STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2518

)

OTIS J. FELLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 7 and 8, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Jose E. Martinez, Esquire,

Coral Gables, Florida;

For Respondent: Elizabeth J. du Fresne, Esquire, Miami, Florida,

By letter dated September 16, 1981, the Superintendent of Schools for Dade County notified Respondent that he was suspending the Respondent as a teacher at American Senior High School effective September 16, 1981, based upon the grounds of immorality and misconduct in office and that he would recommend to the School Board on September 23 that that suspension be continued and that charges for dismissal be filed. Respondent timely requested a formal hearing on the charges forming the basis for that suspension and dismissal. Accordingly, the issue for determination herein is whether Respondent should be suspended or dismissed from employment by the School Board of Dade County.

Petitioner's Notice of Charges filed on March 8, 1982, alleges, inter alia:

1. That on or about September 8, 1981, the Respondent OTIS J. FELLS, did unlaw- fully and feloniously commit sexual battery upon Paulette Brown, without her consent, when the said Paulette Brown was older than 11 years of age but less than

   18 years of age, and used his authority over the said Paulette Brown to coerce her to submit in violation of Florida Statutes

   794.11 E.

2. That the acts complained of were against the form of the Statute cited in such cases made and provided and against the peace and dignity of the State of Florida.

The statute cited is a criminal statute declaring such conduct to be a felony of the first degree. Respondent was charged with that criminal offense and was tried in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County and was found not guilty by the jury. Therefore, Petitioner filed a Motion for Leave to File Amended Charges and its Amended Notice of Charges on March 26, 1982. The Amended Notice of Charges both restated the alleged conduct between Respondent and Paulette Brown and included charges not previously made against Respondent. Since the formal hearing in this cause had previously been scheduled to commence less than two weeks after the Petitioner sought to amend its Notice of Charges and since the Petitioner would not agree to a continuance of the formal hearing so that the Respondent could prepare to meet the additional allegations, the Motion for Leave to File Amended Charges was granted in part and denied in part. Accordingly, the factual allegations in the Amended Notice of Charges to be tried, and which were actually tried, are as follows:

1. That at all material times to the charges herein the Respondent was an employee of the School Board of Dade County Florida, more particularly a teacher at Miami American Senior High School....

   
   

2. That the Respondent conducted himself in a manner which was immoral and consti- tuted misconduct in office pursuant to Florida Statute[s] Section 231.36 (6).

   
   

3. That the conduct of the Respondent which constituted immorality and miscon- duct in office included the following:

   a.) That on or about September 8, 1981, the Respondent, Otis J. Fells, did commit sexual battery upon Paulette Brown, without her consent while the said Paulette Brown was older than 11 years of age but less than 18 years of age, and used his author- ity over her to coerce her to submit to

   his sexual advances.

   
   

4. That the acts complained of above are in violation of Florida Statutes 231.36(6)

During the hearing in this cause, ruling was reserved on the admissibility of the following exhibits: Petitioner's Exhibits numbered 1, 2,and 3; and Respondent's Exhibits numbered 1 and Late-Filed numbered 2. The pending motions to have those exhibits admitted in evidence are hereby granted, and the depositions of Belinda Morris, Marilyn Bonita Grimmage, and Sharon Colbert; the records of West Nassau County High School; and the Excerpt Transcript of the trial testimony of Sharon Colbert are hereby admitted in evidence.

Petitioner presented the testimony of Paulette Brown, Joseph James Brown, William Hopkins, Milford Cockfield, Agnes Pitts, Gerald James Zito, Fredrick Robert Bertani, Colleta (also known as Lolleta and Theresa) Gilyard, Michael La Pete, Alphonse Milligah, Gayline James, and Pauline Brown. Additionally, Petitioner's Exhibits numbered 1, 2, 3, 5, and 6 were admitted in evidence.

Petitioner's Exhibit numbered 4 for identification was not offered in evidence.

Respondent testified on his own behalf and presented the testimony of Milford Cockfield, Norman Blanco, Jeffrey Clark, Martha Lee, Phoebe Shealy, Jeffrey Faulkner, Arnold Johnson, Hosea Dennison (by stipulation), and Roscoe Large. Additionally, Respondent's Exhibits numbered 1 and 2 (a late-filed exhibit) were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Respondent, Otis J. Fells, has been an employee of the Petitioner, School Board of Dade County, since 1975. At all times material hereto, he was a teacher and basketball coach at American Senior High School.

