v. ) CASE NO. 79-2316
HARRY W. SOWARD, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 20-21 March, 1980 at Sarasota, Florida.
For Petitioner: J. David Holder, Esquire
By Administrative Complaint filed 17 October 1979 the Professional Practices Council, Petitioner, seeks to revoke or suspend the teaching certificate of Harry W. Soward, Respondent. As grounds therefor it alleges Respondent holds Florida teaching certificate and that on or about July 17, 1979 Respondent publicly exposed his penis and testicles and masturbated on North Lido Beach, Sarasota County, Florida, while he observed a large group of young boys approximately eight to ten years of age. In Petition in Opposition to the Revocation of Teacher's Certificate, Respondent denied all material allegations. Seventeen witnesses, including three rebuttal witnesses, were called by Petitioner. Thirty-three witnesses were called by Respondent and fourteen exhibits were admitted into evidence.
On 17 July 1979, a few days after Harry W. Soward and his wife returned from a motor trip vacation and before the date he was to report for duty as Principal of Garden Elementary School in Venice, Florida, Soward left his residence to shop for shelving. Not finding the items desired at stores close to his residence, he proceeded further afield. After lunch he went to his son's place of business for a visit and upon arrival found his son absent. He then decided to go to a nearby beach for some sun enroute home.
At this time Respondent was dressed in shorts, T-shirt and shoes. Upon parking the van he was driving, Respondent took off the T-shirt and donned a
beach jacket which had been under the front seat of the van, locked his wallet in the van and walked north along the scarcely populated beach away from the area where most people congregate. Under the corduroy shorts Respondent was wearing black bikini briefs. After going some one-half mile or more from the parking area Respondent removed his corduroy shorts to sunbathe, leaving him wearing black bikini briefs and jacket. He then walked away from the water towards the wooded area clearly shown in Exhibit 1, and photographs constituting Exhibits 6 through 13.
Officer Meredith of the Sarasota Police Department was assigned to the Lido Beach area on 17 July 1979 and had proceeded to North Lido Beach in response to a report that a nude made had been seen on the beach. Lido Beach is a publicly-owned swimming and sunning area; however, the north end of this beach is reputed to be an area where nude bathing occurs and homosexuals meet.
Because of the topography and insects this area is not popular for picnicking.
Officer Meredith had requested via radio a back-up when he departed for North Lido Beach and shortly after his arrival he was joined by Sergeant Schott, also of the Sarasota police. They saw no evidence of a nude male but decided to proceed southward inside the tree line from the beach where they would be able to observe activity on the beach without being seen. Meredith had 8 x 50 binoculars with which to detect something that might not be discernible to the naked eye.
While walking inside the tree line the officers observed a large group of young boys supervised by older teenagers playing and proceeding southerly near the water's edge. After walking for several minutes inside the tree line the officers observed a white male ahead and a little seaward of them also moving southerly inside the tree line. When he reached a thicker clump of trees this man stopped for several seconds and Meredith focused the binoculars on him. This individual, later identified as Respondent, was facing south with his back to the officers when he stopped approximately 75 feet from the officers and some
500 feet from the water's edge where the young boys had been observed. For approximately one minute he was observed from the location occupied by the officers. Respondent, whose back was toward the officers, appeared to lower his bikini briefs and manipulate his penis in a manner both officers thought was masturbating. Meredith's testimony was that he could see Respondent's right arm moving but could not see his penis. While still under close scrutiny Respondent turned some 90 degrees to his left, placing his back to the water's edge and his profile to the officers. At this time they could see Respondent's briefs had been dropped enough to allow penis and testicles to be over the top of the briefs. At this time Respondent had his penis in his hand. Both officers testified Respondent did not have an erection but they did not believe the penis to be flaccid, nor did they believe he was urinating.
Shortly thereafter Respondent turned towards the north, saw the two officers, pulled the briefs back over his privates and started to walk back to the beach. At this time, Officer Meredith yelled for Respondent to stop, which he did. Officer Meredith asked what he was doing in the tree area and Respondent replied "urinating". When asked his name, age and occupation, Respondent replied Soward, 54 years old, and a teacher at Venice. Respondent pronounces his name in one syllable. When Meredith asked if the name was spelled S-o-r-d, Respondent did not reply.
