STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, ) and RALPH D. TURLINGTON, as )
Commissioner of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1023
) CHARLES HERBERT FUGATE, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda N. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 17 and 18, 1983, in Sebring, Florida.
Petitioners Department of Education, Education Practices Commission, and Ralph D. Turlington were represented by J. David Holder, Esquire, Tallahassee, Florida; and Respondent Charles Herbert Fugate, Jr., was represented by John J. Chamblee, Jr., Esquire, and Robert A. Miles, Esquire, Tampa, Florida.
Petitioners filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent and his certificate to teach under the laws of the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint - and, if so, what disciplinary action should be taken, if any.
Petitioners presented the testimony of Juan R. Sanchez, Sr.; Juan Ramon Sanchez, Jr.; Billy C. Cason; James Nelson; Tracy Lehman; Richard White; Karie Lynn Gibbs; William Miles McGee; Janet Bess Snook; Bruce S. Snook; Joe Keating; Karen Tifft; and Calvin Smith. Additionally, Petitioners' Exhibits numbered 1 and 2 were admitted in evidence. Respondent presented the testimony of Joy Hasler, Austin Hasler, Marilyn McAdams, Doris Gentry, Ruth Evans Handley, John Robert Alexander, John C. Freeland, and Betty Heiring. Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
Respondent holds Florida Teacher's Certificate No. 450387, covering the area of music education.
At all times material hereto, Respondent was employed as the band director at Sebring High School in the Highlands County school district.
In October or November 1981, Respondent was in possession of a quantity of marijuana in his classroom at Sebring High School. While cleaning Respondent's classroom, James Nelson, one of the School's custodians, observed a small brown case or kit on Respondent's desk. Upon opening the case, Nelson observed a quantity of marijuana in an unlabeled pill bottle, another unlabeled pill bottle containing a quantity of pills, and a tube of glue in the bottom of the case. After examining the contents, Nelson replaced the case on Respondent's desk. As Nelson was leaving the room, Respondent and two students entered. When Nelson returned 15 minutes later to turn off the lights and lock the room, the case was gone. No one except Respondent and the two students who accompanied him had entered the classroom during that 15-minute interval.
In April 1981, William Miles McGee, a six-year member of the Sebring Police Department, drove a bus for a trip which the Sebring High School band made to the Cherry Blossom Festival in Washington, D.C. Numerous chaperones told McGee that Respondent, a passenger on the bus, had drugs with him on the trip. McGee saw Respondent in possession of a small shaving-type kit or bag. While Respondent and the band members were away from the bus, McGee looked in the bag, which Respondent had left on a seat in the bus. He observed a small, brown unlabeled bottle similar in appearance to a prescription pill bottle containing a very small amount of a white powdery substance and a small silver spoon, three to four inches in length. Based upon his experience with drugs and drug paraphernalia, McGee noted that the powdery substance had the same appearance as cocaine and the silver spoon was the type used for cocaine and heroin. McGee did not perform any chemical test or cause any chemical test to be performed on the substance, and he did not immediately report his discovery. After his return, he continued to hear talk through chaperones, adults, and students that Respondent was a drug user. For that reason, he reported his Washington, D.C., observations to Lieutenant Hopton of the Highlands County Sheriff's Department approximately four months after the band trip. In October 1982, Lieutenant Hopton requested of McGee a written statement concerning his observations on the band trip in April 1981.
Tracy Lehman attended Sebring High School and graduated in 1981. During her junior and senior years, she was a member of the Sebring High School band under Respondent's direction. Approximately a month after her graduation,
Respondent asked Lehman out. She was 17 years old at the time. While they were out together, Respondent smoked a marijuana cigarette and offered her marijuana, which she refused. On the second occasion that Respondent offered Lehman marijuana, she again refused, and he then proceeded to smoke the marijuana in her presence. Although Respondent ceased offering her marijuana again, there were other times that he smoked marijuana in Lehman's presence, most of which times occurred in Respondent's home. At the formal hearing, Lehman demonstrated Respondent's technique of smoking marijuana by holding the cigarette with fingertips close to his lips, inhaling deeply, and holding the inhalation before exhaling. Although Lehman only admitted to dating Respondent for three to four months after her graduation, there was a lot of talk among the girls who were members of the "Highsteppers" drill team that Respondent was seeing quite a bit
of Lehman while she was a member of the band before she graduated from high school.