   
   

2. On September 8, 1981, Paulette Brown was fifteen years of age, a student at American Senior High School, and a student in Respondent's sixth period physical education class.

   
   

3. Monday, September 7, 1981, was Labor Day. Since classes for the 1981-

   82 school year had commenced the week prior to Labor Day, American Senior High School was closed on Monday and reopened on Tuesday, September 8, 1981.

   
   

4. On September 8, Respondent reported to American Senior High School to carry out his teaching and coaching duties. Since the floor of the gym was being painted, and since the school year had just begun so that not all physical education students had their gym clothes, the physical education classes were held in either the auditorium or the gym as study-halls, and the students wore their regular clothing. Between 9:30 and 10:30 the morning of September 8, Norman Blanco, a volunteer assistant basketball coach, came to American High to talk to Respondent about holding tryouts for the basketball team for the new school year. Since Respondent was with a class, Blanco told Respondent he would return after school to discuss that matter. Both the sixth period classes and the school day ended at 2:15 P.M. Respondent's sixth period physical education class had been held in the auditorium. James Lee, one of Respondent's sixth period students, asked Respondent for a ride home after school, and Respondent agreed to give Lee a ride home.

   
   

5. Respondent left the auditorium and went to the main office to sign out and check his mail. He started to walk toward the boys' locker room, but stopped to speak to the art teacher about the eagle emblem to be placed on the gym floor by the art students. He then went to the gym to get the paint for the floor and took the paint to the art teacher's room, where he left it, although the art teacher was no longer there.

6. Respondent then went to the coaches' office, where Blanco was waiting. From past experience, Blanco knows that if he arrives at American High at 2:15, he cannot find a place to park. He usually arrives about fifteen minutes after school lets out so that all the cars are gone and he can park wherever he wishes. On September 8, he arrived at American High at approximately 2:20 P.M. He went to the coaches' office to talk to Respondent. By the conclusion of their ten-to-fifteen minute meeting in the coaches' office, Blanco had talked Respondent into holding tryouts for the basketball team rather than simply using last year's team, as Respondent had intended to do. Blanco left Respondent in the coaches' office at approximately 2:35 P.M.

   
   

7. There are two doors in the coaches' office: one opening into a hallway, and one opening into the boys' locker room. During Respondent's meeting with Blanco, the doors were open. After school on September 8 in the hallway outside the coaches' office, band members were going out to the football field, members of the flag corps were assembling for practice, and the cheerleaders were practicing approximately fifteen yards from the door into the coaches' office. In the boys' locker room, members of the cross-country team, the football team, and the soccer team were using their lockers or changing their clothes for practice. Additionally, the coaches' office is not Respondent's private office; rather, it is also used by the cross-country coach, the baseball coach, and the soccer coach, who are also involved with their students, their team members, aides, and managers.

   
   

8. Inside the boys' locker room is a small room used for storing basketball equipment. The door to that room is kept locked. There are only three keys for that room: Respondent possessed one, Assistant Coach Jones possessed the second key, and the third key which traditionally was kept in the main office had never been returned after the girls' basketball team borrowed it one night the previous school year.

   
   

9. After his meeting with Blanco, Respondent went to the main office, where he left his handwritten announcement concerning tryouts for the basketball team on the public address system. He then saw James Lee out in front of the school, directly in front of the main office. At approximately 2:45, from the main office, Respondent went to his car and left school with James Lee. When Lee arrived at his home, he told his mother that it was 3:00 and that Coach Fells had given him a ride home. After dropping off James Lee, Respondent went to Mr. B's Package Store and Lounge to see A. J. (Arnold) Johnson, one of the owners.

   
   

10. Over the Labor Day holiday, Bobby Hunter, Assistant Basketball Coach from Boston College, visited Respondent and left sneakers for A. J. Johnson at Respondent's house. Respondent took the sneakers into Mr. B's and gave them to Johnson, who was waiting for the bank to open at 3:00 so he could transact some business at the bank. Johnson left Mr. B's to go to the bank at approximately 3:05, and when he returned from the bank, Respondent was still there.

    
    

11. While Johnson was gone from Mr. B's, Respondent visited with Roscoe Large, the sales representative from Southern Wine and Spirits, and several other persons whom he also knew. After Respondent had been at Mr. B's for approximately thirty minutes, he left and drove to Coconut Grove to pick up his son at the baby-sitter's.

