STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02-3943PL

)

JAMES C. HOWARD, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice a hearing was held on January 6, 2003.

Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was the Gulf Correctional Institution, 500 Ike Steel Road, Wewahitchka, Florida. The hearing was held before by Stephen F. Dean, Administrative Law Judge.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: James C. Howard, pro se

Gulf Correctional Institution

500 Ike Steele Road Wewahitchka, Florida 34655

STATEMENT OF THE ISSUE

Should the State of Florida, Education Practices Commission impose discipline against the Respondent for sexual misconduct with a student.

PRELIMINARY STATEMENT

The Commissioner charges that the Respondent engaged in sexual relations with a student, to wit, digital penetration of the student's vagina, and thereby violated numerous statutes establishing standards for teachers for which his teaching certificate should be revoked. The Respondent requested a formal hearing, and the Department referred the case to the Division of Administrative Hearings.

The case was noticed for hearing on January 6, 2003, by Notice dated December 16, 2002. At hearing, the Respondent moved for a continuance based upon lack of opportunity to prepare. The motion was untimely; however, it was considered on its merits. The primary allegation against the Respondent that he was found guilty of two felonies involving a student. He plead guilty to two counts of lewd and lascivious conduct with a minor under the age of 16 years. The hearing was conducted at the Gulf Correctional Facility where the Respondent was serving a sentence imposed by the circuit court after the entry of a guilty plea by the Respondent. The motion was denied.

The Commissioner called James Davis and Gregory Hinnant to testify by telephone. The Respondent testified in his own behalf. The Commissioner introduced Exhibits No. 1 through 5.

Both parties submitted post hearing pleadings that were read and considered. The testimonial portions of the Respondent's submittal are disregarded because they were not sworn and were not subject to cross-examination.

A hearing transcript was filed with the Division of Administrative Hearings on January 9, 2003. The exhibits in this case are attached thereto.

FINDINGS OF FACT

1. The Respondent held Florida Teaching Certificate No. 686332, covering the area of emotionally handicapped education, which was valid through June 30, 2002.

2. At all times pertinent hereto, the Respondent was employed as a teacher at Bayonet Point Middle School in Pacso County School District.

3. A.Y. was an emotionally handicapped student who had been a student of the Respondent in the 1999-2000 school year.

4. Between June and December 2000, when A.Y. was 13 years old, the Respondent engaged in an inappropriate relationship with A.Y. This relationship included kissing, fondling, and on more than one occasion the Respondent's digital penetration of A.Y.'s vagina. On or about

   December 15, 2000, the Respondent was observed meeting A.Y. at a library when she got into his car and drove away. He later claimed he was counseling her.

5. The Respondent was charged with two counts of committing lewd and lascivious acts with a minor as a result of his behavior with A.Y.

6. On November 26, 2001, the Respondent entered a plea of guilty to both counts.

7. The Respondent was adjudicated guilty on both counts, and sentenced to eight years in prison, followed by seven years of probation, concurrently on each charge.

8. James Davis, the Director of Human Resources for the School Board of Pasco County where the Respondent taught, testified. Mr. Davis was a certified teacher with many years of experience and testified about professional standards and the impact of the Respondent's acts upon the school system.

9. For a teacher to enter into a sexual relationship with a student, especially a young, emotionally handicapped student, is very harmful to the student emotionally and academically. A.Y. became defensive, and then felt guilty that she had caused the Respondent to get into trouble. Furthermore, such conduct destroys the faith the parents and other community members have in the educational system. There were articles in the newspaper about the situation which were

   adverse to the educational environment. The parents of A.Y. were very angry about the acts committed by the Respondent.

10. The Respondent, when questioned by administrative staff for the Pasco School District, admitted he made an error in meeting A.Y., but denied any other inappropriate conduct.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569, 120.57(1), and 231.262(5), Florida Statutes.

12. The burden is upon the Commissioner to prove the allegations upon which disciplinary action will be taken by clear and convincing evidence.

13. A teacher holding an educator's certificate can be subject to discipline upon being convicted of a criminal offense, other than a minor traffic violation. See Subsection 231.2615(1)(c), Florida Statutes.

14. A teacher holding an educator's certificate can be subject to discipline upon being convicted of an act of moral turpitude or of gross immorality, or for engaging in conduct that seriously reduces his effectiveness. See Subsection 231.2615(1)(c) and (f), Florida Statutes.

15. A teacher holding an educator's certificate can be subject to discipline upon being convicted of an act in

    violation of the Principles of Professional Conduct as codified in Rule 6B-1.006, Florida Administrative Code. See Subsection 231.2615(1)(i), Florida Statutes.

16. Rule 6B-1.006, Florida Administrative Code, requires a teacher to take reasonable steps to protect a student's mental, physical, or emotional health and prohibits a teacher from exploiting a professional relationship for personal gain and from exposing a student to unnecessary embarrassment or disparagement.

17. Rule 6B-1.006, Florida Administrative Code, requires a teacher to maintain honesty in all professional dealings.

18. The Department may deny a teaching certificate to any person on grounds for which a teaching certificate could be revoked. See Subsection 231.17, Florida Statutes.

19. Hearsay is admissible in an administrative hearing to explain or supplement other evidence, but can not, by itself, be used as the basis for a finding of fact unless it would be otherwise admissible in a court of law.

20. The Respondent plead guilty to two counts of lewd and lascivious conduct with a minor under 16 years of age, and was convicted by the circuit court for those offices. The Respondent is guilty of having been convicted of a crime other than a minor traffic offense.

21. The Respondent is guilty of committing an act of gross immorality or of moral turpitude by virtue of his plea.

22. The Respondent is guilty of committing an act greatly reducing his effectiveness as a teacher by virtue of his plea and in light of Mr. Davis' testimony regarding the impact of the Respondent's acts.

23. The Respondent is guilty of failing to take reasonable steps to protect A.Y. from emotional, physical, or mental harm based upon Mr. Davis' testimony concerning the child and the Respondent's professional responsibilities.

24. The Respondent's teaching certificate had expired; however, even though a teaching certificate may have expired, discipline may be imposed for conduct occurring while it was active.

25. The Respondent should be permanently denied a teaching certificate based upon the foregoing violations.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered permanently denying the Respondent a teaching certificate.

DONE AND ENTERED this 27th day of February, 2003, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 27th day of February, 2003.

COPIES FURNISHED:

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731-0131

James C. Howard

Gulf Correctional Institution

500 Ike Steele Road Wewahitchka, Florida 34655

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

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

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Room 224-E 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: 02-003943PL

Orders for Case No: 02-003943PL