language in Section 231.28(2), Florida Statutes, which provides

that a plea of guilty or a decision of guilt

". . . shall be prima facie proof of grounds forrevocation . . ." does not

require that Respondent's teaching certificate be revoked. In Ayala v.

Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985), the

court considered the following provision in Section 458.331(1)(c), Florida

Statutes:

(1) The following acts shall constitute grounds for

which the disciplinary actions in subsection (2) may be

taken: (emphasis added)

* * *

(c) Being convicted or found guilty of, or entering a

plea of nolo contendere to, regardless of adjudication,

a crime . . . which directly relates to the practice of

medicine or the ability to practice medicine.

The court held that a statutory provision that a plea of nolo contendere "shall

constitute grounds" for revocation of a physician's license, was properly

construed as creating only a rebuttable presumption of the licensee's guilt of

the underlying criminal offense. 15/

30. In Kinney v. Department of State, Division of Licensing, 501 So.2d 129

(Fla. 5th DCA 1987), the court considered language in former Section 493.319(1),

Florida Statutes, which provided that having been found guilty of the commission

of a crime ". . . constitutes grounds for . . . disciplinary action . . . ." 16/

(emphasis added) In Kinney, the court held that the respondent was not found

guilty of a crime when adjudication of guilt is withheld, even though former

Section 493.319(1)(c) provided that conviction of a crime, regardless of

adjudication of guilt, "constitutes grounds" for disciplinary action.

31. Prima facie evidence is evidence that is presumed to be true and will

prevail until contradicted or overcome by other evidence. 17/ It differs from a

rebuttable presumption in that a rebuttable presumption may be created

statutorily and need not be created by evidence. 18/ The difference between a

rebuttable presumption and facts that are characterized by statute as prima

facie grounds is a difference without a distinction to the extent that both may

be rebutted or overcome by other evidence. 19/

32. Mitigating factors that should be considered to overcome the prima

facie grounds for revocation of Respondent's teaching certificate and to

determine the penalty to be imposed against Respondent are not prescribed in

either Chapter 231, Florida Statutes, or in Petitioner's own rules. Nor was any

clear and convincing evidence of the policy or factors, written or otherwise,

which should be applied for either purpose submitted by Petitioner during the

formal hearing. 20/

33. In the absence of a written rule, an agency is required to explain on

a case by case basis its discretionary action which affects a party's

substantial interests. McDonald v. Department of Banking and Finance, 346 So.2d

569, 582-584 (Fla. 1st DCA 1977). Petitioner must explain the agency's

rationale and must address countervailing arguments developed in the record.

Even when policy considerations are involved, it is the agency's duty to

explicate its policy and address countervailing arguments in the record. Fraser

v. Lewis, 360 So.2d 1116, 1118 (Fla. 1st DCA 1978).

34. Petitioner presented no persuasive evidence during the formal hearing

that explicated the policy or factors, written or otherwise, that are to be

considered to overcome the prima facie grounds for revocation of Respondent's

teaching certificate and to determine the penalty to be imposed against

Respondent. Furthermore, Petitioner did not present evidence that the issue of

which factors should be considered to overcome prima facie grounds for

revocation and the issue of what penalty should be imposed are issues within any

special expertise possessed by Petitioner.

35. The reasons and circumstances surrounding Respondent's criminal

conviction may be considered in mitigation of any punishment which the

Commission is authorized to impose. Ayala v. Department of Professional

Regulation, 478 So.2d 1116, 1119 (Fla. 1st DCA 1985). Evidence of whether the

conviction directly relates to Respondent's effectiveness as a teacher or his

ability to teach is another consideration frequently used in licensing statutes

pertaining to licensees in other occupations or professions. 21/ Respondent's

conduct did not reduce or impair, in any capacity, Respondent's effectiveness as

a teacher and employee and did not impair his service to Southridge and the

community it serves. Respondent has already been suspended from his employment

for one year by the School Board and successfully completed his probation

required by federal court for the same act that is the subject of this

proceeding. Considering all the surrounding facts and circumstances in this

proceeding, neither suspension nor revocation appear to be appropriate

penalties.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

recommended that Respondent be found guilty of violating Subsection

231.28(1)(e), Florida Statutes, and that a written reprimand be issued against

Respondent.

RECOMMENDED this 13th of February 1992, in Tallahassee, Florida.

___________________________________

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of February 1992.