Karie Gibbs attended Sebring High School and also graduated in 1981. During her senior year, she was a member of Respondent's band. In March 1981, Respondent instructed her to drive his vehicle to town in order to pick up some music and a set of keys from the assistant principal. While in the vehicle, Gibbs observed a small shaving-kit type of bag, which she opened. Inside the bag she found rolling papers, a bag of marijuana, an unmarked prescription bottle with pills in it, Campho-Phenique, a tube of Blistex, aspirin, and a gold "roach clip" shaped like a guitar. Later in the same week, Respondent asked Gibbs to go to his vehicle, remove the bag, and bring it to him in the band room. While carrying the bag or shaving kit to Respondent, Gibbs noticed that it was partially unzipped. She looked in the bag and observed the same contents, but a smaller quantity than she had observed earlier in the week. Respondent placed the bag in the top drawer of the file cabinet in the band room.
Gibbs and other students were at Respondent's home on her graduation night in June 1981. At that time, she observed rolling papers, a bag of marijuana, and a quantity of ground marijuana inside Respondent's toaster oven in his kitchen. In July 1981, Lehman attended a bachelorette party held at Respondent's home and observed a marijuana plant growing on Respondent's back porch in a pot. Avon Park High School band director, Joe Keating, observed Respondent smoking marijuana approximately 15 to 20 times in Respondent's home, garage, and truck. Respondent showed Keating some small plants growing in a potted plant on the back porch of Respondent's home and advised Keating that Respondent's "pot plants" were doing nicely. In addition, Keating observed Respondent "clean" marijuana, roll marijuana, and dry marijuana in Respondent's toaster oven.
Keating observed Respondent's small shaving kit on a number of occasions. In that kit Respondent usually kept the following items: a few joints, some unrolled marijuana in a glass or plastic pill bottle with a plastic cap, a white powdery substance in a clear bottle, and some Blistex. At the formal hearing, Keating demonstrated the manner in which Respondent smoked the marijuana and described how an "alligator" clip was used to hold the cigarette when it became very small.
On one occasion, when Keating visited Respondent at Respondent's home, some of Respondent's friends from out of town were also visiting. Keating observed Respondent divide lines of cocaine on a mirror and snort, or inhale, the cocaine up one of his nostrils, using a rolled-up dollar bill. On yet another occasion, Respondent showed Keating a very small quantity of a white powdery substance, which Respondent identified as "coke," and told Keating how expensive it was.
Keating did not participate in the use of marijuana or cocaine with Respondent.
Student Richard White observed Respondent kissing ninth-grade student Jackie Caporino on the lips in the band room at Sebring High School near the conclusion of the school day toward the end of the 1981-82 school year. There were other students in the band room at the time. The talk among the "Highsteppers" was that Respondent was "too friendly" with band member Caporino.
Janet Snook was a 1983 graduate of Sebring High School. During her junior and senior years, while Respondent was her band director, she visited Respondent in his home approximately 50 times. In addition, Respondent called her at her home on numerous occasions and asked her out about five times. In December 1982, she went out with him to dinner at a local Pizza Hut. Although Snook was not certain whether Respondent hugged and kissed her upon their return from the Pizza Hut, he had kissed her before that night. In December 1982, Janet Snook was a senior at Sebring High School and was 17 years old. Her father was concerned about her becoming infatuated with Respondent. He knew that Respondent called his daughter on her bedroom telephone several times. Therefore, on one occasion when Janet's mother answered the telephone when Respondent called, Mr. Snook got on the telephone and advised Respondent that it was not right for Respondent to be going out with one of his students and told Respondent that he did not want Respondent to see Janet again.
Linda Heiring, now a student in her senior year at Avon Park High School, was a member of Respondent's band in her seventh and eighth grade years at Avon Park Middle School. Respondent has been involved in a romantic relationship with her since at least her ninth grade year, when she was 15 years old. On several occasions, Respondent discussed with Keating Respondent's feelings for this student and stated that he "loved" her. Keating saw Linda Heiring at Respondent's home approximately 10 to 15 times. On several of those occasions, he observed the student sitting on Respondent's couch with Respondent lying in a prone position with his head in her lap and the student's arm over his chest. On another occasion, Keating inadvertently observed the Respondent and Heiring embracing with arms around each other in Respondent's kitchen as Heiring was about to leave.
Keating took a group of 30 to 40 band students to the Winter Haven Marching Band Contest in November 1982. Keating and the band were seated in the bleachers watching the contest, when Respondent and Heiring arrived holding hands. They continued to hold hands as they walked in front of the bleachers and then up the bleachers toward the group of students to take their seats.
