STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. TURLINGTON, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 83-128

)

PAUL TIMOTHY McDERMOND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final bearing in this case on May 4, 1983, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: J. David Holder, Esquire

BERG & HOLDER

128 Salem Court

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Richard H. Frank, Esquire

and Robert F. McKee, Esquire FRANK & KELLY, P.A.

341 Plant Avenue Tampa, Florida 33606

and

Lawrence D. Black, Esquire 1/

152 Eighth Avenue, Southwest Largo, Florida 33540

BACKGROUND

These proceedings began on December 17, 1982 when Ralph D. Turlington, as Commissioner of Education, filed an Administrative Complaint against Respondent Paul Timothy McDermond to revoke his teaching certificate in the State of Florida. On January 6, 1983 Mr. McDermond timely filed a Request for Formal Hearing on the allegations contained in the Administrative Complaint. The case was thereafter forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

On April 27, 1983 one of Petitioner's witnesses, Jamie Antonovich, was being deposed by Respondent's counsel. She refused to answer certain questions during the course of that deposition. In a telephone conference call held on April 29, 1983 Respondent sought an order compelling Ms. Antonovich to answer

those questions. By an Order dated May 2, 1983 the motion to compel and its accompanying motion for continuance were denied. On May 2, 1983 Respondent filed a Petition for Review and to Stay Proceedings in the District Court of Appeal, First District. In the case styled Paul Timothy McDermond v. Ralph D. Turlington and the State of Florida, Division of Administrative Hearings, Case No. AS-344, the District Court of Appeal, First District on May 3, 1983 denied Respondent all relief requested. Thereafter the final hearing was held on May 4, 1983 as originally scheduled.

At the final hearing Petitioner presented the testimony of witnesses and offered Petitioner's Exhibit No. 1 which was received into evidence.

Petitioner's Exhibit No. 2, which is a 270 page compilation of Final Orders entered by the State Board of Education and Education Practices Commission was not received into evidence, but the Hearing Officer agreed to take official notice of Final Orders entered by the State Board of Education and the Education Practices Commission. Respondent presented his own testimony, but did not offer any exhibits. Subsequent to the final hearing Petitioner submitted a Proposed Recommended Order containing proposed findings of fact. Respondent submitted a posthearing brief also containing proposed findings of fact. The foregoing submissions have been given careful consideration here. To the extent that the proposed findings are not included in this Order they are specifically rejected as being either not supported by the weight of credible admissible evidence, or as being irrelevant to the issues determined here. 2/

FINDINGS OF FACT

1. Respondent Paul Timothy McDermond holds Florida Teaching Certificate number 355468 valid through June 1984 covering the areas of industrial arts and junior college. At all times pertinent Mr. McDermond has been employed as an industrial arts teacher at Countryside High School in Pinellas County, Florida. He has an undergraduate degree in industrial arts and a master's degree from the University of Miami of Ohio.

   
   

2. Among his responsibilities during the 1981-82 school year at Countryside High School was teaching a class called manufacturing during the fifth period. Jamie Antonovich was a student in that class. During the first semester of the school year Ms. Antonovich received a "C" grade from Respondent for her work. Ms. Antonovich has not been a discipline problem for Mr. McDermond and she generally receives C's and D's for her school work in other classes.

   
   

3. During April 29, 1982 Ms. Antonovich, who at that time was 14 years old, was engaged in "horse play" with Vernon Goins, a male student in Respondent's class. In the course of that horse play Mr. Goins grabbed Ms. Antonovich in the breast. Ms. Antonovich reported the incident to Respondent who laughed about it and did not discipline Mr. Goins.

   
   

4. The classroom used by Respondent for teaching his class was adjoined by a laboratory or shop area which had attached to it a porch area. On the following day, April 30, 1982, Ms. Antonovich was in the porch area cutting wood when Respondent approached her and asked her if Ms. Antonovich would hit him could he grab her breast as Vernon had done.

   
   

5. Respondent then asked her if she knew how large her breasts were and if she would go home and measure them for him for his curiosity. He also asked Ms. Antonovich if she slept with her boyfriend. Mr. McDermond then told her that he would have more questions after he took roll.

6. Ms. Antonovich then went into the classroom and sat down. Mr. McDermond subsequently came up to her during class and asked her if she sucked her boyfriend and if her boyfriend ate her out, and then inquired if he, that is Mr. McDermond could do that. He then said, "I guess I'm too old," but then inquired if Ms. Antonovich got orgasms easily. He asked her if she moaned and said he would like that.