ENDNOTES

1/ Petitioner's Exhibit 1 is a certified copy of an indictment in the United

States District Court, Eastern District of Michigan, Northern Division, in Case

No. 90-47- CR-Davis-1. Petitioner's Exhibit 2 is a certified copy of a Rule 11

Plea Agreement in Case No. 90-47- CR-Davis-1. Petitioner's Exhibit 3 is a

certified copy of the Judgment in Case No. 90-47- CR-Davis-1. Petitioner's

Exhibit 4 is a copy of Petitioner's First Request For Admissions By Respondent

with completed admissions in this proceeding. Petitioner's Exhibit 5 is a

certified copy of Respondent's Application/Certification Status in Florida.

2/ Respondent's witnesses were Messrs. Robert Kevers and Thomas Carol Paul,

former students of Respondent's and currently students at the University of

Florida, Ms. Jean Friedman, Head of the Math Department, Miami Southridge Senior

High, and Mr. Fred Rogers, Principle, Miami Southridge Senior High.

3/ The record shows that the plea agreement was entered into on November 6,

1989, and that the indictment was filed on January 22, 1990.

4/ The plea agreement was entered pursuant to Rule 11(e)(1)(C) of the Federal

Rules of Criminal Procedure.

5/ As a result of the investigation, the Dade County School Board did not find

that Respondent had engaged in illegal activity while on duty at Southridge or

while otherwise involved with the school.

6/ No findings of fact were made by Hearing Officer Rigot regarding the issues

of immorality and moral turpitude. Those issues were addressed in her

conclusions of law.

7/ Fla. Admin. Code. Rule 6B-4.009(6) defines a crime involving moral turpitude

as one involving an act of ". . . baseness, vileness, or depravity . . . ."

8/ Respondent merely possessed and mailed cocaine. The substance mailed by

Respondent was defined by statute as being illegal as was the act of mailing

such a substance. If a substance is not defined by statute as illegal and if

the mailing of such a substance is not prohibited by statute, then Respondent's

conduct would have been no more an act of moral turpitude than the possession

and mailing of other legalized drugs such as pharmaceutical narcotics used in

surgery, including cocaine. In other words, it is the statutory prohibition

that establishes the alleged "moral turpitude" in this instance rather than the

act itself. Petitioner's rule requires that the doing of the act itself, rather

than its prohibition by statute, must constitute the moral turpitude. Compare

Soetarto v. Immigration and Naturalization Service, 516 F.2d 778, 780 (7th Cir.

1975) (holding that the crime of theft has always been held to involve moral

turpitude).

9/ Respondent committed a single, isolated act of mailing a substance which is

statutorily defined as illegal. For such an act to be considered base, vile,

and depraved, it would be necessary to equate the act of mailing cocaine with

such base, vile, and depraved acts as murder, rape, theft, sexual or physical

abuse of children, and the distribution, by sale or other means, of controlled

substances to children. To equate Respondent's single isolated act with the

foregoing base, vile, and depraved acts is spurious.

10/ See, Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA

1990).

11/ Ferris, 510 So.2d 292, supra.

12/ The issues of immorality and moral turpitude were discussed by Hearing

Officer Rigot in the conclusions of law rather than in the findings of fact of

her Recommended Order. While the distinction between findings of fact and

conclusions of law may be a consideration in applying the doctrine of res

judicata, it is not necessary to consider such a distinction here because the

doctrine of res judicata is not applicable in this proceeding for other reasons.

For cases discussing the distinction between findings of fact and conclusions of

law, see Kinney v. Department of State, Division of Licensing, 501 So.2d 129,

132 (Fla. 5th DCA 1987); Morris v. Department of Professional Regulation, 474

So.2d 841 (Fla. 5th DCA 1985); Leapley v. Board of Regents, 423 So.2d 431 (Fla.

1st DCA 1983).

13/ Respondent's plea may have been a plea of convenience in the same sense

that a plea of nolo contendere is a plea of convenience. Rule 11(e), Federal

Rules of Criminal Procedure, is intended to permit plea negotiations to be

carried on between counsel for the government and the accused. In a plea

agreement under Rule 11(e)(1)(c), the government counsel agrees to accept a

specific sentence as appropriate disposition of the case. There must be

acceptance by the court so that the defendant will know whether he or she will

receive the bargained-for concessions. The great majority of all defendants

against whom indictments or information are filed in federal courts plead guilty

or, with the permission of the court, nolo contendere. See Moore's Federal

Practice, 1992 Rules Pamphlet, pgs. 110-118 (Matthew Bender 1992).

