STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUG JAMERSON, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2726

)

COURTNEY L. CARTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 29, 1994. The hearing location was the Florida Theatre Screening Room, 7th Floor,

128 East Forsyth Street, Jacksonville, Florida. Charles C. Adams was the hearing officer. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

2121 Killearney Way, Suite G Tallahassee, Florida 32308

For Respondent: Ronald G. Meyer, Esquire

Meyer and Brooks, P.A.

244 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Did Respondent engage in a personal relationship with the student A. H. which involved sexual intercourse and kissing? Did the Respondent also send several notes and cards to A. H. about this alleged relationship? Was the student A. H. a minor at the time that Respondent is alleged to have engaged in these activities? If the facts are true, has Respondent violated various provisions of Section 231.28(1), Florida Statutes, and Rule 6B-1.006, Florida Administrative Code?

PRELIMINARY STATEMENT

Respondent was charged by Administrative Complaint before the State of Florida, Education Practices Commission, PPS Case No. 923292-C. Respondent contested the allegations in the Administrative Complaint and the case was referred to the Division of Administrative Hearings and a hearing was conducted.

Petitioner presented the testimony of A. H. and his mother and father.

Respondent testified in her own behalf and presented the testimony of Russell

Carter, June Drake, Elaine Teague, and Linda Brown. Respondent's exhibits numbers 1 and 2 were admitted as evidence.

A hearing transcript was filed on December 20, 1994. Petitioner with Respondent's concurrence moved to extend the time for filing proposed recommended orders until January 16, 1995. That day being a holiday, the time for filing was extended until January 17, 1995. Petitioner filed a proposed recommended order on the due date. Respondent filed a proposed recommended order and supporting memorandum on the due date. By requesting an extension of time to file a proposed recommended order, the parties have waived the requirement that the hearing officer enter a recommended order within 30 days from receipt of the transcript. See, Rule 60Q-2.031, Florida Administrative Code. The suggested findings of fact set forth in the proposed recommended orders are commented on in the Appendix to the recommended order.

FINDINGS OF FACT

1. Respondent holds Florida Teaching Certificate 437177, covering the area of elementary education. The certificate is valid through June 30, 1998.

   
   

2. Respondent was not employed as a teacher at times relevant to the inquiry.

   
   

3. Respondent did have affiliation with Keystone Heights High School, Keystone Heights, Florida, in the capacity of volunteer trainer for the boys' basketball team in the school year commencing Fall 1990 through Spring 1991.

   
   

4. In the calendar years 1990 and 1991 Respondent's primary occupation was as proprietor of a dance studio unaffiliated with public education.

   
   

5. A. H. was a student at Respondent's dance studio. He had attended Respondent's dance school since he was in the 4th or 5th grade.

   
   

6. A. H. was a freshman at Keystone Heights High School in the 1989-1990 school year, which commenced in the Fall of 1989 and concluded in the Spring of 1990.

   
   

7. A. H. was born on April 25, 1975.

   
   

8. In addition to A. H.'s association with Respondent's dance school, A.

   H. was part of the Keystone Heights boys' basketball team during the time that Respondent served as a volunteer trainer for that team, the school year 1990- 1991.

   
   

9. In May 1990, Respondent, then 33 years old, and A. H. attended a dance competition. In that competition, Respondent and A. H. were partners.

   
   

10. Respondent, A. H., A. H.'s mother, grandmother and two sisters were staying in a hotel in Orlando, Florida while attending the dance competition. The individuals in the party were staying in adjoining rooms.

    
    

11. A. H. and Respondent went to one of the rooms to get dressed for the dance competition and to put on makeup. At this time A. H. and Respondent were alone. A. H. was sitting on the bed watching television having already dressed and prepared himself for the competition. Respondent approached A. H. and sat on his lap and they kissed. A. H. describes this activity as a mutual encounter.

12. After the competition in Orlando, A. H. and the Respondent rode home together in the same car.

    
    

13. When A. H. and Respondent got back from Orlando, they parked the Respondent's car behind the dance studio which was in a community known as Midway that is halfway between Melrose, Florida and Keystone Heights, Florida. Having parked the car, Respondent and A. H. engaged in what A. H. referred to as "heavy petting." In particular, A. H. fondled Respondent's breasts, and they kissed. Respondent kissed A. H.'s chest and neck.

    
    

14. Before A. H. and Respondent stopped and engaged in this activity behind the studio, Respondent had commented on the trip back from Orlando to this effect, "at least you can't get me pregnant."

