STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

as Commissioner of Education,1 )

)

Petitioner, )

)

vs. ) Case No. 00-4353PL

)

ALTHEA E. TATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 16, 2001, via video teleconference, with the Petitioner and the Respondent appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who was present in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates

300 Southeast 13th Street

Fort Lauderdale, Florida 33316-1924

For Respondent: Harold Long, Jr., Esquire

99 Northwest 183rd Street, Suite 127 North Miami Beach, Florida 33137

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations set forth in the Administrative Complaint dated June 6, 2000, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated June 6, 2000, Tom Gallagher, as the Commissioner of Education ("Commissioner"), alleged that Althea E. Tate

entered an inappropriate romantic relationship with a male student, L.R. [Louis Robinson]. Respondent [Ms. Tate] and the student had sexual intercourse on several occasions. On or about April 27, 1997, Respondent engaged in a physical altercation with the male student at the school, and after the altercation Respondent was taken to the principal's office where she admitted to having a sexual relationship with the student.

On the basis of these allegations, the Commissioner charged that Ms. Tate had violated Section 231.28(1)(c), Florida Statutes, in that she was guilty of gross immorality or an act involving moral turpitude;2 Section 231.28(1)(f), Florida Statutes, in that she engaged in personal conduct that seriously reduces her effectiveness as an employee of the school board;3 and

Section 231.28(1)(i), Florida Statutes, in that she violated the Principles of Professional Conduct for the Education Profession.4 The Commissioner further charged that Ms. Tate had violated

Rule 6B-1.006(3)(a), Florida Administrative Code, in that she

had failed to protect a student from conditions harmful to learning and/or to a student's mental and/or physical health; Rule 6B-1.006(3)(e), Florida Administrative Code, in that she intentionally exposed a student to unnecessary embarrassment or disparagement; and Rule 6B-1.006(3)(h), Florida Administrative Code, in that she exploited a relationship with a student for personal gain. In the Administrative Complaint, the Commissioner seeks imposition of disciplinary sanctions of

Ms. Tate's educator's certificate, including suspension or revocation.

Ms. Tate disputed the allegations in the Administrative Complaint that she had engaged in an inappropriate romantic relationship with a student, that she had sexual intercourse with that student, and that she had admitted to the relationship in the principal's office. She requested a settlement option as well as a formal hearing; in due course, the Commissioner transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge.

Pursuant to notice, the final hearing was conducted on February 16, 2001.

At the hearing, the Commissioner presented the testimony of the following witnesses: Louis Allen, Principal of Miami Jackson Senior High School ("Miami Jackson"); Sharon Lewis, formerly an Assistant Principal of Miami Jackson; Donnell

Jackson, a coach at Miami Jackson; and Ronald Fore, a Sergeant with the Miami-Dade County School Police Department of Internal Affairs Unit. Petitioner's Exhibits 1 through 5 and 7 were offered and received into evidence.

Ms. Tate testified in her own behalf and presented the testimony of the following witnesses: Alba Tur Allison, a teacher at Miami Jackson; Maria H. Arenas, an Assistant Principal at Horace Mann Middle School; and Louis Benjamin Robinson,5 a former student at Miami Jackson. Respondent's Exhibits 1 through 3 were offered and received into evidence. On May 1, 2001, the Respondent filed a Motion to Supplement the Record, in which she noted that Respondent's Exhibit 3 had not been included in the copy of the transcript that she received. That exhibit is part of the record of the Division of

Administrative Hearings, and the motion is, therefore, denied as superfluous.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on March 30, 2001; the videotape of Mr. Robinson's testimony was filed on May 7, 2001. The parties were to file proposed findings of fact and conclusions of law within 20 days after the transcript was filed with the Division of Administrative Hearings, that is, on or before April 19, 2001. The Petitioner timely filed his proposals, but the Respondent did not do so. Rather, the

Respondent requested an extension of time in a motion filed on May 1, 2001; after considering the grounds for the motion and the objections of the Petitioner, the motion was granted in an order entered May 4, 2001. The Respondent filed her proposals on May 11, 2001, and the Petitioner filed a response to the Respondent's proposals on May 16, 2001.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Education Practices Commission is the entity responsible for imposing discipline against an educator's certificate, and the Commissioner is charged with the responsibility for filing and prosecuting a complaint against a person holding a Florida educator's certificate.