14/ Compare the language in Sec. 626.611, Fla. Stat., which provides grounds

for compulsory disciplinary action, with that in Sec. 626.621, which provides

grounds for discretionary disciplinary action.

15/ Respondent, like the licensee, under the Ayala rationale, was not limited

in this proceeding to presenting evidence of the surrounding facts and

circumstances for the limited purpose of mitigating any penalties that may be

imposed. He was entitled to assert his innocence of the underlying criminal

charge and present evidence explaining the reasons and circumstances surrounding

the plea agreement. However, Respondent presented no such evidence at the

formal hearing.

16/ Former Sec. 493.319(1), Fla. Stat., provided in relevant part:

(1) The following constitute grounds for which

disciplinary action specified in subsection (2) may be

taken:

* * *

(c) Having been found guilty of the commission of a

crime which directly relates to the business for which

the license is held, regardless of adjudication of

guilt.

17/ Black's Law Dictionary, p.1189 (West Publishing Co. 1990) [hereinafter

"Black's"].

18/ Black's at 1185.

19/ The type of statutory scheme found in Ch. 231 and Ch. 458, Fla. Stat., is

distinguishable from the type of statutory scheme found in Ch. 943, Fla. Stat.

In McNair v. Criminal Justice Standards And Training Commission, 518 So.2d 390

(Fla. 1st DCA 1987), the court considered a provision in Sec. 943.1395(5) which

provided that the Criminal Justice Standards and Training Commission ". . .

shall revoke the certificate of any officer . . . not in compliance with s.

943.13(1)-(10) . . . . Sec. 943.13(4) precluded any person who pled guilty to

a criminal offense from being employed as a correctional officer. The court

stated:

A plea of nolo contendere or guilty is not evaluated

under section 943.13(4) as conclusive evidence of the

commission of a wrongdoing. Instead, entry of the plea

itself creates noncompliance with section 943.13(4) . .

. This statutory scheme is distinguishable from that

in Ayala v. Department of Professional Regulation, 478

So.2d 1116 (Fla. 1st DCA 1985), in which a mandatory

interpretation of section 458.331(1)(c), providing that

a nolo plea "shall be considered a conviction," did

impermissibly convert the plea into a conviction.

The provision in Sec. 231.28(2) is the type of statutory scheme found in Sec.

458.331(1)(c) because it evaluates a plea of guilty as prima facie grounds for

revocation.

20/ The only evidence of such a policy or such factors was the expert opinion

testimony presented by Petitioner. That evidence was not persuasive and was

inconsistent with the approved policy represented by the Employee Assistance

Program (" EAP") which is used to assist teachers who have substance abuse

problems to return to their role as effective employees.

21/ See Secs. 458.331(1)(c), 626.6215(3), and 493.6118(1)(c), Fla. Stat.

(1991), and former Sec. 493.319(1), Fla. Stat.(1987). Compare Sec. 626.621(8),

Fla. Stat. (1991), which prescribes grounds for non-discretionary discipline and

does not contain the qualification that the offense for which the licensee is

convicted must be related to the practice of insurance.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5289

The parties submitted proposed findings of fact. It has been noted below

which proposed findings of fact have been generally accepted and the paragraph

number(s) in the Recommended Order where they have been accepted, if any. Those

proposed findings of fact which have been rejected and the reason for their

rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 Accepted in Finding 1

2, 3 Accepted in Finding 2

4, 5 Accepted in Finding 3

6, 7 Accepted in Finding 4

8 Accepted in Finding 5

9-11 Accepted in Finding 6

12 Accepted in Finding 9

13 Accepted in Conclusions

of Law 6

14, 18 Rejected as irrelevant

and immaterial (see discussion

in Conclusion of Law 20 and fn.)