    
    

15. When A. H. and Respondent engaged in their activities behind the studio after the trip back from Orlando, his shirt was off as was the Respondent's top garments. This encounter lasted approximately one hour and a half.

    
    

16. During the summer of 1990, Respondent and A. H. made another trip to Orlando for a dance competition. On two separate nights during that trip, Respondent and A. H. engaged in sexual activity other than intercourse.

    
    

17. On the morning of Memorial Day 1990 Respondent came to A. H.'s home in Keystone Heights. This rendezvous was arranged through a telephone conversation between A. H. and Respondent. When Respondent arrived at A. H.'s home he was alone. A. H. and Respondent went to A. H.'s room and engaged in sexual intercourse while in a state of undress. They then showered together and had sexual intercourse a second time. A. H. had never engaged in sexual intercourse before this date.

    
    

18. Between Memorial Day 1990 and February 1991, Respondent and A. H. engaged in sexual intercourse approximately 30 times. In addition to having sex in A. H.'s home; they had sex at a duplex apartment in Keystone Heights that was owned by A. H.'s father; they had sex in a car that belonged to Respondent's mother-in-law; they had sex at Respondent's home; they had sex in a guest house on the same property as Respondent's home; and, they had sex at the dance studio.

    
    

19. The rendezvous between A. H. and Respondent for purposes of the sexual encounters were clandestine. A. H. was unaware if he and the Respondent were seen or suspected of engaging in their activities.

    
    

20. During the course of their relationship, Respondent mentioned marriage to A. H., but A. H. would not discuss marriage with the Respondent. Respondent told A. H. that when he reached the age of 18 that the Respondent and A. H. would run away together and she would work and put A. H. through school. A. H. stated that his reaction to that comment was "I was scared." He remarked about his response to her comments, "just for the time, you know, I'd agree with her, 'Yeah, sure. That's nice.' and try to blow it off and get to the next subject."

    
    

21. During their relationship A. H. voluntarily and willingly participated in those pursuits.

22. During the relationship, Respondent wrote notes to A. H. about her feelings for A. H., the details of which were not established at hearing through competent evidence so that facts might be found concerning the contents of those notes.

    
    

23. During the relationship between A. H. and the Respondent, Respondent told A. H. that she loved him.

    
    

24. Eventually the relationship was concluded by A. H., who states "I broke it off, I just--I couldn't take that much pressure. So I just told her I didn't want to continue the relationship." That decision to conclude the relationship was made in February 1991. At that time A. H. was a sophomore in high school.

    
    

25. By virtue of comments made to his friends and acquaintances, it may be inferred that A. H.'s parents found out about his relationship with Respondent. That discovery was made on April 16, 1991. The circumstances involving A. H.'s decision to conclude the relationship in February 1991, the consequences of his parent's discovery in April 1991 and the overall relationship between A. H. and the Respondent were not shown to have left A. H. in a condition that was harmful to his mental or physical health or such that the events constituted harm to his ability to learn as a student, or found to cause A. H. unnecessary embarrassment or disparagement or were they matters which affected his safety.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. Petitioner bears the burden of proof in this proceeding. That proof must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

28. As alleged, it has been proven that Respondent engaged in a personal relationship with A. H., a minor student. That conduct included sexual intercourse and kissing. As a part of the relationship, Respondent sent notes to A. H., but the details of those notes are unknown.

    
    

29. Count I to the Administrative Complaint charges the Respondent with a violation of Section 231.28(1)(c), Florida Statutes, in that Respondent is alleged to be guilty of gross immorality or an act involving moral turpitude.

    
    

30. Gross immorality is not defined; however, Rule 6B-4.009(2), Florida Administrative Code, defines immorality as:

    
    

    * * *

    . . . conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned with the educational profession in public disgrace or disrespect

    and impair the individual's service in the community.

    
    

31. Rule 6B-4.009(6), Florida Administrative Code, defines moral turpitude

    as:

    * * *

    . . . a crime that is evidenced by an act of 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 that the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

32. Moreover, in Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660 (1933), moral turpitude was defined as:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private and social relations or duties owed by man to man or man to society . . . it has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often

    involves the question of intent as when uninten- tionally committed through error of judgment when wrong was not contemplated.

    
    

33. The relationship which Respondent had with A. H. in which she engaged in sexual intercourse with a minor constitutes acts of gross immorality and moral turpitude in violation of Section 231.28(1)(c), Florida Statutes.

