STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKE HOLLOWAY, SUPERINTENDENT, ) ESCAMBIA COUNTY SCHOOLS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1189

)

JAMES MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, on September 5, 1986 in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: G. James Roark, III, Esquire

HAMMONS, ROARK & WHITTAKER

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: John O. Stapleton, Esquire

514 North Baylen Street Pensacola, Florida 32501

This proceeding arose upon a letter notice to Respondent from Petitioner that Respondent was suspended from employment with pay effective March 7, 1986, on grounds of misconduct in office and immorality, based upon the content of an arrest report which is the basis of the charges. The first suspension was with pay. Subsequently, on March 26, 1986, the School Board of Escambia County suspended the Respondent without pay effective that date. On July 11, 1986, the Petitioner formally served a Petition for Dismissal upon Respondent. The Respondent thereupon timely availed himself of his rights to dispute the charges pursuant to Section 120.57(1), Florida Statutes, which ultimately led to the instant proceeding and hearing. The charges in the Petition for Dismissal were identical to those first raised by the March 7, 1986 letter of suspension, referring to the same arrest report as containing the basis for the charges.

The charges stemmed from alleged conduct by the Respondent involving his supposed touching of one of his female students during February 1985, in the library, at Ransom Middle School. The Respondent allegedly touched the student's breasts and genital areas improperly while he and the student, as well as other students, were together in the school library on the date in question. The Respondent denies all the allegations made by the student. The charges of "misconduct in office" and "immorality" arise under Section 231.36, Florida Statutes, and, if proven, are grounds for dismissal from employment and termination of a continuing contract of employment.

The cause came on for hearing as noticed, at which the Petitioner presented two witnesses and one exhibit, which exhibit was excluded on the basis of not being properly authenticated. The Respondent presented three witnesses and four exhibits. Respondent's Exhibit 4 was admitted into evidence; the remaining three were used for impeachment purposes only, after being identified.

The Respondent filed a Motion In Limine shortly before the hearing seeking to exclude the testimony of additional witnesses of Petitioner who were identified to Respondent only approximately four days prior to hearing. The Petitioner sought to have them testify concerning alleged similar complaints by students. This motion was granted and the witnesses were not allowed to testify on the basis of the "Williams Rule." See Section 90.404(2)(a), Florida Statutes. That is, the subject matter of the students' alleged complaints are irrelevant and immaterial to this proceeding since they do not relate in any way to the charges filed against the Respondent in this proceeding and to the factual basis of the charges (i.e. to any "material facts in issue"). The Respondent has been accorded no notice, by proper pleading, of any additional alleged instances of misconduct such that he has had an opportunity to prepare a defense against any such allegations that might be lodged against him through the testimony of these additional, disputed witnesses. The Respondent can only be required to proceed to hearing and defend against those charges of which he has proper notice, which was the charge involving student Kim Lee, concerning conduct allegedly occurring in the school library, as depicted in the arrest report incorporated in the petition.

The parties submitted Proposed Recommended Orders after the hearing and the filing of the transcript of the proceedings. Those Proposed Recommended Orders have been considered herein. The Proposed Findings of Fact have been treated in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the Respondent committed the alleged acts of misconduct involving the student, Kim Lee, and if that proves to be the case, what penalty is warranted.

FINDINGS OF FACT

1. The Petitioner is a governmental agency charged, in pertinent part, with employing instructional personnel such as the Respondent for the purpose of teaching students enrolled in the public schools, over which it has supervisory authority through its Superintendent, Mike Holloway. The Petitioner is charged with regulating the professional conduct of instructional personnel such as the Respondent and enforcing the appropriate statutory and regulatory standards pertaining to the professional conduct required of instructional personnel.

   
   

2. The Respondent, James Martin, has been a teacher in the school district of Escambia County since 1971. All of this instructional time was spent at Ransom Middle School. The Respondent taught for one year prior to that time at Aliceville, Alabama. During times pertinent hereto the Respondent was a sixth grade science teacher at Ransom Middle School, and the sole complaining witness herein, Kim Lee, was a student in his science class. The Respondent has never been accused of any professional misconduct in the past.

