Hoffman, based on conduct which will be set forth hereinafter in detail, is guilty of immorality within the meaning of Florida Statutes Section 231.36(6).
Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found.
During times material to the allegations as set forth in the Notice of Charges filed herein on March 16, 1979, the Respondent, Harry W. Hoffman, was employed by the School Board of Dade County as a Band Director for Carol City Senior High School. By letter dated February 9, 1979, the School Board of Dade County, Florida (Petitioner), advised the Respondent that he was being dismissed from his position of employment of immorality.
The alleged facts which form the basis for the charges are that the Respondent, on December 15, 1978, while a teacher at Carol City Senior High School, committed an act of immorality upon a student, Tosha Binns, to-wit, allowing Tosha Binns to sit upon his (Respondent's) desk with her slacks and panties down with her vaginal area exposed. It is alleged that Respondent, while Miss Binns was exposed from her waist down, had his trousers unzipped with his hand in his trousers. To substantiate this allegation, it is alleged that this act of immorality was observed by another student, one Michael Holmes, and that when Respondent noticed that student Holmes witnessed this act, summoned student Holmes outside the classroom and gave him five dollars with instructions to "keep this incident between the two." 1/
The alleged act of immorality took place on December 15, 1978, the last day of school before the Christmas break.
Michael D. Holmes, a sixteen (16) year old student enrolled at Carol City Senior High School, was a drum major during the 1978-79 school year. According to student Holmes, members of the band gave a party which began around noon on December 15, 1978. Holmes testified that Respondent was aware of the party which started around noon and lasted until shortly after 2:00 p.m.
Holmes' testimony is that after the party was over, Respondent asked him to lock the band room and to be certain that all the doors in the immediate vicinity were secured. Holmes noted that the Respondent's front office door, which is situated in the back of the band room, was open. Holmes walked into the room not knowing what he would see. When Holmes entered the room, he noted Tosha Binns' pants and underwear down while the Respondent had his hand in his pants. He testified that they were all stunned and that Respondent asked him to stand outside the office and wait. Respondent later came outside and gave him five dollars to keep the matter to himself.
Holmes kept the matter to himself until after the Christmas vacation because of his respect for Mr. Hoffman.
Holmes was asked by a Philip Farley (phonetic) if it was true that Respondent had sexual acts with Tosha. Holmes replied, "Yes," whereupon Farley allegedly responded that, "Yes, it was true." Shortly thereafter, the rumor spread around campus. Thereafter during late January, certain band members' parents became involved and the matter was ultimately brought to the attention of the Principal, Anthony Pariso.
The matter was reported to school security and an investigation ensued. A recommendation was made to the School Board that the Respondent be dismissed, which recommendation become effective on February 9, 1979.
Holmes testified that he was reprimanded by the Respondent because of a behavioral problem which occurred during the blackout in January of 1979. The net result of the reprimand was that the Respondent admonished Holmes that he was amazed at his conduct during the blackout and that inasmuch as he was a drum major, he was not setting a proper example for other band members. When it appeared to Respondent that Holmes was not responding to his oral reprimand, he was stripped of his drum major duties.
Geniene "Tosha" Binns, a sixteen (16) year old student at Carol City Senior High School was a student of Respondent's while she was a majorette and tuba player in the band. Miss Binns recalled being at school on the date in question, i.e., December 15, 1978, and recalled that the band "threw a party." Miss Binns testified that she left earlier with a student, Cynthia Octine
(phonetic), at approximately two o'clock. Miss Binns testified that she got home early enough to watch the stories, particularly "One Life to Live" which starts at 2:00 p.m. She testified that she saw the entire story. Miss Binns denied that any improper conduct occurred between Respondent and herself or that she was at school any time after approximately 1:50 p.m. on December 15th.
Betty Fabregas approached the Respondent one evening during late January, 1979, while she was serving as a volunteer worker at Carol City Senior High School. Ms. Fabregas has two daughters who were students of Respondent's and were band members during the 1978-79 school year. Ms. Fabregas was approached by a Mr. Phelps, a security officer, who inquired of her "about Respondent paying off two guys to keep the Binns immorality incident quiet."
Ms. Fabregas, being stunned and also having respect for the Respondent, pondered the manner in which she should bring the incident to Respondent's attention to determine whether there was substance to the allegations. Ms. Fabregas testified that she had chaperoned with Respondent on band trips and that she never observed any questionable conduct by Respondent during his relationships with students and other band members.
Respondent first gained knowledge that a rumor was being circulated around the school campus about him and student Binns on January 31, 1979, although Trudy Sobel had spoken to Respondent about the incident the preceding day, January 30th. With this knowledge, Respondent attempted to talk to the Principal, Anthony Pariso; however, the Principal refused, stating that the matter was turned over to administrative officials downtown and that the matter was out of his hands.
