STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )
)
Petitioner, )
)
vs. )
)
ROBERT A. PRINGLE, JR., )
)
Respondent. )
Case No. 02-4430PL
)
RECOMMENDED ORDER
A formal hearing was held in this case before Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings, on May 14 through 16, 2003, in Fort Myers, Florida.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Whitelock & Associates, P.A.
300 Southeast Thirteenth Street
Fort Lauderdale, Florida 33316-1924
For Respondent: Robert J. Coleman, Esquire
Coleman & Coleman
2300 McGregor Boulevard Post Office Box 2089
Fort Myers, Florida 33902-2089 STATEMENT OF THE ISSUE
Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated September 27, 2002.
PRELIMINARY STATEMENT
Following an investigation by the Department of Education (the "Department"), Petitioner filed an Administrative Complaint against Respondent on September 27, 2002. Respondent denied the allegations and filed an Election of Rights, seeking a formal hearing. This matter was referred to the Division of Administrative Hearings on November 15, 2002. The case was initially set for hearing on February 3 through 5, 2003. The case was continued twice and ultimately scheduled for final hearing on May 14 through 16, 2003.
The Administrative Complaint set forth the following material allegations of fact:
Between the 1999-2000 and the 2001-2002 school years, inclusive, the Respondent spoke inappropriately to and behaved inappropriately with students. His behavior included but is not limited to the following. He chewed tobacco at baseball practice, at baseball games, on trips to games and/or at school; allowed his players (students) to do the same; provided ibuprofen for students; and/or provided chewing tobacco for students despite the fact that there was a rule for athletes at the school that they could be dismissed from the team for possession of tobacco. He also used profanity and/or demeaning language in front of students, including but not limited to words to the following effect: asking them what the hell they were thinking; telling them they were uncoachable motherfuckers; telling them they were worthless pieces of shit, sorry asses and/or fucking losers; and/or asking a student how he could be 17 years old and only be in the
9th grade. He also told coarse jokes and/or made inappropriate comments in front of students, including but not limited to comments about the following: blowjobs; lap dances; getting a piece of ass; asking a student how he would like to fuck the hell out of a certain female; asking a female student if her black eye was due to her boyfriend's penis having hit her in the eye while she was giving him oral sex; asking male students about their sexual relationships with their girlfriends; and/or discussing how much "head" a student had received. On or about January 30, 2002, the district suspended the Respondent from his coaching position of the baseball team. On or about February 14, 2002, he was reinstated to his coaching position.
Based on the these factual allegations, the Administrative Complaint alleged three statutory violation counts and five rule violation counts. Count one stated the misconduct alleged was in "violation of Section 231.2615(1)(c), Florida Statutes,[1] in that Respondent has been guilty of gross immorality or an act involving moral turpitude." Count two stated the misconduct alleged was in "violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board." Count three stated the misconduct alleged was in "violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of
Education." Count four alleged that the misconduct alleged constituted a rule violation in which Respondent "failed to have his primary professional concern always be for the student and for the development of the student's potential and has failed to seek to exercise the best judgment and integrity," in violation of Rule 6B-1.001(2), Florida Administrative Code. Count five alleged that the misconduct alleged constituted a rule violation in which Respondent "failed to be aware of the importance of maintaining the respect and confidence of his colleagues, of students, of parents and of other members of the community" and that Respondent "failed to achieve and sustain the highest degree of ethical conduct," in violation of Rule 6B-1.001(3), Florida Administrative Code. Count six alleged that the misconduct alleged constituted a rule violation in which Respondent "failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical safety," in violation of Rule 6B-1.006(3)(a), Florida Administrative Code. Count seven alleged that the misconduct alleged constituted a rule violation in which Respondent "intentionally exposed a student to unnecessary embarrassment or disparagement," in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. Count eight alleged that the misconduct alleged constituted a rule violation in which Respondent "harassed or discriminated against a student
on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and has failed to make reasonable effort to assure that each student is protected from harassment or discrimination," in violation of Rule 6B-1.006(3)(g), Florida Administrative Code.
At the hearing, Petitioner presented the testimony of Fred Burson, Sean Fox, Terry Truckenmiller, Melissa Land, Curtis Rine, Willard Truckenmiller, and Mary Rine. Petitioner proferred the testimony of William B. Hoke. Mr. Hoke was not on Petitioner's witness list, and his testimony was proffered as a rebuttal to Mr. Pringle's testimony. As discussed in the Findings of Fact below, Mr. Hoke's testimony actually tended to support that of Mr. Pringle. Mr. Hoke's testimony is admitted to the record of this proceeding. Petitioner's Exhibits 1 through 4, 6 through 19, and 21 were admitted into evidence.
Petitioner's Exhibit 5, the statement of Mr. Hoke, was proffered at the hearing and is hereby admitted.
Respondent testified in his own defense and presented the testimony of Amy Cafaro-Dillon, Justin Cook, Jason Scott, Mark Ryan, Fred Barker, Brian Barker, Shanna Roemer, Elizabeth Parrish, James Simmons, Gregory Byrus, Diane Byrus, Deputy Chris Stevens, Karen Lindhal, William Shoap, John Hennebery, Don Trelease, Dr. Christine Dollinger, and Richard Shafer.
Respondent's Exhibits 1 through 7 and 9 through 26 were admitted into evidence.
A seven-volume Transcript of the hearing was filed on July 3, 2003. On August 11, 2003, the parties filed copies of their Proposed Recommended Orders. Also on August 11, 2003,
Respondent filed a Motion for Attorney's Fees and Costs pursuant to Section 120.595, Florida Statutes.
All citations are to Florida Statutes (2003) unless otherwise indicated.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made:
General Findings
Respondent, Robert A. Pringle, Jr., holds Florida Educator Certificate No. 720759, covering the areas of mathematics and physical education, which is valid through June 30, 2005.
Mr. Pringle has a bachelor's degree in education from Maryville College in Maryville, Tennessee. Mr. Pringle played baseball at Maryville College for five years and coached baseball for two semesters at the college.
In 1993, immediately after graduating from Maryville College, Mr. Pringle was employed as a mathematics and physical
education teacher at Riverdale High School ("Riverdale") in the Lee County School District (the "District"). Mr. Pringle's employment as a teacher at Riverdale has continued uninterrupted since 1993. For the past eight years, Mr. Pringle has served as Riverdale's head baseball coach. He has been Riverdale's golf coach since 2000.
Mr. Pringle has had no prior disciplinary actions brought against his license.
The precipitating event for the allegations in this case was the varsity baseball tryout in January 2002. During Mr. Pringle's tenure as head coach, the Riverdale baseball team had progressed from a perennial losing program to a contender for the state championship in Class 3A. Competition was fierce for the 16 available spots on the team. In some years, as many as 100 boys would try out for the team. In January 2002,
38 players participated in the three-day tryout.
Mr. Pringle testified that, though the number of players trying out was lower than in some previous seasons, the quality of the players was quite high, and he knew that the cuts would be hard to make. There were 25 players trying out who had played for the Riverdale varsity or junior varsity teams, in the autumn "wooden bat" league, or for local summer or AAU teams.
In 2001, there had been many complaints from the disappointed parents of players who failed to make the cut.
Before the 2002 tryouts, Mr. Pringle warned the Riverdale administrators to expect another round of complaints, because he fully expected that some good players would be cut.
The varsity tryouts were conducted from Monday, January 14, through Wednesday, January 16, 2002. Players were allowed to choose the positions for which they wanted to be considered. At the tryouts, the coaches assessed each player on the basis of the "five tools" of baseball: hitting for average; hitting for power; running speed; arm strength; and fielding ability. The five tools are the accepted standard for rating baseball players.
Running speed was measured via a timed 60-yard dash.
Arm strength was measured by timing a throw from 120 feet away for infielders and 220 feet away for outfielders, commencing from the point at which the ball touched the fielder's glove to the point at which the ball touched the receiver's glove. Two coaches would time each dash or throw to ensure accuracy.
Fielding was assessed by coaches on a one-to-five scale. One coach would hit to the fielders while two others stood to the side observing. Hitting and pitching were also graded on a one-to-five scale, with several coaches observing and comparing notes to arrive at a consensus rating.
The Riverdale coaches conducting the tryouts included Mr. Pringle, assistant varsity coach Justin Cook, and junior
varsity coach Cliff Trosterud. They were assisted at the tryout by Tommy Watkins, Jason Guy, and Ryan Carter, all of whom play professional baseball at the minor league level, as well as Casey Brock, a former college player who assists with the junior varsity pitchers at Riverdale.
Mr. Pringle posted the results of the tryouts on the door of his classroom on the morning of Thursday, January 17, 2002. Among the players who did not make the varsity team were twin brothers Willard and Chris Truckenmiller, Curtis Rine, and Tyler Caruthers. All of these boys were juniors who had played junior varsity baseball the previous year, though mostly in a backup capacity. Mr. Pringle testified that all of these boys had the ability to play high school baseball, but that the talent level on the 2002 Riverdale team was extraordinarily high and they were simply not good enough to make that team.
During a change of classes on the morning of
January 17, 2002, Curtis Rine entered Mr. Pringle's classroom at Riverdale. Curtis was very upset at not making the cut. He yelled at Mr. Pringle that he did not need to be on his team, that he could transfer to Bishop Verot High School (a private Catholic school in Fort Myers) and play baseball for them.
Mr. Pringle did not report this incident because Curtis did not use profanity or otherwise do anything that merited discipline;
he was "just a kid . . . upset that he was cut from the baseball team."
