STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6253

)

JOHN T. GUZALAK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 23 and 24, 1993, in Shalimar, Florida.

APPEARANCES

For Petitioner: Margaret E. O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Thomas W. Brooks, Esquire

Anthony D. Demma, Esquire Meyer & Brooks, P. A.

2544 Blair Stone Pines Drive Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether the Education Practices Commission may revoke or suspend John T. Guzalak's Florida teaching certificate, or otherwise discipline Mr. Guzalak, for violations alleged in an Administrative Complaint entered September 21, 1992?

PRELIMINARY STATEMENT

On or about September 21, 1992, the Petitioner, Betty Castor, as Commissioner of Education, filed, on behalf of the Education Practices Commission (hereinafter referred to as the "EPC"), an Administrative Complaint against the Respondent, John T. Guzalak. Pursuant to the Administrative Complaint, the EPC charged Mr. Guzalak with violations of Florida law related to his Florida teaching certificate, which he allegedly committed while employed by the Okaloosa County, Florida, School Board.

On or about October 7, 1992, Mr. Guzalak filed an election of rights form denying the allegations of the Administrative Complaint and requesting a formal administrative hearing to contest the charges against him. The request for

administrative hearing was filed with the Division of Administrative Hearings on October 19, 1992. The request for hearing was designated case number 92-6253 and was assigned to Hearing Officer P. Michael Ruff.

The final hearing of this case was originally scheduled for February 25, 1993, by Notice of Hearing entered January 7, 1993. On January 12, 1993, the parties filed a Joint Motion for Continuance. A continuance was granted and the hearing was rescheduled for March 23 and 24, 1993, by Order entered January 27, 1993.

Immediately before the final hearing, the case was reassigned to the undersigned.

At the final hearing the EPC presented the testimony of Richard G. Bounds, Sharon Philbrook, Bobby Smith, Christopher Hutcherson, Aaron Utley, Jenny Hamilton, Sarah L. Stimac, David R. Barron, David M. MacCarroll, Josh Mickey, Don Arthur, Linda Evanchyk, and Annette Lee. The EPC recalled Ms. Stimac and presented the testimony of Martha Clemons in rebuttal. The EPC also offered six exhibits which were accepted into evidence.

Mr. Guzalak testified on his own behalf and presented the testimony of Sharon Philbrook, Mary Jo Yeager, Brian S. Murie, Charles E. Briganci, Bobby Arnold, Steve Bucci, Patrick C. Peavy, Eric Gaul, Kevin Mock, Dawn Bernhard, Richard M. Schoditsch, David C. Hodgson, Thomas Ignas, Darcy L. Mandigo, Cecil Armstrong and Kathy Starnick. Mr. Guzalak also offered one exhibit which was accepted into evidence.

At the final hearing the parties requested, and were given, permission to file their proposed recommended orders within ten days after the transcript of the final hearing was filed. The transcript was filed on April 22, 1993.

Therefore, proposed recommend orders were to be filed on or before May 3, 1993. On April 26, 1993, a Joint Motion for Enlargement of Time was filed requesting that the parties be given additional time to prepare and file proposed recommended orders. On April 28, 1993, an Order Granting Joint Motion for Enlargement of Time was entered extending the time to file proposed recommended orders until May 12, 1993.

Both parties have filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

The EPC has referred to students and former students involved in this proceeding by their initials. Although Section 228.093(3)(d), Florida Statutes, does provide for confidentiality for student records, confidentiality is not required in this case.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner, Betty Castor, as Commissioner of Education, on behalf of the EPC, is authorized to discipline individuals holding Florida teaching certificates.

      
      

   2. The Respondent is John T. Guzalak. At all times relevant to this proceeding, Mr. Guzalak held Florida teaching certificate number 615516. Mr.

      Guzalak is certified to teach English and Speech. Mr. Guzalak's teaching certificate is valid through June 30, 1995.

      
      

   3. From approximately August of 1987, until June of 1992, Mr. Guzalak served as a teacher for the Okaloosa County School Board (hereinafter referred to as the "School Board").

      
      

2. Mr. Guzalak's Attendance at Choctawhatchee Senior High School.

   
   

   1. Mr. Guzalak attended, and graduated from, Choctawhatchee Senior High School (hereinafter referred to as "Choctaw"). Mr. Guzalak graduated from Choctaw in 1981.

      
      

   2. Choctaw is a high school located in Okaloosa County, Florida. Choctaw has approximately 2,000 students, 117 to 120 teachers and a total of approximately 160 employees.

      
      

   3. While a student at Choctaw, Mr. Guzalak was active in debate and drama. His drama teacher was Mary Jo Yeager. Ms. Yeager was so impressed with Mr. Guzalak's acting ability that she cast him in the male leading role of essentially every play produced at Choctaw while Mr. Guzalak was a student there. Ms. Yeager and Mr. Guzalak developed a friendship and still remain friends.

      
      

3. Mr. Guzalak's Employment by the School Board.

   
   

   1. After Mr. Guzalak had graduated from Choctaw and was attending college, Mr. Guzalak informed Ms. Yeager that he was interested in becoming a teacher. Ms. Yeager, who was planning to retire in a few years, talked to Richard G. Bounds, the Principal at Choctaw, about the possibility of Mr. Guzalak replacing her when she retired.

      
      

   2. Prior to August, 1987, Mr. Guzalak applied for a teaching position with the School Board as a teacher at Meigs Junior High School (hereinafter referred to as "Meigs"). Ms. Yeager recommended that Mr. Guzalak be hired.

      
      

   3. Mr. Guzalak was hired to teach at Meigs and began his employment with the School Board in August, 1987.

      
      

   4. Mr. Guzalak taught speech/drama and English during the 1987-1988 school year at Meigs.

      
      

4. The Stage Crafters' Party.

   
   

   1. In January, 1988, Mr. Guzalak was involved with a local theatre group known as Stage Crafters. The group presented a play in which Mr. Guzalak participated during that month.

      
      

   2. Mr. Guzalak organized and gave a party for the cast of Stage Crafters after the presentation of the play. The party was held at the home of Mr. Guzalak's parents, where Mr. Guzalak lived until approximately August, 1991.

      
      

   3. Mr. Guzalak invited all students in his speech/drama classes at Meigs to attend the Stage Crafters' party. Mr. Guzalak invited his students because he thought it would be beneficial for his students to meet and talk to individuals who were involved in drama and who had more experience with acting.

   4. Mr. Guzalak had alcoholic beverages available for his guests during the Stage Crafters' party. A table was set up where guests were able to obtain alcoholic drinks.

      
      

   5. Adults drank alcoholic beverage in front of Mr. Guzalak's students during the party. Alcohol was consumed in the presence of students who were under the legal age required to consume alcoholic beverages.

      
      

   6. The evidence failed to prove that students who were not legally old enough to drink alcohol who were at the Stage Crafters' party were encouraged or allowed to drink alcoholic beverages. The evidence also failed to prove that underage students were in fact drinking in the presence of Mr. Guzalak or that Mr. Guzalak drank alcoholic beverages in front of any underage students. The testimony of Chris Hutcherson, a student at Meigs at the time of the party, concerning the party was contradicted by the testimony of Aaron Utley, another student at Meigs at the time, and is rejected.

      
      

   7. Mr. Guzalak testified that the underage students who attended the Stage Crafters' party were mainly relegated to half of the house and the adults and alcohol were located, and the consumption of alcoholic beverages took place, in the other half of the house. Mr. Guzalak testified that this separation of his underage students from the adults consuming alcohol was deliberate and intended to mitigate the extent to which alcohol would be consumed in front of his underage students. This testimony contradicts the purpose for which Mr. Guzalak indicated the students were invited to the Stage Crafters' party and is rejected.

      
      

   8. Mr. Guzalak simply failed to exercise good judgement when he allowed his underage students to attend a party without also inviting their parents when he knew that alcoholic beverages would be consumed.

      
      

   9. Mr. Guzalak was counseled by Bobby Smith, Principal at Meigs and Mr. Guzalak's supervisor, after Mr. Smith learned of the party. Mr. Guzalak told Mr. Smith that he had not consumed alcohol in the presence of his students at the party. Mr. Guzalak did admit that alcoholic beverages had been consumed in front of his students, although he minimized the extent to which alcohol had been consumed.