When Meredith saw what he thought to be Respondent reaching into a pocket of the jacket he grabbed his hand, reached into the pocket and extracted a tube of K-Y jelly. Respondent extracted a pair of yellow women's briefs from
the other pocket. When asked why he had the lubricant Respondent replied he used it occasionally for his hemorrhoids. The yellow bikini Respondent identified as belonging to his wife who also occasionally used the same jacket. After berating Respondent and accusing him of being a deviate Meredith ordered Respondent to get off the beach and warned him not to return "to our city beaches in the future." (Tr. p. 33).
The testimony of all witnesses, consisting of the two police officers and Respondent, was essentially the same with respect to the facts noted above. Respondent testified that he went into the wooded area where he could not be seen by anyone on the beach to urinate, that he had a prostate condition which made it difficult at times for him to commence urination, and that massage of the prostate behind he testicles sometimes helped induce urination. He further testified that he was taking diuretics, which caused more frequent urination. The taking of diuretics was confirmed by his physician.
Respondent produced at the hearing the jacket and briefs he was wearing, plus the yellow bikini bottom that was in the jacket pocket when he was accosted. This bikini bottom was identified by Mrs. Soward as belonging to her and having been left in the jacket pocket. Respondent identified it as the one removed from the jacket when he was apprehended, while Officer Meredith testified the yellow briefs removed from the jacket pocket had lace around the legs, were women's underpants and not the bottom of a bikini swimsuit presented at the hearing.
After being ordered to leave the beach, Respondent donned his corduroy shorts and proceeded back to the parking lot. Meredith also went to the parking lot and after Respondent got in his van, Meredith came up to demand identification partially because he didn't think Respondent to be as old as he had stated. When he saw the name on the driver's license was not spelled Sord, Meredith accused Respondent of giving the wrong name. The driver's license did confirm Respondent's age to be what he had told Meredith.
Meredith did not arrest or prefer charges against Respondent. His reason given for not doing so was that Respondent could not be seen from the beach and unless lewd and lascivious behavior was perpetrated in a place from which the perpetrator could be seen by "civilians" (as opposed to police) the judges in the Sarasota courts would not convict those arrested on charges of lewd behavior. Nevertheless, when he returned to the station Meredith prepared a report of his encounter with Respondent which, since a member of the school system was involved, was passed to the Superintendent of Schools of Sarasota County. The Superintendent talked to Meredith and Schott and received a copy of the report prepared by Meredith.
The Superintendent advised the Director of Elementary Education, who was the supervisor of principals, of the police report and requested she bring Respondent to his office. When presented with the police report in the presence of the Superintendent, Respondent again denied any wrongdoing, insisted he had entered the wooded area to relieve himself and explained the purpose for which he had the K-Y jelly in the jacket, as a lubricant for hemorrhoids. The Superintendent chose not to believe the explanation offered by Respondent and gave him the option of resigning rather than suffer the unpleasantness of further investigation by Petitioner, to whom the Superintendent would refer the matter, and a possible hearing. Respondent declined to resign.
Respondent was relieved of his duties as principal of Garden Elementary School, a position which he had held since the school opened in 1974,
and was reassigned temporarily to the administrative staff of the school system. These charges here under consideration were subsequently preferred.
A substitute principal was assigned to Garden Elementary School and when the school year began the Superintendent addressed the faculty at Garden Elementary to explain Respondent's absence was due to a report submitted by the police which had been turned over to the Petitioner and if the faculty wanted to know more they could read the police report at the police state. Many of them did so.
The newspapers were aware of this police report but did not publish any news items relating thereto. After the School Board took action to relieve Respondent from duty and refer the matter to Petitioner, an article appeared in the Sarasota Herald-Tribune on August 2, 1979 and a similar article appeared in the Venice Gondolier, a newspaper whose circulation is limited to the southern part of Sarasota County. These articles reported the reassignment of Respondent pending an investigation of an incident reported by police and stated that no charges had been preferred by the police.
Of the 17 witnesses called by Petitioner only two, the police officers, saw Respondent at any time material to these charges. Both of these officers were looking for nudes or perverts when they saw Respondent. Meredith was looking so hard he used 8 x 50 binoculars to observe Respondent from a distance of 75 feet. At that range this magnification should allow resolution of the order of one-fourth to one-eighth inch. A stationary housefly on an appropriate background could be seen at 75 feet with 8-power binoculars.
