STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PINELLAS )
COUNTY, FLORIDA, )
)
Petitioner, )
) CASE NO. 84-2724
vs. )
)
RICHARD L. WAHL, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )
)
Petitioner, )
) CASE NO. 84-3696
vs. )
)
RICHARD L. WAHL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above-styled cases on March 21, 1985, at Clearwater, Florida.
APPEARANCES
For Petitioner: Usher L. Brown, Esquire
Post Office Box 6374 Clearwater, Florida 33518
For Respondent: Mark F. Kelly, Esquire
Marsha Cohen, Esquire
401 South Albany Tampa, Florida 33606
By Amended Charging Letter dated September 26, 1984, the School Board of Pinellas County, Petitioner in Case 84-2724, seeks to dismiss or otherwise discipline Richard L. Wahl, Respondent, from his position in a continuing contract status with the Pinellas County school system. As grounds therefor it is alleged that in 1978 he sexually molested his stepdaughter, a minor under the age of 14 years; that in 1971 he sexually molested his former sister-in-law who at the time was a minor less than 14 years of age; that he pleaded nolo contendere to a felony charge of fondling a child under the age of 14 years and was sentenced to five years' probation; that in 1972 he unlawfully appropriated funds of another, was charged with larceny, tried, placed on probation, and failed to so indicate on his application for employment; and that these acts
constitute immorality and misconduct in office. Similar allegations were made in Case 84-3696 and a consolidated hearing was held. Although findings are substantially the same in both cases, two Recommended Orders are submitted.
At the hearing Petitioner called six witnesses, including Respondent, Respondent testified in his own behalf, and called three additional witnesses, and 11 exhibits were admitted into evidence.
Proposed Recommended Orders have been submitted by the parties. To the extent incorporated herein proposed findings are adopted; otherwise, they are rejected as not supported by the evidence, mere recitation of testimony presented, cumulative, immaterial, redundant, or unnecessary to the conclusions reached.
FINDINGS OF FACT
Richard L. Wahl submitted an application for an instructional position in the Pinellas County school system on December 5, 1973 (Exhibit 10), and was subsequently hired in 1974 to teach middle grade science. In Section IX of his application (Exhibit 10) Question 8 asking if he had ever been convicted of a misdemeanor, felony, or offense involving moral turpitude was left blank.
By application dated January 3, 1984 (Exhibit 1), for certification by the State Department of Education as a general science teacher, in Section V inquiring if the applicant had ever been arrested or involved in a criminal offense, Wahl checked the "yes," gave the date and place of arrest for the offense of larceny-misdemeanor, and showed the disposition as "convicted conviction set aside" with notation "(see enclosures)." No enclosures were attached to Exhibit 1.
By order of the U.S. District Court for the Southern District of Indiana dated October 25, 1973 (Exhibit 3), Wahl's conviction entered December 15, 1972, was set aside and he was unconditionally discharged from probation. The conviction was for larceny of coins from coin changing machines at a bank where Wahl worked as supervisor, night maintenance (Exhibit 9).
Wahl started teaching in Pinellas County schools in 1974 and continued until he was suspended in 1984. During this period he had no evaluation less than satisfactory. He was liked and respected by his peers who considered him to be a very good science teacher.
Respondent and his first wife, Shirley Jones, were divorced in 1975 and have one daughter. Respondent, shortly after his divorce from Shirley, married his present wife who had a nine or ten year old daughter by a previous marriage. The daughter, Lisa Beck, lived with her mother. In 1978 Respondent began "tucking in" Lisa when she went to bed. On occasion he rubbed her back. This led to rubbing her buttocks and subsequently her vaginal area. On occasion Respondent placed his genitals in contact with Lisa's genitals, but no intercourse was attempted or contemplated by Respondent. This went on for several weeks on an irregular basis in late 1978. At this time Lisa was 10 or
11 years old. Respondent initially thought Lisa enjoyed the incidents or at least did not object until Lisa finally told him she wished he wouldn't do that. From that time forward no further abuse by Respondent of Lisa occurred.