On the evening of January 17, 2002, Mr. Pringle conducted varsity practice at the Riverdale baseball field. Chris Stevens, a deputy with the Lee County Sheriff's Department assigned as Riverdale's school resource officer, was in the parking lot outside the baseball field. Richard Shafer, Riverdale's principal, had informed Deputy Stevens that there were parents disgruntled about the baseball cuts and asked Deputy Stevens to stay near the baseball field to make sure
Mr. Pringle was safe.
Deputy Stevens noticed Kim Caruthers, the mother of Tyler Caruthers, in the parking lot with Tyler's father. Deputy Stevens approached Mr. Pringle on the baseball field and told him that Ms. Caruthers was apparently waiting to talk with him. Mr. Pringle told Deputy Stevens that he would talk to her and attempt to explain the situation regarding the baseball cuts.
Mr. Pringle testified that as soon as he came near her, Ms. Caruthers began yelling and "calling me every name in the book" in a profane harangue. She said that "I hurt her son and now she was going to hurt me." Deputy Stevens concurred that Ms. Caruthers was very angry and became more agitated as the conversation went on, until she "start[ed] to boil" and repeatedly threatened that Mr. Pringle was "going to go down."
Deputy Stevens told Ms. Caruthers more than once that she needed to calm down.
Deputy Stevens testified that Mr. Pringle maintained a calm, professional demeanor throughout Ms. Caruthers' rant and tried repeatedly to explain the tryout process to her. After about ten minutes, Ms. Caruthers began to walk away from
Mr. Pringle, then turned around and spat at Mr. Pringle. The spit landed on Mr. Pringle's shoe. Deputy Stevens told Ms.
Caruthers to leave.2
Deputy Stevens told Mr. Pringle that the spitting could be construed as battery and that he had the right to press charges. At the time, Mr. Pringle saw no need to press charges.
Mr. Shafer, the Riverdale principal, testified that Ms. Caruthers had been generous to the school. Among other donations, she had offered $35,000 to support the baseball program. On January 17, 2002, the same date as her confrontation with Mr. Pringle, Ms. Caruthers showed up at a school open house and told Mr. Shafer that she would not give the money to Riverdale and would take her money to a school that wanted her son.
Mr. Pringle testified that matters with Ms. Caruthers did not end on the evening of January 17, 2002. Over the next three weeks, she repeatedly made threatening phone calls. She would come to the baseball field and yell at Mr. Pringle. She
came into the school and shouted at him in the hallways. She threatened to circulate flyers labeling Mr. Pringle a "pervert" and a "rapist."
Tiring of the harassment, Mr. Pringle filed a complaint for misdemeanor battery against Ms. Caruthers on February 6, 2002. He testified that he hoped that pressing charges would lead to entry of a restraining order that would keep Ms. Caruthers away from him. Eventually, the state attorney declined to prosecute the matter.
On February 18, 2002, Tom and Mary Rine, the parents of Curtis Rine, met with Mr. Pringle, Mr. Shafer, Riverdale athletic director Boyd Gruhn, and assistant principal Don Trelease. Both Mr. Shafer and Mr. Trelease recalled that the gist of the meeting involved the Rines' contention that their son should be on the varsity baseball team. Mr. Shafer told the Rines that he had seen the scores on the cut list, looked at the quality of the people who judged the players, and concluded that the tryout had been conducted fairly and competently.
At this point, the Rines launched into a series of personal allegations against Mr. Pringle. Their chief accusation concerned a story their son Curtis had told them about a bus trip to a baseball game in Miami the previous season. They alleged that on the trip back from Miami,
Mr. Pringle and the other coaches went around the bus asking the
players if they wanted to accompany them to "Lookers," a strip club in Fort Myers. The Rines also alleged that Mr. Pringle "always" had a dip in his mouth at games and practices,3 and that he freely used profanity in the presence of his players.
Mr. Shafer asked the Rines why they would want their son to play on a team where such inappropriate behavior was occurring. The Rines responded that Mr. Pringle was a successful coach.
Ms. Rine testified that at this meeting, Mr. Pringle admitted that he chewed tobacco on the field, but never when there was a student around. If he was on the field on the weekend, or during the school day when no students were present, he would use tobacco, but would take it out if anyone else approached. Ms. Rine also testified that Mr. Pringle admitted to using improper language with students, including the term "blow job."
Mr. Pringle testified that he did not admit to using tobacco on the baseball field. He did admit to using tobacco away from the school and stated that his life away from the school was his own business unless he did something to embarrass Riverdale.
Mr. Pringle testified that he did admit to using the term "blow job" once in a conversation with his players and expressed regret that he did not employ the term "oral sex" or
some other more clinical term. Mr. Pringle explained that late in the 2000 baseball season, five Riverdale athletes, including one member of the baseball team, were facing charges for having received oral sex from an underaged female. Later, there was coverage of the matter in the local newspapers and on television news, but when the charges first arose, neither Mr. Pringle nor his players knew anything other than that the player did not show up for practice and that rumors were flying around the school.
Mr. Pringle was called into the principal's office and the matter was explained to him. He then met with his players to explain the situation and gauge the team's reaction. He told his players that no decision had been made whether the player would be expelled from school or even suspended from the baseball team, and he wanted to ensure that the other players would react appropriately should their teammate later show up to play. It was a delicate situation, and Mr. Pringle wanted to be sure his players understood the facts. He used the term "blow job" in explaining what happened, because he thought that was a term the players would understand. At the meeting with the Rines, he conceded that it was a poor choice of words.
Mr. Trelease confirmed Mr. Pringle's version of the discussion regarding tobacco. Mr. Pringle stated that he was a tobacco user, but he leaves his tobacco in the car and never has
it on his person when he is at school. Mr. Trelease did not recall the details of the profanity discussion because it was such a minor part of the overall meeting. He stated that the Rines spent most of the meeting talking about their allegations of misbehavior on the bus trip back from Miami.
Mr. Pringle's version of the discussion at the meeting with the Rines is credited. There is no essential conflict between his version and that of Ms. Rine as to the profanity discussion. They both recalled Mr. Pringle's admitting to using the term "blow job." Ms. Rine simply leapt to the conclusion that this constituted a broader admission than Mr. Pringle intended. As to the tobacco discussion, Mr. Pringle's version is supported by the credible testimony of Mr. Trelease.
On Tuesday, January 28, 2002, a group of parents including Terry and Dani Truckenmiller, Mary Rine, Kim Caruthers, and the father of Sean Fox (a 2002 Riverdale graduate who had played golf for Mr. Pringle and who had failed to make the varsity baseball team as a junior) met with Mr. Shafer and Doug Whittaker, the director of curriculum for the District. Mr. Shafer testified that these parents voiced allegations that Mr. Pringle constantly used tobacco on school property, used profanity in the presence of students, and indulged in sexual innuendo with and about female students. Mr. Shafer stated that
it was clear to him these parents not only wanted Mr. Pringle fired, but wanted his teaching certificate revoked.
On January 29, 2002, the Truckenmillers filed a written complaint with the District. Mr. Pringle was immediately suspended from his coaching duties, though not his teaching duties, and the District commenced an investigation into the parents' allegations.
Bill Shoap, the District's coordinator of personnel services, conducted the investigation. In his investigative report, Mr. Shoap framed the issues as follows:
The allegations are as follows: Whether Robert Pringle ever used tobacco products on school district property during baseball practice and game times; whether he ever used profanity in front of team members; and whether he ever communicated sexual innuendo towards students.
Mr. Shoap described the investigation as follows:
A total of forty-nine [sic] witness statements were received regarding this investigation. Approximately 27 concerned parents, past co-workers and community members submitted letters of support for Robert Pringle, describing him as a positive role model and dedicated coach, as well as an effective teacher. Each of the 16 members of the Riverdale Varsity Baseball team (acting as witnesses) signed a letter which specifically refutes the three allegations being made against Mr. Pringle. This investigation also takes into account additional information provided by those who have worked near or along the side of Mr.
Pringle, as well as those who have made the allegations . . . .
Mr. Shoap submitted his investigative report to the District on February 11, 2002. On February 12, 2002, a
pre-determination conference was held to allow Mr. Pringle to respond to the allegations. John Hennebery, the District's coordinator for professional standards presided over the conference, which was also attended by the District's staff attorney and a recording secretary. Mr. Pringle denied every allegation. He admitted that he does use dip, but stated that he has never done so on school grounds or at any school function, including baseball practices and games. He stated that on occasion he might have muttered the word "damn" or "hell" to a fellow coach in the dugout and that a player conceivably could have overheard, but that he had never otherwise used profanity in front of students.
After reviewing the investigative report and considering Mr. Pringle's statements, Mr. Hennebery determined that there was no probable cause to proceed further in the matter and that no disciplinary action should be taken against Mr. Pringle. Mr. Hennebery testified that the allegations simply could not be substantiated. He noted that Florida High School Athletic Association ("FHSAA") rules prohibit chewing tobacco, and that no one had ever been ejected from a Riverdale baseball game for that offense. He also noted that Mr. Pringle had been accused of "cussing out" the entire team and offering
trips to a strip club to a charter bus full of students, yet only a few students, none of whom included current members of the baseball team, and no coaches claimed to have witnessed these acts. In sum, Mr. Hennebery concluded that the witnesses supporting Mr. Pringle were more credible than his accusers.