      
      

   10. Mr. Smith counseled Mr. Guzalak about his lack of judgement in allowing his underage students to attend a party where alcohol was being consumed.

       
       

5. Meigs Student-Cast Dinner.

   
   

   1. In May, 1988, Mr. Guzalak was involved with a play presented at Meigs. The cast of the play consisted of Meigs students.

      
      

   2. After the play, Mr. Guzalak took the cast of the play to dinner at a restaurant. Some parents also attended the dinner.

      
      

   3. Mr. Guzalak failed to inform Mr. Smith or anyone else in the Meigs administration about the dinner.

      
      

   4. During the dinner Mr. Guzalak drank a glass of wine in the presence of the students, who were too young to legally consume alcoholic beverages, and the parents who attended the dinner.

   5. After the dinner about five students stayed to talk to Mr. Guzalak after everyone else had departed. When Mr. Guzalak was ready to take the students home who had stayed, he let one of the students drive his automobile. The student driver was 15 years of age at the time. The student driver had a learners' driving permit which allowed her to drive with an adult in the automobile. The student driver took the other students home and then drove to her own home. Mr. Guzalak then drove himself home from the home of the student that had driven his automobile.

      
      

   6. Mr. Guzalak testified that he had allowed the student driver to drive his automobile because he was concerned about the fact that he had consumed a glass of wine. This testimony is inconsistent with Mr. Guzalak's testimony that he did not give the drinking of the glass of wine with dinner in the presence of the students any thought, one way or the other, and is not credible. Mr. Guzalak allowed the student to drive his automobile that evening because Mr. Guzalak wanted to be accepted by students as a friend and not just a teacher.

      
      

   7. Consuming alcoholic beverages in front of students is against the policies of the School Board. Mr. Smith and Mr. Guzalak had previously discussed the inappropriateness of a teacher consuming alcohol in front of students as a result of the Stage Crafters' party. Despite this prior warning, Mr. Guzalak again exercised poor judgement and failed to adhere to School Board policy.

      
      

   8. Mr. Smith was informed of the dinner and spoke to Mr. Guzalak about it. Mr. Smith admonished Mr. Guzalak for drinking alcohol in front of his students. A few days after their discussion, Mr. Guzalak was given a formal, written reprimand by Mr. Smith. See Petitioner's Exhibit 2. Mr. Guzalak was specifically reprimanded for drinking alcohol in front of his students. He was also informed that he was required "to discuss any and all school sponsored activities with [Mr. Smith] before they occur." See Petitioners' Exhibit 2.

      
      

   9. During Mr. Smith's conference with Mr. Guzalak, Mr. Guzalak expressed concern to Mr. Smith about why it was improper for him to consume alcohol in front of students under the circumstances of the cast dinner. Mr. Guzalak found it difficult to understand why the drinking of a glass of wine with dinner in the presence of students by a teacher was inappropriate.

      
      

6. Mr. Guzalak's Employment at Choctaw.

   
   

   1. Ms. Yeager decided to retire from Choctaw after the 1988-1989 school year. She recommended that Mr. Bounds hire Mr. Guzalak to be her replacement.

      
      

   2. Mr. Bounds questioned Mr. Smith about Mr. Guzalak's performance at Meigs. Mr. Smith informed Mr. Bounds of the dinner incident when Mr. Guzalak drank a glass of wine in the presence of students and provided Mr. Bounds with a copy of the written reprimand, Petitioner's Exhibit 2, that Mr. Smith had given to Mr. Guzalak.

      
      

   3. Mr. Bounds, Mr. Guzalak's supervisor at Choctaw, discussed Mr. Smith's written reprimand with Mr. Guzalak prior to, or soon after, Mr. Guzalak's employment at Choctaw. Mr. Bounds cautioned Mr. Guzalak about consuming alcohol in front of underage students. This was the third time that Mr. Guzalak had been cautioned about the inappropriateness of consuming alcohol in front of underage students.

   4. Mr. Guzalak was hired to teach at Choctaw. Mr. Guzalak began his employment at Choctaw in August of 1989. Mr. Guzalak taught at Choctaw during the 1989-1990, 1990-1991 and 1991-1992 school years. Part of his duties included coaching the forensic teams.

      
      

7. The 1990-1991 School Year--Student Visits to Mr. Guzalak's Home.

   
   

   1. Mr. Guzalak developed and maintained relationships with several Choctaw students which went beyond the appropriate and acceptable teacher- student relationship. Those relationships were more typical of the relationships that students develop among themselves.

      
      

   2. During the 1990-1991 school year students would go to Mr. Guzalak's home to visit. Students who went to Mr. Guzalak's home during the 1990-1991 school year included Sarah Stimac, David Barron, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul, Kevin Mock, Richard "Matt" Schoditsch, David Hodges, Thomas Ignas and Ross Foster. Sarah Stimac, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul and Kevin Mock were seniors at Choctaw during the 1990-1991 school year. David Barron was a sophomore at Choctaw. David Hodges and Thomas Ignas were juniors at Choctaw. Matt Schoditsch and Ross Foster were also students at Choctaw.

      
      

   3. Initially, students began going to Mr. Guzalak's home for school- related purposes. They went for assistance from Mr. Guzalak with school subjects, to practice for plays and to practice for forensic team competitions.

      
      

   4. Students eventually began visiting Mr. Guzalak's home primarily for social reasons. Mr. Guzalak allowed students to come to Mr. Guzalak's home to visit without invitation, without informing Mr. Guzalak they were coming and without asking for Mr. Guzalak's permission. While at Mr. Guzalak's home, students would watch movies, listen to music, play music, play chess, talk and "just hang out." Mr. Guzalak's characterization of student visits as tending to be "academic in nature" is rejected.

      
      

   5. At some time during the Fall of 1990, Mr. Guzalak invited a group of students who had formed a rock band to come to his home to practice for an upcoming pep rally. Bobby Arnold was one of the first students to be invited to practice at Mr. Guzalak's home. Eventually, the students included Steve Bucci, Kevin Foster and John Randall. A few other students would join in on occasion.

      
      

   6. At some point, students, including those mentioned in the foregoing finding of fact, would go to Mr. Guzalak's home and just play music as opposed to practicing for some upcoming event. Other students, including Patrick Peavy, Eric Gaul and Kevin Mock would listen.

      
      

   7. The music sessions were social in nature and were not school related. Bobby Arnold's suggestion that the students and Mr. Guzalak, in addition to playing music, would talk about books is rejected to the extent that Bobby Arnold was suggesting an academic purpose for his visits. As Steve Bucci described the visits, they were "jam sessions."

      
      

   8. Bobby Arnold went to Mr. Guzalak's home at least five to seven times during the 1990-1991 school year. Steve Bucci indicated that the music sessions at Mr. Guzalak's home took place two times a month and more often if he was getting ready for a talent show.

   9. Matt Schoditsch went to Mr. Guzalak's home at least six times. Matt Schoditsch's testimony that he only went to Mr. Guzalak's home for academic purposes and not for social reasons was contradicted by many of the other witnesses in this proceeding, including Mr. Guzalak, and is rejected. Mr. Schoditsch's suggestion that students would "be sitting there reading a book or something . . . Magazines" is rejected. Even Mr. Guzalak admitted that students came for social reasons.

      
      

   10. David Barron went to Mr. Guzalak's home more than twelve times and less than twenty times. During three to five of those visits by David Barron went to Mr. Guzalak's home, beer was consumed by underage students in Mr. Guzalak's presence. Matt Schoditsch, Kevin Foster, Patrick Peavy and others were at Mr. Guzalak's home at times that David Barron saw beer consumed by underage students in front of Mr. Guzalak. Mr. Guzalak also consumed beer in David Barron's presence and the presence of other underage students. The beer consumed by David Barron was either provided by Mr. Guzalak or Mr. Barron brought his own beer.

       
       

   11. On one of the occasions where Mr. Guzalak provided beer to David Barron at Mr. Guzalak's home, it was a type of beer that David Barron had not seen before. Mr. Guzalak said that he got the beer when he had gone north to visit his parents.

