STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education )

)

Petitioner, )

)

vs. ) CASE NO. 96-0333

)

JACK ROSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Fort Lauderdale, Florida on July 11 and 12, 1996, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

1408 North Piedmont Way Tallahassee, Florida 32312

For Respondent: Nina N. Ashenafi, Esquire

Francisco M. Negron, Jr., Esquire

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

1. Whether Respondent committed the violations alleged in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On October 3, 1995, Petitioner issued an Administrative Complaint alleging that Respondent, a certified teacher, engaged in the following conduct that warranted the taking of disciplinary action against him:

On or about August 10, 1994, Respondent telephoned one of his students, R.K., a 19-year old male who was a senior at Plantation High School, and asked him to

go to his (Respondent's) house that evening so they could discuss R.K.'s grades. Once there, Respondent engaged R.K. in a sexual conversation, suggested that R.K. work for an escort service, and they watched a porno-

graphic video. During and after the playing of the video, Respondent had R.K. masturbate his (Respondent's) erect penis. After Respondent ejaculated due to the masturbation, he turned R.K. over and committed a Sexual Battery against him (R.K.) by penetrating

his (R.K.'s) anus with his (Respondent's) penis. Thereafter, R.K., who was feeling faint and ill, went into the bathroom to vomit and clean up. Before R.K. left, Respondent gave him $20.00 and Respondent told R.K. to "consider me your first customer." Additionally, Respondent told

R.K. not to tell anyone what had happened and reminded R.K. that he (Respondent) knew where he (R.K.) lived.

According to the Administrative Complaint, such conduct was in violation of Section 231.28(1)(c), Florida Statutes, Section 231.28(1)(f), Florida Statutes, and Rules 6B-1.006(3)(a), (e) and (h), Florida Administrative Code, and therefore also Section 231.28(1)(i), Florida Statutes.

Respondent denied the allegations of wrongdoing alleged in the Administrative Complaint and requested a formal hearing on the matter. On January 17, 1996, the case was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing Respondent had requested.

The hearing was held on July 11 and 12, 1996. During the evidentiary portion of the hearing, a total of 17 witnesses testified: R.K., Barbara Pries, Devon Hughes, Claire Cohen, Carol Johns, Alfred Butler, Kenneth Kilbride and Ronald Wright, 1/ for Petitioner; and Salvatore Conti, Tanya Purdy, Rabbi Aron Lieberman, Susan Thompson, Sandra Goldberg, Gino Sabato, Frank Rager, Scott Virtue and Respondent, for Respondent. In addition to the testimony of these 17 witnesses, a total of 17 exhibits (Petitioners' Exhibits 1 and 4 through 8 and Respondent's Exhibits 1 through 3, 5 through 9 and 11 through 13) were offered and received into evidence. Among these exhibits was the deposition of Margaret Balog (Respondent's Exhibit 6), which was received into evidence, over Petitioner's objection, in lieu of Balog's live testimony, pursuant to Rule 1.330(a)(3)(B), Rules of Civil Procedure (which provides that "[t]he deposition of a witness, whether or not a party, may be used [against a party who was present or represented at the taking of the deposition or who had reasonable notice of it] for any purpose if the court finds: . . . that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of State, unless it appears that the absence of the witness was procured by the party offering the deposition"). 2/

The Hearing Officer reserved ruling on the admissibility of three exhibits (Petitioner's Exhibits 2 and 3 and Respondent's Exhibit 4) to give the parties the opportunity to present written argument in support of their respective positions on these matters. Petitioner's Exhibit 2 is a memorandum, dated May 20, 1993, from Claire Cohen, a counselor at Plantation High School, to Dave Sigler, an administrative assistant at the school, concerning a telephone conversation Cohen had with the mother of a student at the school. The memorandum reads as follows:

Per your request I will attempt to summarize my conversation with Mrs. N[] from March, 1993:

I received a call from Mrs. N[], who was rather hesitant in explaining an event that was related to her by her son, that seemed to her to be ambivalent. Her uncertainty rested on the fact that she was not very clear whether the conversation was in jest and lighthearted or a sexual advancement.

She stated that her son, J[] and Mr. Jack Rose had a conversation at school that was unsettling and "very uncomfortable" for J[].

She further stated that J[] had explained to Mr. Rose that he had just celebrated his 18th birthday and that Mr. Rose commented

"Oh, so now you are old enough to watch porno movies . . ." (I cannot remember if she said " . . . with me" or not.) I asked her if there had been any physical contact and she said she did not believe so, nor that there was any personal advancement.

The conversation concluded with us agreeing that the comment was totally inappropriate, but did not seem to warrant any formal report. However, we discussed that if there was any future incident that I would take further action with administration.

Should you need any further information, please do not hesitate to contact me.

Petitioner's Exhibit 3 is another memorandum from Cohen to Sigler. It is dated February 14, 1994, and concerns a complaint made to Cohen on February 8, 1994, by a student who alleged that Respondent agreed to change the student's grade "only after [the student] agreed to come to [Respondent's] home to watch Porno flicks." Respondent's Exhibit 4, which Respondent offered into evidence in response to Petitioner's proffer of Petitioner's Exhibits 2 and 3, is a letter, dated May 23, 1994, from Mark Seigle, the Broward County School Board's Associate Superintendent of Schools for Personnel, Policies, Government and Community Relations, to Respondent. The letter reads as follows:

This correspondence is sent as formal notice that the Professional Standards Committee met on May 18, 1994, and reviewed the investigative

report that was submitted by the Special Investi- gative Unit regarding your alleged inappropriate behavior at Plantation High School.

