STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, DIVISION OF ) DRIVER LICENSES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3004

) WILLIAM REINHART d/b/a EASY ) METHOD AUTO DRIVING SCHOOL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated hearing officer, Donald R. Alexander, on September 11 and 18, 1986 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Neil Kirkman Building, Room A-432 Tallahassee, Florida 32301

For Respondent: John L. Walkden, Esquire

Post Office Drawer 14396

Fort Lauderdale, Florida 33302 BACKGROUND

This matter began when petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses, issued an Order of Summary Suspension Notice and Administrative Complaint on July 21, 1986 which suspended the commercial driving instructor certificate card and commercial driving school license of respondent, William Reinhart d/b/a Easy Method Auto Driving School. The emergency suspension was based upon respondent's alleged violation of the good moral character requirement in Rule 15A-2.09(2)(a), Florida Administrative Code. The violation stemmed from respondent allegedly sexually harassing or molesting a female student in June, 1986.

Respondent disputed the agency's accusations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was forwarded by petitioner to the Division of Administrative Hearings on August 14, 1986 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated August 29, 1986 the final hearing was scheduled on September 11, 1986 in Fort Lauderdale, Florida. A continued hearing was held on September 18, 1986 at the same location. At final hearing petitioner presented the testimony of Don H. Keirn and Kathleen McKeever. Respondent

testified on his own behalf and presented the testimony of Trudy Eysel and Richard Courtney. He also offered respondent's exhibits 1 and 2. Both were received in evidence.

There is no transcript of hearing and consequently this Recommended Order has been prepared without the benefit of same. Proposed findings of fact and conclusions of law were filed by the parties on September 25, 1986. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

The issue is whether respondent's commercial driving instructor certificate card and commercial driving school license should be disciplined for the alleged violation set forth in the agency's order of July 21, 1986.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant thereto, respondent, William Reinhart, was licensed to operate a commercial driving school called Easy Method Auto Driving School at 920 North Dixie Highway, Suite 144G, Pompano Beach, Florida. He is holder of commercial driving instructor certificate card number 6634 and commercial driving school license number 2460 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (agency or Division). Reinhart has owned and operated his driving school since 1976. The school presently has four instructors, including Reinhart.

   
   

2. Beginning in April, 1986 respondent undertook the driving instruction of Kathleen McKeever, a thirty-two year old female who resides in Boca Raton, Florida. Prior to their lessons, the two had never met. She selected respondent's firm by chance out of the telephone directory.

   
   

3. McKeever took approximately five or six one-hour driving lessons from Reinhart between April and June, 1986. On the first two lessons, Reinhart placed his hand in McKeever's lap while she was driving. She thought this was unusual but believed it might have been necessary in the event Reinhart had to suddenly grab the wheel. 1/ She did not voice any objection to his actions at that time.

   
   

4. On the third or fourth lesson, the two drove on I-95 in Fort Lauderdale. While heading north on that roadway Reinhart reached over and placed his hands on her breasts and "private areas." McKeever at once began "squirming" in her seat. Reinhart then asked her if she minded him flirting with her, and she responded "yes", but he did not stop. The actual length of time in which Reinhart fondled McKeever was not disclosed, but McKeever stated she feared having an accident on I-95 while this occurred. After the lesson was over, McKeever did not disclose the incident to her family or friends because she was embarrassed and afraid it would upset her mother, who was home recuperating from heart bypass surgery.

   
   

5. Fearing possible distress to her mother if she suddenly quit her lessons, McKeever decided to return for another driving lesson in June, 1986. At the beginning of the lesson, Reinhart placed his hand in her lap but she pushed it away. Later on, Reinhart offered McKeever $100 if she would give him a "blow job." She told him she wasn't a prostitute. The lesson ended a few minutes later when McKeever stalled the car in a parking lot and it would not

   restart. She was forced to telephone her family to get a ride home. After the lesson, McKeever telephoned a local television station (WPLG) and asked if the station would send a reporter to investigate the incident. When the station declined, she reported the incident to the Division. The emergency suspension of respondent's two licenses followed on July 21, 1986.

   
   

6. According to the chief of the Division's driver improvement bureau, Reinhart's conduct constituted a lack of good moral character as well as a threat to the safety of others since the incidents occurred while a student (McKeever) was driving the vehicle in traffic. He also stressed the fact that an instructor should have good moral character because of the trust which students place in their instructor.

   
   

7. Respondent offered two witnesses on his behalf, one a current instructor and the other a former office manager of the driving school. The office manager related that McKeever had never voiced any complaints to her, and that it was not unusual for every instructor to receive complaints from students at one time or another. However, she acknowledged that no complaints had ever involved sexual harassment. The second witness, an instructor, characterized the job of an instructor as being difficult because of the nervous and erratic nature of students. Although he stated it was necessary to keep his left hand near the student for the purpose of grabbing the steering wheel, he acknowledged that this would not require an instructor to place his hand in the student's lap.

