STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0898

)

LARRY B. ALLISON, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 3, 1995, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

School Board of Pinellas County

301 4th Street Southwest Post Office Box 2942 Largo, Florida 34649-2942

For Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640 STATEMENT OF THE ISSUE

The issue in this case is whether the School Board of Pinellas County should dismiss the Respondent, Larry B. Allison, on charges that he "indecently exposed [his] penis and masturbated in a public place in the presence of a Pinellas County Police Officer."

PRELIMINARY STATEMENT

By letter dated February 10, 1995, the School Superintendent for Pinellas County notified the Respondent that he was being recommended for dismissal on charges that he "committed a lewd act by masturbating in a public place in the presence of a Pinellas County Police Officer." On February 22, 1995, the School Board amended the charging letter to specify that the dismissal proceeding was being brought under Section 231.36(6)(a), Fla. Stat. (1993). On the same day, the Respondent requested a formal administrative proceeding. On February 27, 1995, the School Board referred the matter to the Division of Administrative Hearings (DOAH).

Initially, the case was placed in abeyance pending disposition of criminal proceedings arising out of the same allegations underlying the School Board action. While it was in abeyance, the School Board moved for leave to amend the

charges to allege that the Respondent "indecently exposed [his] penis and masturbated in a public place in the presence of a Pinellas County Police Officer." The unopposed motion was granted.

On advice that the criminal proceeding was resolved, final hearing in this case was set for August 10, 1995, but final hearing was continued on the ground that the criminal charges had been refiled. Later, on advice that the refiled criminal charges had been dismissed, final hearing was rescheduled for October 3, 1995.

On September 11, 1995, the School Board took the videotape deposition of the arresting police officer for use at final hearing. On the record at deposition, the Respondent objected on due process grounds and on other grounds.

At final hearing, the School Board moved the transcript of the deposition and the videotape of the deposition into evidence as Petitioner's Exhibits 1 and

1. The Respondent again objected on the due process and other grounds raised during the deposition. Ruling on the objections was reserved pending further written argument and citation of authorities posthearing.

   
   

   The School Board also had Petitioner's Exhibits 3, 4, 6 and 7 admitted in evidence. Ruling was reserved on the Respondent's hearsay objection to Petitioner's Exhibit 5, but the objection is now overruled, and Petitioner's Exhibit 5 is admitted into evidence.

   
   

   The School Board also called six witnesses at final hearing. The Respondent testified in his own behalf and called ten additional witnesses.

   
   

   One of the Respondent's witnesses was an expert psychiatrist. On reconsideration, the School Board's objection is sustained as to the psychiatrist's opinion testimony on the ultimate fact issue of whether the police officer's perceptions were accurate, and the School Board's motion to strike the opinion testimony is granted. The opinion was not grounded on any generally accepted scientific theory and amounted to the psychiatrist's assessment of the comparative credibility of the testimony of the Respondent and the police officer.

   
   

   At the end of the final hearing, the School Board requested 20 days in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 95-0898.

   
   

   The parties' proposed recommended orders contained no further written argument or citation of authorities on the admissibility of Petitioner's Exhibits 1 and 2. Based on the arguments made on the record of the deposition and at final hearing, the Respondent's objections are overruled, and the exhibits are admitted in evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Taken together, the evidence is clear that, if the Respondent did what he is accused of doing, his conduct: (1) would have been inconsistent with the standards of public conscience and good morals; (2) would have been sufficiently notorious to bring the Respondent and the education profession into public disgrace or disrespect; (3) would impair the Respondent's service in the community; and (4) would have been so serious as to impair the Respondent's

      effectiveness in the school system. But it is found that the School Board's evidence did not prove the allegations.

      
      

   2. The ultimate finding of fact is based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officer. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew the Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn whether the Respondent engaged in, or had a reputation for engaging in, the kind of conduct he was accused of doing.

      
      

   3. In this case, although the testimony of the arresting police officer is not accepted, it is not found that his testimony was pure fabrication. Rather, it is found that, due to his mindset and expectations, the arresting police officer misinterpreted much of the conduct he observed involving the Respondent on January 24, 1995. On that day, the police officer was patrolling Lake Seminole Park in Pinellas County, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual), activities for which the park had become notorious to the police department and to many others who frequented the park.