15 Rejected as recited

testimony

16, 17 Rejected as irrelevant

and immaterial

19, 20 Accepted in Findings 7, 8

21 Rejected as conclusion

of law

22-24 Accepted in Finding 7

25, 26 Accepted in Finding 8

27 Accepted in Finding 11

28 Accepted in Finding 8

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1, 2 Accepted in Finding 1

3 Accepted in Finding 5

4 Accepted in Finding 6

5 Accepted in Findings 6, 7

6 Accepted in Finding 8

7-9 Accepted in Finding 9

10 Rejected as recited

testimony

11 Accepted in Finding 10

12 Accepted in Finding 9

13 Accepted in Finding 12

14 Rejected as irrelevant

and immaterial

15 Rejected as recited

testimony

16 See Finding 12

17, 18 Accepted in Finding 12

19 See Preliminary Statement

20 Rejected as recited

testimony

21 Rejected as not supported

by the evidence

22 See Preliminary Statement

23 Rejected as recited

testimony

24 Accepted in Finding 10

25 Accepted in Finding 11

26-28 Accepted in Finding 10

29 Accepted in Finding 9

COPIES FURNISHED:

Hon. Betty Castor

Commissioner of Education

The Capitol

Tallahassee, FL 32399-0400

Karen B. Wilde, Executive Director

Education Practices Commission

325 West Gaines Street, #301

Tallahassee, Florida 32399

Margaret E. O'Sullivan, Esquire

Education Practices Commission

301 Florida Education Center

325 West Gaines Street

Suite 352

Tallahassee, Florida 32399-0400

Jesse J. McCrary, Esquire

McCrary Blizzard & Mosley

2800 Biscayne Boulevard

Eighth Floor

Miami, Florida 33137-4500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION

OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 91-170- RT

vs. DOAH CASE NO. 91-5289

EPC INDEX NO. 92-069- FOF

MICHAEL R. LAWLESS,

Respondent.

___________________________/

FINAL ORDER

Respondent, MICHAEL R. LAWLESS, holds Florida educator's certificate no.

385162. Petitioner filed an Administrative Complaint seeking suspension,

revocation, permanent revocation or other disciplinary action against the

certificate.

Respondent requested a formal hearing and such was held before a hearing

officer of the Division of Administrative Hearings. A Recommended Order was

forwarded to the Commission pursuant to Section 120.57(1), F.S., which is

attached to and made a part of this Order.

A panel of the Education Practices Commission ( EPC) met on September 30,

1992, in Tampa Florida, to take final agency action. Petitioner was represented

by Margaret O'Sullivan, Attorney at Law; Respondent was represented by Jesse J.

McCrary, Jr., Attorney at Law. The panel reviewed the entire record in the

case.

Petitioner's Exception #1 was accepted by the panel, with agreement of

counsel for the Respondent, in that competent substantial evidence existed in

the record that the Respondent was convicted as stated in the administrative

complaint.

Petitioner's Exception #2 was rejected in that there was competent

substantial evidence in the record to support the objected to Finding of Fact.

Petitioner's Exception #3 was rejected in that there was competent

substantial evidence in the record to support the objected to Finding of Fact.

Petitioner's Supplemental Exception to (the Conclusions of Law of) the

Recommended Order was accepted in that as a matter of law Rule 6B-4.009 F.A.C.

is not controlling on the issues of this case in that said rule applies to

professional selection assignment, continuance, transfer and dismissal from

employment cases for educators and such actions are not within the jurisdiction

of the EPC which may discipline the certificate but not order such actions.

Petitioner's Exception #4 to the Conclusions of Law was rejected in that

the act in issue was immoral but not grossly immoral.

Petitioner's Exception #5 to the Conclusions of Law was accepted in that

the acts that Respondent was found guilty of were acts of moral turpitude.

Petitioner's Exception #6 was withdrawn for later argument in the penalty

phase of the panel's consideration of the case.

The panel adopts the Findings of Fact of the Recommended Order with the

modification to paragraph three of the Findings of Fact to include the statement

"Respondent was adjudged guilty and convicted of said felony under federal law"

after the first sentence of said paragraph.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings ( D.O.A.H.) has jurisdiction

over the subject matter and the parties to this proceeding pursuant to Section

120.57(1), F.S. The parties were duly noticed for the formal hearing.

2. Petitioner has the burden of proof in this proceeding. Where an agency

seeks to revoke a professional license, the evidence must be clear and

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

3. Section 231.28(1)(f), F.S., provides in relevant part that the EPC (the

"Commission") may suspend a person's teaching certificate for up to three years,

revoke a person's teaching certificate for up to 10 years, revoke a person's

teaching certificate permanently, or impose any other penalty provided by law if

the Commission can show that such person:

... has been found guilty of personal conduct which

seriously reduces that person's effectiveness as an

employee of the school board...