   Section 231.262, Florida Statutes.

   
   

2. Ms. Tate holds Florida Educator's Certificate number 452586, covering the area of physical education; the certificate is valid through June 30, 2004.

3. At all times material to this proceeding, Ms. Tate was employed as a Driver's Education teacher at Miami Jackson, where she had taught since the late 1970's. She is currently assigned as a teacher to Horace Mann Middle School ("Horace Mann"), where she has been teaching for four years.

4. Ms. Tate enjoyed a good relationship with the staff, faculty, and students at Miami Jackson, and she has a reputation at Miami Jackson as a good teacher. Ms. Tate also enjoys an exceptionally good relationship with her students at Horace Mann and works well with parents.

5. At the times material to this proceeding, Louis Robinson was 18 years old and a senior at Miami Jackson.

   Mr. Robinson had been a student in Ms. Tate's class two or three years prior to the incident leading to the filing of the Administrative Complaint at issue herein.

6. On April 29, 1997, Ms. Tate led her class into the area of the school where the auto repair and auto body shops are located. At the time, two instructors, Mr. Joyner and

   Mr. Jackson supervised that area; Mr. Joyner supervised the actual shop areas, and Mr. Jackson supervised the students in the adjoining classroom. Mr. Jackson also coached the Miami Jackson track team, and, when he had to leave the classroom early to prepare for a track meet, Ms. Tate sometimes took her class to the classroom adjoining the shop area and supervised both her students and the shop students in the classroom. It was for this purpose that she took her class to the area of the auto shops on April 29, 1997.

7. Mr. Robinson was sanding an automobile in the auto body shop with two classmates when Ms. Tate passed close to him as

   she led her class through the auto shops to the classroom.

   
   

   Mr. Robinson had smoked marijuana with two other students during the lunch hour, and he was high at the time. Ms. Tate left her class, walked a few feet to where Mr. Robinson was working, and said a few words to him. Apparently without provocation,

   Mr. Robinson spit in Ms. Tate's face, and she responded by kicking out at him.6 Ms. Tate then turned away, but Mr. Robinson grabbed her from behind and began choking her. Mr. Jackson, who saw the incident, rushed over and pulled Mr. Robinson off of

   Ms. Tate. Ms. Tate refused to report the incident and left the immediate area of the auto body shop. Mr. Robinson returned to sanding the automobile.

8. Mr. Robinson attacked Ms. Tate a second time a few minutes later, as she was leaving the auto-shop area with her students. During the second attack, Mr. Robinson hit Ms. Tate at least once with his fist and knocked her down onto the floor. Mr. Jackson again pulled Mr. Robinson off of Ms. Tate, who was shocked and confused by the assault.

9. At some point after the altercation, Ms. Tate was summoned to the principal's office. Mr. Allen, the principal of Miami Jackson, and Ms. Lewis, an assistant principal, testified at the final hearing that Ms. Tate was very distraught. They further testified that Ms. Tate admitted to them that she had

   had a sexual relationship with Mr. Robinson and that Ms. Tate told them she was five months pregnant.

10. Both Mr. Allen and Ms. Lewis deny ever talking with Mr. Robinson about the altercation or the existence of a sexual relationship between him and Ms. Tate, although Mr. Robinson recalls being taken to the office immediately after the altercation and speaking with both of them. Mr. Robinson testified that Mr. Allen asked if there was "anything going on" between him and Ms. Tate, that he told them, "Yes," and that no details were discussed. According to Mr. Robinson, this was the extent of his conversation with Mr. Allen and Ms. Lewis that afternoon.

