STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2211

)

SAMUEL TROUT, )

)

Respondent. )

) SCHOOL BOARD OF WASHINGTON )

COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2826

)

SAMUEL TROUT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings on January

30 and 31, 1984, in Chipley, Florida.

APPEARANCES

For Petitioner: Department of Education

Education Practices Commission

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

For Petitioner: School Board of Washington County

Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428

For Respondent: W. Paul Thompson, Esquire

Post Office Drawer 608

DeFuniak Springs, Florida 32433 ISSUES AND BACKGROUND

This case concerns the issue of whether respondent's teaching certificate should be suspended or revoked or otherwise disciplined for showing pornographic and obscene materials to minor boys. At the formal hearing the petitioners

called as witnesses Ricky Clark, Tim Knowles, Henry Knowles, Hugh Knowles, Jonathan Griggs, Allen Shipes, Fred Peel, Byron Weston, and Charles Adams. Respondent called as witnesses Byron Rayburn, Dennis Adams, Nolan Trout, William Allen Trout, Joey Edward Hartsog, and Gail Trout. The respondent, Samuel Trout, also testified on his own behalf. Petitioner's offered and had admitted into evidence four exhibits. Respondent offered no exhibits into evidence. During the course of the hearing, the hearing officer granted a motion for a view of the premises and hearing officer Exhibit 1 is a sketch prepared by the hearing officer as a result of that view.

Subsequent to the final hearing the parties submitted proposed findings of fact and conclusions of law for consideration by the hearing officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order they were rejected as being unsupported by the evidence or as unnecessary to a resolution of this cause.

FINDINGS OF FACT

1. At all times relevant to these proceedings, respondent was the holder of a Florida Teacher Certificate Number 517639. This certificate was issued on October 21, 1982 and had a validity period of July 1, 1982 through June 30, 1983. The Respondent by "Answer to Administrative Complaint" dated August 9, 1983, admitted be holds teaching certificate 517639.

   
   

2. During the 1982-83 school year, the respondent was employed by the Washington County School District as a teacher at the Dozier School for Boys. Dozier School is a correctional school.

   
   

3. On May 6, 1983, respondent's youngest son, Allen Trout, a fifth grade student, had a birthday slumber party at his home. Ricky Clarke, age eleven, Tim Knowles, age nine, Henry Knowles, age eleven, Hugh Knowles, age eight, Jonathan Griggs, age eleven, and Allen Shipes, age ten, attended the slumber party. That same evening respondent's oldest son had several boys his age over for a campout. Most of the boys attending the slumber party arrived at the Trout home in the late afternoon after school.

   
   

4. While at the slumber party the boys played chase, had a bubble fight, watched movies on television and ate hamburgers and ice cream and cake.

   
   

5. At some point during the evening, the specific time being unknown, the younger boys accompanied by Allen Trout and the respondent went into a shed located adjacent to the Trout home. Once inside the shed, the respondent obtained two German nudist colony magazines and gave it to the boys to look at. These two magazines contained nude pictures of men, women, boys and girls. One picture showed nude people on a beach. While in the shed the boys also obtained a Hustler magazine and began looking at the pictures it contained. The Hustler contained pictures of nude women kissing and touching other women and nude men kissing and touching other nude men. The Hustler also contained pictures of nude men and women engaging in sexual acts. Although the evidence was unclear as to who specifically gave the boys the Hustler magazine, the respondent was aware that the boys were looking at all three magazines. The older boys also observed the young boys looking at the magazines.

   
   

6. One of the boys, Tim Knowles, had prior to this occasion been permitted by his father to look at Playboy magazines at home. These magazines contained pictures of nude women.

7. The following day several of the boys told their parents about the magazines. Some of these parents filed complaints with the Washington County Sheriff and on Wednesday, May 11, 1983, Sheriff Fred Peel served a search warrant upon the respondent. Sheriff Peel searched the shed at respondent's home and found no magazines as described above. Respondent testified at the final hearing that he had burned the magazines on May 7, 1983, the day after the slumber party.

   
   

8. Respondent was subsequently arrested and charged with a violation of Section 847.011, Florida Statutes. On December 21, 1983, respondent was convicted of this charge by a jury and on January 20, 1984, was adjudicated guilty. Respondent was placed on probation for six months and fined $391.50. Violation of Section 847.011 constitutes a third degree felony.

   
   

9. The conviction of respondent as well as the events giving rise to the conviction have received a great deal of notoriety in the local community. Respondent's conduct and his conviction have substantially reduced his effectiveness and ability to perform as a teacher in Washington County. Upon being informed of the complaints against the respondent, the Superintendent of Schools for Washington County suspended respondent without pay and recommended his dismissal from employment with the Washington County School Board.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Bearings has jurisdiction over the subject matter and the parties of this action.

    
    

11. Although the teaching certificate on its face is a temporary certificate with a validity period of July 1, 1982, through June 30, 1983, the respondent by Answer to Administrative Complaint dated August 9, 1983, admitted he holds teaching certificate number 517639.

    
    

12. Section 231.28, Florida Statutes, empowers the Education Practices Commission to discipline teaching certificates, if the holder of a certificate is shown to have committed one of those acts enumerated within Section 231.28. The Commission has the authority under that section to suspend or revoke the certificate of any person as defined in 228.041(9) and (10) which define Instructional "Personnel" and "Administrative Personnel."

