STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1276

)

LAWRENCE LONGENECKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on October 2, 1980, in St. Petersburg, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: Lawrence D. Black, Esquire

152 Eighth Avenue Largo, Florida 33540

ISSUES PRESENTED

Whether Respondent's teaching certificate should be revoked or otherwise disciplined on grounds that he violated Section 231.28(1), Florida Statutes (1979), as alleged, by making sexual advances toward his female students on four separate occasions.

CONCLUSIONS AND RECOMMENDATION

Respondent is guilty, as alleged, of violating Section 231.28(1), Florida Statutes (1979). Due to the repetitive nature of his misconduct and the prior practice of the Board of Education in cases such as this, Respondent's teaching certificate should be permanently revoked.

BACKGROUND

On February 13, 1978, upon investigation and recommendation of the Petitioner, Professional Practices Council ("COUNCIL"), the Commissioner of Education: (1) found that probable cause existed to believe that Respondent, Lawrence Longenecker ("LONGENECKER"), was guilty of conduct justifying revocation of his teacher's certificate, and (2) directed the COUNCIL to file a petition for revocation of LONGENECKER's teaching certificate. Thereafter, on February 13, 1978, the COUNCIL filed a petition for revocation, alleging that LONGENECKER violated Sections 231.28 and 231.09, Florida Statutes, and Board of

Education rules by engaging in improper conduct toward his female students on four separate occasions.

LONGENECKER filed an Answer denying the operative allegations, and on July 18, 1978, the COUNCIL forwarded the case to the Division of Administrative Hearings for the conducting of a hearing. On July 31, 1978, in response to LONGENECKER's motion, the COUNCIL filed a More Definite Statement which amplified the factual allegations contained in its petition. The case was then set for hearing on September 28, 1978, by a Division of Administrative Hearings hearing officer. Upon motion of LONGENECKER, the hearing was twice continued, and set for hearing no later than January 16, 1979.

On December 11, 1978, LONGENECKER withdrew his request for a hearing, following which he filed a Declaration of Surrender of Teacher's Certificate (Plea of No Contest) on December 22, 1978. The COUNCIL, then, on January 5, 1979, moved to dismiss the case pending before the Division of Administrative Hearings, citing LONGENECKER's surrender of certificate and stating that further proceedings would be conducted before a three-member hearing panel of the COUNCIL pursuant to Rule 6A-4.37, Florida Administrative Code; on January 16, 1979, the motion was granted and the case dismissed by the hearing officer.

On June 18, 1980, due to a subsequent determination that Rules 6A-4.37(2) and 6B-2.01 through 6B-2.16, Florida Administrative Code, were invalid, the State Board of Education remanded this case to the COUNCIL for a full evidentiary hearing before a Division of Administrative Hearings hearing officer. On July 10, 1980, the pleadings, including the order of remand, were forwarded to the Division.

Final hearing was then set for October 2, 1980. On September 26, 1980, LONGENECKER filed a motion for continuance, which was subsequently withdrawn.

At hearing, the COUNCIL called as its witnesses: Robin Hamilton, Elizabeth Karen James, and Sharon O'Connell, all former students of LONGENECKER; John William Larsen, assistant principal of Madeira Beach Middle School; Robert L. Moore, principal of Madeira Beach Middle School; Ronald F. Stone, Ph.D., assistant superintendent for Employee Relations, Pinellas County Schools; and Margo Wilson, chairman of the School Advisory Committee at Madeira Beach Middle School. The COUNCIL also offered into evidence Petitioner's Exhibits1 1 (composite) and 2, each of which was received.

LONGENECKER testified on his own behalf, and offered Respondent's Exhibit 1, 1/ which was received into evidence. A prehearing stipulation, dated October 1, 1980, and executed by the parties, was marked as Joint Exhibit 1, and received into evidence.

At the conclusion of hearing, the COUNCIL was granted the opportunity to file, within five (5) days, complete copies of final orders previously entered by the Board of Education which represent relevant prior agency precedent.

LONGENECKER was allowed an additional five (5) days to file any additional precedent or memorandum of law in response to the COUNCIL's posthearing submittal. Neither party filed proposed findings of fact or conclusions of law; the hearing transcript was filed on November 18, 1980.

FINDINGS OF FACT

Based upon the evidence presented at hearing, including consideration of the validity and demeanor of witnesses, the following facts are determined:

1. Respondent, Lawrence Longenecker ("LONGENECKER"), at all times material hereto held a Florida teacher's certificate: Certificate No. 283801, Post Graduate, Rank II, valid through June 30, 1986, covering the areas of secondary biology, junior high science, guidance, and junior college. (Joint Exhibit 1.)

   
   

2. LONGENECKER was employed as a science teacher at Madeira Beach Middle School, a public school in Pinellas County, Florida, during the 1976-1977 and 1977-1978 school years, until his resignation in January, 1978. (Joint Exhibit 1.)

   
   

   I.