Mr. Pringle's suspension was lifted on February 14, 2002. At about the same time, someone filed a complaint with the Office of Professional Practices Services of the Department, which assigned Shellie White to investigate on behalf of the Department. It is noted that there was confusion at the hearing as to who filed the complaint with the Department and dispute as to the manner in which Ms. White conducted her investigation. Mr. Pringle alleged that Ms. White purposely neglected to interview any witnesses possessing exculpatory information. This allegation was lent some support by the testimony of Jason Scott, a social studies teacher at Riverdale. Mr. Scott stated that Ms. White commenced an interview with him, then stopped it after five minutes and never contacted him again. It is also noted that the Department chose not to elicit testimony from Ms. White or anyone else involved in its investigation of
Mr. Pringle and chose not to clarify the question as to who filed the complaint against Mr. Pringle.4
On September 27, 2002, the Department issued its finding of probable cause and the Administrative Complaint described in the Preliminary Statement above.
Terry Truckenmiller
Terry Truckenmiller is the father of the twins, Willard and Chris, who were cut from the varsity team in January 2002. Of all the witnesses who testified on behalf of the Department, Mr. Truckenmiller was the most vociferous accuser. He was also the least believable. For the sake of orderly presentation, Mr. Truckenmiller's testimony is treated separately at the outset, so that the Findings of Fact in Sections III through VI below may deal with those witnesses possessing some level of credibility.
In a statement provided to Ms. White, the Department's investigator, Mr. Truckenmiller wrote:
In the 5 years I have known Mr. Pringle it is comman [sic] knowledge from students, staff & parents that he chews tabacco [sic] & swears every moment at school. It is comman [sic] knowledge of his sexual conduct and actions with minor girls. He has taken his players to "strip clubs" many times and supplied them with alcohol on a weekly basis. I repeat this is not an allegation-- it is FACT. Mr. Shafer (the Principle)[sic] knew of this and probably many more, that he has "sweeped [sic] under the rug."
This all started when a friend of
Mr. Pringle who was the wrestling coach here at Riverdale asked my son if he was having sex with his girl-friend [sic] & did she
like to swallow. With her brother on the team the info got back to her mom and she brought it to Mr. Shafer's attention and the word was put around school that this family was trouble-makers. This was done from the staff at Riverdale. When this was brought forward my sons were starting QB & running back in football, starting catcher (1 son) & starting shortstop (other son). It also maybe [sic] noted that Mr. Pringle picked
& told me how great my boys are & would be for Riverdale-- they would start & play full-time over the boys that are now on the team playing. He would tell us how much "better" the boys were than the others. Why did this change? I coached in high school for football, baseball and took softball teams to the state finals. I know all these kids & their talents, since I've been coaching in Lee County for over 25 years. I also know my boys are not the best on the team, but they were chosen by another high school coach who took the best 15 boys in the whole county to the national finals!
Top 15 in county, but not top 15 in their local school? There must be a reason-- there is [sic] you come forward and your family gets dumped on by the staff at school. My boys had teachers come up to them and tell them to watch their backs the staff said they will get them. The "good ole boy" network at Riverdale starts with Mr. Shafer and Mr. Gruhn the athletic director, the assistant principles [sic] and athletic coaches and staff hide and alter records to please their need. Were [sic] also told if we did not go forward with our complaints that our boys grades would be "fixed" to suit us. 40 yr. old men do not ask high school kids if they "swallow", are they "easy to lay", what positions they like, who and when they have "slept with".
This investigation has been in the hands of administrators for 2 yrs., we have been continualy [sic] lied too [sic] & decieved [sic] by them.
What Mr. Pringle has done is wrong! If he were not a teacher he would be in prison.
Our kids need role models that know right from wrong. Thank you for your time and effort in this matter. May the Lord be with you always.
At the hearing, Mr. Truckenmiller stood by everything in the above statement. Thus, Mr. Truckenmiller swore that: Mr. Pringle chewed tobacco and swore continually at school;
Mr. Pringle took students to strip clubs; Mr. Pringle provided alcohol to students every week; Mr. Pringle made lewd remarks to female students and possibly even had sexual relations with them; and the entire Riverdale administrative staff, from
Mr. Shafer down, was made aware of Mr. Pringle's actions and conspired to cover up his activities, going so far as to offer bribes in the way of altered grades to the Truckenmillers in exchange for their silence. The statement also implies, in an echo of the Rines' meeting with Mr. Shafer, that
Mr. Truckenmiller nonetheless wanted his sons to play varsity baseball on Mr. Pringle's team.
At the hearing, Mr. Truckenmiller testified that, unlike Mr. Pringle, "I don't believe in abusing children . . . If a man wants to take kids to strip clubs and talk sexual innuendo with kids and ask them some of the things that he asks them, it's just totally inappropriate. You do not go up to a
16 year old girl and ask her if she swallows."
Mr. Truckenmiller testified that he had witnessed
Mr. Pringle "curse and swear" hundreds of times at practices and games. He stated that it was "a continuous thing," that
Mr. Pringle cursed, swore, and degraded players every three minutes. Mr. Pringle used the words "shit," "piss," "damn," "hell," and "God damn," among others. He used the word "fuck" "numerous, numerous, numerous times." Mr. Truckenmiller testified that he saw Mr. Pringle chewing tobacco "basically every day for three years."
Mr. Truckenmiller stated that he heard Mr. Pringle ask about a girl "swallowing" during a baseball practice with the entire team present. No other witness recalled this incident, and, when pressed during cross-examination, Mr. Truckenmiller could not name anyone else present who might confirm his story.
Mr. Truckenmiller testified that he has heard 70 to 80 different people talk about the "fact" that Mr. Pringle takes students to strip clubs. He also heard "the boys" discussing the fact that Mr. Pringle supplied them with alcoholic beverages. No other witness confirmed these "facts."
Mr. Truckenmiller testified that it was Mr. Shafer, the principal of Riverdale, who offered to "fix" his sons' grades in exchange for dropping his complaint.
At the hearing, Mr. Shafer was shown
Mr. Truckenmiller's written statement. Mr. Shafer credibly
denied the allegation that he covered up anything regarding this matter and was visibly offended that such allegations were made against him. Mr. Shafer testified that none of the accusations against Mr. Pringle came forward until after the 2002 varsity baseball cuts. The administration spread nothing about the Truckenmillers being "troublemakers" and no one "dumped" on that family. He absolutely denied that anyone at Riverdale altered records or made any sort of offer to "fix" the Truckenmiller boys' grades. Mr. Shafer did recall that Ms. Caruthers had made such an offer to him, i.e., she would drop her complaint if her son were placed on the varsity baseball team and that he declined even to discuss the matter with her.
In a letter dated January 18, 2002, Ms. Caruthers alleged that her son was cut from the baseball team in retaliation for an alleged incident between Tyler Caruthers and Dr. Christine Dollinger, an assistant principal at Riverdale. The allegations themselves are irrelevant and so absurd on their face that they do not merit discussion here. However, the story culminated in a scene in which Dr. Dollinger begged
Ms. Caruthers not to report the incident and offered to change Tyler's grade in Spanish class in exchange for Ms. Caruthers' silence. Ms. Dollinger credibly testified at the hearing that Ms. Caruthers' letter was "offensive" and "full of lies" and that no such incident ever occurred. While no direct link was
established, the similarity between Ms. Caruthers' story and that of Mr. Truckenmiller is notable enough to suggest that the former may have inspired the latter.
At the hearing, Mr. Truckenmiller adamantly denied ever coordinating with Ms. Caruthers or any other parents regarding the complaints against Mr. Pringle. However, Mary Rine admitted attending such a meeting with the Truckenmillers. She denied that Mr. Pringle was the subject of the meeting, but conceded that "Bob's name probably did come up" in connection with a discussion about the laxity of the Riverdale administration in "taking care of problems when they had them."
Mr. Truckenmiller also denied contacting Sean Fox about his testimony in this proceeding and claimed not to know if his wife or sons had done so. Sean Fox testified that the Truckenmillers persistently phoned and e-mailed him, both at home and while he was away at college in North Carolina in the Fall of 2002. Mr. Fox stated: "They wanted to know what I knew, kind of as their inside man, if you want to say that, since I played around [Mr. Pringle] and with him for golf and baseball, and wanted to know anything I knew."
Mr. Truckenmiller testified that neither he nor his wife had ever caused any trouble or conflict while their sons played Little League baseball. Several witnesses testified to the contrary. Fred Burson, a former junior varsity baseball
coach at Riverdale, a ten-year district administrator for Little League, and a witness for the Department, testified that the Truckenmillers have a "long, storied history of causing trouble." He did not know Mr. Truckenmiller well, but has known Mrs. Truckenmiller for a long time, and stated that she has caused trouble at every level of baseball in which her children have participated. Mr. Burson testified that he would never be a part of anything the Truckenmillers were involved in.
Justin Cook, the assistant varsity baseball coach at Riverdale, coached both Truckenmiller boys in Little League. He testified that Mr. and Mrs. Truckenmiller complained to him about their sons' positions, then took their complaint to the Little League officials when they were dissatisfied with his response.
Fred Barker is the parent of a Riverdale varsity baseball player and a coach in the autumn "wooden bat league." He has coached both Truckenmiller boys. He testified that the Truckenmillers perpetually complained about the coaching if their children did not play where and when the Truckenmillers thought was proper.
Elizabeth Parrish was player agent for the Little League, and her husband was the president of the Little League during the years when the Truckenmiller children played at that level. She testified that Mr. Truckenmiller was required to
step down as an assistant coach in the Little League for telling a player he would "whip his ass" if the player didn't do as he was told.