       
       

   12. On one occasion Mr. Guzalak drank a glass of wine in front of Kevin Mock. This took place despite the fact that Mr. Guzalak had previously been counselled by Mr. Smith (twice) and Mr. Bounds about the impropriety of drinking alcohol in front of students. Mr. Guzalak offered Kevin Mock a drink of the wine and Mr. Mock took it.

       
       

   13. Sarah Stimac also went to Mr. Guzalak's home during the 1990-1991 school year. Patrick Peavy started taking Ms. Stimac to Mr. Guzalak's. Mr. Peavy was Ms. Stimac's boy friend during the 1990-1991 school year. Mr. Peavy and Ms. Stimac had started doing things with a group of their friends during the summer of 1989 and by the end of the summer they had developed a relationship.

       
       

   14. Sarah Stimac began going to Mr. Guzalak's home because Patrick Peavy and his friends, primarily Eric Gaul and Kevin Mock, liked to go there and they went there often.

       
       

   15. On one occasion during the 1990-1991 school year, Sarah Stimac saw Mr. Guzalak and Eric Gaul smoke marijuana at Mr. Guzalak's home in the guest rest room. They used a "bong", a pipe-like device used for smoking marijuana. Ms. Stimac also witnessed Patrick Peavy and Kevin Mock smoke marijuana at Mr. Guzalak's home. Mr. Mock admitted to Martha Clemons, his girl friend during part of the 1990-1991 school year, that he had smoked marijuana at Mr. Guzalak's home.

       
       

   16. Sarah Stimac also saw marijuana smoked and alcoholic beverages consumed on at least one other occasion at Mr. Guzalak's home.

       
       

   17. Patrick Peavy, Eric Gaul and Kevin Mock visited Mr. Guzalak's home more frequently than other students. By their own admissions, they went to Mr. Guzalak's home, on average, from two to three times a week. Contrary to Mr. Guzalak's testimony that Mr. Peavy, Mr. Gaul and Mr. Mock were rarely at his home at the same time, Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's together or were at Mr. Guzalak's home at the same time often based upon their own admissions. Based upon the weight of the evidence, it is concluded that Mr.

       Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's home on a frequent and regular basis.

       
       

   18. Sarah Stimac substantiated the fact that Patrick Peavy went to Mr. Guzalak's home frequently. She went with him approximately six times. She also picked him up at Mr. Guzalak's and she telephoned Mr. Peavy at Mr. Guzalak's home. Mr. Peavy told Ms. Stimac and his parents that he was going to Mr. Guzalak's home more often than he actually went. Mr. Peavy lied to Ms. Stimac and his parents so that he could do other things without Ms. Stimac or so that he could do things that his parents would not let him do if he told them the truth. This gave Ms. Stimac the impression that Mr. Peavy was at Mr. Guzalak's home more often then he actually was. Despite this fact, the weight of the evidence proved that Mr. Peavy was at Mr. Guzalak's home on a frequent and regular basis for non-academic purposes.

       
       

8. The 1990-1991 School Year Initiation Night.

1. At some time during the Fall of 1990, an annual event, referred to as "Initiation Night," took place at Choctaw. Groups of students at Choctaw traditionally go out together on Initiation Night.

   
   

2. On Initiation Night during the Fall of 1990, Sarah Stimac drove Angie Smallwood to Mr. Guzalak's home at approximately 9:00 p.m. to pick up Patrick Peavy. Mr. Peavy had told Ms. Stimac that he would be there. Mr. Peavy, Eric Gaul and Kevin Mock were at Mr. Guzalak's home and were picked up by Ms. Stimac.

   
   

3. After Sarah Stimac picked up Patrick Peavy, he told Ms. Stimac that he had been drinking and that he had smoked marijuana and taken LSD. The evidence, however, failed to prove where these events took place. More importantly, the evidence failed to prove that Mr. Guzalak was present when these events took place or that he was aware of what had happened.

   
   

4. After leaving Mr. Guzalak's home, Ms. Stimac and the students she picked up went to a local pizza restaurant and met other students, including Matt Schoditsch. The students then went to a bayou where they built a fire. Eric Gaul had a bottle of spiced rum.

   
   

5. At some point during the evening Okaloosa County sheriff's deputies appeared. When they did, despite the cold evening, Patrick Peavy, who had been swinging on a rope swing over the water, fell into the water. Whether Mr. Peavy did so because he was startled (as he testified) or because he was trying to get rid of the marijuana and LSD he had in his pocket (as Ms. Stimac testified) need not be decided. The evidence failed to prove that Mr. Guzalak was directly involved in this incident. It is also not necessary to decide whether Mr. Peavy had drugs in his pocket because the evidence failed to prove that Mr. Guzalak had anything to do with any such drugs.

   
   

6. After Eric Gaul admitted that the bottle of spiced rum he had, and which the deputies had found, was his and he had convinced the deputies that he had a stranger buy the rum for him at a liquor store, the students were allowed to leave. Although Mr. Gaul, after getting into Ms. Stimac's automobile, stated that he had been given the rum by Mr. Guzalak, the evidence failed to prove the truth of this hearsay statement.

7. After the incident at the bayou the students went back to Mr. Guzalak's home.

   
   

   1. The 1990-1991 School Year Senior Prom.

      
      

8. The day of the 1990-1991 school year senior prom, Sarah Stimac and Patrick Peavy had a fight and broke off their relationship. They did, however, go to the prom together that night.

   
   

9. The prom was held at a local motel. Sarah Stimac and Patrick Peavy rented a room at the motel.

   
   

10. At some time before the prom was over, Sarah Stimac and Patrick Peavy went to the room they had rented. Mr. Guzalak came to the room to visit. Mr. Peavy had invited Mr. Guzalak. Mr. Guzalak left after Ms. Stimac gave Mr. Peavy an ultimatum that either Mr. Guzalak leave or she would, and Mr. Peavy asked Mr. Guzalak to leave. Mr. Guzalak stayed approximately five to fifteen minutes.

    
    

11. Although there was alcohol in Ms. Stimac's and Mr. Peavy's room, the evidence failed to prove that Mr. Guzalak was aware of the alcohol or that anyone was drinking while Mr. Guzalak was there.

    
    

    1. The 1990-1991 Spring Break Canoe Trip.

       
       

12. During the spring break of April, 1991, a student party was organized. The party consisted of a canoe trip down a local river. The party was not a school-sponsored event.

    
    

13. Mr. Guzalak was invited to come on the 1991 canoe trip. Although Mr. Guzalak remembered that he was invited by one or more students, Mr. Guzalak, who had an excellent memory for most details, could not remember the names of any student that invited him. Mr. Guzalak spent most of the trip with Patrick Peavy, Eric Gaul and Kevin Mock.

    
    

14. There were about 120 students who participated in the canoe trip. They met at the Choctaw parking lot the morning of the trip.

    
    

15. During the canoe trip, underage students were drinking beer. They did so openly and in Mr. Guzalak's presence. Mr. Guzalak was offered beer at least ten times by underage students. Kevin Mock admitted that he drank beer in front of Mr. Guzalak during the trip.

    
    

16. Mr. Guzalak did not make any effort to stop any of the underage students from drinking alcoholic beverages.

    
    

17. Mr. Guzalak's testimony that there was nothing he could do about students drink beer on the trip is not credible.

    
    

18. Mr. Guzalak had a duty and responsibility to attempt to stop underage students from drinking beer. Even if Mr. Guzalak's testimony that he did not attempt to stop the drinking because of the number of students involved was credible (which it is not), his testimony did not explain why he did not say something to those students who were bold enough to offer him a beer and then students who he came into contact with that were drinking beer

    
    

19. By allowing the consumption of alcohol in his presence by students who were under the legal drinking age, Mr. Guzalak condoned their illegal behavior.

    When a teacher allows the violation of one law, it becomes difficult for the teacher to enforce other laws and rules governing student conduct.

    
    

20. Mr. Guzalak failed to report the incident to Mr. Bounds or any other administrative employees at Choctaw. Mr. Guzalak should not have just ignored the fact that students, some of whom were his students, had blatantly violated the law in his presence.

    
    

    1. The 1991-1992 School Year--Mr. Bounds Second Warning.

    
    

21. In approximately August of 1991, Patrick Peavy's father spoke to Mr. Bounds about his belief that his son was drinking alcohol and using drugs at Mr. Guzalak's home. The evidence failed to prove what basis, if any, Mr. Peavy had for his suspicions at the time he made his complaint.