12. On the following day, Respondent went to school and spent a normal day. After he arrived home on Wednesday, his wife told him that someone had been calling on the telephone accusing Respondent of raping Paulette Brown. The next morning, Respondent called the principal of American Senior High, and the principal advised him to stay home.

    
    

13. On September 8, 1981, Paulette Brown stayed after school rather than leaving the school grounds when school adjourned for the day at 2:15. Between 2:30 and 2:45, she visited with Agnes Pitts and William Hopkins in the vicinity of the coaches' office and boys' locker room. When Agnes Pitts again saw Paulette Brown, it was approximately 3:00, and Brown was walking toward the front of the school. Brown told Pitts that she was going home.

    
    

14. At approximately 3:00, Brown called her father and asked him to pick her up at school. After he picked her up and pursuant to her suggestions, they first picked up fried chicken for dinner and then picked up Paulette's brother when he got out of school at 3:30. Mr. Brown then took Paulette and her brother home and then went to pick up Paulette's mother, Pauline Brown, at 4:00 at her place of employment.

    
    

15. Between 5:00 and 6:00 P.M. on September 8, 1981, Paulette Brown called her godsister, April Clark, and told Clark that Respondent had raped her. She also told her story to George Richberg that same evening. She also told her story twice to Jeffrey Clark. During her second relating of the story to Jeffrey Clark, she included mention of a janitor with a key to the boys' locker room.

    
    

16. On Wednesday, September 9, Paulette Brown stayed home from school. After taking a nap, she called her boyfriend's sister and told her that Coach Fells had raped her. When the boyfriend's sister threatened to tell someone in a position of authority if Paulette refused to, Paulette told a neighbor, who told Mrs. Brown.

    
    

17. Paulette Brown was tested at the Rape Treatment Center on September 9, and the investigators for the police department examined the equipment room on September 12. To gain entry to the room, the police drilled through the deadbolt lock.

    
    

18. Five non-mobile sperm were found within Paulette Brown by the Rape Treatment Center. Testing by the Miami-Dade Police Department Crime Lab established that the sperm came from an individual that was an "O-positive secreter." This is the most common blood type. Forty percent of the American population falls in this category. Respondent is a member of this category, that is, Respondent is an "O-positive secreter."

    
    

19. The Miami-Dade Police Department's fingerprint experts examined and dusted the equipment room at American Senior High School and found identifiable fingerprints of the Respondent. They found no identifiable fingerprints of Paulette Brown. The parties have stipulated that simply because one touches an object, one does not necessarily leave fingerprints.

    
    

20. The sheet, which Paulette Brown claims she lay upon while having sexual intercourse with Respondent, was impounded from the equipment room and examined. Nothing of serological value was found.

21. Respondent, Otis J. Fells, did not commit sexual battery upon Paulette Brown on September 8, 1981, and Respondent, Otis J. Fells, did not engage in any sexual activity with Paulette Brown on September 8, 1981.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

23. The Amended Notice of Charges asserts that Respondent conducted himself in a manner which was immoral and constituted misconduct in office pursuant to Section 231.36(6), Florida Statutes, in that on or about September 8, 1981, the Respondent did commit sexual battery upon Paulette Brown, who was older than eleven years of age, but less than eighteen years of age, and that Respondent used his authority over her to coerce her to submit to his sexual advances. Since no sexual contact, with or without consent, occurred between Respondent and Paulette Brown, Petitioner has failed to meet its burden of proving that Respondent is guilty of either immorality or misconduct in office.

RECOMMENDATION

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

RECOMMENDED THAT:

A final order be entered finding Respondent not guilty of immorality and misconduct in office, as set forth in the Amended Notice of Charges filed in this cause, and reinstating Respondent as an employee of the School Board of Dade County with back pay.

RECOMMENDED this 16th day of July, 1982, in Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1982.

COPIES FURNISHED:

Jose E. Martinez, Esquire Leib I Martinez, P.A.

201 Alhambra Circle, Suite 1200 Ponce de Leon Plaza

Coral Gables, Florida 33134

Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Administrative Office

1410 N.E. Second Avenue Miami, Florida 33132

Elizabeth J. du Fresne, Esquire du Fresne & du Fresne, P.A.

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Dr. Leonard M. Britton Superintendent of Schools Dade County Public Schools Administrative Office

1410 N.E. Second Avenue Miami, Florida 33132

Docket for Case No: 81-002518

Orders for Case No: 81-002518