STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, )

)

Petitioner, )

)

vs. ) Case No. 05-0372PL

)

ALBERTO BERMUDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on May 17, 2005.

APPEARANCES

For Petitioner: Charles T. Whitelock

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Jeffrey S. Weiner

Weiner & Ratzan, P.A.

Two Datran Center, Suite 1910 9130 South Dadeland Boulevard Miami, Florida 33156-7858

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of gross immorality or moral turpitude, in violation of Section 1012.795(1)(c), Florida Statutes; failing to make a reasonable effort to protect a student from conditions harmful to learning

or the student's mental or physical health or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a); intentionally exposing a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e); or exploiting a relationship with a student for personal gain or advantage, in violation of Florida Administrative Code Rule 6B-1.006(3)(h).

PRELIMINARY STATEMENT

By Administrative Complaint filed January 24, 2005, Petitioner alleged that Respondent hugged and kissed, with an open mouth, a 14-year-old student in the parking lot of Miami Lakes Educational Center on December 20, 2002.

Count I alleges that Respondent is guilty of gross immorality or moral turpitude, in violation of Section 1012.795(1)(c), Florida Statutes. Count II alleges that Respondent is guilty of violations of the Principles of Professional Conduct for the Education Profession, pursuant to Section 1012.795(1)(i), Florida Statutes. Count III alleges that Respondent is guilty of failing to make a reasonable effort to protect a student from conditions harmful to learning or the student's mental or physical health or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Count IV alleges that Respondent is guilty of intentionally exposing a student to unnecessary embarrassment or disparagement, in

violation of Florida Administrative Code Rule 6B-1.006(3)(e). Count V alleges that Respondent is guilty of exploiting a relationship with a student for personal gain or advantage, in violation of Florida Administrative Code Rule 6B-1.006(3)(h).

At the hearing, Petitioner called four witnesses and offered into evidence 17 exhibits: Petitioner Exhibits 1-3, 7,

8 (Respondent's statements only), 10-14, and 17-23. Respondent called two witnesses and offered into evidence no exhibits. All exhibits were admitted.

The court reporter filed the transcript on June 6, 2005.

The parties filed their proposed recommended orders by June 30, 2005.

FINDINGS OF FACT

1. Respondent holds an educator certificate for teaching mathematics and English to Speakers of Other Languages. At all material times, he has been a teacher of mathematics at Hialeah Middle School.

2. Respondent, who was 29 years old at the time of the alleged incident, was acquainted with G. P., a female who, at the time of the alleged incident, had just had her 15th birthday or was about to have her 15th birthday. Respondent had previously taught G. P. when she was in middle school and was also acquainted with G. P.'s father.

3. On the morning in question, G. P. was dropped off at school. She was carrying books and compact disks that her stepfather had asked her to give to Respondent, who was waiting in his car for G. P. to bring him the materials. G. P. approached the car, greeted Respondent, and entered the front passenger side to speak with Respondent and give him the materials.

4. G. P. and Respondent socially hugged and briefly kissed on the cheek, as is consistent with Hispanic custom, according to G. P. G. P. and Respondent, who are Hispanic, then spoke for a few minutes about nothing of significance.

5. During this time, the security monitor observed G. P. and Respondent in the parked car. The security monitor testified that they hugged and kissed for two minutes. At some point, the security monitor radioed the assistant principal and told him what he was observing. The assistant principal testified that he advised the monitor to watch them, and, if they continued to embrace excessively for the next 10 minutes, he should bring them to the assistant principal. The assistant principal repeated this testimony, again mentioning only hugging and not kissing. Although the assistant principal had earlier testified that the monitor had reported that Respondent and

   G. P. were kissing, the repeated testimony, which omits the kissing, is credited.

6. Analyzing the testimony of the security monitor and assistant principal, it appears that the monitor only told the assistant principal that he had seen Respondent and G. P. embracing in the car. The security monitor testified that he had seen G. P. enter the car, but, failing to mention the kiss to the principal, Respondent's omission strongly suggests that the kiss was a quick brush of cheeks.

7. The monitor's description of the embrace to the assistant principal also raises questions. It is unlikely that the monitor described an amorous embrace because the assistant principal also advised the monitor essentially to observe the embracing for the next 10 minutes before intervening, even though the assistant principal knew that the girl was a student at his school. More difficult to reconcile is the monitor's testimony that the embrace lasted two minutes. If so, he failed to follow the assistant principal's instructions by intervening after only two minutes.

8. Further evidence that the embracing was not lustful arises in the first words spoken by the monitor, when he tapped on the car window. The monitor asked Respondent how he was related to G. P. The monitor would not have asked such a question after observing several minutes of passionate physical contact.

9. Other factors militating against an erotic encounter are that Respondent's car has untinted windows and was parked in an area that left it clearly visible to numerous students and staff arriving at school and milling about before school.

10. The security monitor escorted Respondent and G. P. to the office of the assistant principal, who briefly interviewed Respondent. Even the interview belies any perception on the part of the assistant principal of an amorous encounter in the school parking lot. The assistant principal asked Respondent why he was there, and he mentioned the books and compact disks. The assistant principal asked if Respondent and G. P. were related, and Respondent said they were not. The assistant principal asked Respondent for his name, and he answered, "Albert." Not asking Respondent for his last name, the assistant principal then told Respondent to leave the school campus, and Respondent did.

