STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1082

)

BARRY JAMES ROSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on August 17 and 18, 1978, in Niceville, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: Richard H. Frank, Esquire

John J. Chamblee, Jr., Esquire

341 Plant Avenue Tampa, Florida 33606

On February 13, 1978, the Professional Practices Council of the State of Florida, Department of Education ("PPC") issued a Petition for the Revocation of Teacher's Certificate against Respondent, Barry James Rose. On or about February 22, 1978, Respondent filed an Answer, Affirmative Defense, and Motion to Strike directed to the Petition. Thereafter, in accordance with the provisions of Florida Statutes, Section 120.57(1)(b)(3), the PPC requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. Respondent's Motion to Strike was denied by Order dated June 29, 1978, and the final hearing was scheduled by Notice dated June 30, 1978.

In the Petition, the PPC seeks to revoke Respondent's Graduate, Rank III, Florida teaching certificate No. 326332, covering Physical Education and Health, on the grounds that during the 1976-77 school year Respondent, while employed as a physical education teacher at Addie R. Lewis Junior High School in Okaloosa County, Florida, was guilty of: improper conduct toward a female student by pinching her buttocks, hugging her and placing his hands inappropriately upon her body; making disparaging remarks of a sexual nature to one or more students in his classes; patting and slapping girls on the buttocks in the presence of other students; entering the girls' locker room where females were dressing, without first announcing his intentions to enter the dressing area; and being alone with a female student on one or more occasions in the girls' locker room for an extended period of time with the locker room door closed. The PPC

contends that the alleged actions by Respondent constitute violations of Section 231.28(1), Florida Statutes, in that such actions constitute personal conduct which reduces his effectiveness as an educator, and Section 231.09(2), Florida Statutes, in that Respondent has not set a proper example for students. The PPC also contends that the alleged actions violate Rule 6B-1.02(c), Florida Administrative Code, in that Respondent has failed to protect students from conditions harmful to learning; and Rule 6B-1.02(d), Florida Administrative Code, in that Respondent has conducted professional business in a way that exposed students to unnecessary embarrassment and disparagement.

Respondent denies the material allegations of the Petition, and asserts as an affirmative defense that in his capacity as a physical education teacher he was required to instruct female students in tumbling and gymnastics which necessitated his touching his female students. Respondent contends that his touching of these female students was with the implied or expressed consent and approval of both is superiors in the school system and the students themselves.

At the final hearing, the PPC called Cynthia Straley, Judith Straley, Sherri Wiley, Ernestine Green, Wayne McSheehy, Quentin Henderson, Jenny Weaver and John Leonard as its witnesses. In addition, the PPC was allowed to introduce into evidence the depositions of Tracy Lynn Scott and Renee Green, in accordance with the provisions of Rule 1.330(a)(3)(B)(D), Florida Rules of Civil Procedure, in that these witnesses were at a greater distance than one hundred miles from the place of hearing, and the PPC was unable to procure the attendance of these witnesses by subpoena, despite an attempt to do so.

The Respondent called as his witnesses July Showalter, Dorothy Sword, Pam Skinner, Raissa Kowalski, Mary Childree, Rose Childree, Patti Blair, Sidra Spies, Tina White, Tammy Renner, Elaine Ray, George Dickey, Lydia Taylor, J. D. Taylor, Andrew Guertin, Stanley J. Downs, and Barbara Rose. In addition, Respondent testified in his own behalf.

There were direct conflicts in the testimony of numerous of the witnesses testifying in this proceeding. In attempting to resolve these conflicts, the Hearing Officer took into account the appearance, demeanor and manner of the witnesses while testifying.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent, Barry James Rose, was employed in the public schools of Okaloosa County, and worked on a continuing contract as a physical education teacher at Addie R. Lewis Junior High School. The Respondent began teaching at Addie R. Lewis Junior High School during the 1972-1973 school year, and has continued in that capacity up until the date of the hearing in this cause. During the Respondent's entire tenure at this school, Wayne McSheehy, has served as Principal. During this time, the Respondent's principal responsibility was to teach physical education, although he also taught science classes during the 1976-1977 school year and during the 1977-1978 school year. Prior to the 1976-1977 school year, Respondent also coached several sports at the school.

   
   

2. During the time that Respondent taught at Addie R. Lewis Junior High School, his wife, Barbara Rose, also taught girls' physical education at that school. During the 1976-1977 school year, Mr. and Mrs. Rose "team taught" during third and fourth periods, and were usually in communication during Respondent's sixth period class. Mrs. Rose's office was located in the girls' physical education locker room, where all physical education equipment for both

   boys' and girls' classes was kept, along with some of the Respondent's personal belongings.

   
   

3. At the beginning of the 1976-1977 school year, Respondent requested and was assigned a teacher aide named Pam Skinner who served as the Respondent's aide throughout the school year. In addition, Miss Skinner knew Mr. and Mrs. Rose outside the school environment in that she lived near the Roses and occasionally baby-say for them.

