STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, EDUCATION ) PRACTICES COMMISSION, RALPH D. ) TURLINGTON, as COMMISSIONER OF ) EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2715

)

THOMAS B. FERRIS, )

)

Respondent. )

) SCHOOL BOARD OF HERNANDO COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4517

)

THOMAS B. FERRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in these cases on November 28, 29, and December 21, 1984, in Brooksville, Florida. The final volume of transcript was filed with this Division on January 7, 1985, and the parties thereafter submitted proposed findings of fact and conclusions of law. These have been considered and, where accepted, have been incorporated herein. Except where these proposed findings and conclusions were found to be subordinate, cumulative, immaterial, or unnecessary, a ruling has been made on each either directly or indirectly.

APPEARANCES

For Petitioner: J. David Holder, Esquire Education Practices Post Office Box 1694 Commission, etc. Tallahassee, Florida 32302

For Petitioner: Joseph E. Johnston, Jr., Esquire School Board of 29 South Brooksville Ave.

Hernando County, Florida Brooksville, Florida 33512

For Respondent: Perry Gall Gruman, Esquire

202 Cardy Street Tampa, Florida 33606

By an undated Notice issued in the latter part of May 1984, the School Board of Hernando County charged the Respondent with immorality in violation of Section 231.36, Florida Statutes, alleging that the Respondent made sexual advances toward, and/or sexually assaulted a student. The School Board had suspended the Respondent without pay from his duties as a teacher, effective April 16, 1984.

By Administrative Complaint issued on July 5, 1984, the Commissioner of Education charged the Respondent with two instances of sexual misconduct with a male student, and with buying a beer for this student. Based upon these charges of immorality, the Commissioner recommended that the Education Practices Commission suspend or revoke the Respondent's teaching certificate, or take other appropriate disciplinary action against him, for violations of Section 231.28, Florida Statutes, and Rule 6B-1.06(3), Florida Administrative Code.

At the hearing the parties stipulated that these two proceedings should be consolidated, and they have been assigned separate case numbers. The issues presented are (1) whether the School Board should dismiss the Respondent permanently, and (2) whether the Education Practices Commission should discipline the Respondent's teaching certificate based upon the charges of immorality.

Specifically, the Petitioners allege that, while employed as a physical education teacher at Spring Hill Elementary School in Hernando County, the Respondent:

1. Masturbated a 15-year old male student, who was spending the night in the Respondent's residence on or about the end of August, 1983.

   
   

2. Attended a concert with the same male student approximately two months later in Lakeland, Florida, and while returning to Brooksville from the concert, stopped and purchased a beer for the student and himself.

   
   

3. Upon their return to Brooksville from the concert in Lakeland, the Respondent again masturbated the student and performed oral sex upon the student in the Respondent's home.

   
   

4. Was arrested on December 22, 1983, and charged with the offense of sexual battery. On February 7, 1984, the Respondent entered a plea of no contest to the criminal charge, and on or about April 18, 1984, the Circuit Court accepted this plea, placed the Respondent on probation for a period of three years, and ordered that he pay court costs of $515.00.

In support of their charges against the Respondent, the Petitioners presented ten witnesses and six exhibits which were received in evidence. These witnesses include the minor student and his mother, a deputy sheriff and a former assistant state attorney in Hernando County, an investigator with the state attorney's office, a counselor with the Department of Health and Rehabilitative Services, the assistant superintendent of the Hernando County School Board, the principal at Spring Hill Elementary School, a counselor at the Hernando County Mental Health Center, and a student who attended Springstead High School.

The Respondent testified in his own behalf, and presented ten other witnesses and four exhibits which were received in evidence. These witnesses include the Respondent's wife, the guidance counselor at Spring Hill Elementary School, a physical education aide at this school, a supervisor of parole and

probation with the Department of Corrections, the Respondent's pastor at St. Anthony Catholic Church and three other character witnesses, and a psychologist who examined and evaluated the Respondent.

Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as the relevant facts:

FINDINGS OF FACT

1. The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971.

   
   

2. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years.

   
   

3. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal.

   
   

4. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class.

   
   

5. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August.

   
   

6. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day.

   
   

7. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983.

8. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter.

   
   

9. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night.

   
   

10. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home.

    
    

11. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor.

    
    

12. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room.

    
    

13. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time.

14. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend.

    
    

15. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M.

    After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly.

    Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor.

    
    

16. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor.

    
    

17. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he

    held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.

    
    

19. Section 231.28(1)(c), Florida Statutes, provides that an individual's teaching certificate may be suspended, revoked, or otherwise disciplined if the individual "has been guilty of gross immorality or an act involving moral turpitude."

    
    

20. Section 231.28(1)(f), Florida Statutes, provides that an individual's teaching certificate may be suspended, revoked or otherwise disciplined if the individual "has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board."

    
    

21. Section 231.28(1)(h), Florida Statutes, provides that an individual's teaching certificate may be suspended, revoked or otherwise disciplined if the individual has violated the provisions of law or rules of the State Board of Education, the penalty for which is revocation of the teaching certificate.

    
    

22. Rule 6B-1.06(2), Florida Administrative Code, provides that violation of any of the Principles of Professional Conduct for the Education Profession in Florida shall subject the individual to the revocation or suspension of his teaching certificate, or other penalties provided by law.

    
    

23. Rule 6B-1.06(3)(a), Florida Administrative Code, requires that a teacher "shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety."

    
    

24. Rule 6B-1.06(3)(e), Florida Administrative Code, provides that a teacher "shall not intentionally expose a student to unnecessary embarrassment or disparagement."

    
    

25. Rule 6B-1.06(3)(f), Florida Administrative Code, provides that a teacher "shall not intentionally violate or deny a student's legal rights."

    
    

26. Rule 6B-1.06(3)(h), Florida Administrative Code, provides that a teacher "shall not exploit a professional relationship with a student for personal gain or advantage."

    
    

27. Section 231.36(4)(c), Florida Statutes, provides that any person employed as a member of the instructional staff in any school district under continuing contract may be dismissed when the charges are based on immorality,

    misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. If the charges are not sustained, however, this person shall be immediately reinstated, and back salary shall be paid.

    
    

28. Until the court decision in Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981), charges to support the revocation of a license had to be proven by clear and convincing evidence. Walker v. Florida State Board of Optometry, 322 So. 2d 612 (Fla. 3rd DCA 1975). In a proceeding brought to suspend or revoke a real estate license on charges of dishonest conduct, it was determined that the dishonesty must be proven by clear and convincing evidence. Reid v. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2nd DCA 1966). There is confusion since the Bowling decision, in that it is not clear whether the clear and convincing standard was adopted, or whether some higher or lesser standard was intended. Nevertheless, Bowling does state that, "in a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term competent substantial evidence takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120. When the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as `substantial' as the consequences." Bowling, supra, at 172.

    
    

29. The evidence presented against the Respondent falls short of the clear and convincing standard, and short also of the standard of Bowling, supra, in that the quantity and quality of the competent evidence lacks the substantiability of the consequences. Thus, the Respondent is not guilty of the charges in the Administrative Complaint, and is not guilty of the charges in the School Board's notice. He should be reinstated with pay.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education

Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further

RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further

RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension.

THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The 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 January, 1985.

COPIES FURNISHED:

J. David Bolder, Esquire

P. O. Box 1694

Tallahassee, Florida 32302

Joseph E. Johnston, Jr., Esquire

29 South Brooksville Avenue Brooksville, Florida 33512

Perry Gall Gruman, Esquire

202 Cardy Street Tampa, Florida 33606

Docket for Case No: 84-002715

Orders for Case No: 84-002715