Some five years later Lisa told her mother that Respondent had fondled her, the mother told the Bishop of her church, and the Bishop accosted Respondent with the charge. Respondent readily admitted the incident to the
Bishop and he and his wife were referred to a Family Services program run by the Department of Health and Rehabilitative Services with this problem as well as with other marital problems they were having. Respondent, his wife, and Lisa voluntarily participated in family counseling to improve the family relationship.
After family counseling had begun Respondent was contacted by a detective in the St. Petersburg Police Department to ask him about his earlier fondling of Lisa. Again, Respondent readily admitted his transgressions. Word that a teacher was being investigated filtered back to the school system and the investigation leading to the charges here involved began. Two short articles appeared in the inside pages of the St. Petersburg Times on January 30, 1984, and July 20, 1984, reporting the allegations of child molestation made against Wahl and of his suspension without pay from his position as a teacher.
Respondent was subsequently brought to trial on a charge of handling and fondling a child under the age of 14, to which he pleaded nolo contendere, adjudication of guilt was withheld and Respondent was placed on five years probation (Exhibit 7).
Subsequent to his divorce from Shirley Jones, which was an acrimonious one, Respondent has been sued by Jones when late on child support payments and has had difficulty in visitation rights with his daughter by that marriage. Jones, who apparently has also remarried, has attempted to induce Respondent to allow his daughter to be adopted which, so far, Respondent has refused.
Following publication of the allegations involving Respondent's stepdaughter, Shirley Jones advised Petitioner that Wahl had in 1972 molested Jones' then 14 year old sister and that he had been convicted of larceny in Indiana in 1972. Shirley Jones' sister, Leslie Miskove, now 26 years old and married, testified that while she was visiting her sister, then married to Respondent, Wahl, on two occasions, touched her genital area. According to Miskove the first incident occurred while she and Wahl were lying on a couch watching television and Wahl touched her vaginal area with his hand. At this time her sister was in the bedroom. Miskove did not say anything to Wahl nor did she tell her sister. The second incident occurred while enroute to Florida. While Shirley and her baby were asleep on the back seat, Wahl was driving, and Miskove was lying on the front seat with her head on Wahl's leg. According to Miskove, Wahl put his hand inside her pants and inserted a finger in her vagina. Again she did not say anything and his hand remained inside her pants until she sat up a short time later. After Shirley Jones told Miskove about the child molestation charge against Wahl, which was filed in 1984, Miskove first revealed the 1972 incidents to her sister. Respondent denies either of those incidents occurred.
No evidence was presented of any improper conduct involving Respondent with any of his students; and his principal did not consider Respondent a threat to any of the girls at his school even after he became aware of the charges against Respondent then being investigated.
Exhibit 11, the deposition of Dr. Machler, was admitted as a late- filed exhibit. Several days after the transcript arrived but Exhibit 11 had not, a telephone call to the attorney revealed that he thought the original had been sent but that a second copy would be forwarded. Accordingly, all of the above findings were made without the benefit of the expert testimony contained in Exhibit 11. Dr. Machler's opinion of Respondent, based upon his psychiatric evaluation and counseling involving eight sessions for a total of five or six
hours, is that Respondent is not now, and never has been, a pedophile; that Respondent is an honest, sincere individual who truly enjoys and strives to excel at, his role as a teacher; that Respondent is a passive aggressive person who has been intimidated by his two wives; that his current wife's rejection coupled with the proximity of Lisa as an extension of his wife, led to the fondling of Lisa; that this was an isolated situation and is unlikely to ever recur; that Respondent has never been a threat to female pupils in his classes and is not likely ever to be such a threat; and that the embarrassment and indignities brought on by these charges will make Respondent more circumspect than ever in the classroom because now he will feel like he is living in a fishbowl. Dr. Machler's deposition further confirms the Hearing Officer's conclusion that someone in the HRS Department of Family Services reported to the police the transgressions involving Respondent and Lisa when the family went to them for counseling after Lisa had disclosed the incidents to her mother and Respondent admitted they occurred. The conclusions of law were also prepared before Exhibit 11 was read by this Hearing Officer.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 231.36(4)(c), Florida Statutes, provides in pertinent part:
(c) Any member of . . . the instructional staff . . . who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude....
