STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. )

)

NEWELL SAFFELL, )

)

Respondent. )

Case No. 01-3785PL

)

RECOMMENDED ORDER1

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on December 11, 2001, in Orlando, Florida.

APPEARANCES

For Petitioner: Robert E. Sickles, Esquire

Broad and Cassel

100 North Tampa, Suite 3500 Post Office Box 3310

Tampa, Florida 33601-3310

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee Florida 32302

STATEMENT OF THE ISSUE

Whether Respondent's Florida Educator's Certificate should be sanctioned for conduct in violation of Section 231.2615, Florida Statutes.

PRELIMINARY STATEMENT

On March 28, 2001, Respondent, Newell Saffell, received a letter from Charlie Crist, Commissioner, Florida Department of Education, advising him that Probable Cause had been found to justify sanctions against Respondent's teaching certificate. In the same letter was an Administrative Complaint alleging Respondent to be in violation of Subsections 231.2615(1)(c), and 231.2615(1)(f), Florida Statutes. The allegation that Respondent violated Subsection 132.2615(1)(f), Florida Statutes, was dropped immediately prior to the final hearing.

On April 9, 2001, Respondent executed an Election of Rights wherein he disputed "[a]ll material allegations and counts contained in the Administrative Complaint" and requested a formal hearing.

On September 24, 2001, the Education Practices Commission forwarded this matter to Division of Administrative Hearings. On October 8, 2001, this matter was scheduled for final hearing on December 11 and 12, 2001, in Orlando, Florida.

The final hearing was conducted on December 11, 2001.

Petitioner presented two witnesses: Orlando Police Officers Rick Salcedo and Lewis Tanzi; by agreement, Respondent was not called in Petitioner's case, but was extensively cross-examined after testifying in his own case. Petitioner offered one exhibit, an arrest affidavit in Orange County Case No. 96-

232573, wherein Respondent was defendant, which was admitted into evidence over Respondent's objection, and marked P1.

Respondent presented three witnesses: Respondent; Suzanne Sisson, a teacher; and Roman Somers, Respondent's roommate.

Respondent did not offer any documentary evidence into evidence.

At the hearing, Respondent moved ore tenus to have the entire file of this Administrative Hearing sealed based on the fact that the arrest affidavit, Petitioner's Exhibit P1, was subject to an Order entered by the Orange County Circuit Court sealing the criminal history records pursuant to Section 943.059, Florida Statutes, and that disclosure of the incident dealt with in the sealed criminal records outside this Administrative Hearing, would violate that Order. Petitioner voiced no objection to Respondent's ore tenus motion. After ruling that the motion would be granted at the final hearing, an Order Sealing File was entered on January 8, 2002.

The Transcript of Proceedings was filed with Division of Administrative Hearings on January 9, 2002. Both parties timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the testimony and demeanor of witnesses, the exhibit admitted into evidence, the admitted facts in the Joint Pre-hearing Stipulation, the following findings of fact are made:

1. Respondent, Newell Saffell, is the holder of Florida Educator's Certificate 676214, covering the area of elementary education, which is valid through June 30, 2005, and is employed as a language arts teacher in the Orange County School District.

2. Respondent holds a Master's Degree in Elementary Education and has taught in Ohio and Florida for 28 years, the last 11 of which have been in Orange County. He has been named Teacher of the Year on two occasions. He has no other arrests or licensure disciplines.

3. Lake Underhill Park is an urban park surrounding Lake Underhill within the city limits of Orlando, Florida. For park amenities it has a boat ramp, an extensive paved walkway for walkers, joggers, cyclists, and skaters. Contiguous to the paved walkway are a series of exercise stations. In addition, there are parking lots and public restrooms.

4. In response to citizen complaints of "sexual deviate" behavior taking place in and around the public restrooms at Lake Underhill Park, the Orlando Police Department conducted a "sting operation."

5. As used in conjunction with this case, a "sting operation" is a police activity wherein undercover police officers create a carefully organized and implemented social environment designed to apprehend persons violating the law by

   exposing themselves, masturbating, or soliciting sexual activity.

6. City of Orlando police officers, Detective Rick Salcedo and Sergeant Lewis Tanzi, participated in the "sting operation;" Detective Salcedo described the operation as follows:

   We would obtain or rent vehicles from a used car dealership and we would have about two to three unmarked vehicles that were taken to the park. A marked patrol vehicle would be parked further away from the park that we would use for the take-down of the suspect if it needed to be done.

   
   

   We would then park our unmarked vehicles inside the park and wait for the citizens that would drive up. The majority of the time the citizens would drive up next to us or park next to our vehicles, and in just a matter of time they would begin to massage their penis.

   
   

   Eventually, they would make eye contact with you, see if you were disgusted by that act, and if he didn't see that you were disgusted by that act, they would continue and expose their penis and begin to masturbate.

   
   

   And they would also not only in the cars, but also in the bathrooms, inside the men's rooms.

   
   

7. On July 17, 1996, the police officers observed Respondent in conjunction with the "sting operation."

   Respondent drove his automobile into the parking lot and parked to the immediate left of the vehicle Detective Salcedo occupied. Both vehicles were facing the public restrooms where Sergeant

   Tanzi was standing. Detective Salcedo observed Respondent begin massaging his penis and then exposing his penis and masturbating while looking back and forth from Salcedo to Tanzi. Shortly thereafter, Respondent exited the parking lot and drove to an apartment parking lot where he was stopped by a marked police vehicle and arrested.