   
   

3. The Respondent was notified of the charges against him by the dismissal letter of Mike Holloway, the Superintendent of Schools for Escambia County, dated March 7, 1986, and the later Petition for Dismissal dated July 11, 1986,

   in which it is charged that the Respondent committed a lewd and lascivious assault upon a child on or about March 19, 1985, which resulted in his arrest on that charge. Both the letter notice of dismissal and the petition referenced the arrest report in that criminal action and incorporated that arrest report in the petition. Thus, the specific factual allegations embodied in the charges against the Respondent are contained in the arrest report incorporated in the petition. That report indicates that on February 7, 1986, the victim, Kim Lee, gave a video recorded statement to a "child protection team." That complaining witness alleged that in March 1985 her class was in the library at Ransom Middle School, at which time she advised that the Respondent approached her from the rear, put his arms around her with his hands on the area of her breasts, bent the upper half of her body over and rubbed his genital area against her genital area.

   
   

4. Shortly after the alleged incident was finally reported by Kim Lee, which led to the Respondent's arrest, Kim Lee gave a video-taped interview to Ms. Sally Putters, a child protection team caseworker or interviewer (the record is not clear regarding her status). In this video-taped interview Kim Lee described the alleged incident in the library and indicated that the Respondent, in addition to placing his hands on her breasts, contacted her vaginal area. It is common practice, for interviewers such as Ms. Putters to have difficulty "drawing out" an accurate version from children and adolescents regarding such incidents due to their embarrassment and confusion about such matters. Ms. Putters therefore used two dolls in an attempt to get Kim Lee to accurately indicate where and how the touching occurred. In this interview Kim Lee repeatedly pointed to the front of the doll, which represented her body, in referring to where the Respondent's genital area allegedly contacted her. The arresting officer, Steve Purcell, however, recalled her description of the incident as involving the Respondent contacting her buttocks with his genital area.

   
   

5. The student was later deposed and testified at the criminal trial involved in this matter and again gave conflicting accounts of how the incident was supposed to have occurred in a physical sense. This witness has, on one occasion, repeatedly indicated, by pointing to the doll for Ms. Putters, that the Respondent contacted the front part of her body and genital area. On another occasion she described the incident as occurring when the Respondent contacted her vaginal area while she was bent over at the waist and the Respondent approached her from behind. On still another occasion, in the course of her deposition and testimony concerning the criminal proceeding, she described the incident as occurring when she was standing near the librarian's desk in company with the other students, turned to leave the desk, slipped and was falling, whereupon the Respondent caught her, preventing her fall and contacted her breast and genital area in that manner and physical relationship. Finally, in addition to these varying descriptions of the supposed incident, witness Lee, after testifying on direct examination that the Respondent had approached her from behind, contacted her breasts with his hands, and contacted her vaginal area with his genital area, while she was bent over (and in the company of several other students), then gave a varying version of the events in later testimony. Thus she described the incident as occurring when she turned to leave the desk and fell and the Respondent caught her and contacted her breasts and genital or vaginal area.

   
   

6. The Respondent denied all the allegations made by the student. The Petitioner attempted to adduce the testimony of other witnesses putatively to show that the Respondent had committed similar acts and had a proclivity for engaging in offensive touching of other students. No other such conduct was the

   subject of charges in the petition, however, and the Respondent had no notice of and an opportunity to prepare a defense against them. Accordingly, the "Williams Rule" was enforced pursuant to its codification in Section 90.404(2)(a) and (b), Florida Statutes, inasmuch as the Respondent had not raised a material fact issue concerning lack of intent or mistake in the manner in which the alleged conduct occurred, rather the Respondent categorically and continually denied that the alleged touching of the student occurred at all.

   The Petitioner had attempted to use the testimony of Deputy Purcell, to the effect that the Respondent speculated verbally that, had he touched the student in an offensive way, it would have been accidental or inadvertent, as raising the "issue" of lack of intent or mistake. In any event, the testimony of the proffered witnesses was not allowed because the Respondent had not raised inadvertence, mistake or lack of intent, rather it was the Petitioner's own attempt to show this through a prior out-of-court statement of the Respondent which statement in itself does not reflect that the Respondent ever admitted that the conduct itself had actually occurred, but rather was mere speculation that if he had ever touched the student it would have been without the intent to commit the act with which he is charged.