After careful review and consideration by the committee, it is their finding that no probable cause exists to believe these allegations are true. This report will not be a part of your personnel file.

Please contact Mr. Ron Wright, Director of Professional Standards, at 765-7077 if you have any questions or concerns regarding this matter.

In an administrative proceeding, as in a civil or criminal proceeding, "similar fact evidence of other violations, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity." Section 120.58(1)(a)2, Fla. Stat. (administrative proceedings); Section 90.404(2)(a), Fla. Stat. (civil and criminal proceedings). "When the material issue in the case is identity, mere general similarity of incidents will not render the similar [fact evidence] admissible. There must be identifiable points of similarity showing such a unique combination of characteristics that it leads to a conclusion that only the accused would have committed both [wrongs]." Lewis v. State, 654 So.2d 617, 619 (Fla. 4th DCA 1995). Even if there exists such similarity, however, where the "similar fact evidence" consists merely of uncorroborated hearsay allegations of wrongdoing, such "similar fact evidence" is inadmissible (and therefore may not be relied upon to support a finding of misconduct.) See Department of Administration, Division of Retirement v. Porter, 591 So.2d 1108, 1109 (Fla. 2d DCA 1992)(pursuant to Section 120.58(1)(a), Florida Statutes, 3/ "[h]earsay evidence is admissible in an administrative proceeding, but only when it is used to supplement or explain other evidence"); see also Sublett v.

Sumter County School Board, 664 So.2d 1178 (Fla. 5th DCA 1995)(standing alone, hearsay allegations of sexual misconduct were insufficient to provide school board with just cause to terminate teacher); Tenbroeck v. Castor, 640 So.2d 164, 167 (Fla. 1st DCA 1994)("[s]peculation, surmise and suspicion cannot form the basis of disciplinary action against a teacher's professional license"); Forehand v. School Board of Gulf County, 600 So.2d 1187, 1191-93 (Fla. 1st DCA 1992)("uncorroborated hearsay testimony of the principal [as to what certain students had told him] was legally insufficient to support a finding that Forehand had caused students to call other students by blasphemous or insulting names"); Doran v. Department of Health and Rehabilitative Services, 558 So.2d 87, 88 (Fla. 1st DCA 1990)("[b]ecause the only evidence presented by the department to show that Doran held assets in excess of the eligibility requirements for receiving ICP [Medicaid Institutional Care Services Program] benefits consisted of uncorroborated hearsay evidence, we must reverse the hearing officer's final order"). To the extent that they were offered as "similar fact evidence" to show that Respondent engaged in other inappropriate activities similar to those alleged in the Administrative Complaint, Petitioner's Exhibits 2 and 3 constitute uncorroborated hearsay evidence that would not be admissible, over objection, in a civil proceeding and they therefore are inadmissible (over Respondent's objection) in the instant administrative proceeding. Moreover, to the extent that they were offered to show that school authorities had received complaints about Respondent having engaged in inappropriate activities prior to August 10, 1994 (albeit complaints that ultimately were not substantiated), Petitioner's Exhibits 2 and 3, like Respondent's Exhibit 4 (which reflects the disposition of these prior complaints), have insufficient probative value to warrant their admission into evidence inasmuch as they add only unnecessary details to the evidentiary record. Accordingly, these exhibits (Petitioner's Exhibits 2 and 3 and Respondent's Exhibit 4) will not be received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file proposed

recommended orders and established a deadline (ten days after the Hearing Officer's receipt of the transcript of the hearing) for the filing of these post-hearing submittals. The Hearing Officer received the transcript of the hearing on July 31, 1996. On August 6, 1996, Respondent, on behalf of both parties, filed a motion requesting an extension of the deadline for the filing of proposed recommended orders. By order issued that same day, the Hearing

Officer granted the request and extended the filing deadline to August 19, 1996. On August 19, 1996, the parties timely filed their proposed recommended orders. (Petitioner also filed a separate Memorandum of Law and Argument.) The parties' post-hearing submittals have been carefully considered by the Hearing Officer.

In their proposed recommended orders, the parties have proposed "findings of fact" that they contend should be incorporated in this Recommended Order. These proposed "findings of fact" are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Since the late 1970's or early 1980's, Respondent has held Florida teaching certificate 409183, which covers the areas of administration/supervision, marketing, cooperative education, and work experience.

   
   

2. From 1977 to 1990, Respondent was employed in various capacities by the Art Institute of Fort Lauderdale.

   
   

3. In February of 1990, Respondent began teaching (three work experience classes and a dropout prevention English class) at Plantation High School, a public high school in Broward County.

   
   

4. He remained on the instructional staff at the school until his resignation as a Broward County School Board (hereinafter referred to as the "School Board") employee, which was effective October 31, 1994.

   
   

5. Respondent was respected and admired by his students and won the praise of the school administration for his teaching.

   
   

6. He received overall satisfactory written evaluations each of the school years that he taught at the school.

   
   

7. In his second year at the school, in addition to his other responsibilities, Respondent became the cooperative education coordinator of the newly-created Kaleidoscope program (hereinafter referred to simply as "Kaleidoscope").

   
   

8. Kaleidoscope is a district-wide program based at Plantation High School. It is designed to help at risk students who, because of their personal circumstances, have to work full-time obtain their high school diplomas. Students in the program have the opportunity to receive academic credit for their documented work experience. In order to receive such credit, they must submit completed time cards signed by their employers.