    
    

22. As a result of the concerns raised by Patrick Peavy's father, Mr. Bounds spoke to Mr. Guzalak. The conversation took place on approximately September 19, 1991.

    
    

23. Among other things, Mr. Bounds told Mr. Guzalak that a parent had reported that students were frequenting Mr. Guzalak's home and that alcohol and drugs were being used there. Mr. Bounds told Mr. Guzalak that the parent had followed his child to Mr. Guzalak's home.

    
    

24. While Mr. Guzalak admitted to Mr. Bounds that students were frequenting his home, he denied that alcohol was being consumed or that drugs were being used. Mr. Bounds explained to Mr. Guzalak why it was not a good idea to allow students to come to his home. Mr. Guzalak, however, did not agree with Mr. Bounds' concerns over the possible pitfalls of forming personal, social relationships with his students.

    
    

25. On September 24, 1991, Mr. Bounds wrote a memorandum to Mr. Guzalak "to reiterate my position regarding our conversation in my office on Thursday, September 19, 1991." Petitioner's Exhibit 3. Mr. Bounds also stated the following in the memorandum:

    
    

    During our conversation you related to me that students from our school were invited and allowed to visit your home for non-academic reasons. Furthermore, you related to me that students from our school are not discouraged by you to establish a personal friendship with you. These personal friendships are encouraged by your participating in non-school related activities.

    
    

    You are hereby notified that all future contact with students from our school should be exclusively of a professional and academic nature. Moreover, meetings with our students should be held on our school property exclusively unless express permission is obtained from me.

    
    

    Petitioner's Exhibit 3.

26. Mr. Bounds also arranged for Mr. Guzalak to meet with Annette Lee (formerly, Annette Francis), Personnel Director of the School Board. Ms. Lee, who was Assistant Superintendent, Human Resource Division, at the time, met with Mr. Guzalak. On October 9, 1991, Ms. Lee wrote Mr. Guzalak a letter memorializing this meeting and provided him with a copy of a document titled "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching," a form containing some School Board expectations for teacher conduct. See Petitioner's Exhibits 4 and 5.

    
    

27. Ms. Lee also discussed the inappropriateness of Mr. Guzalak's behavior and stressed to him the importance of maintaining a professional relationship with students. Mr. Guzalak again admitted that he had developed friendships with some of his students and that he had seen them on occasion socially.

    
    

28. Among other things, Ms. Lee stressed the following portions of the "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching" form she had provided to Mr. Guzalak:

1. Interaction with Students:

   
   

   1. Maintain a professional barrier between you and students. You are the adult, teacher and the professional; act like the expert not like another one of the "kids."

. . . .

3. Refer students to the appropriate resource person for counseling and/or discussions about personal matters.

. . . .

5. Do NOT discuss your personal life or personal matters with students. Do NOT discuss your husband, boyfriend, dates or controversial issues with students.

. . . .

10. Chaperone only school sponsored functions. Do NOT socialize with students. If you chaperone a field trip, put in writing what your responsibilities will be. Do NOT drink alcoholic beverages in front of

students. Do NOT take children home with you.

. . . .

C. Reputation in the Community.

. . . .

1. Communicate with parents and document your communications.

2. Dress and act appropriately but professionally. You are a role model in the community as well as in the school; be a good example for students.

3. Use common sense and good judgement. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted.

4. Avoid putting yourself in a position where you have to defend, explain, or justify your

behavior or actions. Avoid putting yourself in a position where it's your word against another person's word.

. . . .

Petitioner's Exhibit 5.

1. Continued Student Visits to Mr. Guzalak's Home.

   
   

   1. Mr. Guzalak was very concerned about what Mr. Bounds had told him about students coming to his home. Mr. Guzalak thought that he was being watched (by a parent) and he was concerned because some of the allegations about alcohol and drug use were true.

      
      

   2. Initially, Mr. Guzalak told students who dropped by or who asked if they could come by, not to come or that they could not stay. For example, Mr. Guzalak told Thomas Ignas and David Hodgson they should not come to his home.

      
      

   3. On at least one occasion, however, Mr. Guzalak allowed students to visit him at his home during the 1991-1992 school year after Mr. Bounds had instructed Mr. Guzalak to stop such visits. The incident took place during the first three months of 1992. Aaron Utley was told to come to Mr. Guzalak's home by either David Hodges or Thomas Ignas. When Mr. Utley arrived at Mr. Guzalak's home, Mr. Hodges and Mr. Ignas were there with Mr. Guzalak. There were empty beer cans on the coffee table. Mr. Hodges was drunk. Mr. Guzalak did not request that any of the students leave. The weight of the evidence failed to prove, however, that alcohol was consumed by Mr. Guzalak in front of the students or that the students consumed alcohol in front of Mr. Guzalak.

      
      

2. The Florida State University Trip--September, 1991.

   
   

   1. At some time after Mr. Guzalak spoke to Mr. Bounds in September 1991, Mr. Guzalak took a group of students who were participating in the forensic program to Florida State University in Tallahassee, Florida, for a forensic competition. Among others on the trip were Chris Hutcherson, Mark Bradshaw, David MacCarroll and Josh Mickey. These Choctaw students stayed in the same motel room while on the trip.

      
      

   2. One evening, Mark Bradshaw, David MacCarroll and Josh Mickey came into the motel room where they were staying and smelled marijuana smoke. Mr. Hutcherson was in the room. Mr. Hutcherson had smoked marijuana just before the other students came into the room.

      
      

   3. Mr. Guzalak came into the motel room shortly after the students arrived and he smelled the marijuana smoke also. Mr. Guzalak asked what was going on, but no one admitted anything at that time.

      
      

   4. At some point during the trip, Chris Hutcherson admitted to Mr. Guzalak that he had smoked marijuana in the motel room.

      
      

   5. At no time did Mr. Guzalak report Chris Hutcherson's admission to Mr. Hutcherson's family, Mr. Bounds or any other administrative official. Nor did Mr. Guzalak take any disciplinary action against Mr. Hutcherson. Failing to report the use of illicit drugs was against school policy.

      
      

   6. Mr. Guzalak did not even explain to Chris Hutcherson why he should not have been using marijuana. Instead, Mr. Guzalak told Mr. Hutcherson that he had

      put Mr. Guzalak in an untenable position by his actions. Because Mr. Bounds had spoken to Mr. Guzalak only a few days before this incident, Mr. Guzalak's concern was not for Mr. Hutcherson or even the forensic team--"[i]t was for myself." See line 11, page 595, Transcript of the Final Hearing.

      
      

   7. Mr. Guzalak, by his use of marijuana and alcohol with students prior to this incidental, had placed himself in a position of action in a manner similar to that of Mr. Hutcherson. Therefore, it became difficult for Mr. Guzalak to carry out his responsibility as a teacher to report Mr. Hutcherson's admission.

      
      

3. The Pensacola Trip--November, 1991.

   
   

   1. In November, 1991, the Choctaw forensic team went to Pensacola, Escambia County, Florida, to participate in a competition. Since the competition was out of Okaloosa County, students were prohibited by School Board policy from driving their own vehicles.

      
      

   2. Students who participated in the competition were required to have their parents sign a form granting permission for their child to travel on the trip. See Respondent's Exhibit 1. On the permission form it indicated that "students' may not drive themselves to out of county school-sponsored activities

      . . . ."

      
      

   3. The students who were going on the Pensacola trip were told to be at Choctaw at 6:15 a.m. They were scheduled to leave at 6:30 a.m.

      
      

   4. Chris Hutcherson, who was to participate in the Pensacola competition, did not want to get up as early as he would have to arise to be at Choctaw at 6:15 a.m. Therefore, Mr. Hutcherson asked his mother, Sharon Philbrook, if he could drive his automobile to Pensacola. She told him no. She also spoke to Mr. Guzalak who confirmed the School Board policy that students were not allowed to drive their own vehicles on the trip and that transportation would be provided for students for the trip.

      
      

   5. The morning of the Pensacola trip, Ms. Philbrook found a note from Chris Hutcherson indicating he had taken his stepbrother's automobile despite her instructions to the contrary.