   
   

7. Aside from this, no corroborating witnesses or evidence were presented to corroborate the equivocal, conflicting testimony of Kim Lee. This is especially noteworthy, since even Kim Lee testified that the alleged acts of the Respondent occurred in the immediate presence of other students around the librarian's desk. Further, the school librarian established that she only missed two days of work the entire year in question and that, had the incident occurred in the library as alleged, she would have been able to observe it. She saw no such incident nor had it reported to her by a student or any other person. She was never contacted by anyone, including any School District personnel, by way of inquiry as to whether she had any knowledge of or had observed any such conduct or the lack thereof. Deputy Purcell, the investigating officer, never contacted her at all. In fact, he never inquired of any potential witness or person with knowledge of any of the events in question other than the complaining witness, Kim Lee. This is noteworthy in view of the obvious multiple number of potential witnesses who were standing around the librarian's desk when the alleged event was supposed to have occurred according to Kim Lee's own testimony. Further, the testimony of Officer Purcell, who has substantial experience in estimating descriptions and heights of individuals, established that the Respondent is approximately a foot taller than the complaining witness was during her tenure in the sixth grade at the time in question, thus presenting another substantial reason why the acts allegedly committed by the Respondent were physically impossible.

   
   

8. Finally, it should be pointed out that the testimony of Kim Lee is fraught with conflicts and failures to remember significant events or facts concerning what is supposed to have happened in the library on the day in question. The various testimonial statements of Kim Lee made during the hearing, the prior deposition and taped statement, concerning which she was questioned at hearing on cross-examination, revealed that she has given on various occasions at least three differing descriptions of how the supposed offensive touching was supposed to have occurred. Further, her own testimony establishes that she spent nine months in the hospital for a breathing difficulty involving hyperventilation, which she herself indicated was described by her attending physician to be emotionally based. Although she testified the emotional disturbance began with the supposed misconduct of the Respondent, she revealed upon cross-examination, that in earlier life she had been the victim of

   at least two incidents of sexual abuse by male adults in her environment, which might just as logically have been the origin of her emotional disturbance, which in turn may have greatly influenced the reason she testified as she did.

   
   

9. The Respondent, for his part, established that he has a substantial hearing loss and must get especially close to some students to hear them. This is especially true of Kim Lee, who obviously has a very low, difficult to understand voice and manner of speaking. Respondent's witnesses also established that friendly hugs by teachers, such as an arm around the shoulders, a pat on the head and the like, are not only tolerated, but are an affirmative, positive part of school policy designed to help a teacher alleviate fears and. concerns of students who, in the middle school grades, often encounter difficulties in their development from childhood to adolescence. The emotional difficulties Kim Lee has experienced, coupled with the Respondent's physical requirement to get close to a student with a low voice in order to hear that student accurately, may have influenced Kim Lee's testimony to some extent in describing the offensive contact she maintains occurred.

   
   

10. In any event, however, because of the complaining student's emotionally disturbed condition; the conflicting descriptions she has given at various times concerning the alleged conduct; the fact that it supposedly occurred around other students, none of whom were interviewed or testified; the fact that the librarian was in a position to know if it had occurred and never observed it or had it reported to her; and because the Respondent's testimony is credible and was corroborated by fellow teachers; it has simply not been proven that the conduct alleged by Kim Lee occurred at all. It is quite difficult to believe that this offensive conduct involving the Respondent's hands on the student's breasts and contact of his genital area with hers (if it were physically possible), would have occurred in the presence of a number of other students, some of whom would have been an approximate arm's length away. There has simply been no credible evidence adduced that the Respondent is guilty of or engaged in any acts of misconduct or immorality nor that any physical touching by the Respondent of this student occurred at all.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Section 120.57, Florida Statutes (1985).

    
    

    Section 231.36(4)(c), Florida Statutes, provides:

    
    

    "Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpi- tude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without

    pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid.

