STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DUVAL COUNTY, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 87-5502

)

LAMAR LEON FURLOW, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 9, 1988 a formal hearing was conducted in this cause before Charles C. Adams, Hearing Officer, pursuant to the authority of Section 120.57(1), Florida Statutes. The location of the hearing was Jacksonville, Florida, commencing at 10:00 a.m. This Recommended Order is being entered following the receipt and review of the transcript of the hearing together with the trial transcript in the case of State of Florida vs. Lamar Leon Furlow, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 87-1402-CF, Division CR-A. Other items of evidence as submitted were also examined in preparation for entry of the Recommended Order. Finally, the proposed recommended orders of the parties have been reviewed and the suggested fact finding set forth in those proposals utilized for the most part. An appendix to the Recommended Order announces the specific treatment of the fact proposals. The appendix is found as Attachment "A."

APPEARANCES

For Petitioner Gary E. Eckstine, Esquire Duval County Dolores R. Gahan, Esquire School Board: Assistant Counsel

City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202-3494

For Respondent David A. Hertz, Esquire Furlow: General Counsel

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207 PRELIMINARY MATTERS

The parties through counsel by way of prehearing stipulation agreed that the transcript of the trial of the State of Florida vs. Lamar Leon Furlow, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Case No, 87-1402-CF, Division CR-A, could be used in lieu of calling witnesses in the course of the administrative hearing at issue herein. It was further agreed that the Petitioner could introduce into evidence three pages of

a schematic drawing of the classroom of the Respondent and adjacent rooms and five photographs of those adjacent classrooms. Those materials were as prepared by Spyros Drivas. It was agreed through the stipulation that the transcript of the criminal trial did not have to be certified to gain admission. It was agreed that the stipulation in its terms should be filed in the case. In accordance with that agreement the stipulation is attached as Attachment "B" to the Recommended Order.

At the final hearing on May 9, 1988, the Petitioner presented the testimony of Raymond L. Bailey, Spyros Drivas, and Johnnie Williams, Jr. In addition, the transcript of the criminal trial which has been referred to was admitted as Joint Exhibit No. 1. The Petitioner offered five additional Exhibits which were received into evidence as Petitioner's Exhibits. 1/ Two other exhibits were admitted into evidence as School Board exhibits. Respondent did not choose to testify and did not call witnesses in his behalf and with the exception of the participation in the admission of Joint Exhibit No. 1, the criminal law transcript, did not offer evidence.

ISSUES

Duval County School Board seeks to take disciplinary action against the Respondent based upon alleged violations announced in a Notice of Proposed Dismissal. In charge one Respondent is said to have been convicted of a felony involving moral turpitude, which is violative of Section 4(d) of the Duval County Teacher Tenure Act. A second charge accuses the Respondent of immoral character or conduct, in violation of Section 4(a) of the Duval County Teacher Tenure Act.

FINDINGS OF FACT

1. As alluded to in the statement of issues, the Duval County School Board has charged the Respondent with various violations of the Duval County Teacher Tenure Act. The notification of these charges is made through correspondence of November 12, 1987, from Herb A. Sang, Superintendent of the Duval County Public Schools. In particular, reference is made to a July 9, 1987 conviction in the case of the State of Florida vs. Lamar Leon Furlow in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 87-1402-CF, Division CR-A in which a jury found the Respondent guilty on July 9, 1987 of a lewd, lascivious, or indecent assault or act upon or in the presence of a child under sixteen years of age, a violation of Section 800.04, Florida Statutes.

   For this finding of guilt the court adjudicated the Respondent guilty and sentenced him to 7 1/2 years. In the face of this action by the court, the Duval County School Board through the superintendent made the assertion that this was a conviction of a felony involving moral turpitude as set forth in Section 4(d), of the Duval County Teacher Tenure Act. This constitutes charge one to the Notice of Proposed Dismissal. The second charge involving the claimed immoral character or conduct as contemplated in Section 4(a), of the Duval County Teacher Tenure Act deals with an allegation that, "on or about January 20, 1987, you unzipped the jeans of a 12 year old female student, placed your hand inside her panties and fondled her pubic area. This act occurred in a dark room at Eugene Butler School, Jacksonville, Duval, County, Florida." This allegation references the same factual events as were involved in the criminal court trial spoken to in charge one. It envisions the necessity of proof in substance of those same factual events through the hearing de novo in this administrative prosecution. In the face of these allegations, Respondent sought a formal hearing before the Division of Administrative Hearings which request was honored through the formal hearing conducted on May 9, 1988.