   
   

4. During the 1976-1977 school year Respondent instructed Cynthia Straley and Sherri Wiley in their second period physical education class. Respondent was not these students' assigned instructor for the second period class, and was present in that second period class only during a three-week segment in the spring of 1977. In addition, Respondent instructed Tracy Lynn Scott and Renee Green in their fifth period physical education class during the 1976-1977 school year.

   
   

5. The allegations against Respondent are contained in five paragraphs in the Petition for the revocation of teacher's certificate filed by the PPC. For purposes of clarity, the issues raised in these five paragraphs will be dealt with separately.

   
   

6. In paragraph one of the Petition, the PPC alleges that during the 1976- 1977 school year the Respondent ". . . was guilty of improper conduct toward a female student by pinching her buttocks, hugging her and placing his hands inappropriately upon her body." There is no testimony in the record that Respondent at any time hugged a female student in any of his classes, and, therefore, it is found that there is no evidence to support that portion of the charge contained in paragraph one. In addition, there is insufficient evidence to support the allegation that Respondent ever pinched any of his students on the buttocks as contended in paragraph one of the Petition. Respondent categorically denies this charge, and the only student testifying that Respondent ever pinched her indicated that this conduct occurred in class throughout the 1976-1977 school year when, in fact, Respondent taught this student's class only during one three-week period in the Spring of 1977. In addition, there was no other testimony to corroborate the student's assertion that Respondent ever pinched her. The last portion of the charge contained in paragraph one of the Petition relates to Respondent having placed his hands "inappropriately upon the body" of the same student whose buttocks he allegedly pinched. The record is clear that this alleged conduct occurred on only one occasion, and that the alleged touching occurred in the context of the performance of an advanced gymnastic exercise. These exercises were optional with the students involved, and were totally voluntary. The student involved did not report the incident to other teachers, in spite of the fact that at least two female teachers were involved in the same class, nor did she report the incident to administrators at the school until the beginning of the following school year. The student's parent, when told of the incident, did not consider it sufficiently serious to bring to the attention of school personnel. The student involved elected to continue the class under the Respondent's guidance, notwithstanding the alleged occurrence. Finally, the record reflects that the conduct alleged in this portion of the charge was acceptable from a teaching standpoint in the context in which it occurred. Consequently, there is insufficient testimony in the record to establish that any alleged touching by Respondent of the student in question was "inappropriate."

   
   

7. Paragraph two of the Petition alleged that during the 1976-1977 school year Respondent ". . . made disparaging remarks of a sexual nature to one or

   more students in his classes." The remark in question is alleged to have been made to Renee Green, a student in Respondent's fifth period physical education class. There is a direct conflict in the testimony with regard to the content of the alleged remark. In her deposition, Miss Green contends that while she was rolling a plastic pipe on the floor during one of Respondent's classes, Respondent said to her: "What are you doing, Renee, trying to get your cheap thrills? I wonder what you do on weekends." Miss Green testified that although the remark upset her, she was not sure why it had that effect on her. Other testimony in the record confirms that the first sentence of the alleged remark was made, but that the second was not. Additionally, Respondent testified that the entire content of his remark was: "Renee, what are you doing, getting cheap thrill." There is no objective evidence in the record on which to base a conclusion that the alleged remark, whether made as asserted by Miss Green or Respondent, was either disparaging or of a sexual nature. Accordingly, the charge contained in paragraph two of the Petition is not supported by competent substantial evidence.

   
   

8. In paragraph three of the Petition, the PPC alleges that during the 1976-1977 school year, Respondent ". . . patted and slapped girls on the buttocks in the presence of other students." Respondent admits having patted only one student, Pam Skinner, on the buttocks after the successful completion of a gymnastics exercise. Miss Skinner testified that she took the gesture to be one of commendation and approval of her having successfully completed an exercise on which she had been working for some time. Respondent denies having patted any other students on the buttocks and his contention is supported by virtually all other instructional personnel at the school who had an opportunity to observe the Respondent during the course of his instruction of students in his classes. Notwithstanding this fact, other students who alleged that Respondent had patted them on the buttocks admitted that the patting took place in the context of physical education instruction, and indicated to them only that they should proceed with their activities in accordance with instructions given them by Respondent. The record is totally devoid of any indication that any of the participants considered patting on the buttocks in this context to have been inappropriate. In fact, none of the students involved were sufficiently offended by the alleged conduct to bring it to the attention of school personnel until the following year. In addition, all of the students continued in the Respondent's classes with no apparent ill effects.