    
    

12. In cases where the agency charging the Respondent of seeking to remove a valuable right such as a license, continuing contract employment status and the like, such as is involved herein, that agency bears the burden of proving the misconduct and legal charges alleged by clear and convincing evidence, not a mere preponderance of the evidence. 1/ The case of the School Board of Pinellas County vs. Noble, 384 So.2d 205 (Fla. 1st DCA 1980) stands for the proposition that statutes seeking to impose dismissal or other penalties against school board employees are penal in nature. The Court determined that... "this statute is in effect a penal statute, as it imposes sanctions, including suspension or dismissal of an employee under continuing contract when he is found guilty of violating the statutes proscriptions. CF. Lester vs. Department of Occ. Regulations, 348 So.2d 923 (Fla. 1st DCA 1977). Consequently, the statute must be strictly construed, and if there are any ambiguities within it, they must be construed in favor of the employee. ..." Under authority of that case, then, a statute imposing the sanction of dismissal on a school board employee, and the proceeding concerning the imposition of that sanction, such as the case at bar, is penal in nature. Since the statute applied herein authorizes the sanction of dismissal from continuing contract employment the proceeding is, in this respect, like license revocation proceedings, which have been stated to be "penal in nature." State ex. rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973), Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(Reh. Den. 1980). Because such proceedings are penal in nature, the prosecuting agency is required to prove its charges by clear and convincing evidence--by evidence as substantial as the consequences facing the licensee. See Walker vs. State, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966); Bowling vs. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). The Court in Bowling held:

    
    

    "The violation of a penal statute is not to be found on loose interpretations and proble- matic evidence, but the violation must in all its implications be shown by evidence which weighs as `substantially' on a scale suitable for evidence as the penalty does on a scale of penalties."

    
    

13. The United States Supreme Court has treated burden of proof standards as a constitutional due process issue. The case of Addington vs. Texas, 441

    U.S. 426, 99 S.Ct. 1804 (1979) is instructive. That case involved an issue of the standard of proof required to commit an individual to a state mental hospital involuntarily. The Court stated:

    
    

    "The function of standard of proof, as that concept is embodied in the due process clause in the realm of fact finding, is to `instruct the fact finder concerning the degree of confidence our society thinks it should have in the correctness of factual conclusions for a particular type of adjudication.'" In re: Winship, 387 U.S. 358, 370, 90 S.Ct. 1068,

    1076, 25 L.Ed.2d 368 (1970)(J. Harlan

    concurring). The standard serves to allocate

    the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision. Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties.

    Since society has a minimum concern with the outcome of such private suits, the plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion. In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgement. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the due process clause that the state prove the guilt of an accused beyond a reasonable doubt. In re: Winship, supra.

    
    

    The intermediate standard, which usually employs some combination of the words

    `clear,' `cogent,' `unequivocal,' and `con- vincing,' is less commonly used, but nonethe- less is `no stranger to the civil law.' Woodby vs. I.N.S., 385 U.S. 276, 285, 87

    S.Ct. 483, 488, 17 L.Ed. 362 (1966). See

    also, McCormick, Evidence Section 320 (1954);

    9 J. Wigmore, Evidence Section 2498 (3rd ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk of the defendant of having reputation tarnished erroneously by increasing the plaintiff's burden of proof. Similarly, this court has used the `clear, unequivocal and convincing' standard of proof to protect particularly important individual interests in various civil cases. See E. G. Woodby vs. I.N.S., supra, at 285, 87 S.Ct. at

    487 (deportation); Chaunt vs. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5

    LEd.2d 120 (1960)(denaturalization); Schneiderman vs. United States, 320 U.S. 118, 125, 159, 63 S.Ct. 1333, 1336, 1357, 87 L.Ed.

    1796 (1943)(denaturalization)."

    
    

    Thus in cases where the interests at stake are deemed to be more substantial than loss of money by a defendant (or here a Respondent) and that the risk to the party prosecuted of having his reputation tarnished erroneously is more substantial than the public interest in the prosecution, this opinion would state that the middle ground between preponderance of the evidence and proof beyond a reasonable doubt, viz, "clear and convincing" evidence is required to meet due process guarantees. Similarly, in Williams vs. Williams 424 So.2d 159 (Fla. 1st DCA 1983), the Court held the standard of proof in proceedings for non-criminal involuntary confinement to be clear and convincing evidence. See also Santosky vs. Kramer, 182 So.2d 1388 (1982).