2. Respondent is the holder of a Teacher's Certificate issued by the State of Florida, Department of Education. That number is 313977 and the certificate covers the area of industrial arts.

   
   

3. In the academic year 1986-1987, Respondent taught as a graphic arts instructor at Eugene Butler Seventh Grade Center. His classroom assignment was number 63. Room 62, which is an adjacent room served as a work area for the graphic arts instruction. Adjoining room 62 were three smaller storage rooms and they connected to two darkrooms. A schematic drawing of these rooms is found as Petitioner's Exhibit 1.

   
   

4. Brandy Lee Guetherman was born on February 10, 1974. In the school year 1986-1987 which commenced in the Fall of 1986, she attended Eugene Butler Seventh Grade Center. One of her courses in that year was graphic arts and it was taught by the Respondent.

   
   

5. January 20, 1987 was the last day of the first semester of the academic year 1986-1987. On that date Brandy Guetherman was interested in signing a memento board which was on the desk of the Respondent. To this end she asked the Respondent if she could borrow a marker and he responded in the affirmative and told her to come with him to the storage room. Once in the storage room, the Respondent gave a marker to the student. He then asked her if he could "touch it," to which the student replied "touch what" and he then pointed to the left breast of the student and pinched it. The student then slapped his arm and told him that it hurt. The storage area as being described is one of the rooms depicted in Petitioner's Exhibit No. 1. Respondent then told the student to go sign the board and bring the marker back to him. At sometime in the course of these events, Respondent grabbed the students arm and hand and pulled it toward his penis. She jerked her hand away and went back to her seat in the classroom. After these events Respondent told the student to get a hall pass that would allow her to access the hall within the school. All of these events being described occurred during the regular sixth period class which runs from 3:00

   p.m. to 3:55 p.m. The student Guetherman had not heard Respondent tell her to get the hall pass and this message was conveyed by Billy Payne another student. In furtherance of the instruction by the Respondent the student obtained a hall pass.

   
   

6. Having obtained a hall pass Guetherman returned to the classroom area at a moment when the Respondent was going to one of the darkrooms. When the student approached the Respondent, he told her to go the restroom as if she were running an errand for the Respondent and then to come back and to go into the darkroom. She did as she was told. She went out of the room, down the hall and waited around in the hall area near the bathroom. She returned after about three minutes. She brought the hall pass with her into the darkroom area where the Respondent was and he told her to put the hall pass back on his desk and get the grade book and not to let anyone follow her back into the darkroom. She complied with the instructions and brought the grade book back to the darkroom. While in the process of getting the grade book another student came into the darkroom area and the Respondent told that female student to get out of the darkroom area. Once in the darkroom Brandy Guetherman gave the grade book to the Respondent. At that time, Respondent told the student that he was just messing around with some activities in the darkroom. He then asked the student Brandy Guetherman to unzip her pants and unbutton her pants but she did not respond. The Respondent reached over and unbuttoned the pants and unzipped them. Those pants worn by the student were jeans. Respondent then stuck his hand in between the students legs by placing his hand inside the panties that

   the student was wearing under the jeans. This arrangement was such that the flesh of the Respondent's hand touched the flesh of the student in her vaginal area. He felt around in her vaginal area but did not, according to the student's explanation, penetrate by going "all the way in." During this assault the student was touched by the Respondent's fingers in her vaginal area. By the student's explanation he moved his hand around in a circle and back and forth.

   This transpired over a period of a couple of minutes. During the course of these events Respondent asked the student if she knew that he had big hands and she shook her head in the affirmative. He told her that it was warm down there. When he had stopped the assault the student zipped and buttoned her pants and left the darkroom area. Before leaving Respondent told her to come back the next day after her homeroom period and come straight to his class and to wear a dress or skirt. Altogether the student was in the darkroom with the Respondent for a period of fifteen minutes.

