STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4047

)

LEE CHRISTINE GAUL, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on January 8, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ronald G. Stowers, Esquire

Office of General Counsel Department of Education Suite 1701, The Capitol

Tallahassee, Florida 32399-0400

For Respondent: Davisson F. Dunlap, Jr., Esquire

Pennington & Haben, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095 STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices Commission should discipline the Respondent's Florida teaching certificate for the violations alleged in an Administrative Complaint dated May 15, 1995.

PRELIMINARY STATEMENT

On or about May 15, 1995, Petitioner, Frank T. Brogan, as Commissioner of Education, issued an Administrative Complaint against Respondent, Lee Christine Gaul. The Administrative Complaint and an Explanation and Election of Rights Form was provided to Ms. Gaul by letter dated May 15, 1995.

On or about August 9, 1995, Ms. Gaul filed a Petition for Formal Hearing with Petitioner contesting the Administrative Complaint and requesting a formal administrative hearing.

On August 15, 1995, the matter was referred to the Division of Administrative Hearings. The matter was designated case number 95-4047 and was assigned to the undersigned.

At the final hearing, Petitioner presented the testimony of J. E. G., Laura Hassler, Marvin Henderson, Paul Onkle, Terri Smith, Ronnie Youngblood and Larry

T. Richardson. Petitioner also offered 9 exhibits. Petitioner's exhibits were accepted into evidence.

Ms. Gaul testified on her own behalf and presented the testimony of K. D., Denise Vogelgesang, Mitchell Drew, Jr., Daisy Williams McKinney, J. W., Karen McGehee, Barbara L. Decker, Jan Dunlap, Betty Green and Leonard Lee Williams, Jr. Ms. Gaul offered 2 exhibits. Both exhibits were accepted into evidence.

A transcript of the final hearing was filed on January 25, 1996. By agreement of the parties proposed recommended orders were required to be filed on or before February 14, 1996. Both parties timely filed proposed orders 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.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Frank T. Brogan, as Commissioner of Education, is authorized to file and prosecute formal complaints against persons holding teaching certificates in the State of Florida.

      
      

   2. Respondent, Lee Christine Gaul, is certified to teach in Florida. Ms. Gaul holds Florida Educator's Certificate 716132. The certificate authorizes Ms. Gaul to teach in the area of history and is valid through June 30, 1997.

      
      

2. Ms. Gaul's Employment as a Teacher.

   
   

   1. Ms. Gaul is currently employed as a teacher at Belle Vue Middle School (hereinafter referred to as "Belle Vue"), in Tallahassee, Leon County, Florida.

      
      

   2. Laura Hassler, Ph.D., is the principal of Belle Vue.

      
      

   3. Ms. Gaul has been employed continuously as a teacher at Belle Vue since 1993.

      
      

   4. Ms. Gaul is responsible for some of the most difficult and troubled students at Belle Vue. Ms. Gaul's students are all students that have been unable to function in other classes.

      
      

   5. None of the students which Ms. Gaul is responsible for in her position as a teacher at Belle Vue were involved in any way in the incident which is the subject of this proceeding.

      
      

3. Leon Crew Boosters, Inc..

   
   

   1. Leon Crew Boosters, Inc. (hereinafter referred to as "Leon Crew"), is a not-for-profit corporation. Leon Crew is exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code.

      
      

   2. Leon Crew was created in 1992.

   3. As a corporation, Leon Crew operates through its board of directors, officers and committees.

      
      

   4. The purpose of Leon Crew is to provide an opportunity for high school students to participate in the sport of rowing or "crewing".

      
      

   5. To date, only students at Leon High School have participated in Leon Crew. The Board of Directors has considered allowing students from other schools to participate in Leon Crew. To date, however, students from other schools have not been allowed to participate so that the crews could participate in state high school championships.

      
      

   6. Approximately 80 to 100 students participate in Leon Crew activities. Several boats are manned by several crews.

      
      

   7. Leon Crew provides all equipment needed for crew members. Leon Crew owns all boats, trailers and other equipment utilized by crews.

      
      

   8. All funding for Leon Crew comes from its supporters and members. Leon Crew receives no public funding from any source, including Leon High School or the Leon County School Board.