Karen Tifft, the sponsor for the flag and rifle corps of the Avon Park High School band, has seen Respondent and Linda Heiring kiss on possibly five or six occasions. On one occasion, she observed them kissing behind the bleachers during a high school football game. Tifft also observed the two of them at the Winter Haven Marching Band Contest holding hands as they walked up to their seats, holding hands later at dinner after the A contest, and observed them kiss. She has seen them kiss when Respondent has dropped off Linda Heiring at Avon Park High School in the morning. Each of these kisses were on the lips. When Tifft has seen Linda Heiring riding with Respondent in his vehicle, Heiring has been seated over next to the Respondent instead of sitting in the passenger seat.
Sometime during 1982, Linda Heiring approached Janet Snook at the skating rink in Sebring to talk to her about Respondent. Heiring was afraid that Snook was going to take Respondent away from her and warned Snook to stay away from Respondent. Snook has seen Respondent and Heiring standing on the track encircling the football field with their arms around each other at a band contest during 1982. On another occasion, she saw the two of them together at an arts festival in Sebring, again with their arms around each other.
On January 6, 1983, the Avon Park High School band traveled to Jacksonville, Florida, to play for the music educators' convention. Linda Heiring was present on the trip as a member of the Avon Park High School band.
The band members originally checked into a Quality Inn motel in Jacksonville but moved to a Days Inn the following day due to the poor condition of the Quality Inn motel. After arriving in Jacksonville, Heiring commented to Karen Tifft, who had accompanied the band on the trip as a chaperone, that "Chuck's up here" and that he was going to call her. As the buses were unloading at the Days Inn, Heiring pointed to the motel across the street, a Ramada Inn, and told Keating that was the motel where "Chuck" was staying, referring to Respondent. Heiring also advised Tifft upon their arrival at the Days Inn that "Chuck's staying across the street from us."
On January 7, 1983, the Avon Park High School band made a field trip to St. Augustine, Florida. Upon their return to Jacksonville, the band members were to change clothes, eat supper, and gather to attend the performance of another band that evening. Around 5:00 or 5:30 P.M., Respondent called Keating and asked if Respondent could take Linda Heiring to the concert. Keating told Respondent that it would not be a good idea and reminded Respondent of the school rule prohibiting students from riding in private transportation while on hand trips. The school policy required that students ride in transportation provided by the school. Respondent then asked Keating if Respondent could take Heiring to dinner. Keating again advised him that that was against school policy. Keating then told Respondent that, if Respondent had dinner with Heiring, he should be sure the chaperones did not see them. Keating assumed that Respondent would take Heiring to an eating establishment within walking distance, due to the prohibition against transporting students in private vehicles.
Tifft and other chaperones standing on the second floor of the Days Inn observed Respondent walk across the street from the Ramada Inn and approach a group of students standing below which included Linda Heiring. Respondent walked up to Heiring, put his arm around her, and squeezed her. They talked for a few moments and then walked away from the group. Respondent called up to the chaperones to ask Keating's room number. Tifft responded with Keating's room number, and Respondent and Heiring proceeded to walk away as though they were going to walk around the motel to Keating's room. Just as they were about out of sight, however, Respondent grabbed Heiring's hand, and they dashed across the motel parking lot, jumped a ditch, ran to a vehicle, and drove away. This occurred at approximately 5:45 or 6:00 P.M. The chaperones reported this to Keating, who then made an unsuccessful effort to determine the whereabouts of Respondent.
Tifft requested Juan Sanchez, the band's drum major, to watch for Respondent and Heiring while Tifft and the other chaperones went to the restaurant in the Days Inn to eat dinner. At approximately 6:30 or 6:45 P.M., Sanchez came to the restaurant and told Tifft that Respondent and Heiring were back but that Respondent had driven around the Days Inn, driven across the street, parked at the Ramada Inn, and Respondent and Heiring had entered Respondent's room. Tifft and Mrs. Tondee, another chaperone, left the restaurant, walked across the street to the front desk of the Ramada Inn, obtained Respondent's room number, and walked down to his room. It took them approximately five to ten minutes to get to Respondent's room. When they first knocked on the door, they saw someone lift the curtain at the window. They knocked again and asked Respondent to open the door. Tifft, Tondee, and Respondent conversed back and forth through the closed door for three to five minutes before Respondent finally opened it. When he did open the door, he was fastening the top of his pants and was not wearing a shirt, shoes, or socks. When the chaperones entered the room, there was only a dim light in the room. No one else was present in Respondent's room or in the adjoining room. Heiring
was in the bathroom when the chaperones entered Respondent's room. As they were waiting for her to come out, Respondent put on his shirt and called out to her, "Come on, Hon, it's my turn in there now. Hurry up, Hon, it's my turn now." Approximately ten minutes after the chaperones entered Respondent's room, Heiring came out of the bathroom adjusting her collar and her sweater. She then sat down on the end of the bed and put on her shoes, which had been located at the foot of the bed. She then walked out of the room, followed by the chaperones.