    
    

14. Proceedings such as this one are clearly penal in nature and, because of the high positions of public trust which teachers occupy, the continued employment of a teacher in good standing without a disciplinary blemish on his record of the nature of that involved in this case is of critical importance to that teacher's reputation as one capable of and appropriately holding such a position of public trust. This is a substantially more serious right or privilege to be protected than that involved in a mere "money judgement" action. A teacher's professional reputation certainly seems sufficiently critical to any chance of future employment that the risk of having that reputation tarnished erroneously in a proceeding such as this certainly justifies increasing the Petitioner's burden of proof beyond that of a mere preponderance.

    
    

15. In a penal action such as this, the risk of error from using the "preponderance standard" is substantial and the countervailing state interest favoring that standard is comparatively slight. The language in Bowling, surra that "when the proceeding may result in the loss of a valuable business or professional license, the critical matter in issue must be shown by evidence which is indubtably as `substantial' as the consequences" is another way of saying what was stated in Matthews vs. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), that "both the risk of erroneous deprivation of private interest resulting from the use of a preponderance standard and the likelihood that a higher evidentiary standard would reduce the risk must be considered and, when so considered, the standard of proof that by its very terms demands consideration of the quantity rather than the quality of the evidence may misdirect the fact finder in a marginal case." Santosky vs. Kramer, supra. See also State of Florida, Department of Insurance vs. Sonin Marcus, Case No. 83- 2604 (Recommended Order entered October 27, 1983).

    
    

16. It must be concluded, therefore, that, contrary to Petitioner's contention, the agency herein has the burden of proving the charge against the Respondent by clear and convincing evidence. This has not been accomplished by any means in this case. Indeed, the Petitioner's proof does not rise to the level of an equipoise, much less a preponderance of the evidence. The Petitioner's complaining witness, gave testimony which was not corroborated, credible nor worthy of belief and was herein weighed against testimony by the Respondent which the Hearing Officer judges to be credible and which was corroborated by other testimony. That being the case, the Petitioner has not established the charges at issue even by its asserted "preponderance of the evidence" standard of proof.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the petition filed by the School Board of Escambia County be DISMISSED and that the Respondent be reinstated and paid all back pay accrued during the time of suspension without pay.

DONE and ORDERED this 28th day of November, 1986 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 28th day of November, 1986.

ENDNOTE

1/ The Hearing Officer is mindful of the recent opinion of the First District Court of Appeal in Turlington vs. Ferris, (Case No. BH-37, Opinion filed October 2, 1986) where, interestingly enough, in a penal proceeding with a teacher's license and livelihood at stake, the Court indicated that the standard of proof was a preponderance of the evidence, under the circumstances of that case. Just as the Court stated on the face of that opinion, it is directed to the circumstances of that case and should be so limited. The circumstances of this case involving a teacher with a previously unblemished record who suffers a prosecution which can fatally tarnish his professional standing and reputation, wholly aside from costing him his job, certainly seem to entitle him to the benefit of a higher standard of proof imposed on the prosecutor than that prevailing in a county court suit for monetary damages, for the reasons discussed further herein.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1189

Petitioner's Proposed Findings of Fact:

1 & 2. Accepted.

3. Rejected as not being in accord with the competent, substantial evidence presented.

4-7. Rejected as rot being in accord with the greater weight and quality of evidence and as being immaterial and irrelevant to the extent this relates to conduct not embodied in the charges.

1. Rejected as not being supported by any evidence of record.

2. Rejected as not in accord with the greater weight and quality of evidence.

3. Rejected as not in accord with the greater weight and quality of evidence and as not probative of the charges at issue.

4. Rejected as not being in accord with the greater `weight and quality of evidence and as being immaterial and irrelevant to the charges at issue.

5. Rejected as not in accord with the greater weight and quality of evidence.

Respondent's Proposed Findings of Fact:

1-3. Accepted.