      
      

   9. Leon Crew and the crews are not members of, or directly regulated by, the entity that regulates publicly funded high school sports programs in Florida, the Florida High School Activities Association.

      
      

   10. Coaches for the crews are interviewed and hired by Leon Crew. Coaches need not be certified to teach. Leon Crew is responsible for the payment of any salary paid to coaches. Leon High School officials do not participate in the process of hiring or firing coaches. Nor does Leon High School contribute to the salary of any coach.

       
       

   11. Although Leon Crew does not practice on the grounds of Leon High School (there is no water available), they are allowed to utilize Leon High School facilities.

       
       

   12. Leon Crew members are featured in the Leon High School student yearbook.

       
       

   13. Leon Crew teams are allowed to use the name "Leon" and to participate as "school" crews at state championships.

       
       

   14. Although Leon Crew is a separate corporation over which Leon High School has no legal authority, the relationship of Leon Crew and Leon High School requires mutual agreement of Marvin Henderson, the principal of Leon High School, and the Board of Directors of Leon Crew to continue operating in the manner they have been operating. Without mutual agreement and cooperation, Mr. Henderson could limit Leon Crew's association with Leon High School. For example, Mr. Henderson could eliminate Leon Crew from the yearbook, prohibit use of school facilities, not allow the use of the school's name and not authorize students to travel to regattas. On the other hand, without Mr. Henderson's cooperation, Leon Crew could disassociate itself from Leon High School.

4. Ms. Gaul's Association with Leon Crew.

   
   

   1. In 1992, Ms. Gaul was interviewed and hired by Leon Crew as the coach of the men's and women's crew teams. She initially served without pay as a volunteer coach. Ms. Gaul was the first coach hired by Leon Crew.

      
      

   2. Ms. Gaul, who was living in Jacksonville, Florida when hired, moved to Tallahassee. She worked at a stock brokerage firm until her employment at Belle Vue.

      
      

   3. At not time has Ms. Gaul been employed by Leon High School. Nor has she been associated with Leon High School except through Leon Crew. Ms. Gaul is not evaluated as a teacher or coach by Leon High School.

      
      

   4. Ms. Gaul did not answer directly to Mr. Henderson. Mr. Henderson's authority over Ms. Gaul was not based upon a teacher-principal relationship. It was based upon the cooperative association of Leon High School and Leon Crew.

      
      

   5. As coach, Ms. Gaul has established rules of behavior which crew members are required to follow in order to continue to participate in Leon Crew. Ms. Gaul has imposed discipline to members of crews that have violated those rules.

      
      

5. The Sunday, May 22, 1994 Incident.

   
   

   1. At the end of the crew season and the state championships in the Spring of 1994, a few of the better boat crews traveled to Atlanta, Georgia to participate in a crewing event known as the "Southeast Regionals".

      
      

   2. One of the students who attended the Southeast Regionals, T. C., planned to have a party at her home upon the return to Tallahassee of the students that had travelled to Atlanta. The party was to be held upon the students' return on Saturday evening, May 21, 1994 and Sunday morning, May 22, 1994.

      
      

   3. T. C. had obtained permission from her parents for the party. T. C.'s parents were not to be home during the party. An adult house sitter was to be at the home, however.

      
      

   4. T. C. had invited some of the crew members who participated in the Southeast Regionals to attend the party.

      
      

   5. At some time on Saturday, May 21, 1994, before leaving Atlanta, T. C. and some of the other crew members invited Ms. Gaul to attend the party. Ms. Gaul agreed.

      
      

   6. The crew members returned from Atlanta on Saturday evening, May 22, 1994, in several vans. Those crew members that attended the party drove directly to T. C.'s house.

      
      

   7. Ms. Gaul was in the last van to arrive at the party. Ms. Gaul arrived at approximately 2:00 a.m., Sunday, May 22, 1994. Most of the individuals attending the party were already at T. C.'s house.

      
      

   8. There were approximately 20 to 25 people in attendance at the party, some of whom were crew members and students at Leon High School. T. C.'s older brother, D. C., and some of his friends were also in attendance. D. C. and his

      friends were not associated with Leon Crew. The evidence failed to prove the ages of most of the participants. D.C. and his friends and the members of the crew in attendance were, however, high school students.

