STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF EDUCATION, PROFESSIONAL )

PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2179

)

HENRY L. PENIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer James E. Bradwell, held a public hearing in this case on March 19, 1980, in Tampa, Florida. A transcript of the final proceedings was received on June 18, 1980. Pursuant to leave, the parties were allowed through July 17, 1980, to submit proposed Findings of Fact, Conclusions of Law and Recommended Orders, which were received and considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: Cary R. Singletary, Esquire

Exchange National Bank Building Suite 1625, 610 Florida Avenue

Tampa, Florida 33602

ISSUE

The issue posed for decision herein is whether or not the Respondent, Henry

L. Penia, engaged in acts of immorality or immoral conduct, in that during the month of July, 1978, he improperly touched a female student in an indecent or improper manner on school grounds during school hours in violation of Sections

1. and 231.09, Florida Statutes, and Section 6B-1, Rules of the State Board of Education.

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, I hereby make the following:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, Henry L. Penia, holds Florida Teaching Certificate No. 044411, Graduate, Rank III, which by its terms is valid through June 30, 1981,

      for the areas of elementary education, history and political science. Respondent began his employment with the Hillsborough County School Board in February, 1952, and continued to be so employed until he was discharged on May 10, 1979.

      
      

   2. Respondent was assigned to LaVoy Elementary School (LaVoy) in 1974, where he taught nursery operations for the trainable mentally retarded (TMR) classified students.

      
      

   3. By way of background, the Florida Professional Practices Council, Petitioner, received a report from Hillsborough County school officials on May 24, 1979, indicating that Respondent had been charged with immoral conduct with a female student. Pursuant thereto, and under authority contained in Section 6A-4.37, Rules of the State Board of Education, staff of the Department of

      Education conducted a professional inquiry into the matter, and on September 10, 1979, reported the matter to the Petitioner's Executive Committee. The Executive Committee found that probable cause existed to believe that Respondent is guilty of acts which provide grounds for revocation of his teaching certificate. The Commissioner of Education found probable cause on October 1, 1979, and directed that Petitioner file a petition to revoke Respondent's teaching certificate pursuant to the authority contained in Rule 6A-4.37 of the State Board of Education and the guiding authority in Section 231.28, Florida Statutes.

      
      

   4. The material allegations of the Petition as filed by Petitioner are that during the month of July, 1978, Respondent committed an act of immorality in that he improperly touched a female student in an indecent manner during school hours on the school grounds of LaVoy. Concluding, the Petition alleged that the Respondent had violated Sections 231.28 and .231.09, Florida Statutes, and Rule 6B-1, Rules of the State Board of Education, in that based on the

      above-cited alleged conduct by Respondent, he committed acts of immorality which were inconsistent with good morals and the public conscience and failed to set a proper example for students. The Petition adds that Respondent's conduct as alleged was sufficiently notorious to bring the education profession into public disgrace and disrespect and seriously reduced his (Respondent's) effectiveness as a School Board employee.

      
      

   5. Michael Sails, presently the head custodian at Foster Elementary School, Hillsborough County, was, during times relevant herein, a custodian at LaVoy. During a school day in July of 1978, Mr. Sails, while standing at the rear of Mrs. Evans', a teacher at LaVoy, portable observed Respondent's arm around the neck of Irene (last name unknown) while Respondent and the other students were standing around the agricultural area at LaVoy.

      
      

   6. Kennedy Watson, the head custodian at Dickinson Elementary School, was, during times material herein, employed as a custodian at LaVoy. During July of 1978, Messrs. Watson and Sails were seated in Mrs. Evans' portable where they could view the agricultural area at LaVoy. Mr. Watson was situated a distance of approximately seven feet from Respondent and Miss Martin when he observed Respondent with his hands and arms around student Irene Martin's breast and crotch areas. Student Martin, according to Watson, is a "very developed teenager". Watson's view was not obstructed when he observed Respondent's hands draped around Miss Martin's crotch and breast. (See location "X" on Petitioner's Exhibit 1.) Mr. Watson, to get a better view of the acts by Respondent toward student Martin, situated himself at the rear of Mrs. Bennett's pod. Mr. Watson observed Respondent and student Martin for approximately ten minutes.

