STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on January 14, 2009, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings with the parties appearing by videoconference from Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Darrell Timothy Roundtree, pro se

2388 South Oakland Forest Drive Apartment 202

Oakland Park, Florida 33309 STATEMENT OF THE ISSUE

Whether the Respondent, Darrell Timothy Roundtree (Respondent), committed the violations alleged in the

Administrative Complaint dated May 30, 2006, and, if so, what penalty should be imposed. The Respondent has denied any and all wrongdoing.

PRELIMINARY STATEMENT

On May 30, 2006, the Petitioner, John L. Winn, as Commissioner of Education for the State of Florida (Petitioner), executed an Administrative Complaint against the Respondent.

The complaint contained a six-count charge of violations stemming from Respondent's conduct with a website featuring nude or partially nude males. More specifically, the complaint alleged that Respondent had taken nude or partially nude pictures of males and posted the pictures on a website purporting to be a modeling and escort business. The complaint also alleged that a School Board-issued computer was used by the Respondent to access inappropriate websites of a sexual or pornographic nature.

The Respondent executed an Election of Rights that disputed the allegations and requested a hearing on the matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on September 24, 2008. Thereafter, the matter was promptly scheduled for hearing.

At the hearing, the Petitioner presented the testimony of Richard Orzech, an investigator within the Special Investigative Unit for Broward County School District; J. M., a former student

enrolled in a Broward County GED class; and Dr. Joe Melita, the Executive Director for Professional Standards and a Special Investigative Unit for the Broward County schools. The Petitioner's Exhibits 1-18 were admitted into evidence. The Respondent testified in his own behalf.

A Transcript of the proceedings was filed with the Division of Administrative on February 4, 2009. The parties were afforded ten (10) days from the filing of the transcript within which to file proposed recommended orders. The Petitioner timely filed a Proposed Recommended Order that has been considered in the preparation of this Recommended Order. The Respondent filed a "Final Closing Statements" on January 30, 2009, and it, too, has been fully considered.

FINDINGS OF FACT

1. At all times material to the allegations of this case, the Respondent was a teacher employed by the Broward County Public School District. He was assigned duties as a physical education teacher during the 2003/2004 school year at Walker Elementary School.

2. The Respondent holds a Florida Educator’s Certificate and is subject to the provisions of law governing the conduct and discipline of teachers within the state.

3. The Petitioner is responsible to investigate and prosecute complaints against persons who hold Florida Educator’s

   Certificates who have allegedly violated provisions of law. In this case, the Petitioner filed a six-count Administrative Complaint against the Respondent following an investigation of charges that came from the Broward County School District.

4. Although the allegations in the instant case are not the first disciplinary concerns regarding the Respondent, the instant charges, if proved, are sufficient to warrant disciplinary action against the Respondent's teaching certificate. Prior allegations against the Respondent resulted in a Letter of Concern being placed in his file based upon a claim that he had tweaked the nipples of a seven-year-old student. A second charge was not prosecuted due to the lack of cooperation by the alleged victim and his parent.

5. The Respondent resigned his employment with the Broward County School District on September 16, 2005. The resignation followed an investigation into the conduct that is the subject matter of the instant proceeding.

6. Sometime in 2003 the Respondent started a business for the purpose of providing male escorts. As depicted in this record, males hired through the Respondent's company were dispatched to parties or events and asked to dance and provide male companionship for the attendees of the party. Although prostitution was not the stated goal of the enterprise, it was not without possibility given the nature of the information

   describing the males. Pictures of the males were posted to the Respondent's website with listings as to sexual preference, age, and dimension of the males' anatomy.

7. Although he initially denied involvement in the website, the record is clear the Respondent took pictures of partially nude males for the purpose of posting them on the website, SouthFloridaThugz.com.

8. One of the males was a student in the Broward County GED program. The student, J. M., heard about the Respondent's business through a friend. A partially nude picture of J. M.'s friend was posted on the Respondent's website.

9. According to J. M., the Respondent would take pictures of the males, post them for review, and schedule "parties" for the "clients" to attend. J. M. was scheduled to attend one such party. Based upon his conversation with the Respondent, J. M. expected to attend a party, dance nude for the attendees, and receive $300.00 for compensation. From that $300.00 J. M. expected the Respondent to receive a portion of the compensation.

10. J. M. believed that the party would have women as well as men in attendance. J. M.'s friend had suggested that sometimes "safe sex" might occur. When he got to the party,

    J. M. was stunned to find that only men attended. He did not expect to be watched by gay men. He did not agree to that and

    insisted on leaving. He returned the $300.00 and told the Respondent he would not "do business" with him.