Diane Byrus' son, Greg, played one year of junior varsity and three years of varsity baseball for Mr. Pringle at Riverdale, and he was a contemporary of the Truckenmillers throughout their youth's baseball careers. Ms. Byrus testified that in 2001, when Greg was playing catcher for the varsity squad, the Truckenmillers told her that Greg was no good and that Mr. Pringle should make their son the starting catcher. Ms. Byrus had observed both Mr. and Mrs. Truckenmiller coach in the Little League and stated that she would not let either of them coach her son because of the way they treated the children. Mr. Truckenmiller was "very obnoxious" on the field, cursing in front of the players, even saying the word "fuck" while coaching teenagers. Mrs. Truckenmiller was belligerent and constantly belittled other peoples' children. Ms. Byrus did not want her children to be around the Truckenmillers.
The above findings are sufficient to demonstrate that Mr. Truckenmiller was a wholly unreliable witness, and his testimony has been disregarded as the basis for any finding of fact in this case. In his witness statement, Mr. Truckenmiller gathered every available scrap of hearsay and rumor about
Mr. Pringle, magnified it, and presented it as "fact." For
example, rumors that Mr. Pringle once suggested a trip to a strip club (discussed in Section V, supra) became, in
Mr. Truckenmiller's telling, the "fact" that Mr. Pringle regularly smuggled underaged high school students into such places. Other accusations, such as Mr. Pringle's giving alcohol to students, were not even alleged by any other witness.
To the Department's credit, its Administrative Complaint did not include Mr. Truckenmiller's wilder accusations regarding strip club attendance and providing alcohol to players, or his implication that Mr. Pringle may have molested high school girls. However, the Department knew or should have known that much, if not all, of Mr. Truckenmiller's testimony was fabricated, yet it chose to give him free rein to retell these stories as a witness for the Department in this case. Including Mr. Truckenmiller's inflammatory testimony in its case suggests that the Department engaged in this proceeding for reasons other than arriving at the objective truth of the matters at issue.
Use of Tobacco
The Administrative Complaint alleges that Mr. Pringle "chewed tobacco at baseball practice, at baseball games, on trips to games and/or at school; allowed his players (students) to do the same . . . and/or provided chewing tobacco for students despite the fact that there was a rule for athletes at
the school that they could be dismissed from the team for possession of tobacco."
The Department called several witnesses who stated they had seen Mr. Pringle using dip on the baseball field. Fred Burson was the junior varsity baseball coach at Riverdale under Mr. Pringle from 1998 through 2000. In an April 4, 2002, letter to the Department's investigator, Shellie White, Mr. Burson wrote: "I have seen Mr. Pringle use tobacco on the field during practice and games." However, Mr. Burson's testimony at the hearing was much more equivocal. He testified that he never actually saw Mr. Pringle put tobacco into his mouth. Mr. Burson had seen the can of dip in Mr. Pringle's car, saw a bulge in Mr. Pringle's mouth, and assumed that it was dip. He never saw Mr. Pringle carrying the can of dip in his pocket and could not recall ever seeing Mr. Pringle spit tobacco juice.
Mr. Burson was not sure if any students were ever present during those times he thought Mr. Pringle had dip in his mouth, which appears to conflict with his written statement that Mr. Pringle used tobacco during baseball games. Mr. Burson never saw Mr. Pringle offer dip to a student; to the contrary, Mr. Burson testified that Mr. Pringle discouraged his players from using tobacco.
Despite the fact that he was called by the Department, Mr. Burson was plainly a reluctant witness. He stated that he
"resent[ed] being here" because this case was a matter of "sour grapes" and a waste of time and money. Mr. Burson testified he was never offended by anything that Mr. Pringle did and never saw Mr. Pringle do anything in the presence of parents, students, or teachers that would embarrass Riverdale.
Sean Fox graduated from Riverdale in 2002 and had played junior varsity baseball and varsity golf. His witness statement to Ms. White, dated May 7, 2002, stated as follows regarding tobacco:
All of the alligations [sic] against Coach Pringle are true. I have witnessed with my own two eyes, everything dealing with chewing tobacco and profanity. I witnessed him telling another teammate that he did have chewing tobacco with him and that he could have some that it was "over on top of the crate." He has some of my friends hooked on chewing tobacco thanks to him sharing it. I have had him this past year for a golf coach and he did the exact same things on the golf course. On a golf trip to Clewiston, he was chewing tobacco in the van spitting it out in a 20 oz. bottle of Coke right in front of us. His chewing tobacco is an everyday thing for him at Riverdale.
At the hearing, Mr. Fox's testimony was far less assured than was his witness statement. He continued to maintain that someone at practice had blurted out a request for tobacco, and that Mr. Pringle had indicated he had some on a crate or on the dugout bench. Mr. Fox could not recall who had asked for the tobacco, though he was "pretty sure" it was a
student. He agreed that his recollection of the event was "pretty hazy."
Mr. Fox admitted having no basis for alleging that Mr. Pringle had hooked his friends on tobacco. Rather than "an everyday thing," Mr. Pringle's tobacco use was "every now and then at practice." In his direct testimony, Mr. Fox stated that he had seen Mr. Pringle put tobacco in his mouth "maybe once or twice." However, during cross-examination, he admitted that he never actually saw Mr. Pringle put tobacco in his mouth and never saw him spit tobacco juice, except on the Clewiston golf trip.
As to the Clewiston incident, Mr. Fox admitted that he "can't honestly say" that he saw Mr. Pringle spit tobacco juice into a Coke bottle. He saw the motion of the bottle to
Mr. Pringle's mouth and assumed he was spitting tobacco juice.
Curtis Rine, one of the players cut from the 2002 Riverdale baseball team, testified that he once saw Mr. Pringle openly dipping tobacco in his math class, and that Mr. Pringle openly dipped tobacco on the baseball field, both at practices and at games. He testified that Mr. Pringle allowed players to use tobacco, and they would all have it in their mouths, "pretty much" at every practice and every game. The players openly used and spat tobacco at games, in front of parents, school officials, and the umpires, who did nothing about it.
Curtis Rine also testified that on a bus trip home from an away baseball game, two players were dipping tobacco in the back of the bus. They swallowed the tobacco, became sick, and hung their heads out of the bus window to throw up. Curtis Rine testified that Mr. Pringle laughed when he saw the two boys throwing up.
No one else associated with the Riverdale baseball team, players or coaches, either in their written statements or their live testimony, claimed to have ever witnessed players hanging out of a bus window and throwing up. Assistant baseball coach Justin Cook pointed out that the Riverdale team rides a charter bus to away games and that the windows of such a bus cannot be opened by the passengers. Mr. Pringle also denied that anyone ever threw up on the bus and noted that the bus driver would have reported such an incident had it happened.
No other witness ever claimed to have seen Mr. Pringle use tobacco in the classroom. As Mr. Hennebery testified, had Mr. Pringle openly used tobacco during a baseball game, he would have been ejected. Mr. Pringle was never ejected from a Riverdale baseball game. Any player using tobacco in a game would have been ejected from that game and suspended from playing baseball for two weeks. No Riverdale player was ever ejected for tobacco use under Mr. Pringle. Mr. Pringle strongly and credibly denied allowing any player to use tobacco under any
circumstances. Curtis Rine's testimony on these points cannot be credited.
Mary Rine, Curtis' mother, also testified that she witnessed Mr. Pringle chewing tobacco at Riverdale baseball games. She testified that he continuously spat tobacco juice throughout the games, even while standing in the third base coach's box in full view of the umpires. She also stated that on five or six different occasions at the baseball field, she saw Mr. Pringle with dip in his mouth at the concession stand.
Mr. Pringle testified that he never went to the concession stand with dip in his mouth.
Amy Cafaro-Dillon's son, John Cafaro, played junior varsity baseball at Riverdale in 2001. He tried out for the varsity team in 2002, but did not survive the cut. John Cafaro played golf on the Riverdale varsity team coached by
Mr. Pringle.
Ms. Cafaro-Dillon testified that she has spent a great deal of time around Mr. Pringle because of her son's participation in baseball and golf. When her son was on the junior varsity team, she helped run the concession stand at baseball games. She attended every practice. Ms. Cafaro-Dillon testified that she never saw Mr. Pringle use dip on school grounds.
Elizabeth Parrish's son, Robby, played four years of varsity baseball at Riverdale for Mr. Pringle and graduated in 2000. Ms. Parrish "more or less" ran the concession stand for the four years her son played baseball at Riverdale. She attended every baseball game her son played in at Riverdale and continued attending some of the games in 2001 and 2002.
Ms. Parrish testified that she never saw Mr. Pringle using tobacco. The only thing she ever saw Mr. Pringle spit was sunflower seeds.
Justin Cook teaches business at Riverdale and has spent three seasons as assistant varsity baseball coach. He spends hours with Mr. Pringle every day during baseball season and sits less than a foot from Mr. Pringle during games.
Mr. Cook confirmed that he has seen Mr. Pringle use Copenhagen dip when he is away from school, such as on a fishing trip.
However, Mr. Cook stated that Mr. Pringle has never used dip at any school-related function, including baseball games and practices, and in fact, leaves the can of dip locked in his truck when he is at school. As did Mr. Hennebery, Mr. Cook pointed out that tobacco use at baseball games violates state and school rules and that officials will eject a coach or player caught with tobacco.
Jason Scott has taught social studies at Riverdale for four years, and has served as assistant golf coach under
Mr. Pringle for the past two seasons. He has also attended several baseball games as a spectator. Mr. Scott testified that he has never seen Mr. Pringle use tobacco products in front of students.
