STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2024

)

CHARLES L. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing in Ocala, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 11, 1983. The Division of Administrative Hearings received the transcript of proceedings on September 12, 1983. The parties were represented by counsel:

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida

For Respondent: Arthur G. Haller, Esquire

711 Northwest 23rd Avenue, Suite One Gainesville, Florida 32601

By administrative complaint filed June 13, 1983, Ralph D. Turlington, as Commissioner of Education, alleged that, respondent, during the 1982-83 school year, when he taught at Dunnellon High School, "made derogatory statements to more than one student"; "engaged in improper conduct . . . with a minor female student . . . in that he touched her breast and grabbed her hand while alone with her in his classroom"; and "told the [same] student . . . that he was going to give her an `a' in his class and then asked if he would get a kiss on the cheek"; all "in violation of Section 231.28, Florida Statutes, in that [r]espondent is guilty of gross immorality and acts involving moral turpitude and conduct which seriously reduces his effectiveness as an employee of the Marion County School District"; and "in violation of Rule 6B-1.06(3)(a), (e) and (h), F.A.C., in that respondent has failed to make reasonable efforts to protect students from conditions harmful to learning or to health or safety, has intentionally exposed students to unnecessary embarrassment or disparagement, and has exploited a professional relationship with a student for personal gain or advantage"; and "contrary to Rule 6B-1.01(3), F.A.C., in that [r]espondent has failed to achieve and sustain the highest degree of ethical conduct."

Petitioner's proposed recommended order and respondent's proposed recommended order have been considered in preparation of this recommended order. Proposed findings of fact have been adopted, in substance, except where they

have been unsupported by the weight of the evidence, immaterial, subsidiary or cumulative.

FINDINGS OF FACT

1. The parties stipulated that respondent holds a temporary Florida Teacher's Certificate, number 514251, covering physical education, and that he worked as a teacher at Dunnellon High School (DHS) in the Marion County School District, for the 1982-83 school year, until he was transferred to the textbook depository.

   
   

2. Charles L. Smith, a teacher for thirteen years, the married father of three children, holds a master's degree in special education. He coached the junior varsity football team last year at DHRS, and taught, inter alia, language arts or English to a varying exceptionalities class that met fifth period. Some of the students were classified as educably mentally retarded (or handicapped); and others as emotionally handicapped; and perhaps others till as specifically learning disabled. They were all slower students.

   
   

   DUMB AND STUPID

   
   

3. Coach Smith, who saw the group as an ideal class (except for Chris, George and David who were "habitual troublemakers") bantered with the students and generally seemed to have a rapport, and to have enjoyed their affection. But some of these verbal exchanges were personal, as when Coach Smith teased

   Emily good-naturedly that she was ugly, and others offended students not used to being called dumb, stupid, brainless, birdbrain, feather brain or deadhead.

   Coach Smith called students by these and other names. Emily knew she was being teased when Coach Smith called her ugly, and she did not mind. But, as a group of slow learners, the fifth period class may have been unusually sensitive when informed by Coach Smith that they were "the dumbest class." The students in respondent's fifth period language arts class rankled as being address, "Hey, Stupid" or as "Football Head." On two occasions involving six or seven students, the school administration got complaints from students about Coach Smith's calling them names. A parent also complained to the school that her son had been demeaned. Coach Smith now realizes that berating students in front of the class is not a sound practice, and would refrain from using the words, "stupid" and "dumb," and the like to describe students, on any future teaching assignment.

   
   

   EMILY

   
   

4. At hearing, Emily did not display great intellectual agility. It was easy to believe that she had been placed properly when she was put in respondent's fifth period class. But she seemed utterly guileless, a kindly and truthful person who wished nobody ill. She testified that respondent "was nice." (T. 65) During their time alone together on May 11, 1983, she testified that respondent said, "I think you like them black boys. I said no, I'm just friends with everybody." (T. 78)

   
   

5. On May 7, 1983, a Saturday night, Ruth Annette Edwards, who works as a teacher's aid in Coach Smith's sixth period class, saw Emily's brother leaving a food store with a male friend. One of the boys had a can of beer and Mrs. Edwards heard somebody say something about "getting high." When Emily emerged from the store, Mrs. Edwards took her aside and spoke to her. In response to Mrs. Edwards' questions, Emily, who was 16 or 17 years old at the time, said she had tried marijuana four years earlier, but hadn't liked it. The following day

   or maybe the day after, which would have been a Tuesday, Mrs. Edwards told respondent about her chance meeting with Emily and their conversation.