      
      

   9. Most of the crew members in attendance were juniors and seniors in high school. T. C., however, was 14 years of age at the time of the party.

      
      

   10. The party was not a school or Leon Crew official function. Ms. Gaul did not have supervisory authority over all of the students in attendance at the party. Some of the Leon Crew members in attendance had completed their participation in Leon Crew. Ms. Gaul could, however, have attempted to control the activities of the Leon Crew members who were not graduating. She had established strict rules for all crew members concerning the behavior of crew members and the consumption of alcohol and tobacco. On one trip, two students were caught shoplifting. They were immediately sent home by Ms. Gaul.

       
       

   11. The adult house sitter was also present and Robbie Drew, the mother of a crew member, was also present in the house.

       
       

   12. Beer and liquor was available at the party before and after the crew members arrived. It had been planned from the beginning by at least some of the participants of the party that beer and liquor would be available.

       
       

   13. Some, but not all, students in attendance at the party, including some crew members, consumed beer and liquor both before and after Ms. Gaul arrived. The evidence failed to prove how much beer and liquor was consumed or the number of students or crew members that consumed beer and/or liquor.

       
       

   14. Upon arriving at T. C.'s home, Ms. Gaul confirmed with the adult house sitter that T. C.'s parents had authorized the party.

       
       

   15. At some point after her arrival, Ms. Gaul noticed that some students, including crew members, were consuming beer and liquor. Ms. Gaul did not make any effort to prevent the students from drinking. Nor did she leave the party.

       
       

   16. It had been arranged by some of the students for additional beer to be brought to the party. Those plans fell through, however, sometime after Ms. Gaul arrived.

       
       

   17. Some of the students began taking up a collection of money to go purchase more beer. Some of the students believed that they would have been able to obtain additional beer that evening.

       
       

   18. Ms. Gaul overheard two of the students discussing their plan to go purchase more beer. Ms. Gaul was concerned about the students leaving the house to purchase beer because the house at which the party was held was a considerable distance from the nearest store, the road to the nearest store was dark and winding and she knew some of the students had been drinking.

       
       

   19. Ms. Gaul had doubts as to whether she could stop the students from going to purchase more beer. Therefore, rather than attempt to stop them, Ms. Gaul decided that she would drive to the store and purchase the beer herself. This decision was made at least in part because she believed that the students had the means to purchase the beer regardless of what she did. Because of her concern over students leaving the house who had been drinking, Ms. Gaul got the students to agree that no one would leave the party that evening if she went and purchased the beer for them.

   20. Ms. Gaul drove to a store to purchase the beer. J.E.G., a female crew member, and L.A.G., another female crew member, accompanied Ms. Gaul.

       
       

   21. Ms. Gaul purchased one and one-half to two cases of beer, which she brought back to the party. Some, but not all, of the participants at the party consumed the beer.

       
       

   22. For the first time that evening, Ms. Gaul also consumed at least one can of beer after returning from the store. Ms. Gaul spent most of the time in a room away from where the students were located. Students did, however, walk through the room where Ms. Gaul was located and where she consumed beer.

       
       

   23. Ms. Gaul felt a need to "keep a lid on the party" and to ensure that none of the participants left T. C.'s house until morning because she did not want anyone who had been drinking to drive.

       
       

   24. Throughout the evening, the participants at the party were well- behaved. At no time did the party get too loud or otherwise get out of hand. Ms. Gaul's presence at the party contributed to this fact.

       
       

   25. No one, including Ms. Gaul, left T. C.'s house until after daybreak, Sunday morning.

       
       

6. Ms. Gaul's Actions Immediately After the Incident.

   
   

   1. After daybreak, Ms. Gaul began to reflect on her actions during the party. She realized that she had made an error in judgement by purchasing beer for the participants of the party, especially the crew members, for letting crew members drink alcohol and for drinking in their presence.

      
      

   2. On Monday morning, May 23, 1994, Ms. Gaul arranged to meet with the members of the crew teams that had attended the party at T. C.'s. She met with them at Leon High School immediately before classes began that morning. Ms. Gaul told the students that what she had done, purchasing the beer, allowing them to drink beer, and drinking in their presence had been wrong. Ms. Gaul told them that she did not want them to get the wrong message:

      
      

      [w]hile they were young, they might not see that what I had done was wrong. They might have gone so far to think that it was cool, but it was not. That I had done them a huge disservice. And whether they figured it out then or later, that I had hurt them, and that I was sorry.