   Longenecker's Sexual Advances Toward Three Female Students

   
   

3. The COUNCIL alleged, and has established that LONGENECKER made sexual advances toward three (3) female students on four separate occasions. The first incident occurred during the early morning of January 1, 1977. Robin Hamilton, an eighth grade student of LONGENECKER's at Madeira Beach Middle School, had just finished babysitting for LONGENECKER on the evening of December 31, 1976. While driving her home, LONGENECKER stopped behind a Publix Supermarket across from Madeira Beach Middle School, and asked her if he could "take her up on her offer", referring to his missing a chance to kiss her during a friendly mistletoe Christmas celebration at school earlier in the day. Thinking little of it, she said "okay"; he then kissed her. Five minutes later, he said, "What about one for the good luck of next year--in ninth grade?", and kissed her again. She let him. He then continued driving her home, but took a longer route than required. She told him, "This isn't the right way" home, and he answered, "Don't worry about it, I'll take you home." He then kissed her on the lips, again, putting his arms around her and pulling her closer. She became scared, and insisted he take her home, which he then did. She reported the incident to her parents the next day, and they insisted she tell the school principal; she then reported the incident to John Larson, the assistant principal. LONGENECKER denies having made these advances toward Miss Hamilton. However, her demeanor was direct and detached; she evinced no bias, interest, or motive to falsify, and her testimony is accepted as persuasive. (Testimony of Hamilton.)

   
   

4. The second incident involved LONGENECKER and Elizabeth Karen James, another eighth grade student at Madeira Beach Middle School. He taught science, and she was his student assistant who helped prepare the laboratory, grade papers, and take roll. During January or February, 1977, she was working alone in the back room of the science laboratory; she had her face toward the wall and was leaning against a table. LONGENECKER, while attempting to show her something, leaned heavily against her--the lower part of his body pressing against her lower back side--and placed his hands on her shoulders. The continued pressure of his body against hers--for 2 to 3 minutes--made her scared. While this was going on, he continued to instruct her on preparing the lab for the next day. She waited until he was through and then quickly left the room. Later, she reported the incident to her parents. Approximately 2 to 3 weeks later, the third incident occurred when she was, again, working in the laboratory, and standing two feet from the door. She was leaning against the counter; he came up behind her and leaned heavily against her, in the same manner as he had done previously. She became scared, turned around, and tried to leave. He took her hand, and asked her to remain because he wanted to show her something else. LONGENECKER denies having made sexual advances toward Miss James. However, her testimony was not tainted by bias, intent, or motive to

   falsify; she evidenced no ill-will or hostility toward LONGENECKER, and her testimony is accepted as persuasive. (Testimony of James.)

   
   

5. In February or March, 1977, Miss Hamilton and Miss James separately reported the above incidents, involving LONGENECKER, to John Larson, the school's assistant principal. Larson spoke with Dr. Robert Moore, the principal, and they both met with LONGENECKER to discuss the complaints. Dr. Moore expressed his concern over the alleged behavior and explicitly warned LONGENECKER that such conduct was unethical and jeopardized his teaching position. LONGENECKER neither admitted or denied the accusations, but listened, quietly. (Testimony of Moore, Larson, Longenecker.)

   
   

6. The fourth incident occurred approximately nine (9) months later, on or about December 3, 1977, and involved Sharon O'Connell, a ninth grade student at Madeira Beach Middle School. LONGENECKER was her science teacher; she was a good student and liked him as a teacher. On the evening of December 3, 1977, Miss O'Connell was babysitting for LONGENECKER. LONGENECKER and his wife returned home at approximately 12:30 a.m., and he drove her home. Instead of taking her directly home, he took her to Madeira Beach Middle School, ostensibly to "pick up something." (Tr. 87.) When they arrived, he took her on a tour of new buildings that were being constructed at the school. It was a cold evening, and he put his arm around her, as if to keep her warm. He moved closer to her, as she was leaning against a wall, and pressed his lower body against her buttocks area. At the same time, he put his hands underneath her arms and rubbed her breasts. She tried to tighten her arms, and became scared; he acted like nothing out of the ordinary was occurring, and continued to talk of the construction work. They then walked to another area of the school, where he leaned her against a door, and repeated his earlier conduct--pressing his lower front against her buttocks and fondling her breasts. He was breathing heavily, and Miss O'Connell was embarrassed and scared. She then pulled away, and asked him to take her home. After several requests, he complied. She reported this incident to her parents, who immediately contacted the Superintendent of Schools. LONGENECKER denies having engaged in this conduct toward Miss O'Connell. Her testimony is, however, accepted as persuasive; she was visibly embarrassed by having to describe this incident, but expressed no hostility toward LONGENECKER; indeed, she indicated sympathy for his plight. (Testimony of O'Connell.)

   
   

   II.

   Effect of Incidents Upon Longenecker's Effectiveness as a School Board Employee

   
   

7. After the incident involving Miss O'Connell was reported, LONGENECKER was called to Dr. Moore's office and confronted with the accusation. LONGENECKER neither admitted, nor clearly denied, the accusation. He was asked to resign immediately, which he did. Since that time, he has held several jobs in commercial establishments, and his efforts to find work as a teacher have been unsuccessful. (Testimony of Moore, Larson, Longenecker.)