Fred Barker's son, Brian, played three years of varsity baseball under Mr. Pringle. Fred Barker has assisted Mr. Pringle in running the autumn "wooden bat" baseball league. He attended nearly every baseball game, home and away, during his son's career at Riverdale. Mr. Barker testified that he had no idea Mr. Pringle used tobacco until these allegations arose after the 2002 cuts.
Brian Barker testified that he knows what dip looks like in the user's mouth because his father used dip for years, but that he had never seen Mr. Pringle use dip. Brian also stated that he had never seen any of his fellow players use dip, in contrast to the testimony of Curtis Rine.
James Simmons has two sons who played varsity baseball at Riverdale under Mr. Pringle: Justin played four years of varsity baseball and graduated in 2000; and Joshua played two years of junior varsity, two years of varsity, and graduated in 2002. Mr. Simmons attended every Riverdale baseball game, home and away, when his sons were on the team. Between 1998 and 2001, Mr. Simmons attended nearly every baseball practice.
Mr. Simmons testified that he never saw Mr. Pringle use tobacco.
Greg Byrus played three years of varsity baseball at Riverdale, graduating in 2003. He also played on the golf team for two years. Mr. Byrus testified that he has used dip for about a year and knew two other Riverdale players who used dip. However, he stated that none of the three players ever used dip at a practice or a game because it was not allowed. Mr. Byrus testified that he had once seen Mr. Pringle use dip at a fishing tournament, but that he had never seen Mr. Pringle use it during a school-related function.
In response to Mr. Byrus' testimony, Mr. Pringle testified that he was unaware that Greg Byrus used dip.
Mr. Pringle stated that he has never seen a student using tobacco products while that student was a member of the baseball team. He has seen former players smoking or dipping tobacco products after graduation.
Diane Byrus is the mother of Greg Byrus. She is the athletic secretary at Riverdale and reports to Boyd Gruhn, the school's athletic director. She attended all but two games during Greg's four years at Riverdale and sat in a lawn chair at the fence near the Riverdale dugout, no more than five or six feet from Mr. Pringle. Ms. Byrus testified that she never saw Mr. Pringle use tobacco at a school activity, though she has seen him use it in social activities away from school.
Richard Shafer, the principal of Riverdale for six years, testified that when he first came to the school, he had a concern about several coaches using tobacco. In 1999, he "heard something" about Mr. Pringle chewing tobacco on the field. He had a discussion with Mr. Pringle and William Hoke, then the athletic director about the matter. Mr. Pringle denied using tobacco on the field, and that was the end of the matter.
Mr. Shafer heard no complaints about Mr. Pringle chewing tobacco until after the 2002 baseball cuts. Mr. Shafer has never seen Mr. Pringle with tobacco in his mouth.
Mr. Hoke, the athletic director at Riverdale during the 1998-1999 school year, testified that when word got out in the community that he was going to Riverdale, he began hearing things about profanity and tobacco use among the coaching staff. People relayed such concerns to him because they knew of his activity in the Fellowship of Christian Athletes and of his strong opposition to cursing and tobacco use.
At the start of the school year, Mr. Hoke called a general meeting of the coaching staff to remind them of the rules. Mr. Hoke stated that if he ever discussed tobacco use or profanity individually with Mr. Pringle, it would have been at the "tail end" of a meeting on another subject and would have been a mere reiteration of the statements made in the general meeting.
Mr. Pringle did not recall an individual meeting with Mr. Hoke about the subject of tobacco and profanity, though he did recall that Mr. Hoke "hit those topics hard" in the general meeting.
Mr. Hoke testified that he watched the coaching staff "like a hawk" for objectionable behavior, and that he never witnessed Mr. Pringle using profanity or tobacco products during his tenure as athletic director.
In his own defense, Mr. Pringle testified that he does use Copenhagen, a dip. He started using dip during his last year of college. Mr. Pringle fished in tournaments while in college and still fishes recreationally. He likes to put a dip in his mouth when he is out on the water fishing. He has a dip at night before he goes to bed, and occasionally when playing golf. However, when he is at school, the dip container is either locked in his truck or left at home.
As a possible explanation for Sean Fox' claim that he saw a container of tobacco in the dugout, Mr. Pringle noted that the Riverdale baseball field is used by the community and by college teams. He quite often finds tobacco products, beer bottles, and other refuse at the field after outsiders have
used it.
Mr. Pringle flatly denied ever having offered tobacco to a student. He stated that he would never allow players to
use tobacco products on the field and that he has never seen a current Riverdale player use tobacco.
Mr. Pringle is a member of the FHSAA and of the Florida Athletic Coaches Association. Both associations prohibit profanity, tobacco, and alcohol at any athletic event. In high school baseball, the rules are enforced by the umpires. A player ejected for using tobacco or profanity is not allowed to play in another game for two weeks. Prior to the 2002 season, a coach ejected for tobacco or profanity was required to leave the school grounds and serve a one-game suspension.
Mr. Pringle testified that the rule was strengthened in 2002 and now provides the same two-week penalty for coaches as for players.
Mr. Pringle testified that in his ten years at Riverdale, no coach or player has been ejected from a baseball game or even warned by the umpires regarding tobacco use or profanity. Mr. Pringle stated that he runs a strict program. Players are not permitted to argue with or "show up" the umpires, or to throw bats or helmets. The same strict rules apply to practices as to games. Mr. Pringle testified that he has high goals for the Riverdale baseball program, and "there's no way I would allow myself or a player to jeopardize our goals" by using tobacco on the field.
Mr. Pringle testified that he did use tobacco in front of Mr. Burson, when the coaches would go out for dinner after practices or especially after tryouts, to review the cut lists. Mr. Pringle stated that he will occasionally dip tobacco after dinner and likely did so on those occasions with Mr. Burson and the other coaches.
Mr. Pringle recalled the golf trip to Clewiston, but denied using tobacco on that trip. He also denied ever using tobacco in the classroom. Mr. Pringle stated that he is an inveterate chewer of sunflower seeds and has chewed those on golf trips, bus trips, and even in the classroom when he is not actively teaching. If he is indoors or in a car, he spits the sunflower shells into a container.
Mr. Pringle chews sunflower seeds at baseball practices and games. The assistant coach, Mr. Cook, confirmed that the coaches and some players chew sunflower seeds "all the time" during practices and games. Ms. Parrish testified that Mr. Pringle usually bought sunflower seeds from the concession stand before games. Mr. Pringle makes his own beef jerky, which he chews at practices and games. Mr. Pringle also chews gum. Any of those items could be mistaken, at a distance, for dip tobacco, particularly by someone who knows that Mr. Pringle does use dip on occasion.
In summary, the Department failed to demonstrate by clear and convincing evidence, or even by a preponderance of the evidence, that Mr. Pringle ever chewed tobacco at baseball practice, at baseball games, on trips to games, or at school. The Department failed to demonstrate by clear and convincing evidence, or even by a preponderance of the evidence, that
Mr. Pringle ever provided tobacco to his players or allowed his players to use tobacco in his presence.
Swearing
The Administrative Complaint alleges that Mr. Pringle "used profanity and/or demeaning language in front of students, including but not limited to words to the following effect: asking them what the hell they were thinking; telling them they were uncoachable motherfuckers; telling them they were worthless pieces of shit, sorry asses and/or fucking losers; and/or asking a student how he could be 17 years old and only be in the 9th grade."
No evidence was presented that Mr. Pringle asked a student "how he could be 17 years old and only be in the 9th grade." No evidence was presented that Mr. Pringle called his players "uncoachable motherfuckers," "sorry asses" or "worthless pieces of shit." Thus, these allegations are deemed abandoned.
The Department called several witnesses who claimed to have heard Mr. Pringle use profanity in front of students. In his May 7, 2002, statement to Ms. White, Sean Fox wrote:
Profanity with him is an everyday thing. On the golf course, baseball field, anywhere outside of his classroom, every other word out of his mouth is profanity. On a couple of occasions in the classroom talking to him during golf season, in a quiet manner, he has used profanity in those little conversations.
At the hearing, Mr. Fox testified that his written description was "pretty much accurate." Mr. Fox stated that to his knowledge this swearing occurred only in front of the athletes, not other students. Mr. Pringle would say "damn" and "hell" if the players did something wrong. Mr. Fox stated that Mr. Pringle said "fuck" once or twice in his presence.
Willard Truckenmiller testified that he only heard Mr. Pringle curse a couple of times, after games. "Shit" and "damn" were the only words he could clearly recall Mr. Pringle using. He stated that Mr. Pringle might have said "hell" a couple of times, but he expressly denied ever hearing
Mr. Pringle say the word "fuck."
Curtis Rine testified that Mr. Pringle used profanity in front of the baseball players, either when joking around or when something happened in a game that made him mad.
Mr. Pringle used "probably almost every single" curse word,
including "hell," "shit," "fuck," "bitch," and "assholes." Curtis Rine stated that Mr. Pringle once called the entire team out onto the field, berated them for fooling around and not doing their jobs during the previous day's game, and called them "fucking losers."
Mary Rine's older son, Tommy, played varsity baseball for Mr. Pringle in 2000 and 2001. Ms. Rine testified that Tommy would come home complaining about the swearing that occurred on the baseball field. She stated that in 2001, she wrote a letter to Mr. Shafer to complain about a variety of things, including the cursing and use of tobacco on the baseball field. Her husband delivered the letter to Ms. Dollinger, who told Mr. Rine that she would investigate the matters raised in the letter. The Rines did not retain a copy of the letter.