      
      

      Transcript, Page 166, Lines 12-17.

      
      

   3. Approximately one and one-half weeks later, on June 3, 1994, Ms. Gaul reported the incident of May 22, 1994, to her supervisor at Belle Vue, Dr. Hassler.

      
      

   4. Ms. Gaul submitted her resignation as a teacher at Belle Vue to Dr. Hassler. Dr. Hassler, who had a child on a Leon Crew team at the time, decided to not accept the resignation at that time so that the incident could be investigated further.

   5. The incident was reported to Marvin Henderson, the principal of Leon High School, by Dr. Hassler. Ms. Gaul met with Mr. Henderson and admitted her errors in judgement.

      
      

   6. Ms. Gaul also reported the incident to the Board of Directors of Leon Crew at a regularly scheduled meeting on June 6, 1994. Ms. Gaul offered her resignation as crew coach at that meeting. Ms. Gaul admitted that she had made a mistake, took responsibility for her actions and apologized for her conduct.

      
      

7. Sanctions Imposed on Ms. Gaul.

   
   

   1. Dr. Hassler ultimately declined to accept the resignation offered by Ms. Gaul. On or about September 14, 1994, Dr. Hassler did, however, issue a letter of reprimand to Ms. Gaul. Dr. Hassler cited the attendance by Ms. Gaul at the party where alcohol was consumed by Ms. Gaul and minor-students and Ms. Gaul's purchase of beer for consumption by minors as the reason for the reprimand.

      
      

   2. Initially, after being informed of the incident on June 6, 1994, the Leon Crew Board of Directors accepted Ms. Gaul's resignation. They did so without further investigation.

      
      

   3. In August of 1994, after further investigation and consideration of all of the events and circumstance surrounding the incident, the Board of Directors of Leon Crew reinstated Ms. Gaul as coach.

      
      

   4. On or about September 29, 1994, Mr. Henderson issued a letter of reprimand to Ms. Gaul. Mr. Henderson discussed the discipline outlined in the letter with the Board of Directors of Leon Crew. The Board of Directors concurred with Mr. Henderson's decision.

      
      

   5. The letter of reprimand from Mr. Henderson restricted Ms. Gaul's activities as coach of Leon Crew during the 1994-1995 school year, including the following:

      
      

      Because of the severe nature of this incident, the following consequences are imposed: (1) Probation for a period of seven months; it is understood that during this period, you are

      to have no contact with members of the team for socialization purposes. (2) A sixty day suspension; (during the first thirty days, you

      are permitted to work with team members as long as you are accompanied by at least one other Crew coach. During the second thirty days, no contact with Crew Team members shall be permitted.) This arrangement is allowed because of your value to the Crew Team's workout schedule and in the interest of safety.

      (3) At the end of the school year, an assessment of your position with Crew will be made to determine your continued involvement with Leon High School and the Leon Crew Team.

      
      

   6. The discipline imposed on Ms. Gaul through Mr. Henderson's letter of September 29, 1994, was modified on or about October 31, 1994. In particular, Ms. Gaul was allowed to associate with crew members through November 21, 1994

      and then the thirty day period of disassociation was to begin. This modification was suggested by Leon Boosters in the interest of crew members.

      
      

   7. Ms. Gaul did not contest any of the actions taken by Dr. Hassler, Mr. Henderson or the Board of Directors of Leon Crew. She accepted the discipline proposed by all of them. Ms. Gaul completed the suspension and the probation period imposed on her.

      
      

8. The Impact of the Incident on Ms. Gaul's Ability to Teach.

1. Two of Ms. Gaul's fellow teachers and her principal, Dr. Hassler, uniformly testified that Ms. Gaul has evidenced exemplary ability as a teacher.

   
   

2. According to Dr. Hassler, Ms. Gaul is an extremely important and valuable member of the teaching staff of Belle Vue and contributes greatly to the welfare of her students. Dr. Hassler described Ms. Gaul as "one of the most outstanding teachers I have ever had the opportunity to work with." Transcript, Page 53, Lines 8 and 9.