With regard to the offense of larceny with which Respondent was charged in 1972, Petitioner appears to be charging Respondent with having been convicted of an offense involving moral turpitude and of immorality in failing to report this conviction on his application for employment. This offense occurred prior to Respondent's employment by the School Board and at the time he applied for such employment the conviction had been set aside. Leaving the question blank regarding any previous conviction is not equivalent to answering the question falsely. It is noted that Respondent acknowledged the 1972 conviction on his application for state certification and the certificate was granted. There is no reason to believe employment by the School Board would have been denied had that block been accurately completed by Respondent. Omitting this entry on the application could have resulted in sending the application back to Respondent for completion but is not now grounds for disciplinary action against Respondent. This is so because the incidents occurred before Respondent was hired by Petitioner and because no false information was given by Petitioner on his application for employment.
In administrative proceedings the burden is on Petitioner to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services,
348 So.2d 349 (Fla. 1st DCA 1977). The quality of evidence required to sustain this burden has been variously described before and after the present Administrative Procedure Act was enacted. Most of these cases involved license revocation which have been described by the courts as penal in nature. State ex
rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973); Reid
v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). The standard of proof in these cases has vacillated between a preponderance of the evidence standard and clear and convincing evidence, with the latest pronouncement being the critical matters in issue must be shown by evidence which is indubitably as substantial' as the consequences. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1984).
In South Florida Water Management District v. Caluwe, 459 So.2d 930 (Fla. 4th DCA 1984), the court held preponderance of the evidence is the standard to apply in reviewing sufficiency of evidence proffered to support a state agency s discharge of employee. This decision followed Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).
While it is difficult to rationalize a difference in the degree of proof required to dismiss a continuing contract teacher from employment with the School Board and revocation of his teaching certificate by the State, Department of Education, other than in magnitude of the punishment, the lesser burden of proof is here applied.
Petitioner has one valid charge against Respondent, namely, that some five years before it was reported he sexually molested his 11 year old stepdaughters. Petitioner's acknowledgment that the incidents occurred and his attempt to get help for himself, wife, and stepdaughter precipitated all of the accusations here made.
One of the grounds for disciplinary action apparently relied on by Petitioner is that Respondent was charged in the circuit court with handling and fondling a minor. Section 231.36, Florida Statutes, above-quoted, provides one ground for dismissal or suspension of a teacher is conviction of a crime involving moral turpitude. Conviction is defined in Black's Law Dictionary, Fourth Edition (1968), to mean:
In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged.
In the circuit court proceedings evidenced by Exhibit 7 Respondent pleaded nolo contendere, adjudication of guilt was withheld, and Respondent was placed on probation.
Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 2d DCA 1977), involved a license revocation on grounds the licensee has been found guilty of a crime. In Holland the licensee pleaded nolo contendere, adjudication was withheld, and licensee was placed on one year's probation. In reversing the action revoking Holland's license the court held the licensee had never been found guilty because she was never adjudicated guilty and that "in the eyes of the law a person is not deemed to have committed a crime until an adjudication of guilt has been entered against him." Id. at p. 916. That decision is controlling here with respect to the allegation that Respondent had been convicted of a crime involving moral turpitude (sexual molestation of a minor).
Apparently, the allegations of molestation of Miskove prior to the time Respondent was employed by Petitioner is offered solely to prove a
propensity on the part of Respondent to sexually molest minors. If offered to prove misconduct such proof must fail because the incident, if it occurred, occurred prior to the time Respondent was employed by Petitioner. The lapse of time between the alleged occurrence of this offense and its revelation, the reported actions by Miskove at the time of the alleged incidents in doing nothing to stop the alleged touching after it started, the animosity of Shirley Jones toward Respondent with the consequent vituperation and threats against him the close relationship between Miskove and Jones, coupled with Respondent's denial that these alleged incidents occurred, cast serious doubts on the testimony of Miskove. Furthermore, a pattern of sexual abuse of minors is not established by two incidents involving family members occurring several years apart. Nor is a pattern establishing Respondent as a dissolute person shown by the evidence here presented. .