8. Respondent testified that he had gone to Lake Underhill Park to use the exercise trail. After parking his vehicle, Respondent began reading an article in the newspaper about education, but became concerned about an individual in a panel truck who began making gestures directed toward him. Respondent then moved his vehicle to another parking place and resumed reading. While reading, his attention was drawn to several suspicious individuals in the area of the public restrooms. He believed that some sort of drug-related activity was taking place, so he elected to leave. Upon exiting the parking lot, he noticed that he was being closely followed by a vehicle, so he pulled into a nearby apartment complex parking lot. He was then arrested and charged with indecent conduct.

9. Respondent maintained that he had done nothing inappropriate while in his vehicle. He also testified that his vehicle had dark window tinting that made it nearly impossible for anyone to closely observe activities taking place within his vehicle.

10. Respondent presented two witnesses, a fellow teacher and Respondent's roommate, both of whom testified that Respondent's vehicle's windows were dark tinted and difficult to see through.

11. Detective Salcedo's failed to recall non-critical specifics regarding the arrest; while he did not recall whether or not the vehicle's windows were tinted, he recalled being able to see into Respondent's vehicle.

12. Respondent pled nolo contendere to the offense charged.

13. This is a case that must rise or fall on the contradictory testimony of two witnesses, Respondent and Detective Salcedo. Respondent's explanation for remaining in his car, moving from one parking place to another, and abandoning his intention to use the exercise trail because he suspected the presence of nefarious activities, is strained, lacks candor and, as a result, not credible. Conversely, Detective Salcedo's testimony about the events critical to a determination that Respondent was guilty of the acts alleged is credible and is accepted.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause. Section 120.57 and Subsection 231.262(6), Florida Statutes.

15. Petitioner, Charlie Crist, is the Commissioner of Education. Upon a finding of probable cause in a case involving a complaint against a teacher which is cause for discipline under Section 231.2615, Florida Statutes, Petitioner is directed by statute to file a formal administrative complaint and prosecute the administrative complaint under Chapter 120, Florida Statutes. If it appears that there are disputed issues of material fact in the case, the statute directs that an Administrative Law Judge be appointed to hear the administrative complaint. Section 231.262(6), Florida Statutes.

16. As the Commissioner of Education, Petitioner is the head of the Department of Education (the "Department"). Section 20.15(2), Florida Statutes. The Department serves as staff to the Education Practices Commission (the "Commission"). Section 231.261(6)(b), Florida Statutes. The Commission, following receipt of recommendations from an Administrative Law Judge in a contested case involving a complaint against a teacher, is responsible for issuing a final order through one of its panels. Section 231.262(7), Florida Statutes.

17. Petitioner has the burden of proof in this proceeding.

    
    

    Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983),

    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.

    
    

19. Section 231.2615, Florida Statutes, gives the Commission the power to suspend or revoke the teaching certificate of any person as defined in Subsection 228.041(9), Florida Statutes, either for a set period of time or permanently.

20. Subsection 228.041(9), Florida Statutes, reads:

    
    

    1. Instructional personnel.-- "Instructional personnel" means any staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are:

       
       

       1. Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, and vocational-technical and adult education, including substitute teachers.

21. Petitioner has alleged that Respondent has violated Subsection 231.2615(1)(c), Florida Statutes, "in that, Respondent has been guilty of gross immorality or an act involving moral turpitude."

22. Gross immorality is not defined. "Immorality" is defined in Florida Administrative Code Rule 6B-4.009(2) as:

    [C]onduct 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.

    
    

23. "Gross immorality" requires conduct more egregious than that encompassed within the definition of "immorality" found in Rule 6B-4.009(2):

    [t]he term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practice Commission v. Knox, 3 FALR 1373-A (Department of Education 1981).

    
    

    Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (Recommended Order, August 1, 1996).

24. "Moral turpitude" is defined by Florida Administrative Code Rule 6B-4.009(6) 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 the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

25. The Court in Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933), defined moral turpitude as:

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

    
    

26. Teachers are required to maintain a high standard of conduct. Whether a teacher's conduct constitutes an act of gross immorality or an act of moral turpitude should be measured against that high standard. Adams v. State, Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981). In Tomerlin v. Dade County School Board, 318 So. 2d 159 (Fla. 1st DCA 1975), the court observed at page 160:

    A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.

    
    

27. Petitioner has demonstrated by clear and convincing evidence that Respondent's conduct in exposing himself and

masturbating in a public place demonstrates gross immorality and moral turpitude.

RECOMMENDATION

Based on the foregoing Findings of Fact, it is recommended to the Education Practices Commission, that Respondent, Newell Saffell, holder of Florida Educator's Certificate No. 676214, be found to have violated Section 231.2615, Florida Statutes, as charged in the Administrative Complaint; that his certificate be suspended for a period of at least two years; and that he not be allowed to return to teaching until a competent mental health professional pronounces him fit to teach and not a threat to the safety or well-being of students subject to his control, even if such pronouncement is not made until more than two years from the commencement of the certificate suspension. It is further recommended that he be placed on probation for three years after his return to teaching if and when that occurs.

DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 7th day of February, 2002.

ENDNOTE

1/ This document is submitted under seal pursuant to Section 943.059, Florida Statutes, and by Order of the Administrative Law Judge in this matter.

COPIES FURNISHED:

Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee Florida 32302

Kathleen M. Richards, Executive Director Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400

Robert E. Sickles, Esquire Broad and Cassel

100 North Tampa, Suite 3500 Post Office Box 3310 Tampa, Florida 33601-3310

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: 01-003785PL

Orders for Case No: 01-003785PL