At the hearing, Ms. Dollinger testified that she purged her files when she changed jobs a year later, and that the Rines' letter must have been destroyed at that time. She could not remember the exact substance of the Rines' complaint. She did recall bringing four baseball players into her office separately to discuss the allegations made by the Rines about Mr. Pringle and recalled being satisfied that there was no truth to the allegations. She then met with Mr. Pringle to discuss the allegations and her findings and to caution him that there
were parents on the lookout for misbehavior on the baseball field.
Ms. Rine coached cross-country at Riverdale for six years. While running with her team across the baseball field one day, she stated that she heard Mr. Pringle yelling at the players participating in an off-season conditioning program, "What the hell were you thinking about?" Ms. Rine conceded that the players were in the dugout and that she could not see into the dugout from her position, but she was certain that she recognized Mr. Pringle's voice.
Ms. Rine testified that Mr. Pringle would swear at baseball games if the game was going badly or a player made a bad play. She recalled hearing him say "shit," "damn," and "hell," though she could remember no particular instance of his swearing aside from the incident with her cross-country team.
Fred Burson testified that he has heard Mr. Pringle say the word "fuck," but only under his breath in frustration. Mr. Burson could not say whether any student heard the word. He testified that this was not typical language for Mr. Pringle, but that, like anyone else, Mr. Pringle would occasionally become frustrated and say something he shouldn't. In three years of working with Mr. Pringle, Mr. Burson never heard
Mr. Pringle curse at a student or direct such language at any other person.
As noted above, Mr. Hoke watched the coaches "like a hawk" during his tenure as athletic director and never heard Mr. Pringle use profanity.
Justin Cook, the assistant varsity baseball coach for the last three years, testified that he has heard Mr. Pringle swear a few times when they have been fishing together, but never when performing his professional duties. Mr. Pringle has used the word "hell" two or three times in game conversations with Mr. Cook. During games, Mr. Cook and Mr. Pringle sit very close together in folding chairs outside the dugout, and are not near the players. Mr. Cook stated that he did not believe the players could hear these conversations.
Mr. Cook testified that Mr. Pringle has said to him, "What the hell is going on right now?" However, Mr. Pringle has never said that to the players. Mr. Cook also recalled
Mr. Pringle meeting with him in the right field corner before a game, 200 feet from the dugout where the players were sitting and saying, "How in the hell are we going to beat this team today?" Mr. Cook has never heard Mr. Pringle shout a curse word.
Jason Scott, the teacher who assists Mr. Pringle with the golf team, testified that Mr. Pringle's behavior has always been purely professional. He has heard Mr. Pringle curse while
playing golf with a group of adults, but has never heard Mr. Pringle utter a curse in the presence of a student.
Brian Barker, who played baseball for four years under Mr. Pringle, testified that he never heard Mr. Pringle use any vulgar or sexually explicit language. The worst thing
Mr. Pringle might have said was "damn," and Mr. Barker could not say for certain whether Mr. Pringle had said that. He stated that Mr. Pringle "gets on to you when you do something wrong," but never says anything to put down or demean his players.
Mr. Barker testified, "[Y]ou can't really get nothing done when somebody is cussing at you . . . Why would he cuss at us to get us to work harder for him? I mean, it just don't make any sense."
Greg Byrus, who played three years of varsity baseball under Mr. Pringle, testified that Mr. Pringle did not say anything that he considered cursing or profanity. He stated that Mr. Pringle would occasionally use the word "damn" or "hell" when something went wrong on the field. Mr. Byrus did not consider "damn" or "hell" to be curse words. He stated that Mr. Pringle did not shout the words; only the players sitting on the bench could hear them. Mr. Byrus expressly denied that
Mr. Pringle had ever called the players "losers" or otherwise demeaned the players.
Diane Byrus, Greg's mother, stated that she did consider "damn" and "hell" to be curse words, but that she never heard Mr. Pringle utter even those terms. From where she sat at the baseball games, she could hear the players talking in the dugout and was certain she could have heard Mr. Pringle cursing had he done so. Ms. Byrus stated that, in her position as athletic secretary, she would have been obliged to report to the athletic director any misbehavior by Mr. Pringle. She never saw any such misbehavior.
Mark Ryan and Fred Barker both testified that they had never heard Mr. Pringle utter a profanity. James Simmons testified, "I've heard him holler at them, but he didn't cuss them." The assistant principals, Don Trelease and Christine Dollinger, both testified that they had never heard Mr. Pringle utter a profanity at a baseball game.
In his own defense, Mr. Pringle testified that he has never used profanity in a game situation or at practice, and had certainly never shouted profanity on the field or in the dugout. He conceded that he has softly said "damn" or "hell" to a coach sitting next to him. He denied ever turning to a student and saying, "What the hell were you thinking?" or anything like that. He noted that use of profanity is a cause for ejection from baseball games and that neither he nor any of his players had ever been cautioned or ejected for using profanity. He also
noted that Riverdale plays 15 home games every year, with an average attendance of 100 people, yet no one complained about his alleged foul language or tobacco use until after the 2002 cuts.
Mr. Pringle stated that he probably had used profanity in the presence of Mr. Burson, but only away from school and never when students were present. Mr. Pringle and Mr. Burson would exchange jokes that included ribald language, all the way up to the word "fuck."
In summary, the Department failed to demonstrate by clear and convincing evidence that Mr. Pringle used profanity and/or demeaning language in front of students. The only thing clearly and convincingly demonstrated is that Mr. Pringle would occasionally mutter an oath to the coach seated next to him.
Of the student witnesses, only Curtis Rine claimed to have heard Mr. Pringle berate players with profanity, including calling the entire team "fucking losers." The Department's other two student witnesses, Willard Truckenmiller and Sean Fox, recalled no such berating of players, though they claimed to have heard Mr. Pringle utter curse words. Greg Byrus and Brian Barker denied hearing Mr. Pringle use profanity in front of the players, as did assistant coach Jason Scott. Mr. Byrus did recall Mr. Pringle occasionally saying "damn" or "hell." Fred
Burson, who recalled hearing Mr. Pringle use the word "fuck" on the field, testified that he said the word under his breath.
Of all the witnesses not directly involved with the baseball team, only Mary Rine claimed to have heard Mr. Pringle use profanity on the baseball field. Other adults who spent as much or more time with the baseball team as did Ms. Rine testified that they never heard Mr. Pringle use profanity.
The weight of the credible evidence favors
Mr. Pringle. At most, the evidence establishes only that some players may have overheard Mr. Pringle say the word "damn" or "hell" to a coach seated next to him at the edge of the dugout. No credible evidence established that Mr. Pringle ever directed such language at students, or that he ever used language that any reasonable person would consider demeaning to his baseball players.
Sexual Innuendo
The Administrative Complaint alleges that Mr. Pringle "told coarse jokes and/or made inappropriate sexual comments in front of students, including but not limited to, comments about the following: blowjobs; lap dances; getting a piece of ass; asking a student how he would like to fuck the hell out of a certain female; asking a female student if her black eye was due to her boyfriend's penis having hit her eye while she was giving him oral sex; asking male students about their sexual
relationships with their girlfriends; and/or discussing how much 'head' a student had received."
In his May 7, 2002, statement to Ms. White, Sean Fox wrote the following:
As far as sexual comments & gestures, he has set a world record in that department. He has made numerous sexually related comments to one of my good friends, Melissa Land. She has told me that he said "Damn, you look good in those shorts," and "If you ever need help raising a grade, I'm sure we can make a trade." Melissa didn't even have him for a teacher, so how could he help her raise her grade in another class?
Melissa Nunez, Jackie Whitlock are two other cheerleaders I'm almost certain he has made sexually-referred [sic] comments to and probably even sexual contact with. On road trips with golf & baseball I have heard him make comments about the girls saying "How would you like to fuck the hell out of her?" "Just let me know, I can make it happen." Every day he has a different sexual comment about a cheerleader. I have asked other cheerleaders (who request to remain anonymous) that Pringle has asked them to have sexual fun & sexual intercourse. He has done everything he has been accused of and denied everything during baseball season to keep his coaching job. He should not be a coach, nor a teacher before some more serious [sic] happens (i.e. rape, mollesting [sic]) He thinks that since he is a teacher, he can get away with this easier.
He's not at this high school to teach, he's here to take advantage of girls that are 17 & 18 years old. Someone needs to get rid of him & out of this school before rape or mollesting [sic] occurs & the school board and school really get into a situation I'm sure they don't want to be in. Lee County School Board did a horrible job
investigating him before. As a student, this scares me knowing a creep, a pervert like him is on the loose getting away scot- free.
At the hearing, Mr. Fox considerably softened those portions of his statement that he did not expressly disavow. Mr. Pringle's actual comments about girls were "maybe not that extreme" when compared to those in Mr. Fox' written statement. Mr. Pringle would "just say something about how good a girl would look or how maybe the way she acted." Mr. Pringle's comments were "maybe not necessarily" about cheerleaders, but about some other unnamed girls. At the hearing, Mr. Fox could recall no particular statements Mr. Pringle made about girls. When questioned about the "How would you like to fuck the hell out of her?" comment, Mr. Fox stated:
I don't remember the whole "let me know" thing, "I can make it happen," but I'm sure once or twice-- I can't remember specifically, but the first statement would be true at some point.
Mr. Fox testified that he wrote his statement "probably out of pure anger at the time and frustration" over being dragged into this matter at a time he was preparing for graduation and going through family problems. Graduation was supposed to be a good time, but this controversy was roiling the school and Mr. Fox was being pulled into it. He stated that, if he could, he would take back the accusations that Mr. Pringle
was a "creep" and a "pervert." He testified at the hearing that Mr. Pringle was a good coach and a good role model for students.