   
   

9. Respondent served as the part-time cooperative education coordinator of Kaleidoscope until, because of the growth of the program, a full-time

   coordinator (Claire Cohen) was hired. 4/ Following Cohen's hiring, Respondent remained involved in the program as a work experience teacher.

   
   

10. As a work experience teacher in Kaleidoscope, Respondent was responsible for collecting and reviewing the students' completed and signed time cards and awarding the students grades based upon the number of documented hours they worked during the grading period (as reflected by the time cards they submitted.)

    
    

11. Kaleidoscope students were required to submit their completed and signed time cards to Respondent on a monthly basis. The cards were due the first week of the new month. Students who did not submit completed and signed time cards were unable to receive academic credit for their work experience and they were subject to expulsion from the program.

    
    

12. Consistent with the underlying purpose of the program (which is to accommodate students experiencing difficulty participating in a regular school program because of the demands of their work schedules), Respondent gave his Kaleidoscope students the option of dropping off their signed and completed time cards at his home or, when he was not home, with his next door neighbor, Frank Rager (instead of handing them in at school or mailing them to him). Numerous students exercised this option.

    
    

13. R.K. (whose date of birth is January 4, 1975) was enrolled in Kaleidoscope (as a 12th grade student) from the end of January of 1994 to August of that year. During regular school hours, R.K. worked for his father, who had a carpet installation business. In the evening, he had classes.

    
    

14. Respondent was R.K.'s work experience teacher.

    
    

15. By the end of the spring semester of the 1993-94 school year, R.K. had yet to submit to Respondent any completed and signed time cards.

    
    

16. On or about June 17, 1994, Respondent contacted R.K. and reminded him that he needed to hand in these time cards in order to receive a passing grade for the semester. R.K. agreed to meet with Respondent at school and provide Respondent with the necessary time cards.

    
    

17. R.K. did not show up for the meeting, much less hand in the time cards. Consequently, he did not receive a passing grade for the (1993-94) spring semester.

    
    

18. R.K. re-enrolled in Kaleidoscope for the (1994) summer session.

    
    

19. In July of 1994, Respondent again spoke with R.K. He told R.K. that he would change R.K.'s grade for the (1993-94) spring semester to a passing grade if R.K. submitted (albeit belatedly) the requisite completed and signed time cards. (R.K. still had not turned in any completed and signed time cards for either the spring semester or the summer session.) Arrangements were made for Respondent and R.K. to meet on July 18, 1994.

    
    

20. R.K. did not appear at the scheduled July 18, 1994, meeting.

    
    

21. Respondent thereafter made another appointment to meet with R.K. This meeting was scheduled for August 3, 1994.

    
    

22. R.K. was a "no show" at this meeting as well.

23. Still not having received any completed and signed time cards from R.K., Respondent, on August 9, 1994, telephoned R.K. and warned him that, if he did not come to school the following morning and meet with Respondent, he would receive a failing grade for the summer session (as he had for the spring semester) and be recommended for expulsion from the Kaleidoscope program.

    
    

24. The following morning (August 10, 1994), at around 7:45 a.m., R.K. came to school and met with Respondent, but he did not have with him any of the signed and completed time cards he needed to submit in order to receive passing grades (for the spring semester and summer session) from Respondent. He explained to Respondent that he intended to visit his brother (who was his supervisor at work) and have his brother complete and sign these time cards later that day. In addition to discussing his time cards, R.K. also spoke to Respondent about a personal matter. He told Respondent that he was very upset because he had just broken up with his girlfriend, R.R. (who was also in Kaleidoscope). He wanted to talk to Respondent further about the matter, but Respondent needed to leave to teach a class. Inasmuch as R.K.'s brother was located only approximately five minutes from Respondent's apartment, Respondent suggested that R.K., after having his brother complete and sign the time cards, drop by Respondent's apartment with the time cards, at which time he and Respondent could resume their conversation. R.K. agreed to telephone Respondent at home later that day, between 5:00 and 5:30 p.m., so that they could make more definite arrangements.

    
    

25. At around 5:00 p.m. that day, R.K. telephoned Respondent and asked if it was still okay for him to come over to Respondent's apartment that evening. After confirming that R.K. had the necessary completed and signed time cards, Respondent told R.K. that the offer he had made that morning still stood. He was about to give R.K. directions to his apartment, when R.K. advised that he needed to hang up and telephone a friend. R.K. promised to call Respondent back in five minutes.

    
    

26. More than five minutes passed without R.K. calling back. Rather than wait any longer for R.K.'s return call, Respondent took the initiative and telephoned R.K. R.K. was still on the phone with his friend when Respondent called. He put his friend "on hold" and answered Respondent's call. 5/ He told Respondent that he was still interested in meeting that evening. Arrangements were made for R.K. to come over to Respondent's apartment (to which Respondent gave R.K. directions) at 7:00 p.m. that evening.

    
    

27. R.K. arrived at Respondent's apartment at approximately 7:00 p.m., as scheduled, at which time he gave Respondent the time cards his brother had filled in and signed earlier that day.

    
    

28. Respondent reviewed R.K.'s time cards. After completing his review, he informed R.K. that everything was fine and that there was nothing further that R.K. needed to do in order to receive passing grades (for the spring semester and summer session) in his work experience classes.