   
   

9. In paragraph four of the Petition, the PPC alleges that during the 1976-1977 school year, Respondent ". . . entered the girls' locker room where females were dressing without first announcing his intentions to enter the

   dressing area." There is insufficient evidence in the record on which to base a conclusion that Respondent ever entered the girls' locker room unannounced while female students were in a state of undress. In fact, there is no evidence that Respondent ever entered the girls' locker room unannounced, and only one student testified that Respondent entered the locker room while female students were dressing. The Respondent denies the allegation, and his contentions are substantiated by each of the physical education instructors working with him who were in a position to observe his conduct in this regard. The record is clear that Respondent on occasion had to enter the girls' locker room to obtain equipment to conduct his classes, but that he utilized his teacher aide, Pam Skinner, to insure that no female students were in a state of undress prior to his entrance. It is, therefore, specifically found that Respondent at no time entered the girls' locker room where females were dressing without first announcing his intentions to do so, and that, therefore, there is no evidence to substantiate the allegations of paragraph four of the Petition.

10. In paragraph five of the Petition the PPC alleges that during the 1976-1977 school year, the Respondent ". . . and a female student were alone on one or more occasions in the girls' locker room for an extended period of time with the locker room door closed." Respondent would often enter the girls' locker room, accompanied by his teacher aide, Pam Skinner. Their purpose in entering the locker room was to retrieve girls' physical education equipment

    which was used by Respondent in instructing his classes. In most instances when Respondent and Miss Skinner entered the girls' locker room, the Respondent's wife, who maintained an office inside the girls' locker was present. The Respondent had specifically asked for assignment of a teacher aide to his classes during the 1976-1977 school year to enable him to remove the equipment from the girls' locker room with a minimum of inconvenience and embarrassment to either himself or his female students.

    
    

11. There is no evidence in the record to indicate that Respondent's conduct while in the girls' locker room with his teacher aide, Miss Skinner, was at all improper, and, in fact, the only finding possible from this record is that their visits to the locker room were solely for the purpose of obtaining equipment for the proper instruction of his classes. Accordingly, it is concluded that there is insufficient evidence of record to sustain the charge contained in paragraph five of the Petition.

    
    

12. None of the alleged incidents contained in the Petition were considered by the students, their parents, or school administrative personnel to be of sufficient severity to be brought to Respondent's attention during the 1976-1977 school year, despite the fact that several of these alleged incidents were brought to the attention of both parents of the students involved and to school administration personnel It was not until the beginning of the 1977-1978 school year that the school administration decided to investigate these allegations further. Even then, the school principal indicated that he did not consider the allegations of sufficient severity for further disciplinary action until Respondent insisted on obtaining the identities of those persons making the allegations. Even after the allegations were investigated, none of the parents involved requested that their students not be instructed by Respondent during the 1977-1978 school year, and the school principal indicated to the parents that they need not be concerned about their children continuing to be taught by Respondent. In fact, Respondent has, since the allegations occurred, instructed these same female students in subsequent classes, with no apparent ill effect. In addition, during the 1977-1978 school year Respondent was selected as runner up for Teacher of the Year in the same school at which the alleged incidents occurred. Therefore, it clearly appears for the record that, given the fact that neither the parents involved nor school administrative personnel felt it necessary to remove any of the involved female students from Respondent's classes, together with Respondent's performance as a teacher in the school during the 1977-1978 school year, Respondent's effectiveness as an employee of the school system has not been affected by the alleged occurrences.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1), 120.60, Florida Statutes.

    
    

14. Section 231.09(2), Florida Statutes, provides that instructional staff of public schools are required to:

    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 patriotism and the practice of every Christian virtue.

    
    

15. Section 231.28(1), Florida Statutes, provides in pertinent part that the State of Florida, Department of Education, shall have the authority to revoke or suspend the teaching certificate of any person, provided:

    
    

    It can be shown that such person . . . has been guilty of gross immorality or an act involving moral turpitude, or has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board. . . .

    
    

16. Rule 6B-1.02(c), Florida Administrative Code, provides that an educator "[s]hall make reasonable effort to protect the student from conditions harmful to learning or to health and safety."

    
    

17. Rule 6B-1.02(d), Florida Administrative Code, provides that an educator "[s]hall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement."

    
    

18. The evidence and testimony in the instant case fails to establish any conduct on the part of Respondent, Barry James Rose, which can be construed as a violation of either Section 231.09(2), Florida Statutes, Section 231.28(1), Florida Statutes, Rule 6B-1.02(c), or (d), Florida Administrative Code, and, accordingly the relief sought by the PPC in its Petition should be denied, and the Petition should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint against

Respondent, Barry James Rose.

DONE AND ENTERED this 28th day of December 1978 in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

Mailing Address: Room 530

Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of December 1978.

COPIES FURNISHED:

J. David Holder, Esquire Suite 224

110 North Magnolia Drive Tallahassee, Florida 32301

Richard H. Frank, Esquire John J. Chamblee, Jr., Esquire

341 Plant Avenue Tampa, Florida 33606

Docket for Case No: 78-001082

Orders for Case No: 78-001082