   
   

7. As soon as the class period was over, Ms. Antonovich told a fellow student, Earl Ashley, about the incident with Mr. McDermond. Following her next class, which was a sixth period math class, Ms. Antonovich told her sister, Jill and a friend, Taryn Beatty, about the incident.

   
   

8. Ms. Antonovich then went with Ms. Beatty to see Ms. Pavlisko, who is the dean of students at Countryside High School. The two students approached Ms. Pavlisko and explained to her that Mr. McDermond had made crude remarks to Ms. Antonovich during class. The three of them then went to the office of Mr. Ed Evans, who is the assistant principal at Countryside High School. Ms. Antonovich then related Mr. McDermond's statements made to her during the fifth period and also explained about the incident with Vernon Goins. There have never previously been any complaints from other students about Mr. McDermond's conduct.

   
   

9. Immediately following April 30, 1982 Ms. Antonovich was reassigned from Respondent's class to be an office assistant during the fifth period in the dean's office.

   
   

10. Subsequent to April 30, 1982 Respondent was allowed to take leave until the end of the school year, although he did prepare and administer final exams to his students. Mr. McDermond has returned to the classroom as of August 1982 and continues to teach under a continuing contract with the School Board of Pinellas County, Florida.

    
    

11. At the final hearing Respondent denied making, any of the statements attributed to him by Ms. Antonovich on April 30, 1982. Based on the demeanor of the witnesses, particularly the responsiveness of Ms. Antonovich under skillful cross examination, I find that her version of the facts is the more credible of the two.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1); 120.60; and 231.262(5), Florida Statutes.

    
    

13. Section 231.28, Florida Statutes (Supp. 1982) provides:

    
    

    1. The Education Practices Commission shall have the authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) 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 (4); to revoke the teaching 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 (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       
       

       (c) Has been guilty of gross immorality or an act involving moral turpitude;

       
       

       The instant Administrative Complaint charges Respondent with having been guilty of an act of gross immorality or an act involving moral turpitude. In proceedings of this type where regulatory agencies seek to discipline a person in a manner substantially affecting the practice of his profession, Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Gans v. Department of Professional and Occupational Regulation, 390 8o.2d 107 (Fla. 3d DCA 1980); Walker v. Board of Optometry, 322 So.2d 612 (Fla. 3d DCA 1975); and Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966). The evidence must be as substantial as its consequences. Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). Petitioner has met his burden here.

       
       

14. The record shows by clear and convincing evidence that in making grossly inappropriate sexual remarks to a 14-year-old student, Mr. Paul Timothy McDermond has been guilty of an act of gross immorality involving moral turpitude. Adams v. Professional Practices Council, 406 So.2d 1172 (Fla. 1st DCA 1981).

    
    

15. Respondent's actions toward Ms. Antonovich are most serious. The record shows however, that he has not previously been disciplined by either the Education Practices Commission or by his employing school board. His transgression therefore appears to be an isolated incident. An appropriate penalty should be one which impresses upon Respondent the gravity of his acts, but otherwise recognizes his successful career as a teacher.

RECOMMENDATION

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

That the Education Practices Commission enter a Final Order suspending Respondent's certificate as a teacher in the State of Florida for a period of one (1) calendar year.

DONE and RECOMMENDED this 4th day of November, 1983, in Tallahassee, Florida.

MICHAEL P. DODSON

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 4 day of November, 1983.

ENDNOTES

1/ Mr. Black did not appear at the final hearing on behalf of Mr. McDermond and has not participated in these proceedings subsequent to that time, but is still considered an attorney of record as he has not yet moved to withdraw as counsel.

2/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383 (Fla. 5th DCA 1983).

COPIES FURNISHED:

J. David Holder, Esquire BERG & HOLDER

128 Salem Court

Post Office Box 1694 Tallahassee, Florida 32302

Richard H. Frank, Esquire and Robert F. McKee, Esquire FRANK & KELLY, P.A.

341 Plant Avenue Tampa, Florida 33606

Lawrence D. Black, Esquire

152 Eighth Avenue, Southwest Largo, Florida 33540

Donald L. Griesheimer, Executive Director, Education Practices

Commission Knott Building

Tallahassee, Florida 32301

Judith Brechner, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

Docket for Case No: 83-000128

Orders for Case No: 83-000128