      
      

   4. The police officer on duty at the park that day expected users of the park to know its reputation, and he expected to find homosexual men using the park for these notorious purposes. As a result, knowing nothing about the Respondent, he misinterpretated innocent or ambiguous behavior of the Respondent as evidence of criminal conduct. He also attributed little or no importance to behavior of the Respondent that was evidence of his innocence of criminal charges. In addition, as a result of the manner in which he conducted his operation, he initiated the situations from which the misinterpreted behaviors flowed. After the officer announced that he was placing the Respondent under arrest, the Respondent may have made statements in an effort to avoid any further adverse repercussions; the officer interpreted them as admissions of guilt. Finally, the officer may have exaggerated or embellished some of his testimony to support the validity of the arrest he ultimately made.

      
      

   5. When the officer first saw the Respondent, the Respondent was driving his car on roads in the park in excess of the speed limit. The officer decided to follow in his vehicle because the Respondent was speeding but overlooked the possibility that driving at a high speed generally was inconsistent with "cruising" the park, a more normal behavior for one looking for opportunities to engage in the criminal conduct the officer was investigating.

      
      

   6. When the Respondent pulled into the parking lot of a rest room pavillion in the park, the officer continued to suspect that the Respondent's purpose was criminal. The officer attributed no significance to the Respondent's turning into the first available driveway into the parking lot and driving the wrong way on a one-way drive to enter the parking area.

      
      

   7. What the officer did not know was that the Respondent is on diuretic medication for high blood pressure and that, partly as a result, he has to urinate frequently and has difficulty controlling his need to urinate. As he was driving down the street, the Respondent began to feel the urge to urinate and decided to enter the park as a likely place to find a convenient rest room.

      
      

   8. The officer followed the Respondent into the parking lot and parked in a space to the left of the Respondent's space, between the Respondent's space

      and the rest room pavillion. When the Respondent did not immediately get out of his car, the officer suspected that the Respondent was waiting for him. What he did not know was that the Respondent was driving shoeless and was putting his shoes on.

      
      

   9. When the Respondent got out of his car, he had an unlit cigarette in his hand. He did not think he had any matches on him and, as he was walking past the officer's parked car, he tapped the cigarette he was holding with his other hand in a gesture to ask the officer for a light and approached the driver side of the officer's car.

      
      

   10. When the Respondent got to the driver side of the car, the officer rolled down the window, and the Respondent asked for a light. He could see through the officer's open driver side window that the officer did not have matches or a portable lighter but had pushed in his car cigarette lighter. As a result, the Respondent had to wait for the lighter to heat up. No words were spoken while the Respondent waited. However, by the time the Respondent got his light and was ready to leave, he felt the need to touch and hold his crotch area to delay urination. (The officer inaccurately called this "massaging" the groin area.) The Respondent apparently also made some noises as a result of his distress, which the officer interpreted as "low moaning." The officer saw a "bulge" in the Respondent's pants in the area of the crotch and misinterpreted it as being an erection.

       
       

   11. As soon as the Respondent got his light, he said thanks and walked directly to the rest room pavillion. The officer testified that, when the Respondent got far enough away so that the officer could see the Respondent's face and head, the Respondent nodded to him. If so, it may have been in thanks or acknowledgement for lighting the cigarette. But the officer, still interpreting the Respondent's behavior as the prelude to criminal activity, misinterpretated the nod as an invitation to follow the Respondent into the rest room.

       
       

   12. Unbeknownst to the Respondent, the officer followed him to the men's room. The officer acknowledges that, as he approached the men's room, he could hear the Respondent urinating. As the officer entered the men's room (unobserved by the Respondent), he saw the Respondent leaving the urinal next to the toilet stall at the far end of the rest room and entering the toilet stall. There was no one else in the men's room. The Respondent intended to use the toilet stall, but it was soiled so he flushed it and, with his pants still down and his penis exposed, switched back to one of the urinals, where he finished urinating. The officer again failed to be impressed with the possible consistency of the Respondent's behavior with that of a man who needed to find a toilet and urinate in a hurry. Instead, the officer focused on the Respondent's moving from the toilet stall to the urinal with his penis exposed and misinterpreted it as being part of a course of criminal conduct.