    
    

29. Respondent then invited R.K. to sit down at the dining room table with him and share a pizza that Respondent had ordered for dinner. 6/ R.K. accepted the invitation.

    
    

30. Respondent served R.K. a soft drink along with the pizza. Respondent also drank a soft drink.

31. After they finished eating dinner, Respondent gave R.K. a tour of his apartment.

    
    

32. Respondent and R.K. discussed a number of topics that evening, including R.K.'s relationship with R.R., R.K.'s former girlfriend.

    
    

33. Among other things, R.K. told Respondent that he believed that R.R. was now working for an escort service. Respondent explained to R.K. that people who worked for an escort service were essentially engaging in prostitution. He then suggested to R.K. that he go to work for an escort service as an escort for male clients.

    
    

34. Respondent's suggestion made R.K. feel uncomfortable. In an effort to change the subject of the conversation, R.K. walked into the living room, where Respondent had a collection of movie videos, and browsed through Respondent's collection. A movie he liked very much, "Misery," was among those Respondent had in his collection. R.K. asked Respondent if they could view this movie.

    
    

35. Respondent told R.K. that he would rather watch another movie, which he went into his bedroom to retrieve.

    
    

36. When he returned, he played the movie.

    
    

37. It was a pornographic movie.

    
    

38. R.K. began to feel even more uncomfortable and he became very nervous.

    
    

39. During the playing of the movie, Respondent became sexually aroused. He unzipped his pants and exposed himself. He then began masturbating.

    
    

40. After a while, Respondent took R.K.'s hand and moved it up and down Respondent's penis. Respondent then touched R.K. (through R.K.'s clothes) in the area of R.K.'s penis. In so doing, Respondent acted without R.K.'s consent.

    
    

41. Respondent was a large man. At the time of the incident, he stood six feet tall and weighed approximately 246 pounds. Although Respondent did not physically prevent R.K. from leaving the apartment or threaten R.K., R.K. feared that, if he did not do what Respondent wanted, Respondent would harm him.

    
    

42. Accordingly, when Respondent asked R.K. to go into Respondent's bedroom and lie down on Respondent's bed with Respondent, R.K. complied; and when (while on the bed) Respondent continued to guide R.K.'s hand up and down his (Respondent's) penis (on which Respondent had applied petroleum jelly) and to stroke with his (Respondent's) hand R.K.'s penis, R.K. did not resist. 7/

    
    

43. These actions caused Respondent (who was wearing only his underwear 8/ ) to become more sexually aroused. Ultimately, Respondent ejaculated.

    
    

44. Thereafter, R.K. passed out. When he regained consciousness, he was lying on his stomach on Respondent's bed. His pants and underwear had been pulled down and his entire body was sore. 9/

    
    

45. After seeking and obtaining Respondent's permission, R.K. went to the bathroom, where he vomited.

    
    

46. Respondent waited for R.K. outside the bathroom door. When R.K. came out of the bathroom, Respondent told him that he should consider him

    (Respondent) his first customer. Respondent then gave R.K. twenty dollars. R.K., who was very anxious to leave, accepted the money and promised Respondent that he would not say anything about what had happened that evening. He then walked out of the apartment and got into his car.

    
    

47. Although it was late (sometime after 11:00 p.m.), Respondent did not go directly home. Instead, he went to the home of Barbara Pries, the mother of a girl he had once dated and with whom he was still friendly. R.K. had known Pries for approximately seven years and felt comfortable talking with her and seeking her advice regarding personal matters. In fact, he felt more comfortable discussing these matters with Pries (who considered R.K. to be like a son) than with his own parents.

    
    

48. R.K. attempted to tell Pries what had occurred earlier that evening at Respondent's apartment. He was jittery and visibly upset and shaken. His face was pale. Pries had never before seen R.K. act or look the way he did on this occasion. It took R.K. approximately two hours to tell Pries what had happened. 10/ He used gestures, rather than words, to indicate where he had been touched. 11/

    
    

49. Pries urged R.K. to tell his parents (in person) about the incident.

    R.K. reacted negatively to such advice. He told Pries that he did not want to speak to anybody else regarding what had happened.

    
    

50. R.K. left Pries' home at approximately 3:30 a.m.

    
    

51. Subsequently, he confided in his former girlfriend, R.R., and told her about the incident at Respondent's apartment. R.R. insisted that R.K. report Respondent to school officials. He was initially reluctant to do so, but after a couple of days, he finally agreed with R.R. that school officials should be notified.

    
    

52. With R.K.'s approval, on or about August 15, 1996, R.R. provided such notification.

    
    

53. The following morning, R.K. went to Plantation High School to give a statement to school officials about the incident. 12/ He was accompanied by R.R.

    
    

54. After arriving at the school, he headed to Claire Cohen's office. Respondent spotted R.K. and followed him into Cohen's office, where he angrily confronted R.K. Respondent (whose office was on the other side of the school) was ultimately escorted out of the office by a school resource officer.

    
    

55. Later that morning, R.K. gave his statement to school officials.

    
    

56. Cohen was present when R.K. gave his statement.

    
    

57. On August 17, 1994, she wrote the following memorandum regarding R.K.'s statement and her reaction to the statement:

    
    

    After a major incident between [R.K.], [a] student enrolled in Kaleidoscope and Mr. Jack Rose, Work Experience Instructor, a taped testimony was made by [R.K.] on August 16, 1994.