Mr. Fox admitted that, of all the girls named or referenced in his statement, Melissa Land was the only one he actually spoke with about these matters. His other allegations were based on the girls' "reputations and rumors that I have heard about them, and stuff like that." He admitted having no personal knowledge as to the truth of any of the allegations in his statement regarding Mr. Pringle and female students. Sean Fox never saw Mr. Pringle make any inappropriate comment to any female student.
In a written statement to Ms. White dated April 3, 2002, Willard Truckenmiller alleged that Mr. Pringle talked to players about having sex with their girlfriends and whether the girls were "easy." He also wrote about a cheerleader, later identified as Melissa Land, who came to school with a black eye. Willard Truckenmiller alleged that Mr. Pringle asked Ms. Land "if her boyfriend miss [sic] her mouth and hit her in the eye." He alleged that Ms. Land did not come forward because she was threatened with being kicked off the cheerleading squad if she did.
At the hearing, Willard Truckenmiller testified that Mr. Pringle made no sexual comments in his presence. As to Melissa Land, he disclaimed any personal knowledge of the
incident, stating that he only knew what Ms. Land told him. For reasons set forth below, it is far more likely that Willard Truckenmiller's information about the incident came from Curtis Rine, the "boyfriend" referenced in the statement, than from Melissa Land.
Curtis Rine testified that he was dating Melissa Land at the time of the incident. Melissa had received a black eye during a cheerleading practice. Mr. Rine testified that Melissa told him that she saw Mr. Pringle in the hallway, and that
Mr. Pringle asked her, "What happened to your eye? Did your boyfriend, you know, miss your mouth and hit you in the eye with his dick?" Mr. Rine testified that this made him angry but that he did not report Mr. Pringle.
Ms. Land testified that she did not know Mr. Pringle very well but that she would walk past his classroom and say hello every day during the change of classes. On the day in question, Mr. Pringle was standing outside his classroom with Mark Ryan, another teacher. Ms. Land recalled that Curtis Rine was with her as she walked past Mr. Pringle and Mr. Ryan.
Mr. Pringle saw her black eye and "said something like, 'What were you doing with your boyfriend?'"
Ms. Land testified that she did not take the remark as referencing sex. She simply took it as a joke and laughed,
"blew it off." Later, however, Curtis Rine told her that he thought Mr. Pringle was making some kind of sexual remark.
Mr. Ryan recalled the incident. He knew Melissa Land as a former student of his. She walked past Mr. Pringle and him during change of classes, and they noticed she had a black eye. Mr. Pringle said something like, "What happened to you?" This was in the context of a brief, lighthearted conversation about whether cheerleading is a "sport," a running joke in the hallways of Riverdale. The entire conversation lasted no more than twenty seconds. When asked directly whether Mr. Pringle made any kind of sexual remark to Melissa Land, Mr. Ryan testified:
Absolutely not. I mean, I have been a teacher for 15 years in Lee County, and any remark of a sexual nature would be something that would be imprinted in my memory. And no. I mean, nothing like that has ever happened. You know, I mean, this conversation, if it’s a conversation that becomes something out of the normal teacher- student, in passing, joking type of conversation, you would remember that.
Absolutely not. That would be something that... it would just... it would absolutely stick.
Mr. Pringle testified that he and Mr. Ryan were standing in the hallway when Melissa Land came walking by. Curtis Rine was not with Ms. Land. Mr. Pringle asked Ms. Land what happened to her eye, and she explained that another girl accidentally hit her during cheerleading practice. Mr. Pringle
jokingly asked how she could get hurt in cheerleading, since it was not a sport. At the hearing, Mr. Pringle explained that this was a running joke at the school because Riverdale's cheerleading team is highly competitive and nationally ranked, yet receives no money from the school's athletic budget.
Melissa Land laughed, and that was the end of the conversation.
It is clear from the testimony of all involved that the sexual content of this incident derived from the mind of Curtis Rine, not from anything Mr. Pringle said to Melissa Land. Any fair-minded investigation could only have led to the conclusion that this allegation was, if not utterly devoid of merit, then certainly one that could not be proven by clear and convincing evidence when no one who was actually present recalled Mr. Pringle saying anything like what was alleged. The fact that such a vile and improvable allegation was included in the Administrative Complaint again raises questions as to the Department's intent in bringing this case against Mr. Pringle.
In his written statement to Ms. White dated April 3, 2002, Curtis Rine wrote:
Now about the strip clubs and sexual coments [sic]. One night we had a baseball game in Miami and on the way home, there were a couple of us in the front of the bus and [Mr. Pringle] asked if we were gonna go to Lookers with him (strip club) and we said no. I also heard him ask Matt Howerton how many blow jobs has he got now.
At the hearing, Curtis Rine stood by the text of his statement, though he noted that he believed Mr. Pringle was joking about taking the boys to a strip club. Matt Howerton was another player on the Riverdale baseball team. It was well known, at least among the baseball players, that Matt's older sister was a dancer at "Lookers," the strip club allegedly mentioned by Mr. Pringle. Curtis Rine stated that Matt laughed when Mr. Pringle suggested they go there.
Brian Barker was one of the Riverdale players on the charter bus to the Miami game. He never heard Mr. Pringle make a comment about going to Lookers or any strip club, on that trip or at any other time. Mr. Barker stated, "I definitely would recall something like that, yeah."
Greg Byrus was another Riverdale player who rode the bus to the Miami game. He never heard Mr. Pringle say anything about going to Lookers, though he qualified his statement by noting that he was in the back of the bus and Mr. Pringle was sitting in the front.
Assistant coach Justin Cook sat next to Mr. Pringle on the bus coming back from Miami. Mr. Cook testified that Mr. Pringle never said anything about going to Lookers and has never made any comment of the kind to students in Mr. Cook's presence.
Mr. Pringle testified that he never made any comment about going to Lookers. He stated that he would never make such a comment, if only because it was a "very touchy subject" due to the fact that Matt Howerton's sister worked at the club. Other kids gave Matt "a hard time" about it, in a teasing manner.
Mr. Pringle did not approve of the teasing and disallowed it on the baseball field.
Mr. Trelease testified that the Lookers allegation was raised by the Rines at their meeting with him, Mr. Shafer, Boyd Gruhn, and Mr. Pringle on February 18, 2002. Mr. Trelease stated that when the school's administration investigated the matter, it could find no substantiation for the allegation from any player on the bus.
Thus, on the record produced at the hearing, Curtis Rine is the sole witness to Mr. Pringle's alleged invitation to a bus full of students and coaches to join him at a strip club. This allegation has not been proven.
Other sexual comments were attributed to Mr. Pringle by Sean Fox, Willard Truckenmiller and Curtis Rine: asking "How would you like to fuck the hell out of her?"; asking whether certain girls were "easy"; asking how often they had sex with their boyfriends; and asking a student how many blow jobs he'd had. Mr. Pringle denied ever making any such comments. No
other coach ever heard him make such comments. Brian Barker and Greg Byrus denied ever hearing Mr. Pringle make such comments.
The District's investigation concluded there was no reason to give credence to these allegations. Mr. Trelease noted that no such allegations had ever surfaced against
Mr. Pringle until the 2002 baseball cuts were made. Mr. Hennebery noted that even after the allegations against Mr. Pringle had reached the District level, the charges of sexual innuendo did not come up until the investigation was nearly complete, as a sort of afterthought.
In summary, the Department failed to demonstrate by clear and convincing evidence that Mr. Pringle told coarse jokes and/or made inappropriate sexual comments in front of students.
Conclusions
The Department produced not a single disinterested witness to support any of the allegations brought against
Mr. Pringle. In some cases, this would not be of overriding significance. However, in this case, the accusations regarding Mr. Pringle alleged that his behavior was open and notorious.
He cursed freely and often, in front of the entire baseball team and any parents who happened to be in the vicinity. He chewed tobacco at Riverdale baseball games, in full view of the fans, school officials, and umpires. He offered to take a bus load of minors to a strip club. Yet the only persons who witnessed
these acts were those who had been cut from his baseball team or their parents.
To give credence to these allegations, one must be prepared to believe that the entire Riverdale baseball team, their parents, several Riverdale teachers and all of its administrators, and the Lee County School District either lied or acted in bad faith to protect Mr. Pringle. The undersigned was not persuaded that such a conspiracy existed and is at a loss to understand how the Department could have been so persuaded.
The testimony of two of the Department's own witnesses, William Hoke and Melissa Land, tended to support
Mr. Pringle's version of events. Department witness Fred Burson testified that this case was "a waste of time," and could not say whether any student ever witnessed Mr. Pringle's tobacco chewing and cursing. Mr. Pringle testified that he had indeed cursed and dipped tobacco in Mr. Burson's presence, but never in the presence of a student.
Sean Fox, author of some of the most sordid accusations against Mr. Pringle, retracted the bulk of them on the witness stand. He now regretted the vitriol of his written statement and testified that Mr. Pringle was a good coach and a good role model, though in January 2002, he had told teacher
Jason Scott that he was not trying out for baseball "because I hate Pringle."