       
       

   13. While the Respondent was in the toilet stall, a car could be heard driving through the parking lot. As the Respondent left the toilet stall and switched to the urinal, the officer asked him if he knew where the car had gone, and the Respondent answered that he thought it left. The officer interpreted the Respondent's answer as incriminating; meanwhile, the Respondent was beginning to get suspicious about the officer's intentions.

       
       

   14. Nothing else happened for the officer to misinterpret while the Respondent finished urinating. No words were exchanged. Then, while standing behind and to the right of the Respondent as he finished urinating, the officer

       initiated conversation by asking the Respondent, "well, what do you want to do?" (The Respondent also recalls the officer commenting that the Respondent was "hard" earlier but couldn't "get it up" any more; the officer does not recall those comments.) By this time suspicious of the officer's intentions, the Respondent half turned in the direction of the officer while continuing to shake his penis to stop it from dripping urine, and testily asked back, "what do you want to do?" (The Respondent may also have been exaggerating the motion of shaking urine off his penis as a way of establishing the intruder's intentions, as in "is this what you want?") The officer did not see the Respondent's penis long enough to be able to say whether the Respondent had been circumcised; he only could say that it was not erect and generally describe its size and color. Yet, misinterpreted and erroneously described the gesture as "masturbating."

       
       

   15. Intending to shake up the intruder, the Respondent also asked him, "do you live around here?" In the officer's exaggerated and embellished retelling to buttress the validity of the arrest, this question became a conversation in which the officer expressed discomfort "doing it" in the men's room and the two discussed where they could go to have sex in private.

       
       

   16. The very next thing that happened was the officer's announcement that he was a police officer and that the Respondent was under arrest. The Respondent asked incredulously, "arrested for what?" Then, afraid of the obvious repercussions of an arrest for lewd conduct on his teaching position and certification, the Respondent said things for the purpose of trying to avoid those repercussions that served instead to confirm the officer's view that the Respondent was guilty.

       
       

   17. At one point, the Respondent told the officer that, if the officer let him go, the Respondent would promise never to return to Lake Seminole Park. The officer took the promise as an admission that the Respondent frequented the park when in fact the Respondent was telling the truth when he earlier denied ever having been to the park before.

       
       

   18. When the Respondent told the officer that he was coming from work, the officer asked where he worked, and the Respondent identified his job at ETC Molex but at first omitted to say that he also worked at Osceola Middle School, which he just had left. The officer never had heard of ETC Molex and somehow understood the Respondent to be saying that he worked at Bay Pines Hospital.

       
       

   19. After the Respondent retrieved identification from the glove compartment of his car, he lit another cigarette with matches he found in the glove compartment. The officer thought the Respondent got the cigarette (along with his driver's license) from his coat pocket. This misunderstanding served to confirm the officer's misconception that the Respondent's initial request for a light for his cigarette was just an excuse to make contact with the officer for purposes of planned criminal activity. The officer also thought the Respondent was lying when the Respondent told the officer earlier that his identification was in his car.

       
       

   20. When the officer saw on the Respondent's driver license that he lived in south St. Petersburg, he asked the Respondent why he drove to Lake Seminole Park if he was on his way home from "work" (i.e., from Bay Pines Hospital, which also is south of Lake Seminole Park). At that point, the Respondent corrected the officer's misunderstanding as to his place of employment and told the officer that he also was a PE teacher at Osceola Middle School. He also corrected the officer's misunderstanding as to his destination--he told the officer that he was going to a meeting at the Pinellas County Classroom Teachers

       Association, which is north of Lake Seminole Park, not directly home. In the officer's mind, the Respondent had been dissembling, and he interpreted the dissembling as evidence of guilt.

       
       

   21. After the Respondent's arrest, and during the pendency of criminal proceedings, the School Board did not interview the Respondent in deference to his constitutional right not to say anything that might incriminate him; nonetheless, the School Board went forward with its proceeding to dismiss the Respondent. After the criminal proceedings were dismissed, and this case was scheduled for final hearing, the School Board did not seek to interview the Respondent due to the Respondent's representation by counsel; nonetheless, the School Board continue to prosecute the dismissal proceeding. At no time before the taking of the Respondent's deposition in this proceeding did the School Board ask to interview the Respondent to hear his side of the story of what happened on January 24, 1995; on the other hand, there is no evidence that either the Respondent or his attorney requested such an interview.