Respondent's recollection of the manner in which he spent his time on December 15, 1978, is as follows. At approximately 10:30 a.m., Respondent approached his assistant, Ben Carrioccio, and inquired if he could cover his classes for him for the remainder of the day. Mr. Carrioccio agreed and the Respondent signed out to leave the campus at 11:00 a.m., to go to Garmon Motors to pick up an exhaust and tailpipe for his Jeep vehicle. Respondent indeed left the campus and went to Garmon Motors. He later stopped by to see "Allen," the owner of the King Midas Flea Market in Fort Lauderdale to pick up a bracelet which he had acid-tested for gold content. Respondent had purchased the bracelet from Peggy Yankowitz the preceding day for a Christmas gift for his wife. Respondent decided against keeping the gold bracelet and instead purchased a ring for his wife from King Midas Flea Market. He returned to the school to pick up some music arrangements at approximately 1:30 p.m. so that he could work on them during the Christmas break. Upon arrival at the campus at approximately 1:30 p.m., Respondent had a conversation with John Brian, a security officer, who advised him that he had experienced some problems with students who attempted to bring beer in the band hall. Respondent, having no knowledge that the students had planned a band party, became angry and immediately went to the band hall to evict the students that officer Brian told him that he had experienced problems with. Faced with those problems, Respondent made an announcement that at two o'clock the band room would be cleaned and that the party would be over.
At approximately 2:15 p.m., the party was over and Respondent and Ben Carrioccio checked the area completely to see that the area was secure.
Respondent advised Carrioccio that he had two phone calls to make and that inasmuch as they had secured the area, he could leave and he would see him after the Christmas holidays. Respondent stayed at the school and made phone calls to his wife and Peggy Yankowitz to return the bracelet that he had
purchased. Respondent left school shortly after 3:00 p.m. and visited several friends and relatives, leaving Christmas gifts, attending pre-Christmas parties and, in general, taking care of pre-Christmas matters.
Although Respondent and his wife were scheduled to leave for their vacation to the North Carolina mountains at approximately 12:00 Noon on Friday, December 15, 1978, they did not leave until the next morning since they retired for the evening at approximately 2:30 a.m. on Saturday morning.
Respondent did not recall seeing Tosha Binns on the day of December 15, 1978. Respondent was suspended on February 9, 1979, based on the subject incident. During mid-February, 1979, Respondent had photos taken of the band area in order that he could reconstruct the events on December 15, 1978. Additionally, Respondent denied any improper conduct between Miss Binns and himself, and denied attempting to bribe Michael Holmes. Respondent also denied that he authorized Holmes to lock up the band area on the day in question.
Peggy Yankowitz appeared and testified that the Respondent returned the bracelet which he had purchased the preceding day at approximately 3:00 p.m. on December 15, 1978. Ms. Yankowitz testified that the Respondent stayed at her residence until dark on the afternoon of December 15, 1978.
Ben J. Carrioccio, a music teacher and Respondent's then assistant at Carol City Senior High School, appeared and testified that Respondent had no part in setting up a Christmas party for band students. Mr. Carrioccio testified that he and Respondent secured the band room at approximately 2:15 p.m., at which time he left the area. He testified that all the students had left when he left. Additionally, he added that the Respondent had a reputation for being, and is in fact, a strong disciplinarian.
Patricia Allessio appeared and testified that she was an instructor at Carol City Senior High School for approximately sixteen years preceding the
1977-78 school year. She testified that she assisted Respondent in chaperoning band trips inasmuch as she was the Director of student activities. Ms. Allessio voiced her opinion that the Respondent was "too strict a disciplinarian."
Carl L. Hanna, former Assistant Principal at Carol City Senior High School from 1975 through the 1978-79 school year, expressed his familiarity with the Respondent and offered that he had never observed the Respondent doing anything questionable during his tenure at Carol City and that Respondent often disciplined problem students.
Nicholas Borota, a former Principal at Carol City Senior High School for the previous tan years, testified that the band instructors are always hired to continue their employment throughout the summer months inasmuch as continuity is essential to maintain a good music program in a high school. Principal Borota testified that the Respondent had no prior questionable involvements with students and that he (Respondent) always kept the band area and equipment under double lock and key.
CONCLUSIONS
Based on the denials of student Tosha Binns, the Respondent and the corroborative testimony of Ben Carrioccio, Peggy Yankowitz and others indicating or otherwise supporting the conclusion that Respondent did not engage in any improper conduct with Tosha Binns as alleged, the ultimate conclusion is inevitable that insufficient evidence was offered to establish the allegations
that the Respondent had engaged in acts of immorality in violation of Florida statutes section 231.26(6). Accordingly, I shall recommend that the Administrative Complaint filed herein be dismissed in its entirety. 2/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 231, Florida Statutes.
Insufficient evidence was offered to sustain the Petitioner's suspension of the Respondent based on the allegations that he engaged in acts of immorality violative of Section 231.36, Florida Statutes.