    
    

34. At the commencement of the hearing, Petitioner withdrew Count II to the Administrative Complaint from consideration.

    
    

35. Count III to the Administrative Complaint charges Respondent with a violation of Section 231.28(1)(i), Florida Statutes, in that Respondent is alleged to have otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of a teaching certificate. Respondent's relationship with A. H. in which they engaged in sexual intercourse constitutes a violation of Section 231.28(1)(i), Florida Statutes.

    
    

36. Count IV to the Administrative Complaint charges Respondent with a misconduct for alleged violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Respondent is accused of failing to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. This count was not proven.

    
    

37. Count V to the Administrative Complaint charges the Respondent with alleged misconduct by violating Rule 6B-1.006(3)(e), Florida Administrative Code, in that the Respondent is said to have intentionally exposed A. H. to unnecessary embarrassment or disparagement. This count was not proven.

    
    

38. Count VI to the Administrative Complaint charges the Respondent with a violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Respondent allegedly exploited her relationship with A. H. for personal gain or advantage. It has been proven that Respondent through her relationship with A.

    H. in which she engaged in sexual intercourse and kissing, exploited her relationship with A. H., who was a student. This exploitation was for purposes of personal gain and advantage to the Respondent in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code.

39. Section 231.28(1), Florida Statutes, allows the imposition of penalties for the violations that have been found to include permanent revocation, revocation not to exceed 10 years, and suspension not to exceed 3 years. Respondent is also subject to written reprimand, probation and restrictions on the practice of her profession and an administrative fine for these violations.

RECOMMENDATION

Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED:

That a final order be entered finding the Respondent in violation of Counts I, III and VI; that dismisses Counts II, IV and V; and that revokes Respondent's teaching certificate for a period of 5 years.

DONE and ENTERED this 20th day of February, 1995, 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 20th day of February, 1995.

APPENDIX

The following discussion is given concerning the proposed findings of fact of the parties.

Petitioner's Facts:

Paragraphs 1 through 8 are subordinate to the facts found.

Paragraph 9 is rejected in that it does not completely describe the reaction by A. H. Moreover, a finding concerning his reaction is not necessary to the resolution of the dispute.

Paragraphs 10 through 12 are subordinate to the facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraphs 14 through 16 are subordinate to the facts found.

Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 and 19 are subordinate to the facts found.

Paragraph 20 is contrary to the facts found.

Paragraph 21 is not necessary to the resolution of the dispute. Paragraph 22 is subordinate to the facts found.

Paragraph 23 is not necessary to the resolution of the dispute. Paragraph 24 is subordinate to the facts found.

Paragraphs 25 through 32 are not necessary to the resolution of the dispute.

Paragraph 33 is subordinate to the facts found.

Respondent's Facts:

Paragraphs 1 through 6 are subordinate to the facts found.

Paragraphs 7 and 8 are not necessary to the resolution of the dispute. Paragraph 9 is subordinate to the facts found.

Paragraphs 10 and 11 are not necessary to the resolution of the dispute.

Paragraphs 12 through 82 constitute recitation of testimony, legal argument and some suggested fact finding which is intended to exonerate Respondent.

These paragraphs are rejected as contrary to the facts found.

Paragraphs 83 through 86 are subordinate to the facts found.

Respondent's proposed fact discussion concerning the alibi for Memorial Day 1990 is rejected in that it has been determined that the sexual encounter between the Respondent and A. H. occurred before her trip to Jacksonville, Florida on that date.

COPIES FURNISHED:

Robert J. Boyd, Esquire

2121 Killearney Way, Suite G Tallahassee, Florida 32308

Ronald G. Meyer, Esquire Meyer and Brooks, P.A.

244 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street 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 ten 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 OF THE STATE OF FLORIDA

FRANK BROGAN, as

Commissioner of Education, Petitioner,

vs. EPC CASE NO. 94-082-RT

DOAH CASE NO. 94-2726

COURTNEY L. CARTER, EPC INDEX NO. 95-068-FOF

Respondent.

/

FINAL ORDER

Respondent, COURTNEY L. CARTER, holds Florida educators certificate no.

437177. Petitioner filed an Administrative Complaint (A.C.) 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 (R.O.) issued by the Division Hearing Officer on February 20, 1995, was forwarded to the Commission pursuant to Section 120.57(1), F.S. A copy of the A.C. and of the R.O. are attached.

