STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, ) DEPARTMENT OF EDUCATION, STATE ) OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1788

)

BRUCE JOSEPH FEICHTNER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on January 10, 1977, at West Palm Beach, Florida, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Michael E. Jackson, Esquire

3323 Belvedere Road, Room 109 West Palm Beach, Florida

For Respondent: None

ISSUE PRESENTED

Whether Respondent's teacher's certificate should be revoked pursuant to Section 231.28, F.S.

A petition for the revocation of Respondent's teaching certificate was filed by the Vice-Chairman of the Petitioner on October 14, 1975. On October 28, 1975, Henry L. Kaye, Esquire, Hollywood, Florida, attorney for Respondent, filed an answer and other motions in behalf of Respondent. On December 16, 1975, the cause was noticed for hearing at North Palm Beach, Florida on January 14, 1976. The parties stipulated for an indefinite continuance on January 26, 1976. The matter was reset for hearing on November 19, 1976 and notice thereof was amended on September 27, 1976 for hearing to be held on November 18, 1976. On October 1, 1976, the Professional Practices Council relinquished jurisdiction over the cause and requested that a hearing officer from the Division of Administrative Hearings take cognizance of the matter. Accordingly, notice of hearing was furnished to counsel for both parties by the undersigned hearing officer on November 2, 1976, for a hearing to be held January 10, 1977 at West Palm Beach, Florida. On December 31, 1976, counsel for Respondent filed a motion to withdraw as attorney of record on the grounds that Respondent had not contacted him, had not complied with fee arrangements as agreed, and that he had been unable to contact the Respondent as shown on attached copies of letters addressed to the Respondent at various addresses. However, the aforesaid motion was not received by the hearing officer until a copy was presented to him by

counsel for Petitioner on the date of hearing, January 10, 1977, at which time the motion was granted and the Petitioner was permitted to try the case as an uncontested proceeding, as authorized under Rule 28-5.25(5), Florida Administrative Code. (Composite Exhibit 1).

FINDINGS OF FACT

1. Respondent was employed by the Palm Beach County School System as a mathematics instructor at the Boca Raton Middle School in August, 1974. He presently holds Florida Teacher's Certificate Number 296746, Graduate, Rank III. (Petition, Testimony of Brake).

   
   

2. The City of Boca Raton Police Department used plainclothes officers for a number of months in 1974-1975 to investigate the activities of suspected homosexuals who congregated in a wooded area near the beach in Boca Raton. During a period of about eight months, approximately 150 arrests had been made in the aforesaid area for various sexual and other crimes. Respondent had been observed on several occasions at the location in question and had been warned by police officers to leave the area because of the high incidence of crime there. During such encounters, Respondent had been variously observed perched in a tree wearing a "bikini" bathing suit and hiding in bushes. On May 19, 1975, a plainclothes police officer noticed the Respondent walking up a path in the area. The officer followed him and when they met, Respondent started conversing with the officer. He then moved his leg against that of the officer and stated "we have to be careful, there are lots of cops around. If you were a cop, you would arrest me for this" or words to that effect. The Respondent then grabbed the officer in the genital area at which time the latter produced his identification and arrested the Respondent for assault and battery. He was taken to the police station, warned of his rights, and in a voluntary statement admitted that he was a homosexual. He further stated that he had never molested any of the children at the school where he was employed as a teacher.

   (Testimony of Collins, Palmisino).

   
   

3. On May 27, 1975, Respondent pleaded nolo contendere to a charge of assault and battery in violation of F.S. 784.O3 in case number 75-4876 in the municipal court, City of Boca Raton, Florida. He was found guilty of the offense and sentenced to pay a fine of $150.00 and ten days in jail. The period of confinement was suspended. (Exhibit 2).

   
   

4. Respondent resigned from his employment with the Palm Beach County School System, effective June 29, 1976. During his period of employment he had been a good teacher and there had been no prior reports of misconduct. He had previously been employed at Florida Atlantic University during the period 1972-

   72 and Nova University from 1972 to 1974. (Testimony of Brake).

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner seeks to revoke permanently Respondent's teaching certificate for having been found guilty by a court of law and for gross immorality or an act involving moral turpitude, under Section 231.28, Florida Statutes. The statutory provision provides pertinently as follows:

   
   

   1. Suspension or revocation of certificates.--

      The department of education shall have authority to suspend the teaching certificate of any person for a period of time not to

      exceed three years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed ten years, with rein- statement subject to provisions of subsection (6); or to revoke permanently the teaching certificate of any person, provided:

      1. It can be shown that such person ... has been guilty of gross immorality or an act involving moral turpitude,...or has been convicted of a misdemeanor, felony,

   or any other criminal charge, other than a minor traffic violation....

