STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1757

)

ROBERT J. BROWNE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings in Tallahassee, Florida, on January 26, 1982.

APPEARANCES

For Petitioner: J. David Holder, Esquire

BERG AND HOLDER

203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: No Appearance.

This proceeding was initiated on the Petitioner's Administrative Complaint filed July 9, 1981, wherein the Petitioner seeks the revocation or suspension of the Respondent's Florida Teacher's Certificate or other administrative sanctions, pursuant to Sections 120.60, 231.261, 231.28, 231.36(2) and 231.546(2), Florida Statutes. Specifically, the Petitioner alleges that the Respondent, Robert J. Browne, engaged in homosexual activity with-a minor student at his place of employment, the Exceptional Student Educational Center in Broward County. This is alleged to be in violation of Section 231.28(1), Florida Statutes, in that the Respondent is charged with committing acts of gross immorality, moral turpitude, and engaging in conduct which seriously reduces his effectiveness as an educator. His conduct is further charged to be reprehensible in that Section 231.09, Florida Statutes, requires him to set a proper example for students. After diligent search and inquiry, the Department was unable to achieve service of the complaint on the Respondent. Certified mail sent to his last known forwarding address was returned marked "not deliverable," "unable to forward." The Petitioner accordingly achieved legal notice of the action by publication. The undersigned attempted to serve notice of the instant hearing on the Respondent with the same result. After notice by publication, the cause ultimately came on for hearing on the above-mentioned date. The Respondent failed to appear; a default was entered, and the Petitioner, pursuant to Rule 6B-11.03, Florida Administrative Code, proceeded to put on its prima facie case; even in the absence of an election of rights filed by the Respondent, because of the rule's avowed purpose of providing for the creation of a record upon which the Education Practices Commission may take

final agency action. A hearing was held on the above-mentioned date and sebsequent to the hearing, on March 3, 1982, the petitioner informed the undersigned that it had elected not to obtain a transcript of the proceedings.

FINDINGS OF FACT

1. This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981.

   
   

2. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable.

   The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner.

   
   

3. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school.

   
   

4. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while

   she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr.

   Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne.

   She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects

   Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare.

   
   

5. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred.

   
   

6. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The Petitioner in this cause has accused the Respondent of violation of Section 231.28, Florida Statutes, relating to an alleged act of gross immorality and moral turpitude and conduct which seriously reduces his effectiveness as a teacher and as an employee of the Broward County School Board. Petitioner has also accused the Respondent of a violation of Section 231.09, Florida Statutes, for being guilty of conduct which fails to provide a proper example for students. In consideration of the unrefuted evidence in this case as adduced by the Petitioner and the facts as found above involving the Respondent's conduct with Ronnie Turner during the summer of 1980, the Petitioner is quite correct in all its assertions. The Respondent's conduct in actively soliciting and committing a homosexual act against Ronnie Turner on four occasions constitutes acts of gross immorality and moral turpitude. These events, when they became known to the parent of the child involved, the staff of the school and of the Broward County School Board, and, of course, the child involved, are such that they seriously reduce his effectiveness as a teacher and constitute such patently reprehensible conduct as to render the conclusion self-evident that the Respondent is a licensee who has utterly failed to set a proper example for students.

   
   

9. The Petitioner has thoroughly proven the acts charged to have been committed by the Respondent and in accordance with Section 231.28, Florida Statutes, the Respondent is subject to a penalty ranging from suspension to permanent revocation of his license to practice the teaching profession. No evidence of a mitigating nature has been adduced.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is,

RECOMMENDED:

That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently.

DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982.

COPIES FURNISHED:

J. David Holder, Esquire BERG AND HOLDER

203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302

Mr. Robert J. Browne

1771 Northeast 12th Street Fort Lauderdale, Florida 33304

Docket for Case No: 81-001757

Orders for Case No: 81-001757