   
   

8. LONGENECKER's complained-of actions toward the three female students seriously reduces his effectiveness as a teacher at Madeira Beach Middle School and the immediate area. His misconduct has become generally known to faculty members, students, and their families, and his reemployment as a teacher at Madeira Beach would be opposed by parents and students. (Testimony of Moore.)

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, Section 120.57(1), Florida Statutes (1979).

   
   

10. Section 231.28, Florida Statutes (1979), empowers the Department of Education 2/ to suspend or revoke the teaching certificate of any person if, among other things, it is shown that he or she is:

    
    

    ". . .guilty of personal conduct which seriously reduces his [her] effectiveness as an employee of the school board. . ." Section 231.28(1), Florida Statutes (1979).

    
    

    In a final revocation proceeding, the grounds justifying suspension or revocation must be established by a preponderance of the evidence. Fla. Jur.2d, Administrative Law, Section 81, p. 658 (1977). Here, the COUNCIL has met this burden, and it is concluded that by virtue of his having made sexual advances toward three female students, LONGENECKER has violated Section 231.28(1), supra.

    
    

11. LONGENECKER argued, by way of defense, that the complained-of conduct occurred during off-duty hours and outside the school environment. But a teacher's off-duty conduct may indirectly relate to his job performance:

    
    

    ". . .His conduct is an incident. . .which makes him a danger to school children and unfit to teach them. Mothers and fathers would question the safety of their children; children would discuss. . .[his] conduct and morals. All of these relate to. . .[his] job performance." Tomerlin v. Dade County School Board, 318 So.2d 159, 160 (Fla. 1st DCA 1975).

    
    

    And in Moser v. State Board of Education, 101 Cal.Rptr. 86, 88 (Cal. App. 3rd 1978), the court stated:

    
    

    ". . .the teacher is entrusted with the custody of children and their high preparation for useful life. His habits, his speech, his good name, his cleanliness, the wisdom and propriety of his unofficial utterances, his associations, all are involved. His ability to inspire children and to govern them, his power as a teacher, and the character for which he stands are matters of major concern in a teacher's selection and retention."

    
    

12. In determining the appropriate disciplinary penalty, it is recognized that no other evidence of prior misconduct involving LONGENECKER was alleged, or shown. It is also noted that Dr. Moore, a witness for the COUNCIL testified that, in his opinion, the complained-of conduct, if true, did not warrant permanent revocation. However, LONGENECKER was explicitly warned by Dr. Moore in February, 1977, to refrain from further misbehavior toward female students; approximately nine (9) months later, he engaged in sexual misconduct toward another female student. Such repetitive misconduct and abuse of a teacher's relationship to his students warrants permanent removal of LONGENECKER from the

    classroom environment. Furthermore, prior final orders of the Board of Education indicate that, absent significant mitigating factors, sexual misconduct by teachers (short of sexual intercourse) has consistently been punished by permanent revocation of teaching certificates. See Professional Practices Council v. Henry L. Penia, Case No. 79-2179; Professional Practices Council v. Thomas J. Butler, Case No. 80002-T; Professional Practices Council v. Herman Walter Shaddix, Case No. 79218-T; Professional Practices Council v.

    Harold B. Walbey, Case No. 79-850; Professional Practices Council v. Moses Green, Case No. 79-2275; Professional practices Council v. Joseph C. Jackson, Case No. 78053-P; Professional Practices Council v. Alvin L. McWhorter, Case No. 78230-P; and Professional Practices Council v. James Michael Rubinski, Case No. 77-1049. Accordingly, it is concluded that the disciplinary penalty warranted by the facts in this case and prior agency practice is permanent revocation of LONGENECKER's teaching certificate.

    
    

13. At final hearing, LONGENECKER moved to supress, and objected to the COUNCIL's prosecution of this proceeding on grounds that it was estopped by its prior actions involving LONGENECKER's attempt to surrender his certificate, and the passage of time since the incidents in question. The motion was, and is denied. By prehearing stipulation, dated October 1, 1980, LONGENECKER effectively waived his right to raise such an affirmative defense. Furthermore, insufficient evidence was presented to establish a claim of estoppel. See Fla. Jur.2d, Estoppel and Waiver, Sections 32, 38, 45, pp. 407, 413, 423 (1957).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Lawrence LONGENECKER's teaching certificate No. 283801 be permanently revoked.

DONE AND ENTERED this 25th day of November, 1980, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P.E. " and "R.E. ", respectively.

2/ Effective October 1, 1980, Section 2, Chapter 80-190, Laws of Florida (1980), granted the newly created Education Practices Commission the authority to suspend or revoke teachers' certificates pursuant to Section 231.28, Florida Statutes (1979). Section 1 provides for transferral of cases pending before the Professional Practices Council to the Commission.

COPIES FURNISHED:

J. David Holder, Esquire

110 North Magnolia Drive Suite 224

Tallahassee, Florida 32301

Lawrence D. Black, Esquire

152 Eighth Avenue Largo, Florida 33540

Docket for Case No: 78-001276

Orders for Case No: 78-001276