As noted above, the one incident here charged which occurred while Respondent was employed by the Pinellas County School Board involved the handling and fondling of Respondent's minor stepdaughter in 1978. That conduct was stopped by Respondent when he realized it was not wanted by his stepdaughter. Both prior and subsequent thereto Respondent was a successful science teacher in the Pinellas County school system. No charge has ever been made or suspicion raised that Respondent has, or is likely to, molest one of his pupils.
The actions of Respondent in fondling his stepdaughter cannot be condoned. At the same time it can be said that Respondent is not now, nor has he ever been, a danger or potential danger to his students.
From the foregoing it is concluded that in late 1978 Respondent fondled his 11 year old stepdaughter and thereby sexually abused her, and that he is not guilty of all other charges. Respondent has been suspended without pay by the Pinellas County School Board for nearly one year. Respondent has never abused one of his students and is unlikely to do so in the future. It is therefore,
RECOMMENDED that a Final Order be entered finding Respondent guilty of sexually molesting his stepdaughter in 1978, an immoral act; that he be suspended from his position on the instructional staff of Pinellas County school system for one (1) year commencing with his temporary suspension in July 1984; and that all other charges be dismissed.
ENTERED this 22nd day of May, 1985, at Tallahassee, Florida.
K. N. AYERS 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 22nd day of May, 1985.
COPIES FURNISHED:
Usher L. Brown, Esquire Post Office Box 6374 Clearwater, Florida 33518
Mark F. Kelly, Esquire and
Marsha Cohen, Esquire
401 South Albany Avenue Tampa, Florida 33606
Scott N. Rose, Ed.D Superintendent of Schools Post Office Box 6374 Clearwater, Florida 33518
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PINELLAS )
COUNTY, FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2724
)
RICHARD L. WAHTL, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3696
)
RICHARD T. WAHL, )
)
Respondent. )
)
RECOMMENDED ORDER
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 March 21, 1985, at Clearwater, Florida.
APPEARANCES
For Petitioner: Usher L. Brown, Esquire
Post Office Box 6374 Clearwater, Florida 33518
For Respondent: Mark F. Kelly, Esquire
Marsha Cohen, Esquire
401 South Albany Tampa, Florida 33606
By Administrative Complaint dated October 2, 1984, the Department of Education, Education practices Commission, Petitioner in Case 84-3696, seeks to revoke, suspend, or otherwise discipline the teaching certificate of Richard L. Wahl, Respondent. As grounds therefor it is alleged that in 1978 Respondent sexually molested a minor female under the age of 14; that in 1971 he sexually molested a minor female under the age of 14; that Respondent has been convicted of a felony involving the 1978 molestation allegation; that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness in the school system; and that Respondent has been guilty of a continuing course of gross immorality or acts involving moral turpitude as evidenced by the repeated acts of child molestation, and by having stolen or embezzled money while employed by a bank in Indiana in 1972. Similar charges were made in Case 84- 2724 and these cases were consolidated for hearing. Although similar facts are alleged and are involved, two separate Recommended Orders are submitted.
At the hearing Petitioner called six witnesses, including Respondent, Respondent testified in his own behalf and called three additional witnesses, and 11 exhibits were admitted into evidence. Proposed recommended orders have been submitted by the parties. To the extent incorporated herein proposed findings are adopted; otherwise, they are rejected as not supported by the evidence, mere recitation of testimony presented, cumulative, immaterial, redundant, or unnecessary to the conclusions reached.
FINDINGS OF FACT
Richard L. Wahl submitted an application for an instructional position in the Pinellas County school system on December 5, 1973 (Exhibit 10), and was subsequently hired in 1974 to teach middle grade science. In Section IX of his application (Exhibit 10) Question 8 asking if he had ever been convicted of a misdemeanor, felony, or offense involving moral turpitude was left blank.
By application dated January 3, 1984 (Exhibit 1), for certification by the State Department of Education as a general science teacher, in Section V inquiring if the applicant bad ever been arrested or involved in a criminal offense, Wahl checked the "yes," gave the date and place of arrest for the offense of larceny-misdemeanor, and showed the disposition as "convicted-- conviction set aside" with notation "(see enclosures)." No enclosures were attached to Exhibit 1.