4. Respondent's conduct and the criminal judgment entered against him did

not reduce, to any extent, Respondent's effectiveness as an employee of the Dade

County School Board (the "School Board") within the meaning of Section

231.28(1)(f), F.S. Respondent's reputation, character, competence, and

performance in and out of the classroom are regarded as exceptional by

Respondent's Department Head, by his Principal, and by his former students.

Both the Math Department Head and Principal at Southridge want Respondent to

continue his teaching duties at Southridge.

5. Section 231.28(1)(c), F.S., provides in relevant part that the

Commission may suspend or revoke a person's teaching certificate if the

Commission can show that such person:

... has been guilty of gross immorality of an act

involving moral turpitude....

6. Petitioner failed to show by clear and convincing evidence that

Respondent is guilty of "gross immorality." Florida Administrative Code Rule

6B-4.009(2), which is not controlling, but provides guidance, defines the term

"immorality" 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 to the community.

7. Petitioner failed to prove by clear and convincing evidence that

Respondent's conduct was "grossly immoral." Even if Respondent's conduct was

"immoral" within the meaning of F.A.C. Rule 6B-4.009(2), it was not "grossly"

immoral within the meaning of Section 231.28(1)(c), F.S.

8. Section 231.28(1)(c), F.S., also provides that the Commission may

suspend or revoke a person's teaching certificate if the person has been found

guilty of an act of moral turpitude. F.A.C. Rule 6B-4.009(6), which again is

not controlling but provides guidance, defines moral turpitude as:

... a crime that is evidenced by an act of

baseness, vileness of 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.

9. Petitioner has shown by clear and convincing evidence that Respondent

is guilty of a crime evidenced by an act of moral turpitude within the meaning

of Section 231.28(1)(c), F.S. In his Recommended Order, the Hearing Officer

cited to and relied upon Pearl v. Florida Board of Real Estate, 394 So.2d 189

(Fla. 3d DCA 1981), in order to support his conclusion that possession of a

controlled substance did not constitute an act of moral turpitude (Recommended

Order, page 10). In Adams v. State Professional Practices Council, 406 So2d

1170 (Fla. 1st DCA 1981), the court specifically addressed the issue of

possession of a controlled substance by an educator, and held that Pearl was not

relevant because teachers were held to a different and higher moral standard.

Adams at 1172.

10. In School Board of Dade County v. Lawless, DOAH Case No. 90-7092,

(Final Order April 5, 1991), Hearing Officer Linda M. Rigot concluded that the

School Board demonstrated that Respondent had been convicted of a crime

involving an act of moral turpitude as defined in F.A.C. Rule 6B-4.009(6). The

doctrines of res judicata and collateral estoppel are applicable to

administrative proceedings. Hays v. State, Department of Business Regulation,

Division of Pari-Mutuel Wagering, 418 So2d 331, 332 (Fla. 3d DCA 1982); Carol

City Utilities, Inc. v. Miami Gardens Shopping Plaza, Inc., 165 So.2d 199, 200

(Fla. 3d DCA 1964). This proceeding, however, is not bound by the conclusions

reached in Lawless on the basis of either doctrine.

Under the doctrine of res judicata, a final judgment on the merits is

conclusive as to matters which were or could have been determined in the prior

proceeding and will bar a subsequent action between the same parties on the same

cause of action. McGregor v. Provident Trust Co. of Philadelphia, 162 So. 323,

327 (Fla. 1935); Wacaster v. Wacaster, 220 So.2d 914 (Fla. 4th DCA 1969). See

also Casines v. Murchek, 766 F. 2d 1494, 1499 (11th Cir. 1985). The standard of

proof in Lawless was less than the standard of proof in this proceeding. In

Lawless, the School Board was able to prove its allegations by a preponderance

of the evidence. 1/ The allegations in this proceeding must be proven by clear

and convincing evidence. 2/ This proceeding does not involve the same parties.

The Petitioner in Lawless was the School Board. The Petitioner in this

proceeding is the Commission. The cause of action is also different. The cause

of action in Lawless sought to suspend or terminate Respondent's employment by

the School Board.

12. Respondent is not barred by the doctrine of collateral estoppel from

denying that he is guilty of a crime involving an act of moral turpitude. The

doctrine of collateral estoppel precludes a party from asserting in one

proceeding a position that is inconsistent with that party's position in a prior

proceeding. See, e.g. In re Holiday Isles, Ltd., 29 B.R. 827, 831 ( Bankr. D.D.