The Rines and the Truckenmillers carried clear grudges against Mr. Pringle because of the 2002 baseball cuts. The Rines' dissatisfaction with Mr. Pringle actually dated back to their elder son Tommy's experiences on the Riverdale baseball team, having nothing to do with cursing or tobacco use. The parents believed that Tommy had the potential to pitch at the University of Florida. Mr. Pringle and his assistants did not share that opinion. The Rines were angry that Tommy pitched only sporadically for Riverdale and that the coaches would not risk their own credibility by recommending Tommy to college and professional scouts. As Curtis Rine put it, Mr. Pringle had "screwed over" Tommy, and his parents believed that Mr. Pringle was going to "screw me over, too."
The local newspaper and television stations ran stories on the allegations against Mr. Pringle while the District was conducting its investigation. John Hennebery and Bill Shoap both testified that the District has a strict confidentiality rule regarding ongoing investigations, and both testified that the District was not the source for these stories. Mr. Pringle credibly testified that a television reporter indicated to him that the sources for the story were Mary Rine, Kim Caruthers, and one of the Truckenmillers, all of
whom sought to create a public scandal that would lead to Mr. Pringle's dismissal.
When the news was released that the District had cleared Mr. Pringle of the charges against him, Tom Rine, the father of Curtis and Tommy, flew into an obscenity-laced tirade against Mr. Pringle in the presence of two female Riverdale students who were visiting the Rine home. In front of these girls, Mr. Rine threatened violence against Mr. Pringle in explicit terms. Mr. Rine's behavior was so extreme and threatening that one of the girls reported the matter to Deputy Stevens, who filed an incident report and let it be known that Mr. Rine should stay away from the Riverdale campus.
Mary Rine testified that her husband assured her that he did not engage in this tirade. Both of the female Riverdale students testified that he did. The Department listed Mr. Rine as a witness, but elected not to call him.
These facts are recited not to further discredit the Department, but to point out that the Department knew or should have known of these facts before it elected to proceed against Mr. Pringle, or at least before this matter ever reached the point of a formal hearing. As far as Riverdale High School and the Lee County School District were concerned, this matter was concluded on February 14, 2002. For reasons not apparent to the undersigned, the Department of Education elected to revive these
charges and extend Mr. Pringle's ordeal for an additional year and a half. The Department did not come close to carrying its burden in this case. Moreover, the Department should have known that it could not carry its burden long before this case came on for hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 231.262(5).
License revocation and discipline proceedings are penal in nature. The burden of proof on Petitioner in this proceeding was to demonstrate the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v.
Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The "clear and convincing" standard requires:
[T]hat 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.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). The findings in this case were made based on the standard set forth in Osborne Stern and Ferris.
The Administrative Complaint alleged that Mr. Pringle committed the acts prohibited by the provisions of Section 231.2615(1)(c), (f), and (i). The Administrative Complaint further alleged that Mr. Pringle violated Florida Administrative Code Rules 6B-1.001(2) and (3) and 6B-1.006(3)(a), (e) and (g).
Section 231.2615(1), Florida Statutes (2001), authorizes the Education Practices Commission to suspend, revoke or otherwise penalize a teaching certificate provided it can be shown that the holder of the certificate, inter alia:
(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 district school board.
* * *
(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules.
Florida Administrative Code Rule 6B-1.001 reads in pertinent part:
6B-1.001. Code of Ethics of the Education Profession in Florida.
* * *
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Florida Administrative Code Rule 6B-1.006 reads in pertinent part:
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
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.
* * *
(g) Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.
Florida Administrative Code Rule 6B-4.009 provides in pertinent part:
(2) "Immorality" is defined as conduct that is inconsistent with the standard 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’s service in the community.
The term "moral turpitude" is defined in Florida Administrative Code Rule 6B-4.009(6) as follows:
Moral turpitude is 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 statutes fixes the moral turpitude.
Moral turpitude has also been defined by the Supreme Court of Florida as follows:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by 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 as when unintentionally committed through error of judgment when wrong was not contemplated.
State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).
The only factual allegation proven by clear and convincing evidence is that Mr. Pringle on occasion muttered the words "hell" and "damn" to a coach seated next to him and that students may have overheard Mr. Pringle say these words. It is concluded that this act does not rise to the level of "gross immorality" or "moral turpitude." It is concluded that this act does not constitute conduct which seriously reduces
Mr. Pringle's effectiveness as an employee of the District. It is concluded that this act does not demonstrate that Mr. Pringle has failed to have the student as his primary professional concern or has failed to seek to exercise the best judgment and integrity. It is concluded that this act does not demonstrate that Mr. Pringle has failed to be aware of the importance of maintaining the respect and confidence of his colleagues, students, parents, and other members of the community, or that he has failed to achieve and sustain the highest degree of
ethical conduct. It is concluded that this act does not demonstrate that Mr. Pringle has failed to make reasonable effort to protect the student from conditions harmful to learning, to the student's mental health, or to the student's physical health or safety. It is concluded that this act does not demonstrate that Mr. Pringle has intentionally exposed a student to unnecessary embarrassment or disparagement. It is concluded that this act does not demonstrate that Mr. Pringle has harassed or discriminated against any student for any prohibited reason, or that he has failed to make reasonable effort to assure that each student is protected from harassment or discrimination.
On August 11, 2003, counsel for Mr. Pringle filed a Motion for Attorney's Fees and Costs pursuant to Section 120.595(1). The cited statutory section provides:
Challenges to agency action pursuant to section 120.57(1).--
The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.
The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.
In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection. In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees.
For the purpose of this subsection:
"Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity.
"Costs" has the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.
"Nonprevailing adverse party" means a party that has failed to have substantially changed the outcome of the proposed or final
agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial modification or condition intended to resolve the matters raised in a party's petition, it shall be determined that the party having raised the issue addressed is not a nonprevailing adverse party. The recommended order shall state whether the change is substantial for purposes of this subsection. In no event shall the term "nonprevailing party" or "prevailing party" be deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency.
Though the Findings of Fact set forth above make clear that the Agency's pursuit of this matter should never have proceeded to hearing, the consistent view of the Division of Administrative Hearings has been that attorney's fees are not recoverable against an agency pursuant to Section 120.595(1), when the agency is the initiator of the proceeding. The reasoning was cogently set forth in Palacios v. Department of Business and Professional Regulation, Case Nos. 99-4163F,
99-4164F (DOAH November 20, 2000):
Section 120.595(1), Florida Statutes, requires that the administrative law judge make a determination that the nonprevailing adverse party has participated in the proceeding for an improper purpose. "Nonprevailing adverse party" is defined to be a party that has failed to substantially change the outcome of the agency's proposed action. The Department by definition cannot be a nonprevailing adverse party. It is the agency that is proposing to take action, not a party that is trying to change the proposed action. (Emphasis added)
See also HHCI Limited Partnership v. Agency for Health Care Administration, Case No. 02-1951F (DOAH November 21, 2002); Sellars v. Broward County School Board, Case No. 97-3540F (DOAH September 25, 1997). Mr. Pringle's motion for attorney's fees and costs must be denied as unavailable under Section 120.595(1).
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be issued dismissing the Administrative Complaint in its entirety.
DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
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 6th day of November, 2003.
ENDNOTES
1/ Section 231.2615, Florida Statutes, was repealed by Chapter 2002-387, Laws of Florida, s. 1058, effective January 3, 2003, after the events of this proceeding. Its substance was re- enacted by s. 757 of the same act and codified as Section 1012.795, Florida Statutes.
2/ The Department listed Ms. Caruthers as a witness in this case, but chose not to call her at the hearing. Thus, the version of this incident related by Mr. Pringle and Deputy Stevens stands unrefuted and is credited as an accurate recitation of the facts.
3/ At the hearing, much testimony was elicited as to the distinction between "dip," i.e., finely ground tobacco that the user places between his lower lip and gum, forming a telltale bulge of the lower lip, and the larger leaf chewing tobacco that the user holds in his cheek. By common consensus of the witnesses on both sides of the case, the only tobacco product that Mr. Pringle was ever seen to use was "dip," and the various allegations and witness statements referencing "tobacco" are actually referring to the tobacco product commonly called "dip."
4/ The latter fact is significant because a chief aspect of Mr. Pringle's defense was that these allegations were invented by a small group of parents bent on punishing him for cutting their children from the baseball team. Mr. Pringle also charged that a fair investigation by the Department would have exonerated him short of a probable cause determination, just as the District's investigation had done. The Department was clearly in a position to disprove Mr. Pringle's contentions by placing
Ms. White on the witness stand. However, the Department appeared content to leave as a matter of conjecture who complained, how many people made allegations, and exactly how Ms. White conducted her investigation. The Department's strategy leads to a reasonable inference that Mr. Pringle's contentions were generally correct.
COPIES FURNISHED:
Robert J. Coleman, Esquire Coleman & Coleman
2300 McGregor Boulevard Post Office Box 2089
Fort Myers, Florida 33902-2089
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224E Tallahassee, Florida 32399
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
325 West Gaines Street, Suite 224E 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 20, 2004 | Agency Final Order | |
| Nov. 06, 2003 | Recommended Order | Petitioner failed to demonstrate that Respondent, a high school baseball coach, committed the acts alleged in the Administrative Complaint. |
INDIAN RIVER COUNTY SCHOOL BOARD vs GEORGE YOUNG, 02-004430PL (2002)
BROWARD COUNTY SCHOOL BOARD vs JAMES M. MCMILLAN, 02-004430PL (2002)
JOHNNIE CANADY vs VOLUSIA COUNTY SCHOOLS, 02-004430PL (2002)
BROWARD COUNTY SCHOOL BOARD vs SARENA STEWART, 02-004430PL (2002)
BROWARD COUNTY SCHOOL BOARD vs SARENA STEWART, 02-004430PL (2002)