   7. Mrs. Bennett, who was in her classroom at the time, observed that something unusual was happening outside her classroom and inquired of Mr. Watson as to what was occurring. Mr. Watson declined to discuss the incident then but agreed to do so later since he was, at that time, very upset about what he had observed.

      
      

   8. On July 13, 1978, Mrs. Sandra Kilpatrick, a staffing specialist for exceptional education for the Hillsborough County School System and formerly a teacher at LaVoy, sent Mrs. Bennett a message that student Irene Martin was in Respondent's class. Mrs. Kilpatrick confirmed that Irene Martin is a TMR student with an I.Q. of less than 50.

      
      

   9. Mary Bennett, an employee of the Hillsborough County School System for approximately thirteen years, is presently the Director of the Mentally and Profoundly Handicapped Program for students. Mrs. Bennett serves as diagnostician for student placement. Mrs. Bennett knows Kennedy Watson and recalled the day that Mr. Watson entered her room in July, 1978, when he appeared to be upset. Mrs. Bennett observed Respondent from a distance of approximately sixty feet from her pod with his body closely against Miss Martin in a "bumping, grinding manner" which lasted approximately several minutes. She observed Respondent touch Miss Martin in a few places in the breast area with one of his hands down along side Miss Martin's. Mrs. Bennett emphasized that no training was taking place while Respondent and student Martin were engaged in the conduct as described herein. When questioned specifically about the incident, Mrs. Bennett made certain the fact that no instructional activity was taking place and that Respondent made no attempt to free himself of Miss Martin if indeed that was his claim. She also indicated that no shovel was being used by Respondent for a training activity. After observing the incident, Mrs. Bennett discussed it with Mrs. Kilpatrick later that afternoon and made an attempt to contact Ms. Davidson, the Principal at LaVoy. Mrs. Bennett was sure that the date was July 13 because she left for Ohio to celebrate her parents' fiftieth wedding anniversary on Friday, July 14, 1978. Mrs. Bennett has great distance vision and was not mistaken as to what she observed by Respondent relative to student Martin. Conceding that she was not an expert on guessing distances and that she could be mistaken as to the exact distance that her pod is situated from the area in which she observed Respondent and Miss Martin, Mrs. Bennett was unequivocal in her testimony charging that what she witnessed was not any attempt by Respondent to train or otherwise instruct student Martin.

      
      

   10. Millicent Davidson, the Principal at LaVoy, is familiar with student Irene Martin. Principal Davidson was formerly a teacher at LaVoy and noted that student Martin has an I.Q. range of a four year old. Student Martin is unable to judge "right" from "wrong" and reacts to physical stimuli differently than a person with a normal I.Q. Principal Davidson also confirmed that student Martin has a habit of grabbing the wrists or hands of persons to gain their attention. (Testimony of Millicent Davidson.)

       
       

   11. On July 24, 1978, Principal Davidson contacted school security as she observed Respondent in the agricultural area from portable No. 371. (See Petitioner's Exhibit 2.) On that date, while she observed Respondent and Miss Martin, Principal Davidson's view was not obstructed. Irene Martin and the other students were potting plants with Respondent when Respondent grabbed one female student on her buttocks. Principal Davidson observed Respondent's arm draped around student Martin from the time that they left the agricultural area until they reached the portables, at which time the hugging ceased. Principal Davidson related (during the hearing) that physical contact with students was

       banned at LaVoy. On that day, July 24, 1978, Principal Davidson had a conference with Respondent and security employees Dossinger and Tyrie, wherein Respondent denied that he engaged in any physical touching of students. He was at that time suspended pending the outcome of the School Board hearings which ultimately resulted in Respondent's dismissal from employment.

       
       

   12. Based on Principal Davidson's observance of Respondent on July 24, and subsequent unfavorable press accounts of the incident relative to the school, she would not want Respondent to return as a teacher at LaVoy.