By order of the U.S. District Court for the Southern District of Indiana dated October 25, 1973 (Exhibit 3), Wahl's conviction entered December 15, 1972, was set aside and he was unconditionally discharged from probation. The conviction was for larceny of coins from coin changing machines at a bank where Wahl worked as supervisor, night maintenance (Exhibit 9).
Wahl started teaching in Pinellas County schools in 1974 and continued until he was suspended in 1984. During this period he had no evaluation less than satisfactory. He was liked and respected by his peers who considered him to be a very good science teacher.
Respondent and his first wife, Shirley Jones, were divorced in 1975 and have one daughter. Respondent, shortly after his divorce from Shirley, married his present wife who had a nine or ten year old daughter by a previous marriage. The daughter, Lisa Beck, lived with her mother. In 1978 Respondent began "tucking in" Lisa when she went to bed. On occasion he rubbed her back. This led to rubbing her buttocks and subsequently her vaginal area. On occasion Respondent placed his genitals in contact with Lisa's genitals, but no intercourse was attempted or contemplated by Respondent. This went on for several weeks on an irregular basis in late 1978. At this time Lisa was 10 or
11 years old. Respondent initially thought Lisa enjoyed the incidents or at least did not object until Lisa finally told him she wished he wouldn't do that. From that time forward no further abuse by Respondent of Lisa occurred.
Some five years later Lisa told her mother that Respondent had fondled her, the mother told the Bishop of her church, and the Bishop accosted Respondent with the charge. Respondent readily admitted the incident to the Bishop and he and his wife were referred to a Family Services program run by the Department of Health and Rehabilitative Services with this problem as well as with other marital problems they were having. Respondent, his wife, and Lisa voluntarily participated in family counseling to improve the family relationship.
After family counseling had begun Respondent was contacted by a detective in the St. Petersburg Police Department to ask him about his earlier fondling of Lisa. Again, Respondent readily admitted his transgressions. Word that a teacher was being investigated filtered back to the school system and the investigation leading to the charges here involved began. Two short articles appeared in the inside pages of the St. Petersburg Times on January 30, 1984, and July 20, 1984, reporting the allegations of child molestation made against Wahl and of his suspension without pay from his position as a teacher.
Respondent was subsequently brought to trial on a charge of handling and fondling a child under the age of 14, to which he pleaded nolo contendere, adjudication of guilt was withheld, and Respondent was placed on five years probation (Exhibit 7).
Subsequent to his divorce from Shirley Jones, which was an acrimonious one, Respondent has been sued by Jones when late on child support payments and has had difficulty in visitation rights with his daughter by that marriage. Jones, who apparently has also remarried, has attempted to induce Respondent to allow his daughter to be adopted which, so far, Respondent has refused.
Following publication of the allegations involving Respondent's stepdaughter, Shirley Jones advised Petitioner that Wahl had in 1972 molested Jones' then 14 year old sister and that he had been convicted of larceny in Indiana in 1972. Shirley Jones' sister, Leslie Miskove, now 26 years old and
married, testified that while she was visiting her sister, then married to Respondent, Wahl, on two occasions, touched her genital area. According to Miskove the first incident occurred while she and Wahl were lying on a couch watching television and Wahl touched her vaginal area with his hand. At this time her sister was in the bedroom. Miskove did not say anything to Wahl nor did she tell her sister. The second incident occurred while enroute to Florida. While Shirley and her baby were asleep on the back seat, Wahl was driving and Miskove was lying on the front seat with her head on Wahl's leg. According to Miskove, Wahl put his hand inside her pants and inserted a finger in her vagina. Again she did not say anything and his hand remained inside her pants until she sat up a short time later. After Shirley Jones told Miskove about the child molestation charge against Wahl, which was filed in 1984, Miskove first revealed the 1972 incidents to her sister. Respondent denies either of those incidents occurred.
No evidence was presented of any improper conduct involving Respondent with any of his students; and his principal did not consider Respondent a threat to any of the girls at his school, even after he became aware of the charges against Respondent then being investigated.