   
   

3. The evidence in this case failed to prove that the incident of May 22, 1994, has impaired in anyway Ms. Gaul's ability to carry out her responsibilities as a teacher. In fact, the incident has matured Ms. Gaul and improved her ability as a teacher. Since the incident, she has continued to carry out her duties at Belle Vue in an exemplary fashion. She has been evaluated once since the incident and received a very high evaluation from Dr. Hassler.

   
   

4. The evidence also failed to prove that the incident has had any negative impact on participants of Leon Crew. Again, the incident matured Ms. Gaul and improved her ability to act as one of the coaches of Leon Crew.

   
   

5. Ms. Gaul has continued to function as a coach of Leon Crew in an effective manner and without any impairment. All the students who participated in crew after the incident and the parents of students who are participating in crew who testified in the hearing of this case spoke highly of Ms. Gaul and her ability to effectively act as a coach.

   
   

6. The incident of May 22, 1994 was an isolated incident of failing to exercise good judgement on Ms. Gaul's part.

   
   

7. The parents of students involved in Leon Crew who testified at the hearing of this matter and all other witnesses who testified indicated their belief that Ms. Gaul is of high moral character, an outstanding role model and an excellent teacher.

   
   

8. The evidence also failed to prove that Ms. Gaul's conduct was sufficiently notorious to bring her or the educational profession into public disgrace or disrespect. Only those immediately involved in the incident, her immediate supervisors (her principal, Leon High School's principal and Leon Crew's Board of Directors) and two teachers at Belle Vue were aware of the incident. The incident was not, however, known among the parents and the general teacher population at Belle Vue.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1995).

   
   

   1. The Burden of Proof.

      
      

10. The burden of proof in this proceeding was on Petitioner. Petitioner was required to meet its burden by presenting clear and convincing evidence to support the allegations of the Administrative Complaint. Ferris v. Turlington,

    510 So.2d 292 (Fla. 19876). See also Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983).

    
    

    1. The Charges Against Ms. Gaul.

       
       

11. Section 231.28(1), Florida Statutes, authorizes the Education Practices Commission to suspend or revoke, for a set period or permanently, the teaching certificate of any person holding a Florida teaching certificate if that person commits certain specified acts.

    
    

12. In this case, Petitioner has alleged that Ms. Gaul has committed the following prohibited acts of Section 231.28(1), Florida Statutes:

    
    

    (c) Has been guilty of gross immorality or an act involving moral turpitude;

    . . . .

    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rule.

    
    

13. The specific State Board of Education rule Ms. Gaul is alleged to have violated is Rule 6B-1.006(3)(a), Florida Administrative Code:

    
    

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

          
          

          1. Gross Immorality or an Act Involving Moral Turpitude.

             
             

14. While the terms "gross immorality" are not defined, the term "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 educational profession into public disgrace or disrespect

    and impair the individual's service in the community.

    Rule 6B-4.009(2), Florida Administrative Code.

    
    

15. The evidence in this case failed to prove that Ms. Gaul is guilty of gross immorality. Although purchasing alcoholic beverages for underage students may be inconsistent with the standards of public conscience and good morals, the evidence in this case failed to prove that Ms. Gaul's service in the community has been impaired. There was no evidence to support such a finding. See Tenbroeck v. Caston, 640 So.2d 164 (Fla. 1st DCA 1994).

    
    

16. Virtually every witness testified that Ms. Gaul has continued to perform her responsibilities as a teacher at Belle Vue and as a coach of Leon Crew in an exemplary fashion. Most witnesses indicated that Ms. Gaul is a better teacher and coach as a result of the incident.

    
    

17. The evidence also failed to prove that Ms. Gaul's conduct was sufficiently notorious to bring her or the educational profession into public disgrace or disrespect. Only those immediately involved in the incident, her immediate supervisors (her principal, Leon High School's principal and Leon Crew's Board of Directors) and two teachers at Belle Vue were aware of the incident. The incident was not, however, known among the parents and the general teacher population at Belle Vue.

