STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, )

as Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4929

)

TERRY R. ROBERTSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on March 5 and 6, 1991, in the Richard P. Daniel Building, 111 East Coast Line Drive, Jacksonville, Florida. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams served as the Hearing Officer.

APPEARANCES

For Petitioner: Lane Burnett, Esquire

331 East Union Street, Suite 2 Jacksonville, FL 32202

For Respondent: Stephen J. Donohoe, Esquire

437 East Monroe Street, Suite 1 Jacksonville, FL 32202

and

David A. Hertz, Esquire Duval Teachers Union 1601 Atlantic Boulevard

Jacksonville, FL 32207 STATEMENT OF ISSUES

The issues concern an administrative complaint brought by Petitioner against Respondent. The administrative complaint is Case No. 90019-M. It accuses Respondent of engaging in an inappropriate sexual relationship with a minor female student during the school years 1971-1972 and 1972-1973, while the student was a junior high student and continuing with that student while she was a minor attending high school. Respondent is further accused of providing the student with alcohol and marijuana and taking sexually explicit photographs of that student. For these reasons Respondent is said to have violated Section 231.28(1)(6), Florida Statutes, through alleged misconduct involving gross immorality or an act involving moral turpitude. In addition, he is said to have violated Section 231.28(1)(h), Florida Statutes, for violating laws or rules of the State Board of Education, penalty for which is revocation of the teaching

certificate. The conduct allegedly violates Rule 6B-1.006(3)(a), Florida Administrative Code, for Respondent's failure to make a reasonable effort to protect a student from conditions harmful to learning or to health or safety. Respondent is said to have violated Rule 6B-1.006(3)(e), Florida Administrative Code, for intentionally exposing a student to unnecessary embarrassment or disparagement. Finally, the Respondent is alleged to have violated Rule 6B- 1.006(3)(h), Florida Administrative Code, by exploiting a professional relationship with a student for personal gain or advantage. Petitioner seeks to impose penalties under the authority of Sections 231.262(6) and 231.28(1), Florida Administrative Code.

PRELIMINARY STATEMENT

On June 27, 1990, Betty Castor, Commissioner of Education in the State of Florida, brought the administrative complaint against Respondent as described. Respondent requested a formal hearing to resolve the dispute and the case was referred to the Division of Administrative Hearings for conduct of that proceeding. The formal hearing ensued.

At the formal hearing Petitioner presented the testimony of Sherry Hoefling-Tobia and Raymond Bailey. Petitioner presented eight exhibits which were received. Respondent offered the testimony of Patricia Jean Gross, Harold

T. Pierce, Carol E. Childress, Lynda Lewis, Judith B. Silas and the Respondent. Five exhibits by Respondent were received.

A transcript was prepared and filed with the Division of Administrative Hearings on April 4, 1991. The parties requested more than the traditional ten days for filing proposed recommended orders and that request was honored. As a consequence the parties waived their right to the entry of a recommended order within 30 days of the filing of the transcript. See Rule 22I-6.031, Florida Administrative Code. Petitioner's proposed recommended order was filed on April 22, 1991. Respondent's proposed recommended order were filed April 24, 1991.

The recommended order is being entered following a review of the transcript, exhibits and proposed recommended orders. The facts set out in the proposed recommended orders are commented on in an appendix to the recommended order.

FINDINGS OF FACT

1. At all times relevant to this inquiry Respondent has held Florida Teaching Certificate No. 145121, issued by the Department of Education for the State of Florida, covering the area of Art. That certificate is valid through 1993.

   
   

2. Respondent had been employed by the Duval County School Board for a period of twenty-seven years at the time of hearing. He had been assigned as an art teacher at Jefferson Davis Junior High School in that school system for the last twenty-six years of his teaching duties.

   
   

3. Sherry Hoefling-Tobia was a student of the Respondent in the second semester of the 1971-72 school year and for all of the 1972-73 school year. She was also a member of the yearbook staff which the Respondent sponsored in the 1972-73 school year.

   
   

4. The student was born on October 10, 1957.

5. She attended the classes described in the eighth and ninth grade.

   
   

6. At times the student Sherry Hoefling-Tobia, and other students, would stay after class in the Respondent's classroom while attending junior high school.

   
   

7. The student Sherry Hoefling-Tobia while a student in the Duval County School System confided in the Respondent concerning her relationship with her family.

   
   

8. During the summer of 1973 the student Sherry Hoefling-Tobia was enrolled in an art summer school where Respondent taught. Respondent did not teach her per se but did take photographs of the student, and other students who were enrolled in the program. Respondent also gave her rides to and from the camp.

   
   

9. After the student Sherry Hoefling-Tobia finished her studies at Jefferson Davis Junior High in the ninth grade, she attended high school in Duval County and graduated following her completion of the eleventh grade in the school year 1974-75. While in high school she would visit the Respondent at Jefferson Davis Junior High.

   
   

10. After graduating from high school and while attending Florida Community College of Jacksonville, a junior college, Sherry Hoefling-Tobia entered into a sexual relationship with the Respondent. Having considered the testimony and exhibits presented, this is the first occasion wherein the evidence is clear and convincing that the Respondent and Sherry Hoefling-Tobia had a sexual relationship.

    
    

    CONCLUSIONS OF LAW

    
    

11. 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.

