STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL )

)

Petitioner, )

)

vs. ) CASE NO. 78-796

)

OSSIE L. GARDNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at Room 205, Building "B", 6501 Arlington Expressway, Jacksonville, Florida, at 9:00 A.M., August 16, 1978.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

25l6 Gulf Life Tower Jacksonville, Florida 32207

For Respondent: Charles E. Grabill, Jr., Esquire

168 Blanding Boulevard, Suite 2 Orange Park, Florida 32073

ISSUE

1. Whether or not Ossie L. Gardner, the Respondent, on or about August 2, 1977, in Duval County, Florida, did expose his sexual organs by masturbation inside a pornographic booth in the presence of a plain clothes city vice detective at a Jacksonville movie theater, and further, whether or not Ossie L. Gardner plead guilty to the lesser charge of "indecent exposure" and was fined

   550.00 plus court costs, all in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 60-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example to students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect.

   
   

2. Whether or not Ossie L. Gardner, the Respondent, on or about June 29, 1967, in Leon County, Florida, did solicit for a lewd and lascivious act by an offer to commit and engage in lewdness, to wit, fellatio with an employee of the Tallahassee Police Department, in violation of Sections 231.09 and 231.28, Florida Statutes, and Sections 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code, in that it is conduct which is inconsistent with good morals and the public conscience, not a proper example for students, and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect.

   FINDINGS OF FACT

   
   

3. This cause comes on for consideration based upon the Petition for Revocation of Teacher's Certificate filed by the Petitioner, Professional Practices Council, against Ossie L. Gardner, the Respondent.

   
   

4. At the commencement of the hearing, the parties entered into several stipulations. The first of those stipulations was that the statements in the Petition for Revocation of Teacher's, Certificate found under the title "Jurisdictional Matters" are agreed to and established as facts in this cause; therefore, with the recitation of those facts in the following quotation, those facts under the title "Jurisdictional Matters" are hereby established.

   
   

   "JURISDICTIONAL MATTERS"

   
   

5. "OSSIE L. GARDNER is the holder of Post-Graduate, Rank II Florida teaching certificate number 181441, covering Math, Emotionally Disturbed and Junior College, which is valid until June 30, 1993."

   
   

6. "OSSIE L. GARDNER has been employed as a math/science teacher at the Juvenile Shelter in Jacksonville, Florida. He holds a tenure contract in Duval County where he continues to teach at this time.

   
   

7. The Professional Practices Council received a report from Buford H. Galloway, Director of Evaluation and Development, indicating that OSSIE L. GARDNER was charged with Exposure of Sexual Organs by Masturbation on August 2, 1977. Pursuant to this report and under the authority contained in Section 231.28, Florida Statutes, staff of the Department of Education conducted a professional inquiry into the matter and on February 13, 1978 made its report to the Executive Committee of the Professional Practices Council.

   
   

8. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that OSSIE L. GARDNER is guilty of acts which provide grounds for the revocation of his Florida teaching certificate.

   
   

9. The Commissioner of Education found probable cause on February 13, 1978, and directed the filing of this petition.

   
   

10. The Petitioner has authority under Section 6A-4.37, Rules of the State Board of Education to file this Petition.

    
    

11. The State Board of Education has authority under action 231.28, Florida Statutes to revoke the teaching certificate of OSSIE L. GARDNER."

    
    

12. At the commencement of the hearing, the parties further agreed to stipulate to the introduction of certain items of evidence without the necessity for authentication of those documents. Finally, the parties agreed to stipulate to the introduction of the deposition of Otha Lee Wooden, as a late-filed exhibit, to be used by the undersigned in the same way as the testimony offered in the course of the hearing.

    
    

13. The facts in the case revealed that on August 2, 1977, between 3:30 and 4:00 P.M., Officer J. W. Lockley of the Jacksonville Sheriff's Office, Duval County, Florida, was making a routine check of the J & K Adult Theater in the

    400 block of Main Street, Jacksonville, Florida. This theater contains material of sexual content. Among other features of the theater are certain booths

    located behind a curtained area, which is separated from the other part of the establishment. Those booths have coin-operated projectors which allow for the display of preselected film clips which have been obtained from the proprietor. The booths are approximately four feet by seven or eight feet in dimension and the patron may stand up or in some cases may sit down in the booths. The booths have a further feature which is a door which has instructions that it must be closed during the course of the film being shown.