11. The next morning, Mr. Allen met with Mr. Robinson's parents, and, after the conversation, Mr. Robinson was transferred to another high school for the remainder of his senior year. Mr. Robinson's parents did not make any mention to him of the alleged sexual relationship between him and Ms. Tate.

12. Based on the report submitted by Mr. Allen, the Miami- Dade County School Board ("School Board") conducted an investigation to determine whether Ms. Tate and Mr. Robinson had been involved in a sexual relationship. During an interview with the School Board investigator on May 9, 1997, Mr. Robinson stated that he and Ms. Tate had been involved in a sexual

    relationship between August 1996 and March 1997 and had engaged in sexual intercourse four times.

13. In or about March 2000, Mr. Robinson ran into a classmate, who told him that Ms. Tate was still in trouble with the school system as a result of his statement that they had been involved in a sexual relationship. Mr. Robinson telephoned Ms. Tate and apologized for lying about their relationship and getting her into trouble. During his testimony at the final hearing, Mr. Robinson recanted the statement he had made to the School Board investigator, and he testified that nothing he said in the statement was true and that he had never had a sexual relationship with Ms. Tate.

14. Ms. Tate testified at the final hearing that she was accused by Mr. Allen and Ms. Lewis of being pregnant and of having a sexual relationship with Mr. Robinson, to which accusations she replied, "Whatever you say." Ms. Tate testified at the final hearing that she never had a sexual relationship with Mr. Robinson and that she would not have told Mr. Allen and Ms. Lewis that she was five months pregnant because she had a hysterectomy in 1981.

15. The School Board took disciplinary action against Ms. Tate.7 She was transferred from Miami Jackson to Horace Mann; she was placed on prescription, which she successfully

    completed in four months; and her step pay increase was temporarily frozen.

    Summary

    
    

16. The evidence presented by the Commissioner is not sufficient to establish that Ms. Tate committed any wrongdoing whatsoever with respect to the physical altercation involving Mr. Robinson that is referred to in the Administrative Complaint.8 It is undisputed that Mr. Robinson attacked Ms. Tate twice. Although Ms. Tate kicked out at Mr. Robinson after he spit in her face, she did not further strike out at Mr. Robinson even though he hit and choked her and knocked her to the ground.

17. In the Administrative Complaint, the Commissioner has alleged that Ms. Tate engaged in an inappropriate romantic relationship with Mr. Robinson and that she and Mr. Robinson had sexual intercourse on several occasions. Having considered the totality of the evidence presented in this case and the permissible inferences that can be drawn from the evidence, and having assessed the credibility of the witnesses, it is not possible to make a finding of fact with any degree of certainty as to whether Ms. Tate and Mr. Robinson did or did not engage in a sexual relationship as alleged in the Administrative Complaint. The testimony of Mr. Allen and of Ms. Lewis has been carefully considered, as has the testimony of Ms. Tate and of Mr. Robinson; in the absence of any corroborating evidence of a

    sexual relationship between Ms. Tate and Mr. Robinson, there is nothing in either the testimony or in the demeanor of these witnesses which offers a cogent reason to accept the testimony of Mr. Allen and Ms. Lewis over that of Ms. Tate and

    Mr. Robinson. It is clear, however, that the evidence presented by the Commissioner is not sufficient to establish clearly and convincingly that Ms. Tate engaged in a sexual relationship with Mr. Robinson.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).

19. In its Administrative Complaint, the Commissioner seeks, among other penalties, the revocation or suspension of Ms. Tate's educator's certificate. Therefore, the Commissioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. Judge Sharp, in her dissenting opinion in Walker v.

    
    

    Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting),

    reviewed recent pronouncements regarding clear and convincing

    
    

    evidence:

    
    

    Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano, 696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.

    denied, 516 U.S. 1051, 116 S. Ct. 719, 133

    L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).