   * * *

   (3) The plea of guilty in any court, or the decision of guilty by any court,

   ... shall be prima facie proof of grounds for revocation of, the certificate as listed in subsection (1).....

   
   

6. It is considered that the notice of hearing provided to Respondent's counsel of record on November 2, 1976, by the hearing officer constituted adequate notice to the Respondent, as required by Section 120.57(1)(b)2, F.S. and Rule 28-5.25(8), F.A.C. It was incumbent upon Respondent to maintain communication with his counsel as to the progress of the administrative proceeding and his failure to do so under the circumstances justified the matter being heard as an uncontested proceeding.

   
   

7. Respondent was found guilty by the municipal court of the City of Boca Raton, Florida of the offense of assault and battery in violation of Florida Statutes 784.03 which is a misdemeanor of the first degree. The evidence also showed that the attendant facts and circumstances of the offense involved gross immorality and an act involving moral turpitude in view of the wrongful touching of the police officer's person in a sexually suggestive manner. Accordingly, it is concluded that ample grounds exist under subsection 231.28(1), and (3), Florida Statutes, to warrant revocation of Respondent's teaching certificate.

   
   

8. The immoral act committed by the Respondent establishes his unfitness to continue as a public school teacher and clearly justifies permanent revocation of his teaching certificate.

RECOMMENDATION

That the teaching certificate of Respondent Bruce Joseph Feichtner be revoked permanently under the authority contained in Section 231.28, Florida Statutes.

DONE and ENTERED this 26th day of January, 1977, in Tallahassee, Florida.

Thomas C. Oldham Hearing Officer

Division of Administrative Hearings

COPIES FURNISHED:

Thomas W. Benton, Esquire Room 3, 319 W. Madison Street

Tallahassee, Florida 32304

Michael E. Jackson, Esquire 3323 Belvedere Road, Room 109 West Palm Beach, Florida

Mr. Bruce J. Feichtner

482 S. W. 9th Street Boca Raton, Florida

Room 530, Carlton Building Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: BRUCE JOSEPH FEICHTNER DOAH CASE NO. 76-1788

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Rita E. Jones as Chairman of the Professional Practices Council for the revocation of the teacher's certificate of the Respondent, BRUCE JOSEPH FEICHTNER, Department of Education Certificate Number 296746.

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon and further having reviewed the entire record, the Board makes the following findings of fact and conclusions of law.

1. The Respondent was issued Florida Teacher's Certificate Number 296746, on June 18, 1971.

   
   

2. On May 28, 1975, in the Municipal Court of the City of Boca Raton, Florida, the said BRUCE JOSEPH FEICHTNER as found guilty of Assault and Battery;

   
   

3. The said charge of Assault and Battery involved a sexual act of gross immorality and moral turpitude; and

   
   

4. The said court did adjudge a fine of $150 and ten days (time suspended).

5. Pursuant to Florida Statute 231.28, the Florida teaching certificate of any person who has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board or who has otherwise violated the provisions of law is subject to permanent revocation.

ORDERED AND ADJUDGED that the teacher's certificate of BRUCE JOSEPH FEICHTNER, Respondent, Department of Education Certificate Number 296746, be and the same is hereby permanently revoked.

DONE AND ORDERED at the State Board of Education meeting in open session at Tallahassee, Florida, as of the 7th day of April, 1977.

Reubin O'D. Askew, Governor; Chairman

Bruce A. Smathers, Secretary of State

Robert L. Shevin, Attorney General

Gerald A. Lewis, Comptroller

Bill Gunter, Treasurer

Ralph D. Turlington, Commissioner of Education; Secretary - Executive Officer

Doyle Conner, Commissioner of Agriculture

As and constituting the State Board of Education of Florida, as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida.

I HEREBY CERTIFY that the foregoing Order in the matter of

Bruce Joseph Feichtner was finalized and copies were mailed this 5th day of May, 1977, to Mr. Michael Jackson and Gary Leslie Peeples.

Hugh Ingram, Administrator Professional Practices Council

Docket for Case No: 76-001788

Orders for Case No: 76-001788