During the ten minutes that Tifft was present in Respondent's motel room, she neither saw nor heard anyone in the motel room adjoining Respondent's room. After accompanying Heiring back to her room at the Days Inn, Tifft observed Respondent drive across the street to the Days Inn parking lot and pick up student Brad Ward. She later observed Respondent and student Brad Ward at the concert that evening.
Due to Heiring's violating a school rule governing band trips (that band members were not to be in the motel rooms of members of the opposite sex), she was sent home from the trip. She was later suspended by the principal of Avon Park High School for three days.
Respondent was suspended from employment on January 10, 1983, by Dr. Billy Cason, superintendent of schools for Highlands County, for his actions in Jacksonville in having a minor female student in his motel room. Based upon Superintendent Cason's 25 years of experience in the education profession (all of which has been in Highlands County), Cason believes that Respondent's effectiveness as an employee of the school board has been seriously reduced. His opinion is based upon Respondent's conduct, the notoriety which it has received in Highlands County, general community knowledge of the incidents in
question, the standards of professional conduct expected by his school district, and the Code of Ethics for teachers in Florida.
Calvin Smith, principal of Avon Park High School, would not hire Respondent as band director at his high school. Parents of Avon Park High School band members have told Smith that they would pull their children out of the band if Respondent were employed at that school. The January 7 incident and Heiring's relationship with Respondent have adversely affected Heiring's relationship with other members of the Avon Park High School band, many of whom have refused to have anything to do with her since the January 7 incident.
Heiring's mother had given her permission to "see' Respondent only since October 1982, when Linda Heiring became 16 years old. Between that date and the January 7 incident, Heiring's mother was only aware of Respondent being alone with her daughter on two or three occasions: one occasion was when Respondent took Heiring to the arts festival in Sebring, and the other one or two occasions were to take her to dinner. Mrs. Heiring was not aware that her daughter's relationship with Respondent included kissing, embracing, holding hands, and resting Respondent's head in her lap. Mrs. Heiring's impression of the relationship was that Respondent and Linda Heiring were just friends. She did not give her daughter permission to date Respondent, only for her to have dinner with Respondent on the specific occasions above described.
As early as January 1982, Captain Austin Hasler, Sebring Police Department, conducted an unofficial investigation of Respondent, his son's band director, due to the number of rumors he heard from other band parents regarding Respondent being a ladies' man with the female students and about Respondent's alleged use of narcotics. Hasler asked some of his "street people" to check
around, so that he could either confirm or disprove some of the rumors that he had been hearing about Respondent. Hasler was unable to obtain sufficient information from this source "to form an opinion;" however, he resolved to keep a closer eye on Respondent thereafter. The rumors about Respondent's dating and drug habits continued to be spread throughout the community and among both the students at Sebring High School and the students at Avon Park High School.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Section 231.28(1), Florida Statutes, provides that a teacher's certificate may be revoked, suspended, or otherwise disciplined if it can be shown that the certificate holder:
(c) Has been guilty of gross immorality or an act involving moral turpitude;
(f) Upon investigation, has been found guilty of personal conduct which seriously reduces
his effectiveness as an employee of the school board;
(h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of
the teaching certificate.
Petitioners have sustained their burden of proving by competent substantial evidence the allegations of the Administrative Complaint as to Respondent's use and possession of illegal drugs and drug paraphernalia through the testimony of Respondent's former students, a school custodian, a Sebring police officer, and the band director of Avon Park High School. Although none of these individuals was qualified as an expert witness with respect to the identification of contraband drugs, each testified as to familiarity with those drugs by virtue of previous exposure prior to the occasions upon which they observed Respondent using or possessing illegal drugs and drug paraphernalia. Several witnesses demonstrated the manner in which Respondent consumed the substance, which demonstration was consistent with the manner in which marijuana and cocaine are consumed. Even if the past experiences of the witnesses were insufficient to identify the drugs in question, as Respondent strenuously argues, Respondent himself identified the substances in question to two of Petitioners' witnesses, Lehman and Keating, to be marijuana and to one of Petitioners witnesses, Keating, to be cocaine. Additionally, there was no testimony offered to indicate the substances were anything other than marijuana and cocaine. The paraphernalia observed--a silver spoon, rolling papers, and "roach clips"--are all consistent with the use of contraband drugs.