      
      

   6. Ms. Philbrook reported the incident to Mr. Bounds who suggested that she go to Pensacola and get Mr. Hutcherson. She did so.

      
      

   7. Upon arriving at the competition site, Ms. Philbrook introduced herself to Mr. Guzalak and explained what had happened. She also told him that she had reported the incident to Mr. Bounds and that Mr. Bounds wanted Mr. Guzalak to telephone him.

      
      

   8. Mr. Guzalak was very upset about what Ms. Philbrook told him and told her he wished she had not telephoned Mr. Bounds. In light of Mr. Bounds' admonishment of Mr. Guzalak in September and Chris Hutcherson's admission to Mr. Guzalak that he had smoked marijuana on the Florida State University trip (which Mr. Guzalak had not reported), Mr. Guzalak's reaction is understandable. Mr. Guzalak's reaction and the other evidence presented by the EPC concerning this incident, however, failed to prove that Mr. Guzalak was responsible for Chris Hutcherson's violation of School Board policy against students driving their own vehicles out of the county.

   9. As a result of Mr. Hutcherson's actions, Mr. Guzalak informed Mr. Hutcherson that he could no longer travel with the forensic team.

      
      

   10. Mr. Hutcherson's testimony concerning whether Mr. Guzalak told him that it was okay to drive his own automobile to Pensacola was not credible and is rejected.

       
       

4. The Rush Concert--February, 1992.

   
   

   1. In February, 1992, Mr. Guzalak was responsible for the production of a play at Choctaw. During the week before the play was to begin, Mr. Guzalak cancelled a rehearsal. The rehearsal was cancelled because Mr. Guzalak and several students involved in the play wanted to attend a concert by a musical group, Rush, in Pensacola.

      
      

   2. The evidence failed to prove that Mr. Guzalak went to the concert with any students from Choctaw, although he did see and speak to at least one student at the concert.

      
      

   3. The evidence failed to prove that Mr. Guzalak acted improperly or violated School Board policy in cancelling the rehearsal.

      
      

5. Matt Schoditsch's Party--February, 1992.

   
   

   1. On a Friday evening in February, 1992, Mr. Guzalak spoke to Matt Schoditsch on the telephone.

      
      

   2. Mr. Schoditsch invited Mr. Guzalak to come to his home. Mr. Schoditsch told Mr. Guzalak that there would be other students at his home, students that Mr. Guzalak knew, and that they would be grilling food. Mr. Guzalak knew that Mr. Schoditsch was having a student get-together.

      
      

   3. Mr. Guzalak's and Mr. Schoditsch's testimony that Mr. Guzalak was invited and came to Mr. Schoditsch's home only to discuss his participation in a play is not credible. The weight of the evidence proved that Mr. Schoditsch invited Mr. Guzalak for social reasons, and that Mr. Guzalak accepted the invitation for social reasons. Mr. Guzalak accepted the invitation and went to a student's house contrary to Mr. Bounds' directive to him and contrary to Ms. Lee's advice.

      
      

   4. Mr. Guzalak testified that he had assumed that Mr. Schoditsch's parents would be there. Mr. Guzalak also testified that it was not until after students starting showing up with beer that he realized that Mr. Schoditsch's parents were not there. This testimony is not credible. In light of Mr. Bounds' directive, which Mr. Guzalak indicated he was very concerned about, a reasonable person would have inquired. Additionally, a reasonable person, especially a teacher and one who had previously been accused of being too friendly with students, would seek out a student's parents soon after arriving at their home to introduce himself or to say hello if the teacher thought the parents were home. Even if Mr. Guzalak did not know that Mr. Schoditsch's parent would not be home before he arrived, he should have realized soon after arriving that they were not there and left.

      
      

   5. Shortly after arriving at Mr. Schoditsch's home, Mr. Guzalak saw students start to arrive with beer which they began drinking. According to Mr. Guzalak and Mr. Schoditsch, Mr. Guzalak expressed concern to Mr. Schoditsch about students drinking in front of him. They also testified that Mr.

      Schoditsch attempted to stop the drinking, but too many students started coming, and there was too much beer. This testimony is not credible. According to Mr. Barron, who also attended the party, there were only fifteen to twenty people at the party. If Mr. Schoditsch had really wanted to, he could have stopped the drinking. Mr. Schoditsch had no intention of stopping the beer drinking. And Mr. Guzalak did not expect him to.

      
      

   6. Even after Mr. Guzalak saw students drinking beer he did not leave immediately. According to his own testimony, he stayed another twenty-five to thirty minutes after he saw students drinking and even took time to go speak to a student, Jodie Brooks, before leaving.

      
      

   7. The weight of the evidence failed to prove whether Mr. Guzalak drank alcohol while at Mr. Schoditsch's home. Although Mr. Barron thought Mr. Guzalak was drinking a mixed drink because he was drinking out of Mr. Schoditsch's cup or glass, Mr. Barron did not testify about how he knew that Mr. Schoditsch was drinking a mixed drink.

      
      

6. Use of Profanity.

   
   

   1. It is against the policy of the School Board for a teacher to use profanity in the presence of students.

      
      

   2. Mr. Guzalak used the term "fucking" in front of several students when he became angry about their use of squirt guns on a forensic competition trip.

      
      

   3. The weight of the evidence failed to prove that Mr. Guzalak used profanity in the classroom.

      
      

7. Supervision of Students on Trips.

   
   

   1. The weight of the evidence failed to prove that Mr. Guzalak failed to provide adequate or required supervision of students while on school trips.

      
      

8. Mr. Guzalak's Resignation from the School Board.

1. Ultimately, several teachers became aware of various rumors about Mr. Guzalak and some of his inappropriate behavior with students. Those comments were reported to Mr. Bounds, who spoke to a few students and then reported the problem to Ms. Lee.

   
   

2. The Superintendent of Okaloosa County Schools met with Mr. Guzalak in March 1992, and discussed the various allegations against him. Mr. Guzalak subsequently resigned, effective at the end of the 1991-1992 school year.

   
   

   1. Credibility of the Witnesses.

      
      

3. Mr. Guzalak and the students who were most involved in the incidents at issue in this proceeding denied that most of the more serious accusations against Mr. Guzalak are true. In addition to denying the accusations against him, Mr. Guzalak also suggested that he is the victim of unfounded rumors. Finally, Mr. Guzalak questioned the credibility and motives of some of the witnesses who testified in this proceeding.

   
   

4. The denials of Mr. Guzalak and those students who supported his version of events have been rejected. Based upon the weight of the evidence, Mr. Guzalak's testimony was not convincing.

5. The denial of the accusations by several (but not all) of the witnesses called by Mr. Guzalak was also not credible and has been rejected. Many of those witnesses are young men who have developed a close relationship to Mr. Guzalak. They consider Mr. Guzalak to be their "friend." Their testimony reflected their desire not to betray their "friend" and has been rejected in large part based upon the weight of all of the evidence.

   
   

6. The efforts to suggest that Mr. Guzalak is merely a victim of rumors also failed. Rumors were caused, in part, because of the perception that Mr. Guzalak was different or eccentric, and, in part, because of the incidents described in this Recommended Order. While there were no doubt rumors concerning this matter and Mr. Guzalak, the incidents which have been found to have occurred in this Recommended Order are based upon the specific knowledge of those witnesses found to be credible. Many of those incidents were confirmed or substantiated by more than one witness.

   
   

7. Finally, the efforts of Mr. Guzalak to discredit some of the witnesses also failed. Most of those efforts were directed at Sarah Stimac, Chris Hutcherson and Aaron Utley. The testimony of Ms. Stimac, Mr. Utley and most of the other witnesses called by the Petitioner was credible.

   
   

8. It is true, however, that Mr. Hutcherson's testimony contained inconsistencies and that Mr. Hutcherson evidenced an extremely bitter and judgemental attitude against Mr. Guzalak. Consequently, Mr. Hutcherson's testimony has not been accepted except to the extent that it has been corroborated by other evidence.