       
       

       CONCLUSIONS OF LAW

       
       

   22. Section 231.36(1)(a), Florida Statutes (1993), provides that, except for teachers on continuing contract under Section 231.36(4), a teacher can be dismissed during the term of an employment contract "only for just cause." It further provides: "Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." (Emphasis added.)

       
       

   23. Section 231.36(6)(a), Florida Statutes (1993), similarly provides that, except for teachers on continuing contract under Section 231.36(4), a teacher can be suspended or dismissed during the term of an employment contract for just cause as provided in paragraph (1)(a)."

       
       

   24. In contrast, Section 231.36(4)(c), Florida Statutes (1993), provides that a teacher on continuing contract may be suspended or dismissed during the school year only on charges of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

       
       

   25. It is not clear from the evidence whether the Respondent is on continuing contract. However, the School Board specified in its charging letter and during deposition proceedings that it was prosecuting the Respondent's dismissal proceeding under Section 231.36(6)(a), Fla. Stat. (1993). (See also the School Board's proposed finding of fact 33.) The Respondent has not disputed the statutory provision under which the dismissal proceeding has been brought.

       
       

   26. The School Board is required to prove the charges against the Respondent by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County,

       569 So. 2d 883 (Fla. 3d DCA 1990); South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 5th DCA 1984).

       
       

   27. As found, the School Board did not prove the charges against the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges against the Respondent and reinstating him with full back pay.

RECOMMENDED this 30th day of October, 1995, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 30th day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0898

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2. Rejected as not supported by any evidence. Also, the position taken by the School Board has been that the Respondent was not on continuing contract. See also proposed finding 33.

3.-4. Accepted but subordinate and unnecessary.

5.-6. Accepted and incorporated to the extent not subordinate or unnecessary.

7. Accepted but unnecessary without proof that the Respondent knew he was passing rest rooms on his way to the rest room he used.

8.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven that the gesture was to roll down the window.

2. Accepted and incorporated.

3. The officer's misinterpretation of what he saw and heard is rejected as not proven.

4. Accepted and incorporated.

5. Rejected as not proven that the Respondent gestured for the officer to follow.

16.-18. Accepted and incorporated to the extent not subordinate or unnecessary.

19.-20. Rejected as not proven that the Respondent urinated into the toilet. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven that the Respondent turned towards the officer until after the officer started talking to him. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated.

3. Rejected as not proven that the Respondent was masturbating. Otherwise, accepted and incorporated.

4. Rejected as not proven.

25.-26. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven.

2. Rejected as not proven that the wallet was in his coat pocket the whole time.

3. Accepted; in part incorporated and in part subordinate to facts contrary to those found.

4. Rejected as not proven that the matches were in his coat pocket the whole time.

5. First sentence, rejected as not proven that he said "to read." (That was either a misunderstanding or part of the officer's embellishment of his story.) Otherwise, accepted and incorporated.

32.-34. Accepted but subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

(The Respondent's proposed findings of fact appear to be in the "Argument" section of the Respondent's Proposed Recommended Order. For purposes of these rulings, the unnumbered paragraphs of the "Argument" section are assigned consecutive numbers.)

1. Accepted and incorporated.

2. The Respondent initiated conversation at the officer's car outside the rest room pavillion; the officer initiated conversation inside the rest room. Also, there were conflicts in the testimony at earlier points in time, too. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

3. First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

4. Accepted but subordinate and unnecessary.

5. Accepted and incorporated to the extent not subordinate or unnecessary.

6. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. The rest is rejected as argument, as subordinate and as unnecessary.

COPIES FURNISHED:

Keith B. Martin, Esquire

School Board of Pinellas County 301-4th Street S.W.

Post Office Box 2942 Largo, Florida 34649-2942

Lawrence D. Black, Esquire 650 Seminole Boulevard

Largo, Florida 34640

Howard Hinesley Superintendent of Schools

School Board of Pinellas County Post Office Box 2942

Largo, Florida 34649-2942

Honorable Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the School Board of Pinellas County 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 consult with the School Board of Pinellas County concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-000898

Orders for Case No: 95-000898