    
    

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

    
    

19. Under the circumstances of this case, Ms. Gaul's conduct dose not constitute moral turpitude either. While purchasing beer for underage students should not be condoned, the entire circumstances of this case must be considered when deciding whether Ms. Gaul's conduct constituted "a crime that is evidence by an act of basesness, vileness or depravity "

    
    

20. The evidence proved that Ms. Gaul exercised a lack of good judgement in purchasing beer for students, in allowing students to drink beer without any effort to stop them or without leaving the party, and in drinking beer at the party. Ms. Gaul mitigated her act of poor judgement, however, by insisting that all of the students, even those who were not affiliated with Leon Crew, agree not to leave T. C.'s house until the next morning. Her presence at the party also acted to keep the students in control. The evidence failed to prove that any student suffered any direct harm as a result of the incident. The next morning, Ms. Gaul immediately realized her lapse of judgement and informed the students which she had some authority over that she had been wrong. Ms. Gaul also reported the incident to the proper authorities and indicated her willingness to suffer the consequences of her actions.

    
    

21. Based upon the weight of the evidence and a consideration of all the facts in this case, it is concluded that Ms. Gaul's conduct did not constitute moral turpitude.

    1. Principles of Professional Conduct.

       
       

22. The second charge against Ms. Gaul is that she violated the Principles of Professional Conduct, in particular, Rule 6B-1.006(3)(a), Florida Administrative Code, in that she did not make a reasonable effort to protect "the student" from conditions harmful to learning and/or to "the student's" mental and/or physical health and/or safety.

    
    

23. Counsel for Ms. Gaul has argued that Rule 6B-1.006(3)(a), Florida Administrative Code, requires a direct teacher-student relationship between the students and teacher. Counsel has suggested that teacher-student relationship is lacking between the students involved in the May 22, 1994 incident and Ms. Gaul. Therefore, counsel has argued that Rule 6B-1.006(3)(a), Florida Administrative Code, does not apply to the incident. No case has been cited, or found, which supports this argument.

    
    

24. It is true that the students involved in the May 22, 1994 incident were not all on Leon Crew, the event was not a Leon Crew official function, Ms. Gaul was not a teacher at Leon High School, Ms. Gaul answered to Leon Crew's Board of Directors with regard to her functioning as coach and Leon Crew is a corporation separate from Leon High School and the School Board. None of the students involved in the May 22, 1994 incident were students from Belle Vue where Ms. Gaul was employed as a teacher. All of these facts and others support Ms. Gaul's argument.

    
    

25. The evidence also proved that there were "students" drinking beer on May 22, 1994, that Ms. Gaul drank beer in the presence of some "students" and that she purchased beer that was consumed by some "students." The evidence also proved that some of those students were members of Leon Crew and, therefore, that Ms. Gaul was their coach. The evidence also proved that Ms. Gaul had disciplinary authority over students participating in Leon Crew. Ms. Gaul is certified as a teacher by the State of Florida and is employed as a teacher by the Leon County School Board.

    
    

26. While it may be arguable that not every contact between a "student" and a person certified to teach places the teacher in a position of being responsible for the student's welfare, where a teacher is looked to as a teacher by students and parents and that teacher in fact has authority over those students, Rule 6B-6.003(a), Florida Administrative Code, does not pertain.

    
    

27. Based upon the weight of the fact that at least the students involved in Leon Crew and their parents considered Ms. Gaul to be their coach/teacher and her authority over those students whom Ms. Gaul had disciplinary authority over because they participated in Leon Crew, it is concluded that Rule 6B- 1.006(3)(a), Florida Administrative Code, is applicable to Ms. Gaul and the Leon Crew students that attended the party.

    
    

28. Finally, it is also concluded that purchasing beer for students, and allowing students to consume beer and alcohol, constitutes the failure to make reasonable efforts to protect students from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. In reaching this conclusion, however, it must also be noted that Ms. Gaul also took some steps in an effort to provide at least some protection to the students by preventing the students from leaving the house to go purchase beer, by requiring that the students agree to remain at the party until daylight, by staying at the party and acting as a calming influence on the students and by immediately informing the students of her error in judgement.

    1. Penalty.

    
    

29. Based upon the foregoing, it has been proved that Ms. Gaul violated Rule 6B-1.006(3)(a), Florida Administrative Code. This violation, in turn, constitutes a violation of Section 231.28(1)(i), Florida Statutes.