   
   

9. Attacks on Ms. Stimac's credibility are rejected. The suggestion that Sarah Stimac was not credible fails to consider, among other things, the fact that Ms. Stimac's actions in this matter were taken at some personal expense and aggravation. Mr. Guzalak, during the investigation of this matter by the EPC, allowed several students to read confidential statements that Ms. Stimac and other students had given during the investigation. He did so without regard to the consequences to Ms. Stimac or the other students. As a result, Ms. Stimac has faced hostility and ridicule from those misguided students who believe that not telling, or "ratting," on a friend is admirable. Despite such hostility, Ms. Stimac refused to compromise her integrity.

   
   

10. The weight of the evidence proved that other students, such as Aaron Utley and David Barron made the same choice that Sarah Stimac made. Rather than lacking credibility, Ms. Stimac's testimony, Mr. Barron's testimony, and the testimony of most of the other students who spoke out about Mr. Guzalak's inappropriate conduct is admirable.

    
    

    1. The Impact of Mr. Guzalak's Actions on His Ability to Perform His Duties Effectively.

    
    

11. There was no direct evidence to prove that Mr. Guzalak was not effective in the classroom. Most of the witnesses agreed that Mr. Guzalak was very effective in the classroom. Several of the witnesses spoke of Mr. Guzalak's intelligence and ability with some admiration.

    
    

12. Unfortunately, Mr. Guzalak, by his own admission and based upon the facts presented in this case, has evidenced a lack of the judgement necessary for him to be entrusted with the education of young people. This fact is based upon the nature of the improper acts which Mr. Guzalak has been found to have

    committed in this case and by his attitude about the warnings he received from Mr. Smith, Mr. Bounds, Ms. Lee and even Mr. Guzalak's coworkers.

    
    

13. A teacher that drinks alcohol in the presence of students and provides alcohol to, or condones the use of, alcoholic beverages by students has lost his or her effectiveness as a teacher because of the high standard of conduct expected of teachers. A teacher that uses marijuana in the presence of students or allows students to use marijuana in his or her presence has also lost his or her effectiveness as a teacher. Mr. Guzalak's conduct was, therefore, contrary to the conduct expected of him by the School Board and the community.

    
    

14. Mr. Guzalak's conduct is sufficiently notorious in the community that he has lost his effectiveness as a teacher.

    
    

15. Mr. Guzalak's inability to follow the directions of his supervisors has also reduced his effectiveness as a teacher. Mr. Guzalak probably has begun to take too much stock in the praise he has received concerning his intelligence and abilities. He has begun to believe his "reviews." As a result, Mr. Guzalak believes that he knows more about how to be an effective teacher than his supervisors and fellow teachers. Mr. Guzalak was asked during the hearing why he had a problem with Mr. Bounds' directive concerning his student friendships. Mr. Guzalak's response, which evidences his attitude about the appropriate role of a teacher with his or her students, was as follows:

    
    

    Because I was used to the idea at that point of having some social contact with students. It was important to me.

    
    

    I was, basically, disturbed because I felt that Richard Bounds was asking me to suddenly make some sort of major capitulation, not in my life-style, but in my mode of thought, in the way I viewed my relationship with students.

    
    

    He wanted me to be an authoritarian clone, if I must.

    
    

    Lines 18-25, Page 627 and Lines 1-2, Page 628, Vol. IV of the Transcript. Additionally, Mr. Guzalak answered the following questions:

    
    

    Q. [Mr. Bounds is] your principal. Shouldn't he be allowed to tell you how you should behave with your students?

    A. No.

    Q. He shouldn't be able to tell you how you conduct yourself with your students?

    A. No.

    Q. Why not?

    A. Because I'm an adult and because I'm a professional. And I'm capable of making those decisions on my own.

    . . . .

    Lines 17-25, Page 628 and Lines 1-2, Page 629, Vol. IV of the Transcript.

    
    

16. Rather than being an "authoritarian clone," Mr. Guzalak attempted to reach some of his students by being their friend on their level. To some extent, he was influenced by Ms. Yeager, who developed friendships with her students. Ms. Yeager, however, was more mature, married, had a family and had been teaching for some time. As Ms. Yeager put it:

    
    

    . . . . Of course, I have an advantage, being an old, married woman. I mean, I had a husband. I had a family. I had a track record when I came here, Ms. O'Sullivan. I taught seven years junior high and two more years in high school.

    
    

    So I think age -- Not all people are respected because they're older, as you know. But, I'm saying I sort of had an edge there on John [Guzalak], plus experience.

    
    

    Lines 19-25, Page 375 and Lines 1-2, Page 376, Vol. III of Transcript.

    
    

17. More importantly, Ms. Yeager, by her actions, her character and her good judgement, was able to develop a certain level of friendship with her students while maintaining her distance and her professionalism. Mr. Guzalak has not evidenced the ability to do the same because of his lack of judgement and his inability to heed the advice and experience of his supervisors and peers.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

18. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

    
    

    1. The EPC's Charges.

       
       

19. The EPC has alleged that Mr. Guzalak has violated Sections 231.28(1)(c), (f) and (h), Florida Statutes, and Rule 6B-1.006(3)(a) (h), Florida Administrative Code.

    
    

    1. Burden of Proof.

       
       

20. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

21. In this proceeding it is the EPC that is asserting the affirmative. Therefore, the burden of proving the elements of Mr. Guzalak's alleged violations was on the EPC.

22. This proceeding, which involves possible revocation of Mr. Guzalak's license, is penal in nature. See Kozerowitz v. Florida Real Estate Commission,

    289 So.2d 391 (Fla. 1974); and Bach v. Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979). The evidence in support of the EPC's charges must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See also Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988).

    
    

23. In determining whether the EPC has met its burden of proof in this proceeding, Mr. Guzalak has recognized in a Brief in Support of Proposed Findings of Fact and Conclusion of Law filed on his behalf, that this case turns largely on the credibility of the witnesses. Mr. Guzalak's conclusions concerning credibility of the witnesses has, discounted to the extent that it is dispositive of this dispute, except with regard to testimony of Chris Hutcherson not corroborated by other evidence.

    
    

    1. Section 231.28(1)(c), Florida Statutes.

       
       

24. Section 231.28(1)(c), Florida Statutes, provides the following:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person 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 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;

       . . . .

       
       

25. The term "immorality" is defined in Rule 6B-4.009(2), Florida Administrative Code, as follows:

    
    

    (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

26. The terms "moral turpitude" are defined in Rule 6B-4.009(6), Florida Administrative Code, as follows:

    
    

    (6) Moral turpitude is a crime that is evidenced by an act or baseness, vileness or

    depravity in the private and social duties, which according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

27. Teachers in this State are held to a high level of morality with regard to what is appropriate conduct. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). The evidence in this case proved that Mr. Guzalak violated that standard of conduct reasonably expected of teachers.

    
    

28. In particular, the evidence proved that Mr. Guzalak:

    
    

    1. Allowed alcohol to be consumed at a Stage Crafters' party in the presence of underage junior high students;

       
       

    2. Drank a glass of wine, after being counseled about drinking in the presence of students, in the presence of underage junior high students;

       
       

    3. On more than one occasion while employed at Choctaw, Mr. Guzalak allowed students to consume alcoholic beverages in his presence at his home, on the canoe trip and at Mr. Schoditsch's home;

       
       

    4. On more than one occasion while employed at Choctaw, Mr. Guzalak consumed alcohol in the presence of students after being warned about the consumption of alcohol in the presence of students twice by Mr. Smith and once by Mr. Bounds;

       
       

    5. On more than one occasion while employed at Choctaw, Mr. Guzalak provided alcoholic beverages to students, including Mr. Barron and Mr. Mock;

       
       

    6. On more than one occasion while employed at Choctaw, Mr. Guzalak allowed students to smoke marijuana at his home; and

       
       

    7. On at least one occasion while employed at Choctaw, Mr. Guzalak smoked marijuana in the presence of other students at his home.

    
    

29. The foregoing acts are inconsistent with the public conscience and good morals. The public does not tolerate the use of alcoholic beverages or illegal drugs by teachers in the presence of their students or by students in the presence of their teachers.

    
    

30. The evidence also proved that Mr. Guzalak's conduct was "sufficiently notorious to bring [him] or the education profession into public disgrace or disrespect and impair [his] service in the community." Even Mr. Guzalak presented evidence concerning the amount of controversy his conduct caused at Choctaw. The evidence proved that the discussions concerning some of his illicit activities was not merely unfounded rumor. His conduct is also known in the community.