A panel of the Education Practices Commission (EPC) met on August 10, 1995, in Tampa, Florida, to take final agency action. Petitioner was represented by Ronald G. Stowers, Attorney at Law. Respondent was represented by Ronald G. Meyer, Attorney at Law.

Respondent filed exceptions to the R.O. Copies of those exceptions are attached hereto and incorporated by reference. exceptions 1 through 8 are to certain of the hearing officers findings of fact and exception 9 is to a conclusion of law of the hearing officer.

In ruling on Respondent's exceptions to the Hearing Officer's findings of fact, the Commission is bound by the provisions of Section 120.57(1)(b)l0, Florida Statutes. That section permits the agency, after a review of the entire record, to reject or modify a finding of fact of a hearing officer only in two instances:

1. When the agency determines that the finding was not based on competent substantial evidence; or

   
   

2. When the agency determines that the proceedings upon which the finding was based did not comply with essential requirements of law.

In Ferris v. Turlington, 510 So.2d 292 (Fla. 1987) the Supreme Court at page 294 stated that the revocation of a professional license is of sufficient gravity and magnitude to warrant a standard of proof greater than mere preponderance of evidence. And at page 295 the Court went on to point out that the power to revoke a license should be exercised with no less careful circumspection than the original granting of it. The penal sanctions should be directed only toward those who by their conduct had forfeited their right to the privilege and then only upon clear and convincing proof of substantial causes justifying the forfeiture. The important term is "clear and convincing."

In the case of Inquiry Concerning Davey 645 So.2d 398 (Fla. 1994) the Supreme Court held, likewise, that allegations which could form the basis for the reprimand or removal of a judge must be supported by evidence which is "clear and convincing." The Court stated that clear and convincing evidence was an intermediate level of evidence which was greater than "a preponderance of the evidence" but lesser than evidence "beyond and to the exclusion of reasonable doubt."

The Davey court went on to define what is required for evidence to be "clear and convincing," saying that the determination thereof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; 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 and issues. The sum total of 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. The details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty.

Thus, in Ferris, the Supreme Court enunciated an essential requirement of law in license revocation cases and that requirement is that findings of fact adverse to the licensee must be based on evidence which is not only competent and substantial but which is also clear and convincing.

In Davey, the court defined those factors which must exist before the evidence to which they pertain may be considered to be clear and convincing.

Therefore, in reviewing the findings of fact to which Respondent took exception, the Commission reviewed the entire record to determine if the hearing officer departed from an essential requirement of law by basing those findings on evidence which was less than clear and convincing.

RULINGS ON RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT

For clarity, the Commission did consider the exceptions to the findings of fact in sequence other than that in which they appeared in Respondent's written exceptions.

Exception 5 addresses the following finding of fact in paragraph 17 of the R.O.:

17. On the morning of Memorial Day 1990 Respondent came to A. H.'s home in Keystone Heights. This rendezvous was arranged through a telephone conversation between A. H. and Respondent. When Respondent arrived at A. H.'s

home he was alone. A. H. and Respondent went to A. H.'s room and engaged in sexual intercourse while in a state of undress. They then showered together and had sexual intercourse a second time. A. H. had never engaged in sexual intercourse before this date,

A. H. testified that he was positive that he had sexual intercourse with Respondent on Memorial Day of 1990 (T 69, 73), that Respondent arrived at his home around 10:00 a.m. that day (T 70) and that she left around 1:00 in the afternoon (T 71). He was 15 years old at that time. His testimony was not corroborated by any other evidence.

Respondent specifically denied having sex with A. H. on Memorial Day or at any other time. (T 235-6) She and her husband (T 181-94) accounted for the entire Memorial Day. She testified that she started the day by feeding their four children, getting them clean, "running a load of clothes and picking up the house.' (T 237) She made a shopping list and loaded everybody in the car preparatory to a trip from Keystone Heights to Jacksonville.

He testified that he started his day about 7:30 a.m. doing some tractor work on some property some 400 to 500 feet from their residence which was in his full view. He saw Respondent hang up clothes but otherwise she did not leave the house. (T 183) Around between 10:00 and 10:30 Respondent summoned him to get ready to go to Jacksonville. He had a bite to eat, showered and dressed (T 184-5).

They and their four children then drove from Keystone Heights to Sam's store on Cassette Avenue in Jacksonville. This trip took approximately an hour and fifteen minutes to an hour and a half (T 186-7)

Their approximately 10:30 departure and their arrival time at Sam's is substantially corroborated by Exhibits l and 2 admitted into evidence. Exhibit 1 is a cash register tape from Sam's showing the purchase of over 50 items at a cost of $355.53. It is dated 5-28-9 0 (Memorial Day) and is time-stamped 1305 (military time for 1:05 pm.).