4. Rejected as not in accordance with the charges at issue and therefore immaterial except as to the alleged occurrence referenced in the Recommended Order.

5-11. Accepted.

COPIES FURNISHED:

G. James Roark, III, Esquire HAMMONS, ROARK & WHITTAKER

17 West Cervantes Street Pensacola, Florida 32501

John O. Stapleton, Esquire

514 North Baylen Street Pensacola, Florida 32501

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Judith Brechner, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

Mike Holloway, Superintendent Escambia County School District

215 West Garden Street Post Office Box 1470

Pensacola, Florida 32597-1470

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

SCHOOL BOARD OF ESCAMBIA COUNTY, FLORIDA

MIKE HOLLOWAY, SUPERINTENDENT, ) ESCAMBIA COUNTY SCHOOLS, )

)

Petitioner, )

vs. ) CASE NO. 86-1189

)

JAMES MARTIN, )

)

Respondent. )

)

FINAL ORDER

This matter arose upon the Petition For Dismissal of the Respondent. A Hearing Officer of the Department of Administrative Hearings has conducted a formal proceeding in this matter and has submitted a Recommended Order, dated November 28, 1986. After examining the Recommended Order and Petitioner's Proposal to Adopt Recommended Order Subject to Exceptions and considering other argument, the School Board of Escambia County, Florida, finds that said exceptions are well founded to the extent they pertain to legal conclusions and interpretation of administrative rules;

THEREFORE, IT IS HEREBY ORDERED:

1. The School Board of Escambia county, Florida, has jurisdiction over the subject matter hereof and the parties hereto.

   
   

2. The portions of the Conclusions of Law in the Recommended Order regarding the standard of proof being by clear and convincing evidence are hereby rejected and are modified to state that the standard of proof required by Petitioner in a teacher dismissal and termination of contract proceeding is a preponderance of the evidence. Turlington vs. Ferris, 496 So.2d 177 (Fla. 1st DCA 1986); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986).

   
   

3. The portions of the statement of the case in the Recommended Order stating that the charges in the Petition for Dismissal are identical to those contained in the March 7, 1986, letter of suspension are rejected.

   
   

4. The portions of the statement of the case in the Recommended Order stating that the Respondent had not been accorded notice by proper pleading of any additional alleged instances of misconduct are rejected and is modified to state that the Petition for Dismissal accorded proper notice to Respondent. Powell vs. Board of Public Instruction of Levi County, 229 So.2d 308 (Fla. 1st DCA 1969).

   
   

5. The portion of the statement of the case in the Recommended Order regarding the application of the "Williams Rule" is based upon an incorrect

   interpretation of Section 90.404, Florida Statutes, and is rejected and modified to state that Section 90.404, Florida Statutes, allows the admission of similar fact evidence of other crimes, wrongs, or acts when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, plan, knowledge, identity, or absence of mistake or accident. Cotita vs. State of Florida, 381 So.2d 1146 (Fla. 1st DCA 1980).

   
   

6. Based upon the provisions of Section 228.093 and 794.03, Florida Statutes, the names of any alleged victim or student are deleted from the Recommended Order.

   
   

7. To the extent not rejected or modified by this Final Order, the Recommended Order is adopted.

   
   

8. The Petition for Dismissal is hereby DISMISSED and the Respondent, James Martin, is reinstated and shall be paid all back pay accrued during the time of his suspension without pay.

DONE AND ORDERED this 27th day of January 1987, in Pensacola, Florida.

SCHOOL BOARD OF ESCAMBIA COUNTY, FLORIDA

By: Eric C. Eggen, Chairman

cc: Joseph L. Hammons, Esquire John O. Stapleton, Esquire George E. Loomis, Esquire Mike Holloway, Superintendent

P. Michael Ruff, Hearing Officer

NOTICE

Pursuant to Sections 120.68 and 231.36, Florida Statutes, this order of the School Board of Escambia County, Florida, may be reviewed by Petition to the First District Court of Appeal of Florida within thirty (30) days.

Filed with the Clerk of the School Board this 27th day of January, 1987.

Clerk

Docket for Case No: 86-001189

Orders for Case No: 86-001189