    Throughout the taping, it was evident that

    [R] was experiencing a great deal of emotional distress. He also verbalized that fact. On the tape, I recommended to [R] that I could refer him to several counselors. He then could pick someone of his choice. Initially he declined but when I suggested he could use

    these names when he felt ready, he was agreeable.

    
    

    That evening, (August 16, 1994), I telephoned

    [R] and his parents out of concern. I spoke to [R], then his mother. I again recommended counseling. Mrs. [K] said that she would contact her family physician for referrals.

    
    

    My hope is that the [K's] follow up.

    
    

58. R.K. sought and received counseling from his priest.

    
    

59. As a result of the incident, he dropped out of Kaleidoscope. He has yet to receive his high school diploma.

    
    

60. Respondent was placed on administrative leave, effective August 16, 1994, pending the School Board's investigation of the incident.

    
    

61. By letter dated September 21, 1994, Respondent was notified that the School Board's Professional Standards Committee had found that there existed "probable cause to believe that [he had] violated the Code of Ethics as well as the Principles of Professional Conduct for the Education Profession in the State of Florida." The letter further advised that a "pre-disciplinary conference" on the matter was scheduled for September 27, 1994.

    
    

62. The "pre-disciplinary conference" was held on September 27, 1994, as scheduled. At the conference, Respondent was informed that the School Board intended to initiate termination proceedings against him and to refer his case to Professional Practices Services and to the Broward County State Attorney's Office.

    
    

63. On September 28, 1994, Respondent submitted a letter of resignation to the School Board. The letter read as follows:

    
    

    This correspondence is submitted as notice

    of my irrevocable resignation from my employ- ment as a teacher with the Broward County School Board effective October 31, 1994.

    This resignation is submitted for personal reasons.

    
    

    CONCLUSIONS OF LAW

    
    

64. The Education Practices Commission (hereinafter referred to as the "Commission") is statutorily empowered to take disciplinary action against the holder of a Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to

    exceed three years; imposition of an administrative fine not to exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the Commission may specify. Sections 231.261(8)(b), 231.262(6) and 231.28(1), Fla. Stat.

    
    

65. Subsection (1)(c) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as been guilty of gross immorality or an act involving moral turpitude."

    
    

66. Chapter 231, Florida Statutes, does not define the terms "gross immorality" or "an act involving moral turpitude." See Sherburne v. School Board of Suwannee County, 455 So.2d 1057, 1061 (Fla. 1st DCA 1984).

    
    

67. Rule 6B-4.009, Florida Administrative Code (which deals with dismissal actions initiated by school boards against instructional personnel pursuant to Section 231.36, Florida Statutes), however, provides guidance to those seeking to ascertain the meaning of these terms, as they are used in subsection (1)(c) of Section 231.28, Florida Statutes. See Castor v. Lawless, EPC Case No. 91- 170-RT (EPC November 12, 1992)(Final Order).

68. Rule 6B-4.009(2), Florida Administrative Code, defines "immorality" as conduct that is inconsistent with the stand-

    ards of public conscience and good morals.

    It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual'sservice in the community.

    
    

69. "Gross immorality," as the term suggests, is misconduct that is more egregious than mere "immorality." It is "immorality which involves an act of conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." See Turlington v. Knox, 3 FALR 1373A, 1374A (EPC 1981)(Final Order).

    
    

70. 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 doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

71. Subsection (1)(f) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board."

    
    

72. Subsection (1)(i) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as

    otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate."

    
    

73. Rule 6B-1.006, Florida Administrative Code, contains the "Principles of Professional Conduct for the Education Profession in Florida." Certificate revocation is one of the penalties prescribed in the rule for violation of these principles. Rule 6B-1.006(2), Fla. Admin. Code.

    
    

74. Subsection (3)(a) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "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."

    
    

75. Subsection (3)(e) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not intentionally expose a student to unnecessary embarrassment or disparagement."

    
    

76. Subsection (3)(h) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not exploit a relationship with a student for personal gain or advantage."

    
    

77. The foregoing statutory and rule provisions are "in effect, . . . penal statute[s and rules] . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

78. A teacher's certificate may be suspended or revoked based upon the foregoing statutory and rule provisions only if the grounds for suspension or revocation are established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); McKinney v. Castor, 667 So.2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So.2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So.2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

79. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129,

    133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

80. In the instant case, the Administrative Complaint issued against Respondent alleges that he engaged in sexual misconduct with a student at his (Respondent's) apartment on or about August 10, 1994. It is undisputed that the

    student in question, R.K., visited Respondent at Respondent's apartment on the evening of August 10, 1994. There is disagreement, however, as to what occurred during R.K.'s visit.

    
    

81. The two persons who were present in the apartment that evening, R.K. and Respondent, both testified at the final hearing. They gave widely differing accounts of what happened after R.K. arrived at the apartment. R.K.'s testimony supports the allegations made in the Administrative Complaint that

    
    

    Once there [in Respondent's apartment], Res- pondent engaged R.K. in a sexual conversation, suggested that R.K. work for an escort service, and they watched a pornographic video. During and after the playing of the video, Respondent had R.K. masturbate his (Respondent's) erect penis. . . . Thereafter, R.K., who was feeling faint and ill, went into the bathroom to vomit and clean up. Before R.K. left, Respondent

    gave him $20.00 and Respondent told R.K. to "consider me your first customer." 13/

    
    

    In his testimony, Respondent denied these allegations. The outcome of the instant case hinges upon how the Hearing Officer resolves these conflicts in R.K.'s and Respondent's testimony.