Exhibit 11, the deposition of Dr. Machler, was admitted as a late- filed exhibit. Dr. Machler's opinion of Respondent, based upon his psychiatric evaluation and counseling involving eight sessions for a total of five or six hours, is that Respondent is not now, and never has been, a pedophile; that Respondent is an honest, sincere individual who truly enjoys and strives to excel at, his role as a teacher; that Respondent is a passive aggressive person who has been intimidated by his two wives; that his current wife's rejection coupled with the proximity of Lisa as an extension of his wife, led to the fondling of Lisa; that this was an isolated situation and is unlikely to ever recur; that Respondent has never been a threat to female pupils in his classes and is not likely ever to be such a threat; and that the embarrassment and indignities brought on by these charges will make Respondent more circumspect than ever in the classroom because now he will feel like he is living in a fishbowl.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent in Case 84-3696 is charged with violating provisions of Section 231.28, Florida Statutes, which authorizes revocation of a teaching certificate of one guilty of gross immorality or acts involving moral turpitude; of one found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board; and of violating Rule 6B- 1.06(3)(a), (e), and (f), Florida Administrative Code. Those rules involve principles of professional conduct between teacher and pupils and the obligation to the student requires that the individual:
Shall make reasonable efforts to protect the student from conditions harmful to learning or to health or safety.
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
These rules are intended to apply in the teacher's relations with his or her students or with students for which the teacher has responsibility or influence by virtue of the student-teacher relationship. Those rules were not intended to regulate the conduct of a parent, who is also a teacher, with respect to his children or children over whom he exercises authority as a parent. To hold otherwise would allow disciplining a teacher's certificate for acts involving any child between the ages compulsory school attendance is required whether the adult-child relationship was associated with school activities or not. This is much too broad an interpretation to place on these rules.
As noted in the findings above, Respondent disclosed the fact that he had been charged with larceny in Indiana in 1972 and brought to trial on those charges when he submitted his application for a teaching certificate. With full disclosure of those charges and their disposition, Respondent was issued a certificate. Although Petitioner could have denied Respondent's application for certification on the basis of his criminal conviction in Indiana, it, presumably after investigation, did not do so. That conviction cannot now form the basis for disciplinary action. Once condoned, the offense may not be resurrected.
Respondent is also charged with having been found guilty of a felony, to wit: "Handling and fondling a child under the age of 14 years." Exhibit 7 shows Respondent pleaded nolo contendere to this charge, adjudication of guilt was withheld, and Respondent was placed on five years probation. This does not constitute a conviction of a crime involving moral turpitude. Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 2d DCA 1977).
With respect to the allegations of sexual abuse with Leslie Miskove by Respondent in 1971, the evidence was clear that the offense, if it occurred, occurred in 1972 rather than in 1971. Respondent denies any improprieties and the circumstances surrounding the disclosures by Miskove cast serious doubts that those instances occurred. Since these alleged offenses occurred before Respondent became certificated, it appears this charge is offered solely to show a propensity on the part of Respondent to molest minor females. The lapse of time between the alleged occurrence of this offense and its revelation, the reported action of Miskove at the time of the alleged incidents in doing nothing to stop the alleged touching after it started, the animosity of Shirley Jones toward Respondent with the consequent vituperation and threats against him, the close relationship between Miskove and Jones, coupled with Respondent's denial that these alleged incidents occurred, cast serious doubts on the testimony of Miskove. Furthermore, a pattern of sexual abuse of minors is not established by two incidents, involving family members occurring several years apart. Nor is a pattern establishing Respondent as a dissolute person shown by the evidence here presented.
The one incident that occurred while Respondent was certificated was the incident involving Lisa Beck which occurred over six years ago and was not disclosed for five years. During those five plus years, from 1978 until his suspension by the Pinellas County School Board in July 1984, Respondent was an excellent teacher, was well liked and respected by his peers, and not one scintilla of evidence was presented that Respondent committed any impropriety involving any student during this period.