       
       

   13. S. E. Dobbins, the Personnel Services Director for the School Board, read several newspaper articles in the "Tampa Times", the "Florida Sentinel Bulletin" and other local newspapers respecting the subject incident between Respondent and student Irene Martin.

       
       

   14. Veda Bird, the former Principal at LaVoy and a teaching professional for more than forty-seven years, retired from the Hillsborough County School System during 1978. Principal Bird recommended Respondent for employment by the School Board. She observed him on a daily basis and was unaware of any character charges having been leveled against Respondent during his tenure of employment.

       
       

   15. Principal Bird is also familiar with student Irene Martin. She recalled that student Martin had a habit of grabbing teachers and was generally very vocal and hyperactive while at school. Principal Bird remembered student Martin as being a very strong student who constantly had to be counselled about grabbing instructors and other students to gain their attention. Finally, Principal Bird recalled that Respondent and Mr. Kennedy Watson had personality clashes and that she considered that Mr. Watson thought that Respondent was "out to get his (Watson's) job."

       
       

       RESPONDENT'S DEFENSE

       
       

   16. Respondent appeared on his own behalf and generally denied all of the material allegations of the Petition for Revocation filed herein. Specifically, Respondent denied that student Irene Martin attended his class on the date of July 13, 1979. He related his policy of not permitting students to attend his classes when they were not assigned to be there.

       
       

   17. Respondent recalled one occasion wherein he was showing a student how to dig with a shovel. At that time, he stood in front of the student and demonstrated how to dig a hole with a shovel. Respondent denied that there was any body contact between himself and the female student while he gave the digging instructions. Respondent also denied that there was any body contact between himself and a female student during July of 1978, as testified by Mrs. Davidson and Mrs. Bennett. He related that on one occasion he struggled to get Irene Martin back to the classroom area and that he had to, in essence, pull her back from the agricultural area to the class pod. Respondent believed that Mr. Watson's testimony herein was motivated and stemmed from a disagreement he had with Watson concerning the disappearance of approximately two hundred azalea plants that Respondent had given Watson to plant for the school.

       
       

       CONCLUSIONS OF LAW

       
       

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

   19. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

   20. The authority of the Petitioner is derived from Chapter 231, Florida Statutes, and Rule Chapters 6A and 6B of the Rules of the State Board of Education, Florida Administrative Code.

       
       

   21. Petitioner has the authority to suspend or revoke the teaching certificate of any person who is found guilty of gross immorality or an act involving moral turpitude. Section 231.28(1), Florida Statutes. The instructional staff of the public schools are subject to the rules and regulations of the State Board and of the School Board. They are charged with laboring faithfully and earnestly for the advancement of pupils and their studies, deportment, morals, and must embrace every opportunity to inculcate by precept and example, the responsibility to practice the profession according to the highest ethical standards. Section 231.09(1), Florida Statutes, and 6B- 1.01, Florida Administrative Code. In this regard, the evidence herein reveals that Respondent was observed by three different independent witnesses on three occasions during July of 1978 engaging in acts and/or conduct with student Irene Martin, a trainable mentally retarded student with an I.Q. below 50, in a manner unbecoming that of a teacher or any employee who is charged with setting a proper example for students. Based on these acts, I hereby conclude that the Respondent engaged in conduct violative of Sections 231.28 and 231.09, Florida Statutes, and Chapter 6B-1, Florida Administrative Code. 1/

RECOMMENDATION

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

RECOMMENDED:

That the Respondent's Teaching Certificate No. 044411, be REVOKED. RECOMMENDED this 28th day of August, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1980.

ENDNOTE

1/ Respondent's denial of such conduct and the contrary assertions by former Principal Veda Bird were considered and rejected in view of the fact that Principal Bird was not employed during the times when the subject incidents occurred. And, Respondent's denials of his conduct were not convincing in view

of the credited testimony by three independent witnesses who witnessed the subject conduct on more than one occasion during July of 1978.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

Cary R. Singletary, Esquire Exchange National Bank Building Suite 1625, 610 Florida Avenue

Tampa, Florida 33602

Ralph D. Turlington, Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street

Tallahassee, Florida 32304

Docket for Case No: 79-002179

Orders for Case No: 79-002179