Petitioners have sustained their burden of proving by competent substantial evidence the allegations of the Administrative Complaint as to Respondent's having engaged in improper relationships of a romantic nature with minor female students in the Highlands County school district. The fact that one of those students attended a school other than the one at which Respondent was currently teaching is totally irrelevant in view of Respondent's blatant and public conduct with that student at school functions within the Highlands County school district and, specifically, by having that minor female student alone with him in his motel room in Jacksonville, Florida, at a time when that student
was attending approved activities with other students of the Highlands County school district.
Respondent is guilty of gross immorality and of acts involving moral turpitude, both as a result of his improper conduct with minor female students and as a result of his use and possession of illegal drugs. This same conduct has seriously reduced his effectiveness as an employee of the school board. Petitioners have introduced competent substantial evidence to show that Respondent was known as a ladies' man by both students and by the community in general. In addition, his use and possession of illegal drugs was common conversation. This community awareness of Respondent's highly improper conduct existed for up to two years before the incident in the Jacksonville, Florida, motel room on January 7, 1983. The incident on that date only served to make more public Respondent's unacceptable conduct and lack of moral character. Testimony shows that the Avon Park High School band members knew at the time of the event in Jacksonville and, as a result thereof, even the student involved has become a social outcast within the school system. It would appear that among the few persons who were unaware of Respondent's improper relationships with female students and use and possession of drugs were the superintendent of schools and the principal and assistant principal of Sebring High School. Respondent argues that since those three persons did not know of Respondent's conduct and evaluated him as a competent teacher throughout the time period in question, then Respondent a fortiori cannot be held to be an ineffective teacher. That argument has no merit, logically or legally. A person can be competent to teach and yet can commit personal conduct which seriously reduces his effectiveness. Such is certainly the case here. Respondent argues that he has been rendered ineffective only as a result of the investigation and subsequent charges which arose after the January 7, 1983, incident; Respondent overlooks the obvious fact that it was his conduct in that motel room which caused the investigation to ensue and the subsequent charges to be filed. The investigation following the motel room incident merely disclosed additional unacceptable conduct which had not previously been reported. It is clear that rumors were running rampant prior to the Jacksonville motel incident regarding Respondent's use of drugs and improper relationships with minor female students. The fact that conduct prior to that incident came to official light after that incident simply cannot mean that Respondent cannot be charged with that conduct.
37. Section 6B-1.06, Florida Administrative Code, requires a teacher to make reasonable effort to protect students from conditions harmful to learning or to health or safety and further provides that a teacher shall not exploit a professional relationship with a student for personal gain or advantage. Violation of those requirements subjects an individual to revocation or suspension of a teaching certificate. By engaging in romantic relationships with minor female students, by having a minor female student alone with him in a motel room, and by using and possessing illegal drugs and drug paraphernalia, Respondent has exposed students to conditions harmful to learning and to health and safety. Additionally, by engaging in romantic relationships with minor female students and by having a minor female student alone with him in a motel room, Respondent has exploited a professional relationship with a student for personal gain or advantage. Accordingly, Petitioners have sustained their burden of proving that Respondent has violated Section 6B-1.06, Florida Administrative Code, as charged also in the Administrative Complaint filed herein.
7. Section 6B-1.01, Florida Administrative Code, is entitled Code of Ethics of the Education Profession in Florida. Subsection (3) provides as follows:
(3) Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
That Respondent failed to comply with the Code of Ethics as charged in the Administrative Complaint, is almost beyond argument.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the
allegations contained in the Administrative Complaint filed against him and permanently revoking his Florida Teacher's Certificate No. 450387.
DONE and RECOMMENDED this 19th day of March, 1984, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984.
COPIES FURNISHED:
J. David Holder, Esquire
128 Salem Court
Post Office Box 1694 Tallahassee, Florida 32302
John J. Chamblee, Jr., Esquire Robert A. Miles, Esquire
202 Cardy
Tampa, Florida 33606
Donald L. Griesheimer Executive Director
Education Practices Commission
125 Knott Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 17, 1984 | Final Order filed. |
| Mar. 19, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 10, 1984 | Agency Final Order | |
| Mar. 19, 1984 | Recommended Order | Revocation of certification of teacher who publicly had romantic relations with students and for notorious use and possession of illegal drugs. |
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