    
    

21. Section 231.2615, Florida Statutes (2000), gives the Education Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, and the statute sets out the bases for the imposition of such penalties. Based on the facts alleged in the Administrative Complaint, the Commissioner charged Ms. Tate with violating the following three subsections of Section 231.28(1)9:

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

    
    

    * * *

    
    

    (f) Upon investigation, has been found guilty of personal conduct which seriously

    reduces that person's effectiveness as an employee of the school board;

    
    

    * * *

    
    

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

    
    

22. The Commissioner also charged in the Administrative Complaint that Ms. Tate violated the following provisions of Rule 6B-1.006, Florida Administrative Code, which provide as follows:

    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.

          
          

          * * *

          
          

          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

          * * *

          
          

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

          
          

23. The Commissioner has failed to prove by clear and convincing evidence that Ms. Tate and Mr. Robinson were engaged in a romantic relationship or that Ms. Tate and Mr. Robinson engaged in sexual intercourse while Mr. Robinson was a student. The only direct evidence presented at the hearing with respect to whether Ms. Tate and Mr. Robinson engaged in a sexual

relationship as alleged in the Administrative Complaint was the testimony of Ms. Tate and Mr. Robinson, and both denied that such a relationship ever existed. Credence must be given to Mr. Robinson's testimony, under oath, that all of the statements he made to the School Board's investigator in May 1997 were untrue. Finally, the testimony of Mr. Allen and Ms. Lewis that Ms. Tate admitted that she and Mr. Robinson had engaged in a

sexual relationship, while it may be accepted for the purpose of establishing the truth of the matter asserted as a party admission, see Sections 90.801 and 90.803(18), Florida Statutes, is uncorroborated and is not sufficiently persuasive of itself to satisfy the elevated standard of proof the Commissioner must meet in order to impose disciplinary penalties on Ms. Tate's

educator's certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing all charges against Althea E. Tate.

DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001.

ENDNOTES

1/ Commissioner Crist took office in January 2001, and his name is substituted for that of Tom Gallagher, the previous Commissioner of Education.

2/ Section 231.28 was moved in its entirety to Section 231.2615, Florida Statutes, by Chapter 301, Laws of Florida (2000). This provision is now codified at Section 231.2615(1)(c), Florida Statutes (2000).

3/ This provision is now codified at Section 231.2615(1)(f), Florida Statutes (2000).

4/ This provision is now codified at Section 231.2615(1)(i), Florida Statutes (2000).

5/ The testimony of Mr. Robinson was taken at the Dade County Pre-Trial Detention Center, where he was incarcerated at the time of the hearing. Upon the agreement of the parties, the undersigned was not present, but a videotape of the examination of this witness has been provided and viewed prior to the preparation of this Recommended Order.

6/ Mr. Robinson testified that Ms. Tate told him that she was going to tell the coach and his father that he was high and that this, together with Mr. Robinson's perception that Ms. Tate had

been nagging him throughout the school year to work harder and stop skipping school, caused him to get angry and attack her.

7/ No evidence was presented regarding the basis for this action.

8/ It is not clear from the Administrative Complaint filed by the Commissioner or from the evidence presented at the final hearing that any of the statutory and rule violations asserted against Ms. Tate were based on the physical altercation between Ms. Tate and Mr. Robinson In his Proposed Recommended Order, the Commissioner has not identified the physical altercation as a basis for imposing discipline against Ms. Tate's teaching certificate.

9/ See endnote 2 above.

COPIES FURNISHED:

Charles T. Whitelock, Esquire Whitelock & Associates

300 Southeast 13th Street

Fort Lauderdale, Florida 33316-1924

Harold Long, Jr., Esquire

99 Northwest 183rd Street, Suite 127 North Miami Beach, Florida 33137

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Florida Education Center

325 West Gaines Street Room 224-E

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education

325 West Gaines Street Suite 224-E

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-004353PL

Orders for Case No: 00-004353PL