    
    

82. Having carefully considered the matter, the Hearing Officer has accepted R.K.'s version of what transpired in Respondent's apartment during R.K.'s visit on the evening of August 10, 1994. R.K. (whose testimony was not inherently unreasonable or implausible) had no apparent reason to testify against Respondent other than to tell the truth. 14/ Respondent, on the other hand, had a motive to give false testimony: the avoidance of punishment. It is the Hearing Officer's belief that R.K. described the events of the evening as accurately and completely as he could, 15/ whereas Respondent fabricated a story 16/ (rich in details) 17/ to save his teaching license. 18/

    
    

83. R.K.'s testimony, although uncorroborated, constitutes clear and convincing evidence that Respondent engaged in the misconduct alleged in the excerpt from the Administrative Complaint set forth in Conclusion of Law 81. See Section 120.58(1)(a)3.a, Fla. Stat.("in a proceeding against a licensed professional . . . which involves allegations of sexual misconduct: The testimony of the victim of the sexual misconduct need not be corroborated").

    
    

84. By engaging in such misconduct, Respondent violated Section 231.28(1)(c), Florida Statutes, Section 231.28(1)(f), Florida Statutes, and Rules 6B-1.006(3)(a), (e) and (h), Florida Administrative Code, and therefore also Section 231.28(1)(i), Florida Statutes, as further alleged in the Administrative Complaint.

    
    

85. Accordingly, the Commission is authorized to take disciplinary action against Respondent pursuant to Section 231.28(1), Florida Statutes.

    
    

86. In determining what disciplinary action the Commission should take, it is necessary to consult Rule 6B-11.007, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Commission. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(an agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

87. Rule 6B-11.007, Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    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. In those cases in which the

       Commission relies on aggravating or mitigating factors to depart from the ranges in these disciplinary guidelines, such aggravating and mitigating factors shall be stated in the record of the case and the Final Order imposing the applicable penalty.

       
       

    2. The following disciplinary guidelines shall apply to violations of the below listed

       statutory and rule violations and to the described actions which may be the basis for determining violations of particular statutory or rule provisions. Each of the following disciplinary guidelines shall be interpreted to include "probation" with applicable terms thereof as an additional penalty provision. . . .

       
       

       (h) Sexual misconduct with any student or any minor in violation of S. 231.28(1)(c),(f),(i), F.S., Rule 6B-1.006(3)(a),(e),(g),(h), (4)(c), F.A.C.

       
       

       Suspension-Revocation . . . .

       
       

    3. Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors:

       
       

       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;

       9. The effect of the penalty upon the educator's livelihood;

       10. Any effort of rehabilitation by the educator;

       11. The actual knowledge of the educator pertaining to the violation;

       12. Employment status;

       13. Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation;

       14. Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;

       15. Actual negligence of the educator pertaining to any violation;

       16. Penalties imposed for related offenses under subsection (2) above;

       17. Pecuniary benefit or self-gain inuring to the educator;

       18. Degree of physical and mental harm to a student or a child;

       19. Present status of physical and/or mental condition contributing to the violation including recovery from addiction;

       20. Any other relevant mitigating or aggravating factors under the circumstances. . . .

           
           

88. Having carefully considered the facts of the instant case in light of the provisions of Rule 6B-11.007, Florida Administrative Code, set forth above, the Hearing Officer concludes that the Commission should discipline Respondent for having committed the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint (which have been proven by clear and convincing evidence) by permanently revoking his teaching certificate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations of subsection (1) of Section 231.28, Florida Statutes, alleged in the Administrative Complaint and disciplining him for having committed these violations by permanently revoking his teaching certificate.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of September, 1996.

STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1996.

ENDNOTES

1/ Wright is the Director of Professional Standards for the School Board of Broward County. He is also a member of the Education Practices Commission, the "agency" (within the meaning of Section 120.52(1), Florida Statutes) which will be issuing the final order in the instant case. (Because he testified at the hearing, Wright should not participate in the review of this Recommended Order. See Ridgewood Properties, Inc. v. Department of Community Affairs, 562 So.2d 322, 324 (Fla. 1990)("[w]e do not say an agency head cannot testify in an administrative hearing or even that one could testify not to a technical matter and still sign the final order," but "when an agency head does testify to a material fact in an administrative hearing, review of the hearing officer's proposed order should be undertaken by a neutral, disinterested third party;" "it is a violation of a party's due process rights in an administrative proceeding for the department head to testify on a material, disputed issue and then review the hearing officer's findings of fact and conclusions of law").

Wright testified as a fact and expert witness. (Contrary to the assertions made by Petitioner, Wright's expert testimony did not constitute inadmissible opinion testimony concerning matters of law. See Noa v. United Gas Pipeline Company, 305 So.2d 182, 185-86 (Fla. 1974); McKinney v. Castor, 667 So.2d 387, 389

(Fla.1st DCA 1995); Langston v. Jamerson, 653 So.2d 489, 491 (Fla. 1st DCA

1995); Woodard v. Professional Practices Council, 388 So.2d 343, 344 (Fla. 1st

DCA 1980).)

2/ Contrary to the argument advanced by Petitioner in support of its objection to the admission of Balog's exhibit into evidence, the proof submitted by Respondent was sufficient to establish that Balog was out of the State of Florida and more than 100 miles from the hearing site at the time of hearing.