    
    

30. Rule 6B-11.007, Florida Administrative Code, provides disciplinary guidelines. The range of discipline for a violation of Section 231.28(1)(i), Florida Statutes, and/or Rule 6B-1.006(3)(a), Florida Administrative Code, involving alcohol and students is "Suspension -- 2-year Revocation." Rule 6B- 11.007(2)(k), Florida Administrative Code.

    
    

31. Rule 6B-11.007, Florida Administrative Code, provides the following general guideline concerning the imposition of discipline:

    
    

    (1) When the Education Practices Commission finds that a person has committed any act for which the Commission may impose discipline, the Commission shall impose an appropriate

    penalty within the ranges set forth for various acts or violations in the following disciplinary guidelines unless, based upon consideration of aggravating and mitigating factors in the individual case which are among those set out

    in subsection (3), the Commission determines that a penalty outside the range in those guidelines but within statutory limitation is appropriate.

    
    

32. Petitioner has suggested that Ms. Gaul's license to teach in Florida be revoked for a period of 3 years, followed by 2 years probation. This recommendation was based upon Petitioner's conclusion that Ms. Gaul had violated Section 231.28(1)(c) and (i), Florida Statutes. The evidence only supports a finding that Ms. Gaul committed one of the charged offenses. Petitioner's recommendation also fails to take into account the mitigating circumstances of this matter. Instead, Petitioner's recommendation appears to be based solely on the involvement of students and alcohol. To focus only on that involvement ignores the totality of the evidence in this case. It ignores the fact that virtually every witness that testified in this matter praised and admired Ms. Gaul and her abilities as a teacher.

    
    

33. Rule 6B-11.007(3), Florida Administrative Code, requires a consideration of mitigating and aggravating circumstances in determining what penalty should be imposed on a teacher's license. Among other things, the following factors are to be considered:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

    4. The length of time since the violation;

    5. The number of times the educator has been previously disciplined by the Commission;

    6. The length of time the educator has practiced and the contribution as an educator;

    7. The actual damage, physical or otherwise, caused by the violation;

    8. The deterrent effect of the penalty imposed;

    . . . .

    (m) Attempts by the educator to correct

    . . . the violation . . . .

    . . . .

    (t) Any other relevant mitigating or aggravating factors under the circumstances.

    
    

34. Based upon a consideration of all the evidence in this case, there are substantial mitigating factors which should be considered in determining what penalty should be imposed on Ms. Gaul:

1. While purchasing alcohol for students and allowing them to consume alcohol is a sever offense, Ms. Gaul took steps to protect the students, who she believed would purchase the beer with or without her consent or help. As a result of her actions, the offense is not as sever. Ms. Gaul also helped to reduce the danger to the students and the public by keeping the students off the roads.

2. This is the only offense or lapse of judgement evidenced by Ms. Gaul. Many of the witnesses who testified in this proceeding (parents, teachers and students), indicated that Ms. Gaul's inappropriate actions were extremely unusual and out of character for Ms. Gaul. Ms. Gaul has not been disciplined previously.

3. Ms. Gaul has not been a teacher for a lengthy time and yet her contribution as a teacher at Belle Vue has been exemplary.

4. The evidence failed to prove that any student suffered actual damage, physical or otherwise, as a result of Ms. Gaul's actions. Again, she may have contributed to preventing damage by not allowing the students to leave.

5. The penalty will have little additional deterrent effect on Ms. Gaul. She immediately realized the mistake she had made, reported the incident and stood ready to suffer the conse- quences. Ms. Gaul has also already be subjected to discipline by Leon Crew and the Leon County School Board, which she did not contest in any way.

6. Ms. Gaul took the only steps should take to correct the problem by immediately calling all the students together to explain that what she had done was wrong and by setting the right example by being willing to pay the consequences of her actions.

7. There has been no negative impact on Ms. Gaul's abilities as a teacher. In fact, Ms. Gaul's abilities as a teacher have improved because of the lesson she learned from this experience.