    
    

14. On the date in question, Officer Lockley went into the area of the theater which contains the booths and observed the Respondent, Ossie L. Gardner, in Booth No. 8. At that time, the door to the booth was open and Gardner was observed with his sexual organs exposed, and was observed stroking his exposed penis with his hand in an upward and downward motion. A film was playing in the booth, being projected on a small screen. The film depicted sexual activity between male participants, specifically fellatio. Officer Lockley passed up the aisle from where he had observed this activity on the part of the Respondent and then returned to the area of the booth in which Mr. Gardner was located. At that point, Gardner continued to stroke his penis and to look and obtain eye contact with Lockley and then to look down at his penis. Lockley subsequently arrested Gardner for exposure of sexual organs, in violation of Section 80003, Florida Statutes. Gardner later plead guilty to a municipal ordinance violation of indecent exposure, City of Jacksonville Ordinance No. 330.124. For this violation, Gardner was given a judgment and sentence of a $50.00 fine plus $2.00 court costs.

    
    

15. In the course of the arrest, the Respondent indicated to Officer Lockley that he had bean arrested for similar conduct before in a matter in Tallahassee, Florida. This incident pertained to a situation which occurred in the Greyhound Bus Station in Tallahassee, Florida, on June 29, 1967. At that time, C. A. McMahan, an employee of the State Prison Camp, Division of Corrections, Tallahassee, Florida, was working as an agent with the Tallahassee Police Department to assist in the investigation of vice activities. In particular, McMahan was assisting in the investigation of alleged homosexual activities in the men's restroom of the Greyhound Bus Station. On the date in question at around 10:00 P.M., McMahan went into the men's restroom and entered one of the closed-in stalls in which a commode was located; Gardner went to one of the urinals in the bathroom facility. Before entering the stall, McMahan observed Gardner masturbating at the urinal. McMahan then closed the door to the stall and was seated in the area of the commode when Gardner moved into the area next to McMahan's stall and continued to masturbate as observed through a hole in the wall between the stall in which McMahan was located and the area where Gardner was positioned. After a period of three or four minutes, Gardner stuck his penis through a hole in the partition wall into the area where McMahan was located. At that point, McMahan left to tell Captain Burl S. Peacock of the Tallahassee Police Department, Tallahassee, Florida, of his observation. Both of these individuals went back into the restroom, at which point Gardner was arrested. Gardner, after being advised of his constitutional right to remain silent, admitted that he had gone to the restroom with the thought that he could get some "sexual relief", and further admitted putting his penis through the hole in the partition for the purpose of getting that "sexual relief." Gardner also admitted to Peacock that he had been involved in homosexual activities as early as the age of 18 and had performed sodomy on one occasion and had been a passive partner in homosexual activities at other times. Subsequent to the June 29, 1967, arrest, Gardner received psychiatric attention for his problem.

    
    

16. For the incidents related in the matters of August 2, 1977, and June 29, 1967, the Respondent has been charged with violations of Sections 231.09 and

    231.28, Florida Statutes, and Sections 6A-4.37, 60-1 and 6B-5, Florida Administrative Code; in that his conduct is alleged to be inconsistent with good morals and the public conscience; not a proper example for students and conduct which is sufficiently notorious to bring Ossie L. Gardner and the education profession into public disgrace and disrespect. A review of those stated sections of the Florida Statutes and the The Florida Administrative Code reveals that any substantive allegations cognizable through this complaint are found in provision of Section 231.09(2), Florida Statutes, and Section 231.28(1), Florida Statutes, only. Therefore, no further reference will be made to Section 6A- 4.37, 60-1 and 60-5, Florida Administrative Code. Section 231.09(2), Florida Statutes, reads as follows:

    
    

    "(2) EXAMPLE FOR PUPILS.--Labor faithfully

    and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue."

    
    

    The conduct which has been established in the facts pertaining to the incidents of August 2, 1977, and June 29, 1967, involving the exposure of the Respondent's sexual organs and the surrounding activities in those incidents, is conduct which shows that the Respondent is not laboring faithfully and earnestly for the advancement of the pupils in their deportment and morals' in violation of Section 231.09(2), Florida Statutes. No other violation of that provision has been established.