Meredith testified regarding the reputation of North Lido Beach and anytime he saw someone in this section of the beach there was a question in his mind why they were there. (Tr. p. 62). One looking for deviate behavior would be more likely to associate movement that could be manipulation of the penis with masturbation than would an observer not looking for such behavior. Follow this impression with discovery of K-Y jelly in one pocket, ladies' bikini bottoms in the other pocket of the jacket, and a group of young boys in the vicinity (albeit 500 feet distant) and Officer Meredith was quite sure he had encountered a pervert. When Respondent told Meredith that he was a teacher, Meredith undoubtedly commented, as Respondent testified, about perverts working with kids (Tr. p. 352) and told Respondent he would get him out of the school system. Without sufficient evidence to arrest Respondent, Meredith was left to the writing of the report.
Most of the witnesses called by Petitioner had read the police report and gathered from this report that Respondent was observed masturbating on North Lido Beach in the vicinity of an in view of children of tender ages and that he had questionable items in his jacket pocket. These witnesses were aware of the reputation of North Lido Beach as a nude and gay beach and many didn't think that was an appropriate place for a principal to go. These factors led them to conclude that Respondent could no longer function effectively in the Sarasota County School System. This conclusion was reached without the benefit of Respondent's explanation of his actions, without full knowledge of the density of the foliage, without realizing that no one but the police could or did see him with penis exposed, and without knowledge that neither K-Y jelly nor bikini bottoms were in use or evidenced until after Respondent started back to the beach. Those witnesses called by Petitioner who had been associated with Respondent at Garden Elementary School acknowledged that prior to this incident they considered Respondent to be an able and effective administrator. Many of
these witnesses opined that even if found innocent of any wrongdoing, Respondent's effectiveness in the school system has been seriously reduced.
Many of the 33 witnesses called by Respondent knew Respondent socially and professionally as a "fine man". Respondent's church workers think highly of him both in integrity and morality and they did not believe the truth of the police report that Respondent had masturbated on Lido Beach. The pastor of the First Church of Nazarene in Bradenton, an ordained minister, has known Respondent for the past 6-1/2 years as the church's unpaid associate pastor. Respondent has taught Sunday School at this church for many years and the pastor considers Respondent one of the finest men he ever knew. Neighbors know Respondent as a quiet family man and good neighbor who had never shown any indication of questionable morals or conduct.
Professional associates found Respondent a competent administrator and teacher. Some found him strict but none ever had cause to question his moral character prior to July 17, 1979.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Grounds for revocation or suspension of a teacher's certificate are contained in Section 231.28, Florida Statutes.=, which provides that the Department of Education shall have authority to suspend or revoke the teaching certificate of any person provided:
It can be shown that such person . . . has been guilty of gross immorality or an act involving moral turpitude . . . or upon investigation has been found guilty of per- sonal conduct which seriously reduces his effectiveness as an employee of the school board . . . .
Petitioner contends that the acts of Respondent as testified to by the two police officers constitute gross immorality or an act involving moral turpitude. Petitioner also contends that Respondent has been shown to be guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.
The evidence here presented taken in the light most favorable to Petitioner will not support a finding that Respondent was guilty of gross immorality or an act involving moral turpitude.
"Moral turpitude" involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or man to society. It may also be defined as anything done contrary to justice, honesty, principle or good morals, though it often involves a question of intent. State ex rel. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933). In The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978), the Court held that the issuance of four worthless checks by attorney with knowledge there was insufficient funds on deposit to pay the checks on presentation did not constitute moral turpitude in the absence of a showing of intent to defraud.
Assuming, arguendo, that Respondent was in fact masturbating in a secluded area, well-hidden from the view of anyone on the public beach, such conduct does not reach the immorality of depravity encompassed within the definition of moral turpitude, although it could be classified as personal conduct which seriously reduced his effectiveness as an employee of the school board.
In the context of the evidence here presented, gross immorality or moral turpitude must be equated to lewd and lascivious conduct. To constitute lewd and lascivious the conduct must be indecent and immoral behavior and it must be done so openly as to be offensive. 16 Fla Jur 2d Crim Law x. 1217 and cases there cited. The evidence here presented precludes a finding that Respondent committed any proscribed act so openly as to be offensive.
