STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2841

)

MARK MIELE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 29, 1988, in best Palm Beach, Florida.

The Petitioner was represented by Craig R. Wilson Esquire, West Palm Beach, Florida; and Respondent Mark Miele appeared on his own behalf.

Petitioner seeks the imposition of an appropriate sanction of the Respondent's teaching certificate pursuant to Section 231.28, Florida Statutes, on the grounds of gross immorality and loss of effectiveness as an employee of the school Board of Palm Beach County, Florida; and for violation of Section 6B- 1.006(3)(a), (e), and (h) , Florida Administrative Code, the violation of which subjects the Respondent's teaching certificate to sanctions pursuant to Section 231.28(1)(h), Florida Statutes. Accordingly, the issue for determination herein is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

Petitioner presented the testimony of Respondent Mark Miele, Gina Marie Finnan, Katherine Coffin, Robin Freedman and Dr. John M. Monroe. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence. The Respondent testified on his own behalf and presented the testimony of Patti Fitzhugh; Marc Flamer; Rev. Michael Breznen; Bruce Stone; William L. Hall, II; Crystal Honeycutt; Amy Sue Diedrick; Manuel Ayala; Joseph Martin Henrion; Daniel Smith; Kelly Cook; Clayton Romano; James Caraway and Gina Marie Finnan. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.

Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Respondent held Teaching Certificate Number 570975 issued by the State of Florida, Department of Education, covering the area of physical education.

2. At all times material hereto, Respondent was employed by the Palm Beach County School Board and assigned to Santaluces Community High School. Incident to his teaching position at that school, Respondent also was one of the coaches for the male wrestling team and was a weight instructor.

   
   

3. During the 1987-88 school year, Gina Marie Finnan attended the Respondent's third period personal fitness class at Santaluces Community High School.

   
   

4. During the month of November, 1987, Finnan, then a sophomore born August 30, 1971, became a statistician for the school's wrestling team. As a statistician for the wrestling team, Finnan worked under Respondent and began to accept rides home from him following practice sessions and/or wrestling matches which were conducted either at the high school or at other sites within the community.

   
   

5. The first physical encounter between Finnan and Respondent occurred at the conclusion of the Thanksgiving Sock Hop held at the school. Initially, Finnan had obtained possession of the Respondent's keys while they were in the school gym. The Respondent, in an attempt to obtain the return of his keys, made physical contact with her and ultimately ended up seated on the gym floor with his back resting against the bleachers and Finnan seated on his lap.

   
   

6. With Finnan sitting on his lap, Respondent then placed his arms around her and kissed her.

   
   

7. The only other person then present in the gym was Finnan's friend and classmate, Katherine Coffin. Coffin had been with Finnan for the sock hop and was prepared to proceed to lunch when she observed Respondent and Finnan "playing around" while fighting over Respondent's keys. During this time, several students attempted to enter the gym but were told to leave by Respondent. Respondent then went over and shut the doors to the gym, which caused the doors to automatically lock, thereby preventing anyone from entering the gym. Following this, Respondent and Finnan became silent, so Coffin walked around the bleachers and observed Respondent sitting on the floor with Finnan in front of him with her back to him. Respondent had his arms around Finnan. At that time, Coffin left the gym.

   
   

8. Katherine Coffin did not feel that Respondent's conduct at the time was "right" for a teacher.

   
   

9. The next time Respondent made physical contact with Finnan was near the end of November following a wrestling match on school grounds. At the time, all the equipment had been secured and the two of them were in the locker room Respondent kissed the student and touched her breasts and buttocks. This was followed by Respondent's offer to drive the student home. The student then called her mother to advise her that she need not come to school to pick her up in that Finnan had found another ride home.

   
   

10. In route to the student's residence, Respondent parked his vehicle off the side of the road, and the two began kissing, with the Respondent "feeling" the student's breasts.

    
    

11. This incident was followed by five or six other incidents when Finnan would accept rides home from the Respondent, and Respondent would kiss her and feel her breasts and buttocks.

12. Shortly before the Christmas holidays, Finnan was approached by Respondent and advised that his wife would be away for the holidays and the student "should try to maybe stop by and see him and spend more time with him."

    
    

13. Finnan solicited the help of another classmate, Robin Freedman, in hopes that she would help provide her with an alibi should the opportunity present itself for her to spend time with Respondent. This help consisted of Robin Freedman providing a "cover" for Finnan by telling Finnan's mother, should she call, that Finnan was there but unavailable to speak with the mother at the time.

    
    

14. When Gina Finnan asked her to "cover" for her while she was visiting Respondent, Robin Freedman "didn't know what to say" in response to Gina's request so she went to her own mother for advice.

    
    

15. During this time period, Gina Finnan received two letters from Respondent. Both of these letters were destroyed by Finnan, but, before their destruction, at least one of the two letters was shown to Katherine Coffin and to Robin Freedman. The one letter was described as a "fantasy letter" which talked about wanting to have sexual intercourse. Although the letters were not signed except for initials that did not correspond with those of the Respondent or Gina Finnan, Respondent, when questioned by Finnan, related to her that "it was in case anybody found them," and that Finnan was to throw them away.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1987)

    
    

17. Section 231.28, Florida Statutes (1987), provides, in part, as follows:

    
    

    The Education Practices Commission shall have authority to suspend the teaching certificate of any person... for a period of time not to exceed three years...; to revoke the teaching certificate of any person. For a period of time not to exceed ten years...; 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;

    * * *

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's 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.

    
    

18. Petitioner has proven by clear and convincing evidence that Respondent is guilty of gross immorality. Section 231.28(1)(c), Florida Statutes (1987). Further, Respondent's actions have seriously reduced his effectiveness as a school board employee. Section 231.28(1)(f), Florida Statutes (1987). Lastly, the Respondent has violated Section 231.28(1)(h), Florida Statutes (1987), by violating Rule 6B-1.006, Florida Administrative Code, Principles of Professional Conduct for the Education Profession in Florida. Respondent failed to make a reasonable effort to protect Gina Finnan from conditions harmful to learning or to health or safety [Rule 6B-1006(3)(a)] and did exploit a professional relationship with a student for personal gain or advantage [Rule 6B-.006(3)(h)]. Petitioner did fail, however, to prove that Respondent intentionally exposed a student to unnecessary embarrassment or disparagement, as prohibited by Rule 6B- 1.006(3)(e)

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the teaching certificate of Mark Miele be permanently

revoked.

DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-2841

1. Petitioner's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed findings of fact numbered 16-18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law.

   
   

3. The statements contained within the five unnumbered paragraphs of Respondent's proposed recommended order have been rejected as being contrary to the weight of the credible evidence in this cause.

COPIES FURNISHED:

Craig R. Wilson, Esquire

215 Fifth Street, Suite 302 West Palm Beach, Florida 33401

Mark Miele

5350 Rosemarie Avenue North Boynton Beach, Florida 33437

Martin B Schaap, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Karen B. Wilde Executive Director

Education Practices Commission

418 Knott Building Tallahassee, Florida 32399

Docket for Case No: 88-002841

Orders for Case No: 88-002841