    
    

31. Based upon the forgoing, it is concluded that Mr. Guzalak is guilty of immorality as defined in Rule 6B-4.009(2), Florida Administrative Code, and moral turpitude as defined in Rule 6B-4.009(6), Florida Administrative Code. Mr. Guzalak has, therefore, violated Section 231.28(1)(c), Florida Statutes.

    1. Section 231.28(1)(f), Florida Statutes.

       
       

32. Section 231.28(1)(f), Florida Statutes, provides, in pertinent part, the following:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person 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 tech 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:

       . . . .

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

       . . . .

       
       

33. Mr. Guzalak acted effectively in the classroom. Despite this fact, given the nature of Mr. Guzalak's conduct outside the classroom with students, and the fact that his conduct was notorious at Choctaw and in the community, it is concluded that Mr. Guzalak's effectiveness as a teacher has been impaired.

    
    

34. In addition to being involved in acts of immorality and moral turpitude, Mr. Guzalak also demonstrated an inability to adhere to directives of his supervisors. Despite repeated warnings about alcohol use in the presence of students and the need to maintain a professional relationship with his students, Mr. Guzalak continued to act inappropriately with students.

    
    

35. Based upon the forgoing, it is concluded that Mr. Guzalak violated Section 231.28(1)(f), Florida Statutes.

    
    

    1. Section 231.28(1)(h), Florida Statutes.

       
       

36. Section 231.28(1)(h), Florida Statutes, provides, in pertinent part, the following:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person 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 tech 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:

       . . . .

       (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.

       . . . .

       
       

37. The EPC has alleged that Mr. Guzalak has violated the Rule 6B- 1.006(3)(a) and (h), Florida Administrative Code.

    
    

38. Rule 6B-1.006(3)(a) and (h), Florida Administrative Code, provides:

    
    

    1. The following disciplinary rule shall constitute the Principals of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

       . . . .

       1. Obligation to the student requires that the individual:

          1. Shall make a reasonable effort to protect the student from conditions harmful to learning or to health or safety.

       . . . .

       (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

       
       

39. By allowing students to consume alcohol and to smoke marijuana in violation of the law, and by failing to report a student's admitted use of marijuana while on a school sanctioned trip, Mr. Guzalak failed to make a reasonable effort to protect students from conditions harmful to their health or safety in violation of Rule 6B-1.006(3)(a), Florida Administrative Code.

    
    

40. The activities described in this Recommended Order came about as a result of Mr. Guzalak's position as a teacher of the School Board and his professional relationship with students. While Mr. Guzalak's actions were based, at least in part, on his desire to be an effective teacher, he was also motivated by his own personal desires. See finding of fact 129. Consequently, it is concluded that Mr. Guzalak violated Rule 6B-1.006(3)(h), Florida Administrative Code.

    
    

41. The evidence proved that Mr. Guzalak failed to comply with Rules 6B- 1.006(3)(a) and (h), Florida Administrative Code. Consequently, Mr. Guzalak violated Section 231.28(1)(h), Florida Statutes.

    
    

    1. Appropriate Penalty.

    
    

42. Section 231.28, Florida Statutes, specifically authorizes the suspension or revocation of a teaching certificate or the imposition of any other penalty provided by law, for violations of Section 231.28, Florida

    Statutes. The EPC has requested that Mr. Guzalak's certificate be revoked. It is not clear whether the EPC is seeking permanent revocation.

    
    

43. Mr. Guzalak's actions involve his use of an illegal drug in the presence of students. He also allowed students and students on two occasions to use an illegal drug in his presence. Mr. Guzalak also allowed underage students to consume alcoholic beverages, provided underage students with alcoholic beverages and consumed alcoholic beverages in the presence of students.

    
    

44. Mr. Guzalak also evidenced a severe lack of judgement when, on more than one occasion, he ignored the directions of his supervisors concerning the use of alcoholic beverages in the presence of students and directions concerning the appropriate form his relationships with students should take.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that John T. Guzalak is

guilty of violating Sections 231.28(1)(c), (f) and (h), Florida Statutes. It is

further

RECOMMENDED that Mr. Guzalak's Florida teaching certificate be revoked for a period of five (5) years.

DONE AND ENTERED this 4th day of June, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

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 4th day of June, 1993.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The EPC's Proposed Findings of Fact

1. Accepted in 2.

2. Accepted in 3, 9, 33 and 115.

3. Accepted in 19.

4. Accepted in 11-20 and 21-29.

5. Accepted in 11-13 and 20.

6. Accepted in 22 and 24-25.

7. Accepted in 28.

8. Accepted in 29.

9-10 Not supported by the weight of the evidence. The evidence to support these proposed findings of fact was not credible.

1. Accepted in 30-33.

2. Accepted in 32.

3. Accepted in 83 and hereby accepted.

4. Not relevant to this proceeding.

5. Accepted in 83-84 and 86.

6. Accepted in 85-86.

7. The first sentence is not supported by the weight of the evidence. The second sentence is accepted in 88.

8. Not relevant.

9. Accepted in 87-88 and hereby accepted.

10. Accepted in 87 and hereby accepted.

11. The first sentence is accepted in 87. The second sentence is not relevant.

12. The first sentence is accepted in 87. The second sentence is not relevant.

13. Accepted in 90 and 93.

14. The first sentence is not supported by the weight of the evidence. The second sentence is accepted in 96 and 97.

15. Accepted in 110.

16. Accepted in 111, except that the weight of the evidence failed to supported a finding that Mr. Guzalak used the terms "pissed off" in the presence of students.

17. Accepted in 34.

18. Accepted in 34 and 116-118.

19. Accepted in 35.

20. Accepted in 46 and 50.

21. The weight of the evidence failed to prove that Mr. Guzalak smoked marijuana on "many occasions" or on any occasion during the 1989-1990 or 1991-1992 school years. The evidence did support a finding that he smoked marijuana on one occasion during the 1990-1991 school year at his home on Thornhill Road. See finding of fact 47.

22. The first sentence is accepted in 47 and 49. The last two sentences are not relevant.

23. Accepted in 48.

24. Accepted in 42-54. See 56 concerning the last sentence.

25. Accepted in 55-57. 36-37 Not relevant.

1. Accepted in 60 and hereby accepted.

2. Accepted in 59 and 61.

3. Not supported by the weight of the evidence. The evidence to support this proposed finding of fact was not credible.

41 Accepted in 43-46, 66-67, 49 and 107.

42 Not supported by the weight of the evidence. The evidence only proved that someone who identified himself as Mr. Guzalak was overheard on the telephone. The evidence failed to prove whether, in fact, it was Mr. Guzalak.

1. on page 14: Accepted in 119.

2. on page 14: Accepted in 72, 77 and hereby accepted.

3. Accepted in 73-75.

4. Accepted in 75-76.

5. Accepted in 77.

6. Accepted in 78.

7. Not relevant.

8. Accepted in 79.

9. Accepted in 80.

57 See 82, 83-89 and 104-108.

1. Accepted in 82.

2. Accepted in 105 and 107. See also 108. The evidence failed to prove that Mr. Guzalak consumed a mixed drink. See 109.

60 See 100-102.

1. Hearsay. See 114.

2. Hereby accepted.

3. Hearsay. See 114.

4. Accepted in 114.

5. Accepted in 114

6. Accepted in 115.

7. Hereby accepted.

8. Accepted in 124.

9. Accepted in 122.

10. Accepted in 122.

11. Not relevant.

12. Accepted in 172.

73 See 126.

74 Accepted in 172. 75-76 Hereby accepted.

1. Accepted in 128.

2. Accepted in 124.

Mr. Guzalak's Proposed Findings of Fact

1. Accepted in 2-3, 9 and 33. Mr. Guzalak was employed at Meigs, however, during the 1987-1988 school year and began at Choctaw during the 1988-1989 school year.

2. Accepted in 4.

3. Accepted in 6.

4. Accepted in 6. The last sentence is not relevant. Ms. Yeager's conduct is not at issue in this proceeding.

5. Not supported by the weight of the evidence.

6. Accepted in 11-14. See 16-18. The next to the last sentence is not supported by the weight of the evidence. With regard to the last sentence, see 16.