   
   

6. In front of the fifth period class, Coach Smith asked Emily if she would come to see him during second lunch the next day to talk about grades. Mrs. Edwards had speculated aloud to respondent that Emily was smoking marijuana, despite her denial, and that her grades were suffering as a result. Emily first testified that respondent set up the appointment on Tuesday but later on said that this conversation occurred on Monday, that she forgot to show up on Tuesday, so came on Wednesday instead. Mrs. Edwards was present when Coach Smith asked Emily to come in for a conference, and recalled the conversation. But she was not asked on what day it occurred, or when in relation to the point at which she informed respondent that she would not be at work Wednesday.

   
   

7. When Emily entered Coach Smith's classroom at lunchtime on Wednesday, May 11, 1983, she found Coach Smith and three male students. The boys eventually left. Emily took a seat at Coach Smith's desk, on his right. What happened thereafter only Emily and Coach Smith were there to see. Coach Smith testified that he told Emily that she was a find student but that he feared that she was on the wrong path, that she should eschew drugs, change direction and so forth; and that he never touched her at any time during the conversation.

   
   

8. Emily testified that her left arm was extended more or less perpendicularly to her torso, her left hand resting on a book on the desk at which she and respondent were seated, when, saying, "I like you," respondent reached over, brushed the side of her left breast with the fingers of his right hand two or three times, then, when she dropped her arm, blocking his caresses, reached for her hand and intertwined his fingers with hers. She stood up, she testified, then sat back down and, after she answered Coach Smith's question, telling him, no she, wasn't going to each lunch, left the classroom.

   
   

9. Emily testified to this effect after first testifying that no teacher had touched her at any time during last school year. After testifying that she recalled no conversation about grades, Emily was given a written statement she had made earlier to read, and then testified that, during the conference of May 11, 1983, respondent told her he was going to give her an A and asked her, "Do I get a kiss on the cheek?" She "just froze," (T. 77) she said.

   
   

10. Fifth period follows second lunch. The bell was about to ring when Emily approached Patsy Davis Steagald, her home economics teachers, and told her that Coach Smith had put his "hands on me here," indicating both breasts with both hands. Emily said she was scared to death and looked to be. Mrs. Steagald did not have time to talk. They both went to their fifth period classes.

    
    

11. From Coach Smith's class, Emily went to her physical education class. On arrival, she told Sharyn R. Smythe, her physical education teacher, that she wanted to talk. Mrs. Smythe called roll then went to her office, where she had asked Emily, who had not dressed out, to wait. Emily wrung her hands and told Mrs. Smythe that Coach Smith had touched her breast when they were alone and asked for a kiss. Mrs. Smythe called Mrs. Steagald, and then Ron Wheelis, the DHS principal. The three of them met that afternoon to listen to Emily's account. It was at this meeting that Mrs. Steagald first heard Emily say Coach Smith had grabbed her hand.

    
    

12. The next day Emily was absent. Friday she was back at school and signed a written statement accusing Coach Smith. Friday was also the day Mrs.

    Edwards asked Emily what had transpired Wednesday. (George David Tommyn, the assistant principal at DHS, had asked Mrs. Edwards to inquire.) Emily told Mrs. Edwards that the respondent has touched her breast with his fingers and her hip with his hand, and that she had jumped up and ran out of the classroom. She said nothing about taking her hand.

    
    

13. Emily's testimony at hearing as to events on May 11, 1983, is deemed more credible than respondent's and has been accepted as a true account. Conduct of this kind seriously reduces a teacher's effectiveness, according to uncontroverted testimony

    
    

    CONCLUSIONS OF LAW

    
    

14. Petitioner is authorized "to suspend . . . to revoke . . . or to revoke permanently the teaching certificate of any person," Section 231.28, Florida Statutes (1981), on a showing that the holder of the certificate "has been guilty of gross immorality or an act involving moral turpitude . . . upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; or 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." Section 231.28(1), Florida Statutes (1981). All these grounds have been alleged in the present case. Petitioner has pleaded violations of Rules 6B-1.01(3), and 6B-1.06(3)(a),

    1. and (h), Florida Administrative Code. The first of these rule provisions merely adjures teachers to adhere to high ethical standards, without providing any penalty:

       
       

       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.

       
       

       Rule 6B-1.01(3), Florida Administrative Code.

       
       

       Violation of the other rule provisions petitioner pleaded can, however, "subject the individual to revocation . . . of the individual's teacher's certificate. .