11. Petitioner contends that Respondent's failure to supply his last name or his occupation implies guilt. It is at least as likely that he did not volunteer this information in the hope, consistent with the assistant principal's handling of the matter, that this was a minor matter that would soon pass. Respondent responded fully to the inquiries made of him and did not refuse to answer any questions. This was enough.

12. After Respondent left, the assistant principal interviewed G. P., who said that Respondent was a friend. G. P. would not give Respondent's last name. At the time, the assistant principal was unaware that Respondent was a teacher.

13. After speaking with G. P., the assistant principal telephoned her mother. The mother arrived at the school 30-45 minutes later. The assistant principal's testimony of her statements was excluded as inadmissible hearsay, but explains why Petitioner brought the case. According to the principal, the mother guessed that the man in the car was Respondent, said that he had taught G. P. in middle school and the previous summer school, claimed that he and G. P. had chatted online, and averred that G. P.'s stepfather had asked Respondent to stop communicating with G. P.

14. At the hearing, G. P.'s mother testified quite differently. She said that the assistant principal supplied Respondent's first name, and she assumed that it was Respondent because G. P. was to deliver the books and compact disks to Respondent that morning. G. P.'s mother denied having ever said that Respondent and G. P. had communicated over the internet or that they had ever had an improper relationship. She generally denied that Respondent and G. P. had ever been in an improper relationship.

15. A similar discrepancy exists between the stepfather's reactions, as described by the assistant principal in excluded hearsay, and as set forth in exhibits, which were admitted without objection instead of live testimony.

16. G. P.'s mother testified that she is very strict with

    
    

    G. P., never allowing her to go to movies or friends' homes alone. She testified that G. P. is a good child and gives her no trouble. G. P. testified that she does not have a boyfriend, acknowledged that her mother is protective of her, and denied ever having been in an improper relationship with Respondent or engaging in amorous contact in his car on the morning in question.

17. Even if the hearsay had been admitted to impeach the exculpatory statements of G. P.'s mother and stepfather, the problems with the testimony of the security monitor remain, and Petitioner has not sufficiently proved the existence of amorous contact in the parked car between Respondent and G. P. It is doubtful that Petitioner has even established ambiguity in the behavior of Respondent and G. P. in the parked car on the morning in question. It is clear, however, that Petitioner has failed to establish that the contact was improper.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2005).

19. Section 1012.795(1)(c), Florida Statutes, provides that the Education Practices Commission may revoke or otherwise discipline the educator certificate of any person found guilty of gross immorality or an act of moral turpitude.

20. Section 1012.795(1)(i), Florida Statutes, authorizes the Education Practices Commission to revoke or otherwise discipline the educator certificate of any person found guilty of a violation of the Principles of Professional Conduct for the Education Profession. The relevant principles are set forth in the next paragraph.

21. Florida Administrative Code Rule 6B-1.006(3)(a) requires a teacher to "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." Florida Administrative Code Rule 6B-1.006(3)(e) prohibits a teacher from "intentionally expos[ing] a student to unnecessary embarrassment or disparagement." Florida Administrative Code Rule

    6B-1.006(3)(h) prohibits a teacher from "exploit[ing] a relationship with a student for personal gain or advantage."

22. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and

    Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

23. Petitioner has failed to make the required factual showing.

24. This case is not unlike Tenbroeck v. Castor, 640 So.

    
    

    2d 164 (Fla. 1st DCA 1994) (per curiam). In that case, a 48- year-old assistant principal spent an unusual amount of time with a 15-year-old student, who had come to him for advice due to a divorce taking place in her family. Other school staff suspected a romantic relationship. At the end of the school year, the principal warned the assistant principal about maintaining an improper relationship with a student. During the next school year, after the assistant principal had transferred schools and the girl had reached 16 years of age, the pair married, with her parents' consent.

25. Charging the assistant principal with the same four offenses as are at issue in this case, plus a charge of conduct seriously reducing one's effectiveness as an employee of the School Board, Petitioner's predecessor commenced a disciplinary proceeding against Respondent. Crediting the wife's testimony that she and Respondent had engaged in no premarital sex, even though this testimony was contradicted by hearsay testimony from

friends saying that she had told them otherwise, the hearing officer nevertheless found that the assistant principal had maintained an improper relationship due to the unusual amount of contact that they had had during the first school year. The hearing officer reasoned "inferentially" that the assistant principal had engaged in an improper relationship during the first school year and thus was guilty of gross immorality or moral turpitude, a serious reduction in effectiveness as an employee of the School Board, the failure to protect a student, and the exploitation of a student, but not the intentional exposure of a student to unnecessary embarrassment. The Education Practices Commission entered a final order, substantially adopting the recommended order and suspending the assistant principal's certificate for two years. Reversing the final order and explicitly rejecting the hearing officer's inference of an improper relationship prior to marriage, the court stressed the requirement that discipline be predicated on clear and convincing evidence, not "[s]peculation, surmise, and suspicion." 640 So. 2d at 167.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 10th day of August, 2005, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 10th day of August, 2005.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Florida Education Center

Department of Education

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

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

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

Honorable John L. Winn Commissioner of Education Department of Education

1244 Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Charles T. Whitelock Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

Jeffrey S. Weiner Weiner & Ratzan, P.A.

Two Datran Center, Suite 1910 9130 South Dadeland Boulevard Miami, Florida 33156-7858

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 05-000372PL

Orders for Case No: 05-000372PL