   
   

7. When Guetherman returned to the classroom she told her friend Billy Payne of what had transpired and another student Carl Miller was told about the events involving the Respondent while riding home on the school bus on January 20, 1987. This incident with the respondent disturbed Brandy Guetherman and it was noticed in its effect by Billy Payne.

   
   

8. When Guetherman returned home on the date in question she told her mother about the incident who in turn contacted officials at the Eugene Butler Seventh Grade Center. On the next day Brandy Guetherman's father took her to the school and met with school officials about this matter.

   
   

9. Respondent is a person 6 feet 2 inches tall and weights 315 pounds, an imposing figure for a young female student to have to contend with.

   
   

10. The events described concerning Brandy Guetherman formed the basis of the finding of guilt and the adjudication against the Respondent for this sexual battery under Section 800.04, Florida Statutes, as previously discussed. That conviction is on appeal together with the conviction pertaining to another student for offenses against that student Elizabeth Haygood.

    
    

11. As a result of the accusations placed against the Respondent he was removed as a classroom teacher.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

13. The Petitioner must prove by clear and convincing evidence that the Respondent is guilty of those offenses for which he stands accused. See Ferris vs. Turlington, 510 So.2d 293 (Fla. 1987). The Petitioner has been successful in that prove.

    
    

14. As described before, Respondent was convicted of a felony involving moral turpitude in that he was found guilty on July 9, 1987 of a second degree felony pertaining to the lewd, lascivious, or indecent assault or act upon or in the presence of Brandy Guetherman a child under sixteen years of age and a student for whom he was responsible and over whom he had control. The conviction was under authority of Section 800.04, Florida Statutes. This constitutes a violation of Section 4(d) of the Duval County Teacher Tenure Act set out in charge one of the school board disciplinary letter. As contemplated

    in the second charge to the dismissal letter, the factual underpinnings for the criminal law conviction have been proven again in the course of the administrative hearing and are reported in the fact finding within the Recommended Order. The incident on January 20, 1987, with the student Brandy Guetherman demonstrates an immoral character and conduct by the Respondent in violation of Section 4(a) of the Duval County Teacher Tenure Act.

    
    

15. Respondent's actions undermined the trust that is essential in the relationship between students and faculty and are so despicable that Respondent could not be reasonably retained in his position as a teacher in Duval County, Florida. Therefore, it is,

RECOMMENDED:

that a final order be entered by the School Board of Duval County discharging the Respondent from his employment as a tenured teacher with that school system.

DONE AND ENTERED this 22nd day of July, 1988, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 22nd day of July, 1988.

ENDNOTE

1/ Those exhibits were under sponsorship with a co-prosecutor in a case consolidated for purposes of hearing but severed for entry of the recommended order. This pertains to the case of Betty Castor, as Commissioner of Education, Petitioner, vs. Lamar Leon Furlow, Respondent, DOAH Case No. 87-5657.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5502

Having considered the findings of fact proposed by the parties their use or rejection is further described herein:

School Board Facts

Paragraphs 1-18 are subordinate to facts found. Paragraph 19 is not necessary.

Respondent's Facts

Paragraphs 1-4 are subordinate to facts found.

Paragraph 5 is subordinate to facts found with the exception of references to conflict regarding testimony. That reference is rejected in, that the conflict has been resolved in favor of the prosecutions version of the case in the person of its witnesses.

Paragraph 6 is subordinate to facts found.

Paragraph 7 is subordinate to facts found with the exception of references to conflict regarding testimony. That reference is rejected in, that the conflict has been resolved in favor of the prosecutions version of the case in the person of its witnesses.

Paragraph 8 is subordinate to facts found with the exception of references to conflict regarding testimony. That reference is rejected in, that the conflict has been resolved in favor of the prosecutions version of the case in the person of its witnesses.

Paragraph 9 is subordinate to facts found with the exception of references to conflict regarding testimony. That reference is rejected in, that the conflict has been resolved in favor of the prosecutions version of the case in the person of its witnesses.

Paragraphs 10-14 are subordinate to facts found. Paragraph 15 is contrary to facts found.