Fla. 1983); McKee v. State, 450 So2d 563 Fla. 3rd DCA 1984). Respondent has not

taken inconsistent positions in this proceeding and the proceeding in Lawless.

Respondent asserted in both proceedings that he had not been guilty of a crime

involving an act of moral turpitude.

13. Section 231.28(1)(e), F.S., provides in relevant part that the

Commission may suspend or revoke a person's teaching certificate if the

Commission can show that such person:

... has been convicted of a misdemeanor, felony,

or any other criminal charge, other than a minor

traffic violation....

14. Petitioner showed by clear and convincing evidence that Respondent was

convicted of a felony in violation of Section 231.28(1)(e), F.S. Respondent was

adjudged guilty of a felony under federal law. The adjudication of guilt was

made after Respondent entered into a plea agreement in which Respondent pled

guilty to one count. The judgment of guilt dismissed the other five counts

against Respondent, withheld sentencing, and placed Respondent on probation

which Respondent successfully completed.4/

15. Petitioner is not required to suspend or revoke Respondent's teaching

certificate as a result of Respondent's violation of Section 2331.28(1)(e), F.S.

Section 231.28(1) authorizes the Commission to suspend or revoke Respondent's

teaching certificate under prescribed circumstances but does not require such

action. Section 231.28(1)(e) provides in relevant part that the Commission ...

shall have authority ... to suspend or revoke a person's teaching certificate

under certain circumstances. The quoted language means that the Commission may

suspend or revoke a teaching certificate but is not required to do so. 5/

16. Section 231.28(2), F.S., provides in relevant part that a plea of

guilty in any court or a decision of guilt in any court:

... shall be prima facie proof of grounds for

revocation of the certificate... in the absence of

proof by the certificate holder that the plea of

guilty... was caused by threats, coercion, or

fraudulent means.

Respondent's plea of guilty in federal court constitutes prima facie proof of

grounds for revocation of Respondent's teaching certificate.

17. The language in Section 231.28(2), F.S., which provides that a plea of

guilty or a decision of guilt"... shall be prima facie proof of grounds for

revocation..." does not require that Respondent's teaching certificate be

revoked. In Ayala v. Department of Professional Regulation, 478 So2d 1116 (Fla.

1st DCA 1985), the court considered the following provision in Section

458.331(1)(c), F.S.:

(1) The following acts shall constitute grounds

for which the disciplinary action in subsection

(2) may be taken: (emphasis added)

* * *

(c) Being convicted or found guilty of, or entering

a plea of nolo contendere to, regardless of

adjudication, a crime .. which directly relates to

the practice of medicine or the ability to practice

medicine.

The court held that a statutory provision that a plea of nolo contendere "shall

constitute grounds" for revocation of a physician's license, was properly

construed as creating only a rebuttable presumption of the licensee's guilt of

the underlying criminal offense. 6/

18. In Kinney v. Department of State Division of Licensing, 501 So.2d 129

(Fla. 5th DCA 1987), the court considered language in former Section 493.319(1),

F.S., which provided that having been found guilty of the commission of a crime

"...constitutes grounds for... disciplinary action ..." 7/ (emphasis added) In

Kinney, the court held that the respondent was not found guilty of a crime when

adjudication of guilt is withheld, even though former Section 493.319(1)(c)

provided that conviction of a crime, regardless of adjudication of guilt,

"constitutes grounds" for disciplinary action.

19. Prima facie evidence is evidence that is presumed to be true and will

prevail until contradicted or overcome by other evidence. 8/ It differs from a

rebuttable presumption in that a rebuttable presumption may be created

statutorily and need not be created by evidence. 9/ The difference between a

rebuttable presumption and facts that are characterized by statute as prima

facie grounds is a difference without a distinction to the extent that both may

be rebutted or overcome by other evidence. 10/

20. Mitigating factors that should be considered to overcome the prima

facie grounds for revocation of Respondent's teaching certificate and to

determine the penalty to be imposed against Respondent are not prescribed in

either Chapter 231, F.S., or in Petitioner's own rules. Nor was any clear and

convincing evidence of the policy or factors, written or otherwise, which should

be applied for either purpose submitted by Petitioner during the formal hearing.