See Colonnades, Inc., v. Vance Baldwin, Inc., 318 So.2d 515 (Fla. 4th DCA 1975)(a trial court is not prohibited "from relying solely upon the deponent's deposition testimony in finding that the required predicate for the use of the deposition has been established;" the deponent's statement in the deposition (taken three days before the trial) that he "lived in Birmingham, Alabama, and that he would not be in West Palm Beach, Florida on July 3 to attend the scheduled trial" was sufficient to establish a predicate for the admissibility of the deposition under Rule 1.330(a)(3)(B), Florida Rules of Civil Procedure; the appellate court rejected the suggestion "that trial counsel who wishes to use [a] deposition on the grounds of the unavailability of the witness should be prepared, as a minimum requirement, to contact the witness by telephone or other means immediately prior to the time the deposition is to be used so that counsel may assure the court of the deponent's unavailability as of the time the deposition is proffered").

3/ Section 120.58(1)(a)1, Florida Statutes, provides that, in a Section 120.57 administrative proceeding, "[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."

4/ At the time of Cohen's hiring, the program had an enrollment of approximately 50 students.

5/ The telephone R.K. was using had a "call-waiting" feature.

6/ Respondent had been involved in an automobile accident the previous month and was still experiencing some pain and discomfort from the injuries he had suffered as a result of the accident. During the period of his recuperation, he frequently had meals (such as pizza) delivered to his home. On other occasions, friends, including Salvatore Conti and Conti's wife, brought him dinner. (Conti and his wife also telephoned Respondent on a fairly regular basis after the accident to see how he was doing.)

7/ Respondent was positioned in such a manner on the bed that R.K.'s freedom of movement was limited.

8/ Respondent has several large scars on his body that R.K. did not notice (or at least does not remember noticing) during his encounter with Respondent.

9/ R.K. believed that it was possible that he may have been anally penetrated by Respondent while he was unconscious.

10/ In describing the incident, R.K. told Pries that it involved one of his teachers. He did not identify Respondent by name as his assailant.

11/ Pries understood R.K. to say that he had been pushed down before being touched.

12/ At no time, however, did R.K. file with any law enforcement agency a formal written complaint against Respondent.

13/ The Administrative Complaint also alleges that Respondent "committed a Sexual Battery against him (R.K.) by penetrating his (R.K.'s) anus with his (Respondent's) penis." While R.K.'s testimony may lead one to speculate (as

R.K. himself did) that Respondent committed such a "Sexual Battery" while R.K. was passed out on Respondent's bed, whether such testimony is believed or not, it falls short of the clear and convincing evidence needed to support a finding that Respondent engaged in such conduct. See Tenbroeck v. Castor, 640 So.2d 164, 167 (Fla. 1st DCA 1994).

14/ It is the absence in the record of any persuasive answer to the question of why R.K. would make these allegations against Respondent if they were not true which, in the view of the Hearing Officer, tips the balance in favor of a determination that, to the extent there is a conflict, R.K.'s account of the events of the evening should be credited over Respondent's version of those events.

15/ Although R.K. was unable to provide information regarding certain details regarding his visit, it appears that his failure to be exact and precise did not reflect a lack of candor and sincerity on his part, but rather was simply the product of his not correctly remembering these details.

16/ In assessing the credibility of Respondent's testimony, the Hearing Officer has taken into consideration the character evidence Respondent adduced (as well as the other evidence Respondent presented in his defense), but has nonetheless determined (based upon his review of all the evidence) that it was Respondent (and not R.K.) who was being untruthful about what had occurred that evening.

See Pauline v. Lee, 147 So.2d 359, 363 (Fla. 2d DCA 1962)(in rejecting the argument that certain witnesses had to be believed "because the testimony of a

witness who testified as to the[ witnesses] good character st[ood] unrefuted by any opposing testimony impeaching their credibility," the appellate court stated that "[w]e know of no rule of evidentiary law which requires a fact finder to believe a witness simply because another testifies as to his good character").

17/ The Hearing Officer agrees with the observation made by Petitioner in its Memorandum of Law and Argument that "Respondent's recall at the hearing on July 12, 1996, of times and events on the evening of August 10, 1994, are unbelievably precise and exact."

18/ "Persons having a pecuniary or proprietary interest in the outcome of litigation are not disqualified from testifying under the Florida Evidence Code," but their interest is a factor to be considered in evaluating the credibility of their testimony. Martuccio v. Department of Professional Regulation, Board of Optometry, 622 So.2d 607, 609 (Fla. 1st DCA 1993).

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 96-0333

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their proposed recommended orders:

Petitioner's Proposed Findings

1-3. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

4. To the extent that this proposed finding states that R.K. was enrolled in Respondent's class in the Kaleidoscope program "from the beginning of the [1993-94] school year" (rather than from the end of January of 1994), it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted as true and incorporated in substance.

5-15. Accepted as true and incorporated in substance.

16. First and second sentences: Accepted as true and incorporated in substance; Third sentence: Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

17-19. Accepted as true and incorporated in substance.

1. First sentence: Accepted as true and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact. See T.S.

   v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)(hearing officer's factual findings which "merely summarize[d] the testimony of witnesses" were "insufficient").

2. First and third sentences: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

22-25. Accepted as true and incorporated in substance.

26. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

27-28. Accepted as true and incorporated in substance.

1. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. To the extent that this proposed finding states that it is not possible that R.K. left Respondent's apartment before midnight, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted as true and incorporated in substance.

3. First and fourth sentences: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

4. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. Accepted as true and incorporated in substance.