7 See 19-20.

1. While the evidence failed to prove that Mr. Guzalak failed to heed Mr. Smith's advice while at Meigs concerning similar gatherings, it also failed to prove

   that he did not do so. Mr. Guzalak has suggested a number of such findings of facts where the EPC failed to meet its burden of proof. The failure to prove that Mr. Guzalak did commit some act does not, however,

   mean it has been proved that he absolutely did not commit the act. Where the EPC has failed to prove an allegation, that allegation need only be rejected

   by the undersigned.

2. Hereby accepted.

3. Accepted in 21-22 and 23-25. The evidence did not prove that all of the parents attended. The next to the last sentence is not supported by the weight of the evidence. See 26.

4. See 28. Mr. Smith's reprimand was not based upon a parent report. It was based upon the fact that Mr. Guzalak had consumed a glass of wine in the presence of students. The last sentence is not supported by the weight of the evidence.

5. The evidence failed to prove that the Stage Crafters' party was the source of rumors about other parties. Again, while the EPC did not prove that Mr. Guzalak held any similar parties while at Meigs, the weight of the evidence also failed to prove that Mr. Guzalak did not hold such parties.

6. See 35-40. The last sentence is not supported by the weight of the evidence.

14. The weight of the evidence failed to prove that daily visits were "impossible." See 50.

1. While the EPC failed to prove that Mr. Guzalak provided a bottle of spiced rum to Eric Gaul, the weight of the evidence failed to prove that he did not. See 56 and 57.

2. Accepted in 72 and hereby accepted.

3. Accepted in 77.

4. Accepted in 73-74.

5. Accepted in 75.

20 See 75-76.

1. See 75.

2. Accepted in 76 and hereby accepted.

3. Accepted in 81 and hereby accepted. The first sentence is not supported by the weight of the evidence. But see 82.

4. Accepted in 83-85.

5. See 85.

6. Accepted in 86 and hereby accepted.

7. See 88.

8. Not relevant. See 98.

9. Accepted in 90-91 and 93. With regard to the last sentence, see 99.

10. Accepted in 94.

11. Not supported by the weight of the evidence. See 98.

12. Hereby accepted.

13. Not supported by the weight of the evidence.

14. Accepted in 45.

15. See 111. Whether Mr. Guzalak only used profanity on rare occasions was not supported by the weight of the evidence. Nor did the evidence prove that Mr. Guzalak

said "those damn squirt guns" instead of those "fucking" squirt guns.

36 See 112.

1. The first two sentences are accepted in 63-65. The rest of these proposed findings of fact are not supported by the weight of the evidence. See 67-70.

2. Accepted in 60-62. The fourth and fifth sentences are not supported by the weight of the evidence.

3. Accepted in 119.

4. When incidents were reported is not relevant.

5. See 103-104. The second, third and last sentences are not supported by the weight of the evidence. See 105.

6. See 105. The last sentence is not supported by the weight of the evidence.

7. See 109. The weight of the evidence failed to prove whether Matt Schoditsch drank alcoholic beverages.

8. See 107-108. Except for the first sentence,

   these proposed findings of fact are not supported by the weight of the evidence.

9. Accepted in 100-101. 46 See 100-102.

47 Mr. Bounds became concerned after several reports of various problems were received.

48 See 113.

49 Accepted in 124. Mr. Guzalak's actions were not part of "his planning for his defense."

COPIES FURNISHED:

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Karen Barr Wilde Executive Director

Education Practices Commission

301 Florida Education Center

325 W. Gaines Street Tallahassee, FL 32399-0400

Syndey H. McKenzie, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Margaret E. O'Sullivan, Esquire Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Thomas W. Brooks, Esquire Anthony D. Demma, Esquire Post Office Box 1547 Tallahassee, Florida 32302

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.

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner, EPC CASE NO. 92-193-RT DOAH CASE NO. 92-6253

vs. EPC INDEX NO. 93-094-FOF

JOHN THOMAS GUZALAK,

Respondent.

/

FINAL ORDER

Respondent, JOHN THOMAS GUZALAK, hold Florida educator's certificate no.

615516. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on June 4, 1993 was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this Order.)

A panel of the Education Practices Commission (EPC) met on August 12, 1993 in Tampa, Florida, to take final agency action. Petitioner was represented by Margaret O'Sullivan, Esquire. Respondent was represented by Yveline Francisque Paul, Esquire. The panel reviewed the entire record in this case.

Petitioner and Respondent each filed exceptions to the Recommended Order.

Copies of those exceptions are attached to and incorporated by reference.

RULINGS ON RESPONDENT'S EXCEPTIONS

1. Exception Number 1 was withdrawn by Respondent.

2. Exception Number 2 was withdrawn by Respondent.

3. Exception Number 3 was withdrawn by Respondent.

4. Exception Number 4 was withdrawn by Respondent.

5. Exception Number 5 is rejected since the findings objected to are supported by competent substantial evidence.

6. Exception Number 6 is rejected since the findings objected to are supported by competent substantial evidence.

7. Exception Number 7 is rejected since the findings objected to are'supported by competent substantial evidence.

RULINGS OF PETITIONER'S EXCEPTIONS

1. Exception Number 1 was accepted.

2. Exceptions to the recommended penalty were rejected.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1- 130 of the hearing officer's Findings of Fact to the extent they are not modified by Rulings on exceptions.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 131-154 in the hearing officer's Conclusions of Law as its Conclusions of Law.

Based upon the foregoing findings of fact, Respondent is guilty of violating Section 231.28(1)(c), F.S., by having been guilty of gross immorality or an act involving moral turpitude, Section 231.28(1)(f), F.S., by having been guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, and Section 231.28(1)(h), F.S., by failing to make a reasonable effort to protect students from conditions harmful to their health or safety; for all of which the Commission may impose discipline pursuant to Sections 231.262(6) and 231.28, F.S.

WHEREFORE, it is ORDERED AND ADJUDGED that Respondent violated Section 231.28(1)(c), (f) and (h), Florida Statutes. Therefore, it is Ordered that Respondent's educator's certificate be revoked for a five-year period effective on the filing date of this order. Upon recertification and reemployment in a position requiring a Florida educator's certificate, Mr. Guzalak shall be placed on a three-year probation. Prior to recertification Respondent shall: provide written verification from a licensed psychologist, psychiatrist, or mental health counselor experienced in the treatment of substance abuse that the applicant has been treated for substance abuse and released from treatment; provide a certified college or in-service program transcript to verify successful (a grade of "pass" or letter grade no lower than a "B") completion of one course each in the areas of adolescent psychology and classroom management.

The terms of probation shall be that upon employment in a position requiring a Florida educator's certificate, Respondent shall notify EPC

immediately upon employment as an educator in any public or private school in the State of Florida; arrange for his immediate supervisor to submit performance reports to the EPC at least every three months; submit true copies of all formal observation/evaluation forms within ten days of issuance; at the direction of the EPC, submit to random blood and urine testing, for the purposes of ascertaining compliance with conditions of probation and authorize direct reporting of results to the EPC; all costs incurred in fulfilling terms of probation shall be borne by the Respondent. This Order become effective upon filing. This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of filing.

DONE AND ORDERED, this 7th day of September, 1993.

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services Keith Yarbrough,

Presiding Officer

Rivers Buford, Jr.

Attorney General's Office I HEREBY CERTIFY that a copy of

the foregoing Order in the

Sydney McKenzie, III matter of BC vs. John Thomas

General Counsel Guzalak was mailed to Tom Brooks, Respondent's Attorney,

Florida Admin. Law Reports Meyer & Brooks, 2544 Blair

Stone Pines Rd., Tallahassee, Bernadette S. Cover, Supt. Florida 32301, this day of Okaloosa County Schools 14th day of September, 1993, by

120 Lowery Pl. SE. U.S. Mail. Ft. Walton Beach, Florida 32548

Annette Lee, Asst. Supt.

Personnel Services

Okaloosa County Schools KAREN B. WILDE, Clerk

Margaret O'Sullivan, Esquire Department of Education 1701, The Capitol

Tallahassee, Florida 32399

P. Michael Ruff, Hearing Officer Division of Administrative Hearings DeSoto Bldg.

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 92-006253

Orders for Case No: 92-006253