11/

21. In the absence of a written rule, an agency is required to explain on

a case by case basis its discretionary action which affects a party's

substantial interests. McDonald v. Department of Banking and Finance, 346 So.2d

569, 582-584 (Fla. 1st DCA 1977). Petitioner must explain the agency's

rationale and must address countervailing arguments developed in the record.

Even when policy considerations are involved, it is the agency's duty to

explicate its policy and address countervailing arguments in the record. Fraser

v. Lewis, 360 So.2d 1116, 1118 (Fla. 1st DCA 1978).

22. Petitioner presented no persuasive evidence during the formal hearing

that explicated the policy or factors, written or otherwise, that are to be

considered to overcome the prima facie grounds for revocation of Respondent's

teaching certificate and to determine the penalty to be imposed against

Respondent. Furthermore, Petitioner did not present evidence that the issue of

which factors should be considered to overcome prima facie grounds for

revocation and the issue of what penalty should be imposed are issues within any

special expertise possessed by Petitioner.

23. The reasons and circumstances surrounding Respondent's criminal

conviction may be considered in mitigation of any punishment which the

Commission is authorized to impose. Ayala v. Department of Professional

Regulation, 478 So.2d 1116, 1119 (Fla. 1st DCA 1985). Evidence of whether the

conviction directly relates to Respondent's effectiveness as a teacher or his

ability to teach is another consideration frequently used in licensing statutes

pertaining to licensees in other occupations or professions. 12/ Respondent's

conduct did not reduce or impair, in any capacity, Respondent's effectiveness as

a teacher and employee and did not impair his service to Southridge and the

community it serves. Respondent has already been suspended from his employment

for one year by the School Board and successfully completed his probation

required by federal court for the same act that is the subject of this

proceeding.

Based on review of the entire record and the foregoing Findings of Fact and

Conclusions of Law which have been amended from that recommended in the

Recommended Order as specifically stated in the above rulings on Exceptions, the

recommended penalty is not adopted in that Respondent has by this Order

(contrary to the Recommended Order) been found guilty of an act of moral

turpitude in violation of Section 231.28(1)(c), F.S. For that reason, the

punishment is increased to that which includes punishment appropriate for the

additional offense found by the board (i.e. violation of Section 231.28(1)(c)

F.S., and which, considering the nature of the offense, includes terms of

probation to serve as a degree of protection for the public and students.

Wherefore, it is ORDERED that Respondent be issued a Reprimand for the

violations he has been found guilty of in this Order, that his Florida

educator's certificate is hereby suspended for one year retroactively to

Respondent's suspension from employment on October 25, 1990, and that Respondent

serve a five-year period of probation during his service as a Florida educator

following the effective date of this Order. The terms of probation shall be

that Respondent shall; arrange for his immediate supervisor to submit

performance reports to the EPC at least every three months; submit true copies

of all formal observation/evaluation forms within ten days of issuance; all

costs incurred in fulfilling terms of probation will be borne by the Respondent;

shall perform 50 hours of community service in a substance abuse program in the

area of Dade County that was devastated by Hurricane Andrew in 1992. This Order

takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as

set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure

9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 6th day of November, 1992.

__________________________________

LORETTA VACANTI, Presiding Officer

ENDNOTES

1/ See, Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA

1990).

2/ Ferris, 510 So.2d 292, supra.

3/ The issues of immorality and moral turpitude were discussed by Hearing

Officer Rigot in the conclusions of law rather than in the findings of fact of

her Recommended Order. While the distinction between findings of fact and

conclusions of law may be a consideration in applying the doctrine of res

judicata, it is not necessary to consider such a distinction here because the

doctrine of res judicata is not applicable in this proceeding for other reasons.

For cases discussing the distinction between findings of fact and conclusions of

law, see Kinney v. Department of State, Division of Licensing, 501 So.2d 129,

132 (Fla. 5th DCA 1987); Morris v. Department of Professional Regulation, 474

So2d 841 (Fla. 5th DCA 1985); Professional Regulation, 474 So.2d 841 (Fla. 5th

DCA 1985); Lealey v. Board of Regents, 423 So.2d 43331 (Fla. 1st DCA 1983).

