STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3116

)

DONALD W. DEL BELLO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on December 3, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: William T. Jackson, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William du Fresne, Esquire

du Fresne and Bradley

2929 South West Third Avenue Suite One Miami, Florida 33129

STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated May 4, 1992, petitioner charged that respondent, a certified teacher in the State of Florida, violated the provisions of Section 231.28(1)(c), Florida Statutes (Count I), and Section 231.28(1)(f), Florida Statutes (Count II). The gravamen of petitioner's charge is that respondent, "on or about July 23, 1991, . . . approached a police officer at Tropical Park, in Dade County, Florida, [and that] the respondent massaged his groin area and exposed his sexual organs to the police officer." In reply, respondent executed an election of rights which disputed such allegations of fact, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner withdrew Count II of the administrative complaint, which had contended that respondent's conduct, discussed supra, seriously reduced his effectiveness as an employee of the school board, in violation of Section 231.28(1)(f), Florida Statutes. Accordingly, Count II of the administrative complaint is moot in light of petitioner's voluntary dismissal of such charge.

Petitioner called James M. Julian, a police sergeant with the Metropolitan Dade County Police Department, and its exhibits 1, 2 and 5 were received into evidence. 1/ Respondent testified on his own behalf, called Saundra R. Kaplan and Bruce A. Christensen as witnesses, and offered no exhibits.

The transcript of hearing was filed December 28, 1992, and the parties were granted leave until January 7, 1993, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Donald W. Del Bello, currently holds Florida teaching certificate number 402600, covering the area of music, which is valid through June 30, 1996. Respondent is currently employed by the Dade County Public School System to teach music at the elementary school level, and was so employed at all times pertinent to these proceedings.

   
   

2. In these proceedings, the sole issue for determination was whether, on or about July 23, 1991, at Tropical Park, Dade County, Florida, the respondent exposed his sexual organs in a vulgar or indecent manner. The proof in this case was not, however, sufficiently compelling to satisfactorily resolve the issue raised.

   
   

3. To support its case, petitioner offered the testimony of Sergeant James Julian, a police officer with the Metropolitan Dade County Police Department, who testified that on July 23, 1991, while operating undercover at Tropical Park, a public place, in Miami, Dade County, Florida, he observed respondent expose his sexual organs. According to Sergeant Julian, he observed the respondent, dressed in a white shirt, tie and green pants, and another man, dressed in running attire (tennis shoes, blue shorts and top), standing approximately 20 yards apart, and that, while watching each other they rubbed their crotches, removed their penises from their pants, and masturbated. According to Sergeant Julian, he was approximately 10 yards from the respondent and approximately 30 yards from the man in running attire when these events occurred, and that upon observing such activity he placed both men under arrest.

   
   

4. Juxtaposed with the proof offered on behalf of petitioner, respondent testified that while he was in the park on the day in question, he was not dressed in a white shirt, tie and green pants but, rather, was wearing running attire (white running shoes, blue shorts and a white tee shirt), that he observed another male dressed in a white shirt, tie and green pants who was masturbating, and that he did not take his penis from his pants, expose himself or masturbate. Respondent's attire on the day in question was reasonably corroborated by two credible witnesses, and his testimony at hearing was consistent with his recitation of what had occurred to his attorney, within an hour of being released from police custody.

   
   

5. Here, the proof offered by each of the parties appeared worthy of belief, and it cannot be concluded, based on the record in this case, which

   version reflects what actually transpired on the day in question. Therefore, considering the fact that the burden of proof in these proceedings rested on petitioner as discussed infra, it must be concluded that the proof fails to support the conclusion that respondent committed the offense as alleged in the administrative complaint.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

7. Pertinent to this case, petitioner charges that respondent's conduct violated the provisions of Section 231.28(1)(c), Florida Statutes. Section 231.28(1)(c), Florida Statutes, provides:

   
   

   1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); 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;

      
      

8. Where, as here, petitioner seeks to revoke a professional license, it bears the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

   
   

   We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds at page 958, the following:

   
   

   "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

   
   

9. Here, as noted in the findings of fact, the proof fails to demonstrate clearly and convincingly that respondent committed the offenses as alleged in the administrative complaint. Consequently, petitioner has failed to sustain her burden of proof.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative

complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1993.

WILLIAM J. KENDRICK

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 16th day of February 1993.

ENDNOTE

1/ Petitioners exhibit 2 was received into evidence over respondent's objection because respondent had testified to the same facts, without objection.

Accordingly, petitioner's exhibit 2 was merely cumulative of respondent's own testimony. Here, respondent was arrested, participated in a pre-trial diversion program, and the charges against him were nolle prossed. The fact that respondent was arrested or participated in a pretrial diversion program is not, however, competent proof that he committed the offenses with which he was charged, and such factors have not been accorded such effect in resolving the issues raised in these proceedings.

APPENDIX TO RECOMMENDED ORDER 92-3116

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraph 1.

3-6. Addressed in paragraphs 3 and 5, otherwise not necessary or relevant.

7. Not relevant, see endnote 1.

8 & 9. Addressed in paragraphs 4 and 5, otherwise rejected as contrary to such findings.

Respondent's proposed findings of fact are addressed as follows: 1-3. Addressed in paragraph 3.

1. Addressed in paragraph 4.

2. Addressed in paragraph 5.

3. Addressed in paragraphs 4 and 5.

COPIES FURNISHED:

William T. Jackson, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William du Fresne, Esquire du Fresne and Bradley

2929 S.W. Third Avenue Suite One

Miami, Florida 33129

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

Leslie Weaver Procedural Safeguards Department of Education

325 West Gaines Street, Suite 614 Tallahassee, Florida 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 to 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.

Docket for Case No: 92-003116

Orders for Case No: 92-003116