COPIES FURNISHED:

Gary E. Eckstine, Esquire Dolores R. Gahan, Esquire Assistant Counsel

City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202-3494

J. David Holder, Esquire

325 John Knox Road Building C, Suite 135 Tallahassee, Florida 32301

David A. Hertz, Esquire General Counsel

Duval Teachers United 1601 Atlantic Blvd.

Jacksonville, Florida 32207

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Honorable Herb Sang Superintendent of Schools 1701 Prudential Drive Jacksonville, Florida

Karen B. Wilde Executive Director

Florida Department of Education

125 Knott Building Tallahassee, Florida 32399

Martin Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Duval County School Board c/o Gary E. Eckstine Counsel to the Duval County

School Board 1300 City Hall

Jacksonville, Florida 32202-3494

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

AGENCY FINAL ORDER

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

BEFORE THE

DUVAL COUNTY SCHOOL BOARD JACKSONVILLE, FLORIDA

SCHOOL BOARD OF DUVAL COUNTY,

Petitioner,

-vs- DOAH Case No.: 87-5502

LAMAR LEON FURLOW,

Respondent.

/

APPEARANCES:

Gary E. Eckstine, Esquire, and Delores R. Gahan, Esquire, for Petitioner David A. Hertz, Esquire, for Respondent

FINAL ORDER

The Duval County School Board has considered the Hearing Officer Charles C. Adams' Recommended Order herein, a true and correct copy of which is attached hereto as Appendix 1. The Recommended Order was served on the Respondent on August 2, 1988. Both parties had twenty (20) days to file exceptions to the Hearing Officer's Recommended Order. No such exceptions were filed by either party. Accordingly, the Board makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. By jury verdict, returned July 9, 1987, the Respondent was found guilty of a lewd, lascivious or indecent assault or act upon or in the presence of a child under sixteen (16) years of age. Respondent was adjudged guilty and sentenced to a prison term of seven and one-half(7-1/2) years.

   
   

2. By certified letter dated November 12, 1988, the Respondent, a tenured teacher with the Duval County School System, was charged, by the Superintendent of Schools with two (2) violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, as amended (hereinafter referred to as the "Act"). The factual basis for the two (2) charges was the July 9, 1988 conviction, supra, and the specific acts of the Respondent which resulted in that conviction.

   
   

3. The Superintendent first charged the Respondent with having been convicted of a felony involving moral turpitude as set out in Section 4(d) of the Act, which provides for the discharge or demotion of a teacher for "[d]ishonesty while employed, chronic illness or conviction of a felony, crime or any ordinance involving moral turpitude." (Emphasis added).

   
   

4. The Superintendent also charged the Respondent with immoral character or conduct as set out in Section 4(a) of the Act, which provides for the discharge or demotion of a teacher for "[i]mmoral character or conduct, insubordination, or physical or mental incapacity to perform the duties of the employment." (Emphasis added).

   
   

5. Respondent requested an administrative hearing which was held before the Division of Administrative Hearings of the Florida Department of Administration, on May 9, 1988, with the Honorable Charles C. Adams presiding as Hearing Officer.

   
   

6. In a Recommended Order dated and entered on July 22, 1988 (Appendix 1 hereto), Hearing Officer Adams made eleven (11) enumerated findings of fact which are hereby adopted by the Board and incorporated herein by reference as if each of these enumerated findings of fact, and all of them, were set out herein in their entirety.

   
   

7. Based upon those findings of fact, Hearing Officer Adams concluded that the Respondent had been convicted of a felony involving moral turpitude, which constituted a violation of Section 4(d) of the Act. Appendix 1, page 9.

   
   

8. Hearing Officer Adams also concluded that factual underpinnings for the criminal law conviction were proven again in the course of the administrative hearing, and were included within the eleven (11) enumerated findings of fact in his July 22, 1988 Recommended Order; and that those factual underpinnings demonstrated immoral character and conduct by Respondent in violation of Section 4(a) of the Act. Appendix 1, pages 9-10.

   
   

9. Based upon those findings of fact and conclusions, Hearing Officer Adams recommended that the Respondent be discharged from his employment as a tenured teacher in the Duval County School System. Appendix 1, page 10.

10. Subsequent to the holding of the public hearing and the issuance of Hearing Officer Adams' order, the Court of Appeal for the Fist District of Florida reversed Respondent's felony conviction. See Furlow v. State, So.2d . 13 FLW 1885 (Fla. 1DCA 1988.