    
    

17. Section 231.28(1), Florida Statutes, together with the preamble to the overall Section 231.28, Florida Statutes, reads as follows:

    
    

    "231.28 Suspension or revocation of certificates. The Department of Education shall have authority to suspend the teaching certificate of any person

    for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); to revoke the teach- ing certificate of any person, thereby denying him the right to teach for a period of time not to exceed

    10 years, with reinstatement subject to provisions of subsection (6); or to revoke permanently the teaching certificate of any person, provided:

    
    

    (1) It can be shown that such person obtained

    the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seri- ously reduces his effectiveness as an employee of the

    school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the

    teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed."

    
    

    Again, the acts of August 2, 1977, and June 29, 1967, involving the exposure by the Respondent of his sexual organs and the facts therein, show that the Respondent has been guilty of gross immorality or an act involving moral turpitude.

    
    

18. The only other possible violation under Section 231.28(1), Florida Statutes, which might be argued is the allegation of possible conduct which seriously reduces the Respondent's effectiveness as an employee of the school board. The sole testimony offered in the course of the hearing which would address that substantive accusation would be that testimony found in the deposition of Otha Lee Wooden. A review of that testimony indicates that the opinion of the principal of the school in which the Respondent teaches, to wit, the school No. 182, Juvenile Shelter School, is to the effect that the facts in these cases are not known to other persons in the school. Consequently, there is no testimony to indicate that there would be any loss of effectiveness if Mr. Gardner continued to teach.

    
    

19. No other violations were alleged or proven.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

21. For the reasons stated in the course of the hearing, the Respondent's motion to dismiss the allegation, which motion was made at the commencement of the hearing and the conclusion of the presentation of the Petitioner was and is DENIED.

    
    

22. For the reasons as stated in the findings of fact, the Respondent, Ossie L. Gardner, is found guilty of a violation of Section 231.09(2), Florida Statutes, in that he failed to labor faithfully and earnestly for the advancement of the pupils in their deportment and morals, and, further, the Respondent, Ossie L. Gardner, is found guilty of Section 231.28(1), Florida Statutes, in that the acts established show the Respondent to be guilty of gross immorality or an act involving moral turpitude. For these violations, the Respondent is subject to the penalties found in Section 231.28, Florida Statutes. The findings in this paragraph pertain to the events of August 2, 1977.

    
    

23. For the reasons as stated in the findings of fact, the Respondent, Ossie L. Gardner, is found guilty of a violation a Section 231.09(2), Florida Statutes, in that he failed to labor faithfully and earnestly for the advancement of the pupils in their department and morals, and, further, the Respondent, Ossie L. Gardner, is found guilty of Section 231.28(1), Florida Statutes, in that the acts established show the Respondent to be guilty of gross immorality or an act involving moral turpitude. For these violations, the Respondent is subject to the penalties found in Section 231.28, Florida Statutes. The findings in this paragraph pertain to the event of June 29, 1967.

RECOMMENDATION

In the course of the hearing, matters in mitigation and aggravation were considered. In that presentation, it was demonstrated that the Respondent is a teacher with an outstanding background, as revealed by his personnel file, which is the Respondent's Exhibit No. 8 admitted into evidence. It was also established that the Respondent is a man of distinguished service to his country through service in the United States Army, as established in the Respondent's Exhibits Nos. 1 through 7. Further, it was established that absent these incidents alluded to in the course of this Recommended Order, the Respondent has not been the subject of disciplinary action by the Petitioner on any other occasion. Nonetheless, in consideration of the nature of his profession, it is recommended that the Respondent, Ossie L. Gardner, have his Post-Graduate Rank II Florida Teaching Certificate No. 181441 REVOKED for a period of three (3) years.

DONE and ENTERED this 15th day of September, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Mail: 530 Carlton Building

101 Collins Building Tallahassee, Florida 32399-1550

COPIES FURNISHED:

L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida

Charles E. Grabill, Jr., Esquire

168 Blanding Boulevard, Suite 2 Orange Park, Florida 32073

Mr. M. Juhan Mixon Professional Practices Council

319 West Madison Street, Room 3 Tallahassee, Florida 32304

Docket for Case No: 78-000796

Orders for Case No: 78-000796