11. Later J. M. went to authorities to file a complaint against the Respondent.

12. J. M.'s complaint led to an investigation by the Broward County School District. Thereafter, the Respondent's school-issued computer was examined. The school-issued computer was used to access adult websites, chat sites, and other inappropriate sites. Petitioner's Exhibits 6 and 8 show a complete listing of the sites. The Respondent claimed that the computer use was not his, but such denial has not been deemed credible.

13. After the matter was fully investigated by the Broward School District, it was determined that the Respondent had lost his effectiveness with the school system.

14. The instant case was investigated and prosecuted over a period of time within which the Respondent and others gave multiple statements. The Respondent gave inconsistent and contradictory statements on more than one occasion. The student, J. M., was deemed the more credible of the two. Further, it is determined that the computer history of the Respondent's school-issued computer clearly and unambiguously established that the Respondent accessed inappropriate websites and chat rooms.

15. It is determined that the Respondent did not verify the age of J. M. before making the pictures of his nude torso and groin area. Further, the Respondent did not maintain records to verify that the other nude and partially nude males depicted on the website were adults. Finally, it is determined that the purpose of the website was not for "dancing." The depiction of the males' penises in a state of arousal would not suggest or relate to any dancing ability.

16. The Respondent's claim that his privacy has been invaded is unfounded. Teachers in the State of Florida are held to a high standard of conduct. It is expected that a school- issued computer may be subject to inspection by school authorities.

17. The Respondent has taught for approximately 21 years.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569, 120.57(1), and 1012.796, Fla. Stat. (2008).

19. The Petitioner bears the burden of proof in this matter to establish by clear and convincing evidence the allegations of the Administrative Complaint. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996)

    and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The clear and convincing standard requires:

    . . . that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

20. The Administrative Complaint in this case charged the Respondent with six violations in connection with conduct that occurred during 2003 and 2004. The Respondent resigned his employment with the Broward School District on September 16, 2005. Count 1 alleged that the Respondent was guilty of gross immorality or an act involving moral turpitude; Count 2 claimed the Respondent had been guilty of personal conduct which seriously reduced his effectiveness as an employee of the School Board; Count 3 maintained that the Respondent violated the Principles of Professional Conduct for the Education Profession as denoted in the state rules; Count 4 contended that the Respondent had 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 health and/or safety; Count 5 stated the Respondent had intentionally exposed a

    student to unnecessary embarrassment or disparagement; and Count

    
    

    6 provided that the Respondent had exploited a relationship with a student for personal gain or advantage. As to all claims the Respondent denied culpability and denied the underlying conduct.

21. Section 1012.795(1), Florida Statutes (2008), provides in part:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s.1012.01(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       * * *

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

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

       
       

22. Florida Administrative Code Rule 6B-4.009 provides definitions that are instructive in this matter. Pertinent provisions of that rule are:

    (2) Immorality is defined as conduct that is inconsistent with the standards 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.

    
    

    * * *

    
    

    (6) 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 statute fixes the moral turpitude.

    
    

23. Case law defines “moral turpitude” as conduct that implies or involves baseness or depravity. See State ex. rel.

    Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933). In Charlie Crist, as Commissioner of Education v. Joseph H. Caruth, DOAH Case No. 03-0303PL, a single act of domestic violence not occurring on school property was held to constitute moral turpitude for purposes of disciplining an educator.

24. Teachers are held to a high standard of conduct and must demonstrate professionalism. See Adams v. Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981).

25. In this case, the Petitioner has established by clear and convincing evidence that the Respondent violated the standards of morality expected of professional educators in the State of Florida. Maintaining and contributing to a website

    that contains nude pictures of males in various states of arousal cannot be deemed appropriate. The Respondent has not accepted responsibility for his acts and does not acknowledge that his credibility and effectiveness as a teacher have been seriously impacted as a result of the inappropriate activities.

26. The Petitioner has presented sufficient evidence to support all allegations of the Administrative Complaint and to justify the imposition of penalties appropriate to the charges. It is further concluded that the Respondent’s acts and unrepentant conduct is sufficient to find him guilty of gross immorality or of having committed an act of moral turpitude. It is concluded that the website and the Respondent's conduct were a ruse for prurient and base enterprises exploiting at least one student of the Broward County School District.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the Respondent’s teaching certificate.

DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 5th day of March, 2009.

COPIES FURNISHED:

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

Turlington Building, Suite 224-E

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

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief Bureau of Professional

Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

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

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Darrell Timothy Roundtree

2388 South Oakland Park Drive, Apartment 202 Oakland Park, Florida 33309

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 08-004769PL

Orders for Case No: 08-004769PL