   
   

8. Respondent denied McKeever's allegations stating she had concocted the story because McKeever was not progressing well in her training and needed an excuse for ending the lessons. Through cross-examination of his counsel, he also suggested that McKeever might have long-standing psychological problems which prompted her to fabricate the story. However, Reinhart's version of events and contentions concerning possible psychological problems on the part of McKeever are not deemed to be credible and are accordingly rejected.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

10. As grounds for taking disciplinary action, petitioner alleges that respondent has violated Rule 15A-2.09(2)(a), Florida Administrative Code. That rule prescribes the following qualifications for an instructor:

    
    

    (2) Instructor qualifications.

    1. Every instructor in a school shall be a bona fide resident of the State of Florida, at least eighteen (18) years of age, and a person of good moral character. (Emphasis added)

       
       

       Rule 15A-2.11(1)(a), Florida Administrative Code, has also been cited by the agency and prescribes the following grounds for disciplinary action against a licensee:

       
       

       1. Any license, certificate, or agency identification card may be denied, suspended or revoked by the Director when such action

          shall be for the purpose of enforcing the safety requirements essential to the purpose of Chapter 448, F.S. The following acts or conditions shall be considered violations of the safety requirements essential to effect the purpose of Chapter 488, Florida Statutes:

          1. The violation of any provision of Chapter 488, F.S., or of any of the rules and regulations of the Department.

    
    

11. Respondent has stipulated that if the allegations are proven, the conduct would equate to a lack of good moral character in contravention of Rule 15A-2.09(2)(a), Florida Administrative Code. In this regard, the evidence is sharply conflicting as to what actually occurred, and amounts to the proverbial "swearing match" between litigants. The undersigned has accepted the testimony of McKeever as being more credible and persuasive, and discredited the version of events propounded by Reinhart. Accordingly, it is concluded that the evidence clearly establishes that the incidents described in the agency's Order of Summary Suspension did in fact occur, and that Reinhart engaged in "physical touchings of Ms. McKeever" and made "verbal suggestions of direct and implied sexual relations." Therefore, the charges that Reinhart evidenced a lack of good moral character have been sustained.

    
    

12. Rule 15A-2.11(1), Florida Administrative Code, gives the agency authority to suspend or revoke the license and certification of a licensee if certain violations have occurred. In both the agency order of July 21 and its post-hearing filing, petitioner has relied upon the violation of Rule 15A-2.09 as a basis for revoking respondent's instructor certificate card and driving school license. Under the facts established herein, revocation of Reinhart's instructor certificate card is warranted. However, the good moral character requirement in Rule 15A-2.09(2)(a) pertains only to instructors, and does not apply to individuals holding driving school licenses. Indeed, the very purpose of Rule 15A-2.09 is to define the qualifications for holders of instructor certificates. Because the driver school licensee committed no violation of agency rules or statutes pertaining to that type of license, disciplinary action against Reinhart's driving school license is inappropriate. This conclusion is consistent with the agency's bureau chief who stressed the importance of an instructor having good moral character because of personal student contact, and the potential safety hazard caused by an instructor fondling a student who is operating a vehicle. By revoking Reinhart's instructor certificate card, he will no longer have personal contact with students, and the agency's concerns will be satisfied. But the contention that the driving school license is also subject to disciplinary action is unavailing, and that portion of the complaint should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's instructor certificate card number 6634 be

REVOKED for violating Rules 15A-2.09(2)(a) and 15A-2.11(1)(a), Florida Administrative Code. The charges concerning respondent's driving school license number 2460 should be DISMISSED and the license immediately reinstated.

DONE and ORDERED this 26th day of September, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 26th day of September, 1986.

ENDNOTE

1/ Although the vehicle had a dual set of brakes, it had only one steering wheel. Therefore, instructors had occasion to grab the steering wheel during a lesson to avoid possible mishaps.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3004 PETITIONER:

1. Covered in findings of fact 4 and 5.

2. Covered in finding of fact 6.

3. Rejected as not being necessary.

RESPONDENT:

1. Covered in finding of fact 1.

2. Rejected as being irrelevant to the issues.

3. Covered in finding of fact 1.

4. Covered in finding of fact 2.

5. Covered in findings of fact 3 and 5.

6. Partially covered in finding of fact 4.

7. Partially covered in finding of fact 5.

8. Covered in finding of fact 8.

9. Rejected as being unnecessary.

10. Covered in finding of fact 6.

COPIES FURNISHED:

C. W. Keith, Director Division of Driver Licenses Neil Kirkman Building Tallahassee, Florida 32301

Michael J. Alderman, Esquire

Neil Kirkman Building, Room A-432 Tallahassee, Florida 32301

John L. Walkden, Esquire Post Office Drawer 14396

Ft. Lauderdale, Florida 33302

Martha Feigenbaum, Esquire

215 North Federal Highway, Suite One Boca Raton, Florida 33432 (information copy only)

Docket for Case No: 86-003004

Orders for Case No: 86-003004