8. Ms. Gaul has already been punished by Leon Crew and the principal of Belle Vue. She has received a letter of reprimand and served a suspension from her coaching duties with Leon Crew. Those penalties have been considered sufficient by the parents of the students

involved with Ms. Gaul, her immediate supervisors and the School Board of Leon County.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices

Commission dismissing the portion of the Administrative Complaint charging Lee

Christine Gaul with a violation of Section 231.28(1)(c), Florida Statutes. It is further

RECOMMENDED that the Education Practices Commission find Lee Christine Gaul to have violated Section 231.28(1)(i), Florida Statutes. It is further

RECOMMENDED that Lee Christine Gaul be placed on probation for a period of two (2) years and that she be issued a letter of reprimand. As a condition of her probation, Ms. Gaul should be required to attend appropriate courses dealing with the harm of alcohol on minors.

DONE AND ENTERED this 26th day of February, 1996, 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 26th day of February, 1996.

APPENDIX

Case Number 95-4047

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 Petitioner's Proposed Findings of Fact

1. Accepted in 37.

2. Accepted in 34-35.

3. Accepted in 38.

4. Accepted in 38 and 41. The evidence failed to prove what a "Jello shooter" is.

5. Accepted in 42-44. 15 See 36 and 44-46.

1. Accepted in 47-48.

2. Accepted in 45 and 49.

3. Accepted in 52 and hereby accepted. The testimony concerning whether the competency applies to students in teh classroom and out involves and conclusion of law and is rejected as such.

4. Accepted in 53.

5. Accepted in 4 and 55.

6. Accepted in 54.

7. Accepted in 55.

8. Accepted in 57.

9. Accepted in 60.

10. Accepted in 58. The last sentence is irrelevant and ignores Dr. Hassler's explanation of why she made the statement.

26-27 See 21. The last sentence is not supported by the weight of the evidence.

33 See 26, 36 and 45.

34-35 Argument.

1. Hereby accepted.

2. Not supported by the weight of the evidence.

3. Accepted in 41. The last two sentences are not supported by the weight of the evidence.

4. Accepted in 65-71.

5. While Ms. Gaul has admitted a lapse in judgement, the evidence failed to prove that she lacks an "indispensable necessity for her to be entrusted with the education of young people."

6. Not supported by the weight of the evidence.

Ms. Gaul's Proposed Findings of Fact

1. Accepted in 8-10.

2. Accepted in 15.

3. Accepted in 17.

4. Accepted in 22 and hereby accepted.

5. Accepted in 14.

6. See 18.

7. Accepted in 16.

8. Accepted in 11-12.

9. Accepted in 22-23.

10. Accepted in 4-5 and 24.

11. Accepted in 24 and hereby accepted.

12. Accepted in See 21. 13 See 27-51.

1. Accepted in 27.

2. Accepted in 28.

3. Accepted in 29.

4. Accepted in 31 and 37.

5. Accepted in 34 and 37.

6. Accepted in 33.

7. Accepted in 40.

8. Accepted in 37.

9. Accepted in 41.

10. Accepted in 39.

11. Accepted in 28 and hereby accepted.

12. Accepted in 13.

13. Accepted in 42-43. 27-28 Accepted in 44-45. 29-30 Accepted in 45.

31 Accepted in 48. 32-33 Accepted in 47. 34-35 Accepted in 50. 36-37 Hereby accepted.

1. Accepted in 43.

2. Accepted in 52.

3. See 53.

4. Hereby accepted.

5. Accepted in 57.

6. Accepted in 57 and 59.

7. Hereby accepted.

8. Accepted in 54.

9. Accepted in 55.

10. Accepted in 60.

11. Accepted in 61-63.

12. Hereby accepted.

13. Accepted in 71.

14. Accepted in 26 and 36.

15. Accepted in 65-71.

16. Accepted in 5-6.

17. Accepted in 65-71.

18. See 72.

56-59 Accepted in 65-71.

60-61 Hereby accepted.

COPIES FURNISHED:

Ronald G. Stowers, Esquire Suite 1701, The Capitol

Tallahassee, Florida 32399-0400

Davisson F. Dunlap, Esquire Post Office Box 10095

Tallahassee, Florida 32302-2095

Karen Barr Wilde, Executive Director Education Practices Commission

325 West Gaines Street Room 224-C 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 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-004047

Orders for Case No: 95-004047