There was substantial testimony that Respondent's effectiveness as an employee of the school board has been seriously impaired. However, the statute above quoted requires that Respondent be found guilty of conduct which seriously impairs his effectiveness. The conduct which is alleged to seriously reduce Respondent's effectiveness is masturbating in a public place. Here the evidence is conclusive that the situs of this alleged act was not very public, although it may be assumed that the wooded area involved is publicly owned. What has impaired Respondent's effectiveness as an employee is the police report which was read by those testifying to Respondent's loss of effectiveness. This police report was not offered into evidence, but the author thereof testified. In these proceedings his testimony was subject to cross-examination and rebuttal which was not available to those only reading the police report.
The evidence here presented will not support a finding that Respondent was guilty of masturbating. The explanation offered by Respondent for his acts and actions observed by the two police officers is as consistent with the undisputed facts as is the different inference drawn by the police officers. Obviously the police officers' interpretation of what they had observed was affected by the items found in the pockets of the jacket Respondent was wearing. Respondent's explanation of the presence of these items is not unreasonable or unbelievable.
Both Respondent and the police officers were observed by this Hearing Officer on the witness stand; and, after considering the motives of each in presenting his testimony, I find the Respondent's explanation of the incident as reasonable and as rational as the explanation offered by the police officers. This takes into account the presumption that Respondent has a much greater personal reason to color his testimony than do the police. I have absolutely no reason to conclude that either of the police officers gave biased testimony. However, Officer Meredith was sufficiently obsessed with deviate behavior that he would be suspicious where one not so obsessed would not be.
Under the preponderance of the evidence standard for administrative tribunals the evidence will not support a finding that Respondent committed the acts alleged. However, where disciplinary action against a license is involved, more than a preponderance of the evidence is required. License revocation proceedings are penal in nature. Bach v. Florida State Board of Dentistry, 378 So2d 34 (Fla. 1st DCA 1979). Penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege [of licensure] and then only upon clear and convincing proof of substantial causes justifying the forfeiture. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966).
Although Reid, supra, involved the suspension of a real estate broker's license, the Court's language at pp. 850-851 is appropriate to these proceedings.
The taking away of a person's license to engage in a privileged business or profession by administrative action is one of the most drastic proceedings known to the law. At one stroke of the pen it takes away his means of livelihood, and casts an immediate blight upon his whole life and that of his family and business associates. The real estate broker's license to engage in that business is no less important to him or her than a license to practice law or medicine is to
a lawyer or doctor. Such license is not only a paper writing that permits the holder to legally engage in the activities described therein, but it is also a proclamation to the world that the person
to whom the license is issued has qualified to be chosen as a recognized member of a privileged business or profession. It is a most valuable property right; one to be proud of and to be zealously guarded and protected. It singles out a person as being an honorable citizen in the society of people.
This is not to say that an administrative licensing board should hesitate to take away such license--in a proper case and upon sufficient cause. An undeserving recalcitrant or chronic offender, especially in the field of serious matters, should be severely dealt with: he has forfeited his right and privilege to stand with the honorable members of his profession. But the struggle to acquire the privileged license in the first instance entails much sacrifice, hardships, expense, and physical and mental labor and endurance; and the summary revocation of such a right is a most solemn thing.
These words are particularly appropriate in a case involving a member of the teaching profession to whom we give the responsibility for developing the minds of our citizens of tomorrow. We want our teachers to be paragons of virtue; purer than Caesar's wife. By so doing we place the teacher in a setting in which his effectiveness in the school system can be destroyed by a vicious rumor, despite a spotless prior record.
In the case at hand the police report, which was, in effect, circulated among many of Respondent's confreres and the parents of children attending Garden Elementary School, has had the effect of seriously reducing Respondent's effectiveness at this school and has not improved his effectiveness as an employee of the school board.
These are risks that administrative agencies assume and Petitioner took in this case in preferring charges involving immoral allegations which the evidence is unsufficient to support.
From the foregoing it is concluded that Respondent, Harry W. Soward, was not guilty of misconduct on 17 July, 1978 as alleged. It is therefore
RECOMMENDED that the charges against Harry W. Soward be dismissed.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
J. David Holder, Esquire
110 N. Magnolia Drive, Suite 224 Tallahassee, Florida 32301