Exhibit 2 is a check to Sam's dated May 28, 1990 in the amount of $355.53 and signed by the Respondent.

Considering, as Davey requires, the sum total of the evidence on this point, the Commission finds that the quality of Respondent's evidence, including the corroborating documentary evidence, is such that it is not possible for a trier of the facts to form a firm belief or conviction, without hesitancy, of the truth of A. H.'s testimony that Respondent was with him from about 10:00

a.m. until about 1:00 p.m. on May 28, 1990.

The Commission notes that the hearing officer, in rejecting the Respondent's proposed finding of fact on this point, stated on page 12 of the

1. that "it has been determined that the sexual encounter between Respondent and A. H. occurred before her trip to Jacksonville, Florida on that date." The Commission finds there is a complete absence of record evidence to support that determination.

   
   

   Therefore, the Commission determines that in making the findings of fact contained in paragraph 17 of the R.O., the hearing officer did not comply with the essential requirement of law that such finding be based on clear and

   convincing evidence. Respondent's exception to that finding is sustained and that finding is stricken.

   
   

   Exceptions 2 and 3 address the findings of fact contained in paragraph 13 and 15 respectively of the R.O. as follows:

   
   

   13. When A. H. and Respondent got back from Orlando, they parked the Respondent's car behind the dance studio which was in a community known as Midway that is halfway between Melrose, Florida and Keystone Heights, Florida. Having parked the care, Respondent and A. H. engaged in what A. H.

   referred to as "heavy petting." in particular,

   A. H. fondled Respondents breasts, and they kissed. Respondent kissed A H.'s chest and neck.

   
   

   1. When A. H. and Respondent engaged in their activities behind the studio after the trip back from Orlando, his shirt was off as was (sic) the Respondent's top garments. This encounter lasted approximately one hour and

      a half.

      
      

      1. H. testified that after a dance competition in Orlando, in May 1990, his mother and sisters returned to Keystone Heights in one car and he rode back with Respondent in her car (T 47, 64- 5). The plan was that if they became separated, they would meet at Hardee's in Keystone Heights. He testified that he and Respondent stopped for milk and gas then drove to her dance studio where they parked and engaged in heavy petting. They remained parked for an hour and a half before proceeding to Hardee's in Keystone Heights where he and Respondent knew his mother was waiting for him (T 66). He said his mother asked what took so long but did not press the point when told they stopped for milk and gas (T 68).

Respondent denied the incident.

In reviewing the record and the hearing officer's recommended order, the Commission is in a position similar to that of an appellate court in reviewing the record and judgment of a trial judge.

In Shaw v. Shaw, 334 So.2d 13 (Fla. 1976) the Supreme Court said:

Subject to the appellate court's right to reject inherently incredible and improbable testimony or evidence, it is not the prerogative of the appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court. (emphasis supplied

In support of its holding that the appellate court could reject inherently incredible and improbable testimony, the Supreme Court cited World Insurance Co.

1. Kincaid, 145 So.2d 258 (Fla. 1st DCA 1962) cert. discharged 157 So.2d 517 (Fla. 1963).

   The panel finds that A. H.'s testimony upon which findings 13 and 16 were based was inherently incredible and improbable. It therefore fails the first Davey test for clear and convincing evidence in that it is not credible.

   
   

   Because the hearing officer departed from the essential requirement of law that a finding must be based on clear and convincing evidence, Respondent's exception to the findings in paragraph 13 and 15 of the R.O. are sustained and those findings are stricken.

   
   

   Exception 4 addresses the following finding of fact in paragraph 16 of the R.O.:

   
   

   1. During the summer of 1990, Respondent and

   1. H. made another trip to Orlando for a dance competition. On two separate nights during that trip, Respondent and A. H. engaged in sexual activity other than intercourse.

A. H. testified that there was an occasion in Orlando when he and another male student were each on a twin bed in a bedroom in a condominium where the dance competition group was staying (T 107). He testified Respondent entered the room and reclined on his bed with her head to his feet. As they were "talking about the dance thing" he said he digitally penetrated her vagina while his roommate was in the other bed. However, he said, the roommate did not see what was happening because "The sheet was over us." (T 108)

This account was not corroborated by the roommate and the encounter was denied by Respondent.