4/ Respondent's plea may have been a plea of convenience in the same sense that

a plea of nolo contendere is a plea of convenience. Rule 11(e), Federal Rules

of Criminal Procedure, is intended to permit plea negotiations to be carried on

between counsel for the government and the accused. In a plea agreement under

Rule 11(e)(1)(c), the government counsel agrees to accept a specific sentence as

appropriate disposition of the case. There must be acceptance by the court so

that the defendant will know whether he or she will receive the bargained-for

concessions. The great majority of all defendants against whom indictments or

information are filed in federal courts plead guilty or, with the permission of

the court, nolo contendere. See Moore's Federal Practice, 1992 Rules Pamphlet,

pgs. 110-118 (Matthew Bender 1992).

5/ Compare the language in Sec. 626.611, F.S., which provides grounds for

compulsory disciplinary action, with that in disciplinary action.

6/ Respondent, like the licensee, under the Ayala rationale, was not limited in

this proceeding to presenting evidence of the surrounding facts and

circumstances for the limited purpose of mitigating any penalties that may be

imposed. He was entitled to assert his innocence of the underlying criminal

charge and present evidence explaining the reasons and circumstances surrounding

the plea agreement. However, Respondent presented no such evidence at the

formal hearing.

7/ Former Sec. 493.319(1), F.S., provided in relevant part:

(1) The following constitute grounds for

which disciplinary action specified in

subsection (2) may be taken:

(c) Having been found guilty of the commission

of a crime which directly relates to the business

for which the license is held, regardless of

adjudication of guilt.

8/ Black's Law Dictionary, p.1189 (West Publishing Co. 1990) (hereinafter

"Black's).

9/ Black's at 1185.

10/ The type of statutory scheme found in Ch. 231 and Ch. 458, F.S., is

distinguishable from the type of statutory scheme found in Ch. 943, F.S. In

McNair v. Criminal Justice Standards and Training Commission, 518 So.2d 390

(Fla. 1st DCA 1987), the court considered a provision in Sec. 943.1395(5) which

provided that the Criminal Justice Standards and Training Commission" ... shall

revoke the certificate of any officer ... not in compliance with S. 943.13(1)-

(10) ... Sec. 943.13(4) precluded any person who pled guilty to a criminal

offense from being employed as a correctional officer. The court stated:

A plea of nolo contendere or guilty is not evaluated

under section 943.13(4) as conclusive evidence of the

commission of wrongdoing. Instead entry of the plea

itself creates noncompliance with section 943.13(4)

This statutory scheme is distinguishable from that in

Ayala v. Department of Professional Regulation, 478

So.2d 1116 (Fla. 1st DCA 1985), in which a mandatory

interpretation of section 458.331(1) (c), providing

that a nolo plea "shall be considered a conviction,"

did impermissibly convert the plea into a conviction.

The provision in Sec. 231.28(2) is the type of statutory scheme found in Sec.

458.331(1)(c) because it evaluates a plea of guilty as prima facie grounds for

revocation.

11/ The only evidence of such a policy or such factors was the expert opinion

testimony presented by Petitioner. That evidence was not persuasive and was

inconsistent with the approved policy represented by the Employee Assistance

Program (" EAP") which is used to assist teachers who have substance abuse

problems to return to their role as effective employees.

12/ See Secs. 458.331(1)(c), 626.6215(3), and 493.6118(1)(c), Fla. Stat.

(1991), and former Sec. 493.319(1), Fla. Stat. (1987). Compare Sec. 626.621(8),

Fla. Stat. (1991), which prescribes grounds for non-discretionary discipline and

does not contain the qualification that the offense for which the licensee is

convicted must be related to the practice of insurance.

COPIES FURNISHED:

Jerry Moored Program Director

Professional Fractices Services

Daniel Bosanko, Esquire I HEREBY CERTIFY that a copy of the

Attorney General's Office foregoing Order in the matter of

BC vs. Michael R. Lawless was mailed

Sydney McKenzie, III to Jesse McCrary, Esq., 2800 Biscayne

General Counsel Blvd. Suite 800 Miami, Florida 33137,

this 12th day of November, 1992,

Florida Admin. Law by U.S. Mail.

Reports

Octavio J. Visiedo, Supt. ___________________________________

Dade County Schools KAREN B. WILDE, Clerk

1450 N. E. 2nd Avenue

Miami, Florida 33132

Dr. Patrick Gray

Executive Asst. Superintendent

Office of Professional Standards

Dade County Schools

1444 Biscayne Blvd., Suite 215

Daniel Manry, Hearing Officer

Division of Admin. Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Margaret O'Sullivan, Esquire

Department of Education

1701, The Capitol

Tallahassee, Florida 32399