    
    

13. Respondent has been charged with a violation of Sections 231.28(1)(c)(e)(f) and (h) which provide as grounds for discipline:

    
    

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

    1. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

    2. Upon investigation, has been found guilty of personal conduct which seriously reduced his effectiveness as an employee of the school board;

    (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of

    the teaching certificate.

14. Petitioners contend that the respondent violated- Section 231.28(1)(h) by violating Rule 6B-1.06(3)(a) Florida Administrative Code. That rule provides:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

          
          

15. Petitioners contend that the acts committed by respondent constitute gross immorality or acts involving moral turpitude under Section 231.28, Florida Statutes. Although these grounds are not defined within Sections 231.36 and 231.28, Rule 6B-4.09, Florida Administrative Code, does provide some guidance as to the kind of conduct prohibited under these sections.

    
    

16. The rules do not define "gross immorality", but do provide the following definition for immorality:

    
    

    Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community. Rule 6B-4.09(2), F.A.C.

    
    

    The term "gross immorality" refers to acts which are serious and not minor in nature, and which involve a flagrant disregard of the standard of moral conduct embodied in the above rule. See Education Practices Commission v. David Michael Knox, D.O.A.H. Case No. 82-056 (May 18, 1981, Final Order Entered June 29, 1981)and Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3d DCA 1962).

    
    

17. The term "moral turpitude" has been defined in State ex rel Tullidge

    v. Hollingsworth, 146 So. 6.60 (Fla. 1933) as:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man, or man to society. (Citations omitted). It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often

    involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. Id. at 661.

    
    

18. In the instant case the evidence established that respondent, having been convicted of a violation of Section 847.011, Florida Statutes, is guilty of a violation of Section 231.38(1)(e) Florida Statutes. The evidence also established that the respondent knowingly and intentionally allowed young boys who were guests at his home to look at magazines containing nude women, men, and children as well as nude men and women engaging in sexual acts. Under the above definition it is concluded that this was an act involving moral turpitude and therefore constitutes a violation of Section 231.28(1)(c), Florida Statutes. This same act also constitutes a violation of Section 231.28(1)(f) and Rule 6B-

    1.06 (3)(a) , Florida Administrative Code.

    
    

19. Penalty. License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1962). In the instant case respondent's conduct was improper and showed poor judgment. However, the evidence did not reveal any serious harm or permanent injury to the young boys. One of the boys had in fact been allowed to view similar nude pictures in his own home. This is not the type of incident which should deny an otherwise qualified teacher to pursue his avocation. There was no evidence of any prior disciplinary actions against respondent's certificate. Under these circumstances, permanent revocation of respondent's teaching certificate is not an appropriate remedy.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED

1. That a final order be entered by the School Board of Washington County finding the respondent guilty of the violations as stated above and dismissing him from his employment with the School Board of Washington County and denying any claim he may have for back pay.

   
   

2. That a final order be entered by the Education Practices Commission finding respondent guilty of the violations as stated above and revoking his teaching certificate No. 517639 for a period of one (1) year.

DONE and ORDERED this 6th day of July, 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1984.

COPIES FURNISHED:

J. David Holder, Esquire Berg and Holder

Post Office Box 1694 Tallahassee, Florida 32301

Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428

W. Paul Thompson, Esquire Post Office Drawer 608

DeFuniak Springs, Florida 32433

Donald L. Griesheimer, Director Education Practices Commission Knott Building

Tallahassee, Florida 32301

Charles Adams, Superintendent Washington County School Board

206 North 3rd Street Chipley, Florida 32428

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. CASE NO. 83-2211

SAMUEL TROUT,

Respondent.

/

FINAL ORDER

Respondent, Samuel Trout, holds Florida teaching certificate number 517639. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on September 27, 1984, in Tallahassee, Florida, to take final agency action. The Petitioner was represented by J. David Holder, Esquire. The Respondent was not present or represented. The panel has reviewed the entire record in the case.

The panel adopts the Findings of Fact and Conclusions of Law 1 through 7 of the Recommended Order.

The Respondent's certificate is hereby REVOKED for a period of three (3) years.

The increase of the penalty over that recommended is based upon:

We reject the Hearing Officer's statement that no evidence revealed any serious harm or permanent injury to the young boys. This is not based upon competent substantial evidence. It is not clear that a determination of permanent harm could be made at this time.

It is not a mitigating circumstance that one of the boys involved viewed Playboy magazine at home. We agree with Petitioner that a teacher would not be excused for improper or unduly severe corporal punishment merely because a student's parent employs such discipline at home.

DONE AND ORDERED in Tallahassee, Florida, this 8th day of October, 1984.

CAROLYN WILSON, Presiding Officer

COPIES FURNISHED:

Marlene Greenfield, Administrator Professional Practices Services

Arthur Wallberg, Esquire Attorney General's Office

Judith Brechner, General Counsel

J. David Holder, Esquire

P.O. Box 1694, Tallahassee, FL 32302

W. Paul Thompson, Esq.

P.O. Drawer 608, DeFuniak Springs, Florida 32433

Gerald Holle, Esquire

P. O. Box 268, Chipley, FL 32428

Marvin E. Chavis, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Mr. Charles Adams, Supt. Washington County Schools

206 N. 3rd St., Chipley, FL 32428

I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Samuel Trout, has been furnished to W. Paul Thompson, Esquire, by U.S. Mail, this 10th day of October, 1984.

DONALD L. GRIESHEIMER, Clerk

Docket for Case No: 83-002211

Orders for Case No: 83-002211