A. H. testified that on the following night he, Respondent and another adult, Ms. Teague shared one bedroom (T 108-9).

A. H.'s version of what happened was that he was sleeping in one bed while the Respondent slept on the floor between the beds. The other chaperone, Ms. Teague, slept on the second bed. (T 110) A. H. contends that he left the bed in which he was supposedly sleeping to join the Respondent on the floor between the two beds with Ms. Teague sleeping next to them. (T 110) He contended that Ms. Teague awoke and sat up during the time that he was fondling the Respondent's breasts, while on the floor next to the bed which Ms. Teague occupied. (T 110) He stated there was enough light in the room that he was able to see Ms. Teague sit up and look around. (T 110) He stated that he was "startled" by the fact that Ms. Teague may have seen them. (T 112)

The Respondent testified that in order to handle a discipline problem, A.

1. was required to sleep on the floor between the bed occupied by the Respondent and the one occupied by Ms. Teague. (T 241) She testified that she never left the bed to go down onto the floor with A. H. (T 241-2) nor did she have any kind of close or sexual interaction with him. (T 242) Respondent did not recall a time when Ms. Teague sat up in bed and looked around or anything else out of the ordinary occurring. (T 242)

   
   

   The testimony of Ms. Teague corroborates the testimony of the Respondent and is at odds with A. H.'s testimony. She is married to a minister in Keystone Heights. (T 216) She was one of the chaperones which went on the trip to the dance competition in the Orlando area. (T 217) Ms. Teague testified that a decision was made to have the two male students sleep between the beds occupied by she and the Respondent to handle a disciplinary problem which arose among the

   student dancers. (T 219) She is certain that she was in one bed and the Respondent in the other. (T 219) and that there was never a time when she awakened to any kind of commotion or looked around in the manner described by A. H. (T 220)

   
   

   Considering the totality of the evidence on this point the Panel finds that the evidence upon which the Hearing Officer based his finding of fact in paragraph 16 of the R.O. did not reach the level of being clear and convincing because, considering all the evidence on that point, that evidence could not produce a firm belief, without hesitancy, as to the truth of the fact found in that paragraph. Therefore, there was a departure from an essential requirement of law as to that finding and it is rejected.

   
   

   Exception 6 addresses the following finding of fact in paragraph 18 of the R.O.:

   
   

   18. Between Memorial Day 1990 and February 1991, Respondent and A. H. engaged in sexual intercourse approximately 30 times. In addition to having sex in

   1. H.'s home; they had sex at a duplex apartment in Keystone Heights that was owned by A. H.'s father; they had sex in a car that belonged to Respondent's mother- in-law; they had sex at Respondent's home; they had sex in a guest house on the same property as Respondent's home; and, they had sex at the dance studio.

A. H. testified that he and Respondent had sex between 30 and 40 times. (T 50, 80) These encounters took place at a varied number of places and during different times of the day and night. He contended that they had sex at his parent's house "numerous times", in a duplex owned by his father, in the Respondent's car and her mother-in-law's car, in the Respondent's house, in a guest' house on the Respondent's property (T 50), and at the Respondent's dance studio. He contends that he "snuck' out of his house 10 times to meet the Respondent for sexual interludes. (T 54) His contention was that he would meet her between 11:00 p.m. and 1:00 a.m. and arrive back at home between 1:00 a.m. and 3:00 a.m. Under cross-examination, the number of such nighttime sneak-out encounters doubled.

He stated that his parents were asleep in the house when he would jump out of a second story window to leave to meet the Respondent. (T 90) He said that he jumped out of the window because his house made creaking sounds if he walked on the floor (T 91). However, he stated that on his return home, he would open an electric garage door to get in, walk through the creaking house (T 91) and scramble through the kitchen, through the foyer, up the stairs and into his bedroom between 1:00 and 3:00 in the morning. (T 96) He claims no one ever heard him. He also stated that on some occasions he would use a ladder to climb back into his bedroom window and would then kick the ladder down to the ground but his parents did not hear anything. (T 97)

The Respondent specifically denied ever having had sex with A. H. whether in any of the places he listed or anywhere else. (T 235) She testified that she did not leave her house to meet A. H. on any occasion (T 235) and that with the exception of occasional weekend hunting trips taken by her husband (T 253) she slept in the same bed as her husband. (T 254)

The testimony of the Respondent is wholly corroborated. Her husband testified that he and his wife shared the same bed and that there were never

occasions when his wife was missing during the night. (T 194) He also testified that one of the children had asthma problems and his wife and the baby-sitter were the only two persons who knew how to administer required treatments. (T