CONCLUSIONS OF LAW

1. The Duval County School Board has jurisdiction of the subject matter and parties to this proceeding in accordance with Section 5 of the Act.

   
   

2. Hearing Officer Adams' conclusion of law number 1 is adopted by the Board and incorporated herein by reference as if it were set out in its entirety. Appendix 1, page 9.

   
   

3. The Board adopts that part of Hearing Officer Adams' conclusion of law number 2 as follows:

   
   

   "The Petitioner must prove by clear and convincing evidence that the Respondent is guilty of those offenses for which he stands accused. See Ferris v. Turlington,

   510 So.2d 293 (Fla. 1987). The Petitioner has been successful in that prove (sic).

   
   

   "...As comtemplated (sic) in the second charge to the dismissal letter, the factual underpinnings for the criminal conviction have been proven again in the course of the administrative hearing and are reported

   in the fact finding within the Recommended Order. The incident on January 20, 1987 with the student Brandy Guetherman demonstrates an immoral character and conduct by the Respondent in violation of Section 4(a) of the Duval County Teacher Tenure Act.

   
   

   "Respondent's actions undermined the trust that is essential in the relationship between students and faculty and are so dispicable that Respondent could not be reasonably retained in his position as a teacher in Duval County, Florida."

   
   

   Appendix 1, pages 910.

   
   

   The facts which support the above quoted conclusion of law have not been stricken, criticized, discredited or otherwise found to be deficient by the Court of Appeal. See, Furlow v. State, supra. The basis for the reversal of the felony conviction was technical, in that the Respondent was charged under the incorrect section of the Florida Statutes. Id. Indeed is a footnote to its opinion, the appellate court indicated that the facts proved at trial would have supported a criminal charge under a different section of Florida's sexual battery statutes. Id. Accordingly, the Board concludes that the charge of immoral character or conduct in violation of Section 4(d) of the Act has been proved by clear and convincing evidence.

4. As to the remainder of Hearing Officer Adams' conclusion of law number 2, at the time of the administrative hearing, and at the time when the Recommended Order was made, the Respondent had indeed been convicted of a felony involving moral turpitude. That felony conviction was pending before the First District Court of Appeal. Because of that Court's reversal of the felony conviction, that portion of Officer Adams' conclusion of law number 2, not specifically adopted and quoted above must be rejected.

ORDER

Based upon the Findings of Fact and Conclusions of Law as specified hereinabove it is therefore

ORDERED that the Respondent Lamar Leon Furlow is discharged as a tenured teacher with the Duval County School System, effective immediately, because he has demonstrated immoral character or conduct in violation of Section 4(a) of the Duval County Teacher Tenure Act.

DONE AND ORDERED this 26th day of September, 1988.

DUVAL COUNTY SCHOOL BOARD

CHAIRMAN

ATTEST:

SUPERINTENDENT AND EX-OFFICIO SECRETARY

Copies furnished to:

Gary E. Eckstine, Esquire Dolores R. Gahan, Esquire Assistant Counsels

City of Jacksonville 1300 City Hall

Jacksonville, Florida 32202-3494

J. David Holder, Esquire

325 John Knox Road Building C, Suite 135 Tallahassee, Florida 32301

David A. Hertz, Esquire General Counsel

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Herb A. Sang Superintendent of Schools 1701 Prudential Drive Jacksonville, Florida

Karen B. Wilde Executive Director

Florida Department of Education

125 Knott Building Tallahassee, Florida 32399

Martin Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Lamar Leon Furlow 1529 Breton Road

Jacksonville, Florida 32208

The Honorable Charles C. Adams Hearing Officer

Division of Administrative Hearings Oakland Building

Apalachee Parkway

Tallahassee, Florida 32399-1550

STATEMENT REGARDING APPEAL

Pursuant to Section 6, of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended, the Respondent may seek judicial review of this decision by certiorari to the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida. Application for a Writ of Certiorari must be applied for within ten (10) days after the teacher has been delivered a copy of this order and a transcript of the evidence taken at the hearing.

Docket for Case No: 87-005502

Orders for Case No: 87-005502