       . ." Rule 6B-1.06(2), Florida Administrative Code. These other provisions require that a teacher

       
       

       1. shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety . . .

    * * *

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    * * *

    (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

    
    

    Rule 6B-1.06(37), Florida Administrative Code.

    
    

    Failure to meet these standards is grounds for disciplinary action, pursuant to Rule 6B-1.06(2), Florida Administrative Code, and Section 231.28, Florida Statutes (1981).

15. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplinary authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978). License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 SO.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).

    
    

16. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612, (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

    
    

17. The evidence in the present case clearly and convincingly established that respondent was guilty of failing to make a reasonable effort to protect students from conditions harmful to learning, by intentionally embarrassing and disparaging the class as a whole and several individual students, by calling them names in front of the rest of the class, in violation of Rule 6B-1.06(3)(a) and (e), Florida Administrative Code, and Section 231.28, Florida Statutes (1981).

    
    

18. The evidence as regards the event of May 11, 1983, was not nearly so clear, but convinced the hearing officer nonetheless. The witness' mental capacity might have made this case impossible to prove if the question had been a subtle one as, for example, the interpretation of an ambiguous but conceded touching. But the respondent here denied that any touching ever occurred. The defense contended that the touching was nothing more than a fantasy, a fabrication. The evidence was very convincing that respondent did touch Emily on the breast; and a sexual advance by a teacher toward one of his students amounts, at the very least, to personal conduct which seriously reduces a teacher's effectiveness, and constitutes the exploitation of a professional relationship for personal advantage.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner revoke respondent's teacher's certificate for two years. DONE AND ENTERED this 30th day of September 1983, in Tallahassee, Florida.

ROBERT T. BENTON II

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September 1983.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida

Arthur G. Haller, Esquire

711 N.W. 23rd Avenue, Suite One Gainesville, Florida 32601

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

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. DOAH CASE NO. 83-2024

CHARLES L. SMITH,

Respondent.

/

Respondent, CHARLES L. SMITH, holds Florida teaching certificate number 514251. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the panel pursuant to Section 120.57(1), Florida Statutes; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on October 28, 1983 in Tallahassee, Florida to take final agency action. The Petitioner was represented by J. David Holder, Esquire. The Respondent was present, and was represented by Arthur G. Haller, Esquire.

FINDINGS OF FACT

The panel adopts the Findings of Fact of the Recommended Order.

CONCLUSIONS OF LAW

The panel has reviewed the entire record, including the transcript.

The incident involving Emily (Kemp), as found, constitutes gross immorality, and is conduct which seriously reduces effectiveness as a school board employee.

The panel members view the testimony of Emily in light of their experience in the school system and with E. M. R. students. Students of Emily's particular mental development are quite different to evaluate and judge. There exists strong doubts in our minds that the incident actually occurred.

If it did, harsh punishment is appropriate. If it did not, no punishment is appropriate.

In order to protect the public, the panel feels it is appropriate to impose a term of probation. The Commission will thereby retain jurisdiction and get reports of performance; the Respondent will retain his right to teach and a school system will have the opportunity to employ him.

The Respondent has violated Section 231.28, Florida Statutes, and Rule 6B- 1.06, F.A.C. in using improper language and epithets to his student. This appears to have been remedied. Further violations would be a violation of probation, and would be dealt with in light of his current knowledge of correct behavior.

The Respondent, CHARLES L. SMITH, is hereby placed on PROBATION. The probation will expire after he has been employed for one (1) school year as a teacher.

The conditions of this probation are:

The Respondent will break no laws, nor any rules of the State Board of Education. The Respondent will perform in a satisfactory

manner as a teacher, and will cause reports of his performance to be forwarded to the Education Practice Commission.

DONE AND ORDERED this 9th day of November 1983, in Tallahassee, Florida.

Majorie Hankins Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of RDT v. Charles L. Smith was mailed to Arthur G. Haller, Esquire by

U.S. Mail this 15th day of November 1983.

Donald L. Griesheimer, Clerk

COPIES FURNISHED TO:

Marlene Greenfield

Professional Practices Services

Arthur Wallberg, Esquire Attorney General's Office

Judith Brechner General Counsel

Arthur G. Haller, Esquire 711 N.W. 23rd Avenue Suite 1

Gainesville, Florida 32601

Robert T. Benton II Hearing Officer D.O.A.H.

Mr. H. Leon Rogers, Supt. Marion County Schools Post Office Box 670 Ocala, Florida 32670

Docket for Case No: 83-002024

Orders for Case No: 83-002024