195) He confirmed that he was never gone more than a night or two during hunting trips, mostly on weekends. (T 196)

He testified that their bedroom was located immediately on the other side of the wall from the driveway where cars were parked (T 197) and he never heard a car leaving. (T 197)

Witness June Drake, the baby sitter, confirmed that one of the children had a severe asthma problem (T 210) and required treatments from time to time. (T

211) She confirmed that it would have been highly unlikely for the Respondent to have left her children unattended for any period of time. Indeed, as she stated, "if Courtney did not have her children, I generally had them." (T 214)

1. H. also contended that he had sex with the Respondent probably 10 times in her car. (T 80) Some of the time would be during daylight hours. (T 81) His contention is that they would meet at 3:00 or 4:00 in the afternoon and park, take all of their clothes off and have sexual intercourse (T 83-4) and that each of these encounters would last between an hour and an hour and a half. (T 87)

Although A. H.'s parents knew the Respondent's car T 84), neither they nor his sisters ever mentioned anything which led him to believe that he was observed in or coming out of the Respondent's car. (T 84) Indeed, A. H. stated that no one ever saw him while he was in the car, parked or riding around with the Respondent. (T 85) A. H. asserted that he met the Respondent for a sexual liaison in a small duplex owned by his father. (T 100) The walls of the building, according to A. H. were so thin that you could hear a snoring person in the other unit of the duplex. (T 100)

Notwithstanding that the unit of the duplex in which the alleged encounter occurred was supposed to be unoccupied, and A. H. stated that he and the Respondent made noise having sex, the snoring tenant did not awaken or notice someone in the duplex. (T 101)

During another alleged encounter at the duplex, A. H.'s father supposedly picked him up after he and the Respondent had sex but the father failed to notice the Respondent's husband's pick up truck parked in front of the duplex. (T 98-9)

Upon consideration of all the evidence, the panel concludes that the testimony upon which finding 18 was based was not clear and convincing and, further, because that testimony is inherently incredible and improbable that it does not meet the credibility element required of clear and convincing evidence.

Exception 8 addresses the following finding of fact contained in paragraph

22 of the R.O..

22. During the relationship, Respondent wrote notes to A. H. about her feelings for A. H., the details of which were not established at hearing through competent evidence so that facts might be found concerning the contents of those notes.

If, as the hearing officer observed, the details of the alleged notes were not established through competent evidence so that facts might be found

concerning their content, then there was no competent evidence (and certainly no clear and convincing evidence) that the notes were "about her feelings for A. H."

Exception 8 is sustained because the subject finding, by its own admission, is not supported by competent evidence. Finding 22 is rejected.

Exceptions 1 and 7 address the following findings of fact contained in paragraphs 11 and 20 of the R.O.:

11. A. H. and Respondent went to one of the rooms to get dressed for the dance competition and to put on makeup. At this time A. H. and Respondent were alone.

1. H. was sitting on the bed watching television having already dressed and prepared himself for the competition. Respondent approached A. H. and sat on his lap and they kissed A. H. describes this activity as a mutual encounter.

20. During the course of their relationship, Respondent mentioned marriage to A. H., but A. H. would not discuss marriage with the Respondent. Respondent told A. H. that when he reached the age of 18 that the Respondent and A. H. would run away together and she would work and put A. H. through school. A. H. stated that his reaction to that comment was "I was scared." He remarked about his response to her comments, "just for the time, you know, I'd agree with her, 'Yeah, sure. That's nice.' and try to blow it off and get to the next subject."

In view of A. H.'s other testimony being less than clear and convincing, as herein before discussed, the panel finds that none of his testimony relevant to the charges against Respondent is clear and convincing.

Even if the facts found in paragraphs 11 and 20 had been supported by clear and convincing evidence, the alleged incidences therein referred to occurred prior to Respondent becoming a school teacher and do not support the imposition of discipline.

Exceptions 1 and 7 are sustained and findings of fact 11 and 20 are rejected. Exception 9 excepts to conclusion of law contained in paragraphs 28, 33, 35 and 38 of the R.O.

Because the panel has rejected the findings of fact upon which these conclusions are based, exception 9 is sustained and conclusions of law contained in paragraphs 28, 33, 35 and 38 of the R.O. are rejected.

WHEREFORE, it is ORDERED AND ADJUDGED that the administrative complaint filed herein is DISMISSED.