    
    

12. Petitioner must prove by clear and convincing evidence that the Respondent has committed the violations described in the statement of issues. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner has failed to carry that burden. Therefore Respondent is absolved of the alleged violations of Section 231.28(1)(c), Florida Statutes; Section 231.28(1)(h), Florida Statutes; Rule 6B-1.006(3)(a), Florida Administrative Code; Rule 6B-1.006(3)(e), Florida Administrative Code and Rule 6B-1.006(3)(h), Florida Administrative Code. Consequently, the penalties set forth in Sections 231.262(6) and 231.28(1), Florida Statutes, would not pertain.

RECOMMENDATION

Based upon a consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which dismisses the administrative complaint against the Respondent.

DONE and ENTERED this 29th day of May, 1991, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 29th day of May, 1991.

APPENDIX CASE NO. 90-4929

The following discussion is given concerning the proposed facts of the parties.

Petitioner's Facts

Paragraphs 1 through 3 are subordinate to facts found.

Paragraph 4 is subordinate to facts found with the exception that the date of birth is October 10, 1957.

Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 and 7 are subordinate to facts found.

Paragraph 8 in the first sentence is not necessary to the resolution of the dispute. The remainder of Paragraph 8 through Paragraph 11 are not accepted

Paragraph 12 is not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found.

Paragraphs 14 through 19 are not accepted. Paragraphs 20 and 21 are subordinate to facts found.

Paragraphs 22 through 25 are not accepted, with the exception of Paragraph

24 which is subordinate to facts found. Paragraph 26 is subordinate to facts found. Paragraph 27 is not accepted.

Paragraph 28 is not necessary to the resolution of the dispute.

Paragraph 29 is subordinate to facts found in the suggestion of sexual intercourse with the Respondent during summer 1975 and is not necessary to the resolution of the dispute as it suggests a relationship with another person beyond the time of her experience beyond graduation from high school.

Paragraph 30 is not necessary to the resolution of the dispute, nor are the first two phrases in Paragraph 31. The last phrase in Paragraph 31 is not accepted.

Paragraphs 32 and 33 are not necessary to the resolution of the dispute. Paragraph 34 is not accepted in its suggests Respondent abused Sherry

Hoefling-Tobia while she was a student.

Paragraphs 35 through 37 are not accepted.

Paragraphs 38 and 39 are not necessary to the resolution of the dispute. Paragraphs 40 through 42 are not accepted.

Paragraphs 43 and 44 are not relevant given the facts found.

Respondents's Facts

Paragraphs 1 and 2 are subordinate to facts found.

Paragraph 3 and 4 are not necessary to the resolution of the dispute. Paragraphs 5 through 9 are subordinate to facts found.

Paragraphs 10 through 16 are not necessary to the resolution of the dispute.

Paragraphs 17 and 18 are not relevant. Paragraph 19 is subordinate to facts found. Paragraphs 20 through 21 are not relevant. Paragraph 22 is subordinate to facts found.

Paragraphs 23 through 26 are not necessary to the resolution of the dispute.

Paragraph 27 and 28 constitute argument.

Paragraph 29 is not necessary to the resolution of the dispute. Paragraphs 30 and 31 constitute argument.

Copies furnished:

Lane Burnett, Esquire

331 East Union Street, Suite 2 Jacksonville, FL 32202

Stephen J. Donohoe, Esquire

437 East Monroe Street, Suite 1 Jacksonville, FL 32202

David A. Hertz, Esquire Duval Teachers Union 1601 Atlantic Boulevard

Jacksonville, FL 32207

George A. Bowen, Acting Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Jerry Moore, Program Director Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner, DOAH CASE NO. 90-4929 vs. EPC CASE NO. 90-157-RT

TERRY ROBERTSON,

Respondent.

/

FINAL ORDER

Respondent, TERRY ROBERTSON, holds Florida educator's certificate no. 145121. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate. Thereafter, the Respondent requested a formal hearing from which a Recommended order was rendered on May 29, 1991.

On consideration of the Recommended order, the Petitioner and Respondent have entered into a Settlement Agreement for resolution of this cause; the Settlement Agreement and the Administrative Complaint are attached and made part of this Final Order.

A panel of the Education Practices Commission (EPC) met on August 22, 1991, in Tampa Florida. The Commission accepts the Settlement Agreement as an appropriate resolution of this case in place of the Recommended Order pursuant to Section 120.57(3) F.S.

It is, therefore, 0RDERED that the Settlement Agreement is hereby ACCEPTED and Respondent shall comply with its terms and conditions.

This order may be appealed, unless otherwise waived, by filing notices of appeal and a filing fee, as set out in Section 120.68, F.S., and Florida Rule of Appellate Procedure 9.110, within 30 days of the date of filing.

D0NE AND ORDERED, this 11 day of September , 1991.

COPIES FURNISHED TO:

JUDITH RATZLAFF, Presiding Officer

Jerry Moore, Program Director Professional Practices Services

Daniel Bosanko, Esquire I HEREBY CERTIFY that a copy of the Attorney General's Office foregoing order in the matter of

BC vs. Terry Robertson was mailed Sydney McKenzie, III to David A. Hertz, Esquire, 1601

Atlantic Blvd., Jacksonville, FL

General Counsel 32207, this 18 day of

Florida Admin. Law Reports September , 1991 by U.S. Mail.

Dr. Larry Zenke, Superintendent Duval County Schools

1701 Prudential Drive Jacksonville, Florida 32207 Karen B. Wilde, Clerk

Dr. James Ragans, Asst. Supt. Personnel

Duval County Schools

Charles C. Adams, Hearing Officer Division of Admin. Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Robert Boyd, Esquire Department of Education

325 w. Gaines Street', Room 352 Tallahassee, Florida 32399

Docket for Case No: 90-004929

Orders for Case No: 90-004929