6. First, third, fourth and fifth sentences: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

7. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

36-40. Accepted as true and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

2. Rejected as a finding of fact because it is more in the nature of argument concerning the credibility of testimony adduced at hearing than a finding of fact.

Respondent's Proposed Findings

1. Accepted as true and incorporated in substance.

2-4. Accepted as true, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. To the extent that this proposed finding states that "[b]etween 1977 and 1980, Mr. Rose taught at the Art Institute of Fort Lauderdale," it has been accepted as true and incorporated in substance. The remainder of this proposed finding has been accepted as true, but has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

7-10. Accepted as true and incorporated in substance. 11-12. Accepted as true and incorporated in substance.

1. First sentence: Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

2. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

16-17. Accepted as true, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

18. Accepted as true and incorporated in substance.

19-20. Accepted as true, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. To the extent that this proposed finding states that R.K. was enrolled in Kaleidoscope until June of 1994 (rather than August of 1994), it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted as true and incorporated in substance.

2. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

3. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence: Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. First sentence: Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

25-26. Accepted as true, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted as true and incorporated in substance.

2. To the extent that this proposed finding states that the events described therein occurred in 1995 (rather than 1994), it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted as true and incorporated in substance.

3. Accepted as true and incorporated in substance.

4. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. Accepted as true and incorporated in substance.

6. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

33-34. Not incorporated in this Recommended Order because, even if true, they would not alter the outcome of the instant case.

35. First and second sentences: Accepted as true and incorporated in substance; Third and fourth sentences: Accepted as true, but not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

36-39. Accepted as true and incorporated in substance.

1. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

2. First sentence: To the extent that this proposed finding states that during late July of 1994 and August of 1994, Respondent was experiencing pain as a result of injuries that he had suffered in an automobile accident, it has been accepted as true and incorporated in substance. To the extent that it states that, on August 10, 1994, the pain and injuries were so debilitating that he "was unable to fend for himself," it has been rejected because it is based upon evidence that is not credible; Second and third sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony

   adduced at hearing than findings of fact; Fourth sentence: Accepted as true and incorporated in substance.

3. Rejected because it is based upon evidence that is not credible.

4. Before comma: Accepted as true and incorporated in substance; After comma: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

5. Rejected because it is based upon evidence that is not credible.

6. To the extent that this proposed finding states that R.K. told Respondent that he (R.K.) believed that R.R. was working for an escort service, it has been accepted as true and incorporated in substance. The remainder of this proposed finding has not been incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

46-47. Rejected because they are based upon evidence that is not credible.

1. Accepted as true and incorporated in substance.

2. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case; Third sentence: Rejected because it is contrary to the greater weight of the evidence.

3. Accepted as true and incorporated in substance.

51-52. Rejected because they are based upon evidence that is not credible.

53. Last sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Remaining sentences: Rejected because they are based upon evidence that is not credible.

54-56. Rejected because they are based upon evidence that is not credible.

1. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

2. To the extent that this proposed finding states that, after seeking and obtaining Respondent's permission, R.K. went to the bathroom, it has been accepted as true and incorporated in substance. To the extent that it states that R.K. "was out of Mr. Rose's sight for approximately 10 minutes," it has not been incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

3. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

60-61. Rejected because they are contrary to the greater weight of the evidence.

1. First, second and third sentences: Rejected because they are not supported by credible evidence; Fourth sentence: Accepted as true and incorporated in substance.

2. To the extent that this proposed finding states that such a conversation took place at 9:00 p.m. on August 10, 1994, it has been rejected because it is not supported by credible evidence.

64-65. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact.

66. To the extent that this proposed finding states that Respondent has several large scars on his body, it has been accepted as true and incorporated in substance. To the extent that it states that, under the circumstances described in R.K.'s testimony, these scars should have been "readily noticeable" to R.K., it has been rejected because it lacks sufficient evidentiary/record support.

67-69. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact.

1. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence: To the extent that this proposed finding states that Respondent did not physically prevent R.K. from leaving the apartment, it has

   been accepted as true and incorporated in substance. To the extent that it states that Respondent did not restrain R.K. "in any way," it has been rejected because it is contrary to the greater weight of the evidence.

2. Accepted as true and incorporated in substance.

3. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. To the extent that this proposed finding states that R.K. arrived at Pries' home at 1:30 a.m. on August 11, 1994, it has not been incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case. Otherwise, it has been accepted as true and incorporated in substance.

5. Accepted as true and incorporated in substance.

6. To the extent that this proposed finding states that R.K. told Pries that it was "through his clothing" that he had been touched, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted as true and incorporated in substance.

7. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

8. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

9. Last sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Remaining sentences: Rejected because they lack sufficient evidentiary/record support.

10. First sentence: Rejected because it lacks sufficient evidentiary/record support; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

11. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case; Third sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

81-85. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact.

86. Accepted as true, but not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

87-88. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact.

89-90. Accepted as true and incorporated in substance.

COPIES FURNISHED:

J. David Holder, Esquire 1408 North Piedmont Way Tallahassee, Florida 32312

Nina N. Ashenafi, Esquire Francisco M. Negron, Jr., Esquire

118 North Monroe Street Tallahassee, Florida 32399-1700

Karen Barr Wilde, Executive Director Education Practices Commission

224-B 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 10 days in which to submit written exceptions. Some agencies allow a larger period of time 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: 96-000333

Orders for Case No: 96-000333