This Order becomes 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 18th day of September, 1995.

COPIES FURNISHED:

Aaron Wallace, Presiding Officer

Kathleen Richards, Professional Practices

Services

Florida Admin. Law Reports Gary Mathews, Supt.

St. Johns Co. Schools

40 Orange St.

St. Augustine, Florida 32084

Christine Arab, Asst. Supt.

St. Johns Co. Schools Ron Stowers Attorney at Law

1701 The Capitol

Tallahassee, Florida 32399

Charles C. Adams Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL. 32399-1550

Ann Cole, Clerk

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of Brogan vs. Courtney L. Carter, was mailed to Ronald G. Meyer, Esquire, 2544 Blairstone Pines Dr., Tallahassee, FL. 32301, this 27th day of September, 1995, by U. S. Mail.

KAREN B. WILDE, Clerk

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DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

FRANK T. BROGAN, as NOT FINAL UNTIL TIME EXPIRES TO

Commissioner of Education, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Appellant,

CASE NO. 95-3691

v. DOAH CASE NO. 94-2726

COURTNEY L. CARTER,

Appellee.

/ Opinion filed April 9, 1996.

An appeal from Order of the Education Practices Commission.

J. David Holder, Tallahassee, for Appellant.

Ronald G. Meyer and Robert J. Sniffen of Meyer and Brooks, P.A., Tallahassee, for Appellee.

ALLEN, J.

The appellant Commissioner of Education challenges a final order of the Education Practices Commission (the commission) by which the commission dismissed the appellant's administrative complaint seeking disciplinary action against the appellee's teaching certificate. In dismissing the administrative complaint, the commission rejected the findings of fact contained in the hearing officer's recommended order based on the commission's determination that the findings of fact were not supported ,by clear and convincing evidence. Because the commission was without authority to determine whether the evidence presented in support of the administrative complaint was of sufficient quantity and quality to constitute clear and convincing evidence, we set aside the final order.

The appellant filed an administrative complaint whereby he sought disciplinary action against the appellee's teaching certificate. Following a hearing, the hearing officer entered a recommended order by which he found that the acts alleged in the administrative complaint had been proven by clear and convincing evidence, as required by Ferris v. Turlinaton, 510 So.2d 292 (Fla.

1987), and concluded that such acts constituted violations of a disciplinary statute. Thereafter, the commission entered its final order by which it dismissed the administrative complaint because the commission concluded that the hearing officer's findings of fact were not supported by clear and convincing evidence.

The, authority of an agency to reject or modify a hearing officer's findings of fact is specified in section 120.57(1)10, Florida Statutes, which provides that an

agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.

This statute specifies two bases upon which an agency may reject a hearing officer's findings of fact. First, findings of fact may be rejected when they were not supported by competent substantial evidence. Second, findings of fact may be rejected when the proceedings upon which the findings were based did not comply with the essential requirements of law. The commission relied exclusively upon this second statutory basis for rejecting the findings of fact, reasoning that the proceedings before the hearing officer did not comply with the essential requirements of law because, in the opinion of the commission, the evidence upon which the hearing officer relied was not clear and convincing.

This reasoning constitutes a misapplication of the statute.

The provision of the statute upon which the commission relied authorizes an agency to test the procedural regularity of the proceedings before the hearing officer. It does not authorize the agency to reevaluate the quantity and quality of the evidence beyond a determination of whether the evidence is competent and substantial. Thus, where the hearing officer in this case properly admitted the evidence and applied the correct burden of proof, the commission was limited to a review of the hearing officer's findings of fact under the well established rule that an agency may reject a finding only if there was no competent substantial evidence to support it. See, e.g., Asphalt Pavers v. State, Dept. of Trans., 602 So.2d 558, 561 (Fla. 1st DCA 1992)(quoting Heifetz v. Department of Business Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1977)); see also, e.g., Goin v. Commission on Ethics, 658 So.2d 1131, 1138 (Fla. 1st DCA 1995); Martuccio v. Department of Prof. Reg., 622 So.2d 607, 609 (Fla.

1st DCA 1993)

The commission also relied upon In re Davey, 645 So.2d 398, 404 (Fla. 1994), as authority for the action it took herein. But that case did not involve administrative proceedings, and section 120.57(1)10 was not involved.

We accordingly set aside the final order and remand, this case for further proceedings.

BARFIELD and KAHN, JJ., CONCUR.

Docket for Case No: 94-002726

Orders for Case No: 94-002726