The gravamen of the charges here made and the sine qua non to this hearing is the charge of fondling Lisa Beck. Respondent has never denied this occurred or evidenced anything except guilt and shame toward himself for his weakness in allowing it to happen. These are not the reactions of one likely to repeat such conduct or constitute a threat to those female minors entrusted to his tutelage.
From the foregoing it is concluded that Richard L. Wahl sexually molested his stepdaughter in 1978 as alleged and that he is not guilty of all other charges. It is further concluded that this misconduct was not related to, and did not detract from, Respondent's performance as a teacher in the school system; that his performance as a teacher from the occurrence of this offense in 1978 and its disclosure in 1984 has been well above average; that he enjoyed the respect and support of his peers during this period; that this incident has not seriously reduced his effectiveness as an employee in the Pinellas County school system; that he is not now, nor has he ever been, a threat to those pupils under his tutelage or in attendance at the school in which he taught; and that further punishment will not serve as a deterrent to Respondent or others or provide any needed protection to the pupils entrusted to Respondent's tutelage. It is
RECOMMENDED that a Final Order be entered finding Respondent guilty of an act involving moral turpitude and not guilty of all other charges. It is further
RECOMMENDED that Respondent's teaching certificate be suspended for one (1) year commencing with his suspension from the Pinellas County school system and that he be placed on probation for a period of five (5) years to run concurrently with and to terminate with his probationary period in Case No. CRC 84-5660 CFANO-A (Exhibit 7).
ENTERED this 22nd day of May 1985, at Tallahassee, Florida.
K. N. AYERS 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 22nd day of May, 1985.
COPIES FURNISHED:
Usher L. Brown, Esquire Associate School Board Attorney Post Office Box 6374 Clearwater, Florida 33518
Mark F. Kelly, Esquire Marsha Cohen, Esquire
401 South Albany Avenue Tampa, Florida 33606
Karen Barr Wilde, Executive Director Education Practices Commission Department of Education
Knott Building Tallahassee, Florida 32301
Honorable Ralph Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
RALPH D. TURLINGT0N, as
Commissioner of Education, Petitioner,
vs. DOAH CASE NO. 84-2724
RICHARD L. WAHL,
Respondent.
/
FINAL ORDER
Respondent, RICHARD L. WAHL, holds Florida Teaching Certificate Number 352301. 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), F.S.; it is attached to and made a part of this Order.
A panel of the Education Practices Commission met on August: 15, 1985, in Tampa, Florida, to take final agency action. The Petitioner was represented by Usher L. Brown, Esquire. The Respondent was represented by Mark F. Kelly, Esquire. The panel has reviewed the entire record in the case.
The panel adopts the Findings of Fact of the Recommended Order; the panel does not make any additional Findings of Fact. The panel adopts the Conclusions of Law in the Recommended Order with the Exception of the Conclusions referred to in Petitioner's first two Exception in his Exceptions to Hearing Officer's Conclusions of Law. The pane specifically rejects the Hearing Officer's Conclusions of Law and specifically concludes that it may consider acts of a Respondent which occurred prior to certification pursuant to Cirnigliaro v.
Florida Standards and Training Commission, 409 So.2d 80 )Fla. 1st DCA 1982) even though it did not do so here owing to no facts having been found to support the act alleged. The panel also specifically conclude that Respondent's sexual molestation of his eleven year old stepdaughter did detract from his teaching performance and was personal conduct which seriously reduced his effectiveness as a teacher. The panel specifically finds that the knowledge of what had occurred in this instance and the resulting publicity precluded Respondent from being able to establish the teacher-student relationship necessary for learning and prevented Respondent from being a "safe" male in whom students could place their trust. Petitioner's remaining Exceptions were either withdrawn or discussed in the review of penalty.
The panel specifically rejects the Recommended Penalty of one year's retroactive suspension, and probation to run concurrent with probation previously ordered by the criminal court (Case No. CRC 84-5660 to CFANO-A, Pinellas County, Florida) as being too lenient under the circumstances of the case: sexual molestation of an eleven year old stepdaughter. Upon consideration of the gravity of the offense, and the Commission's rulings in similar cases, the panel hereby increases the penalty recommended. Therefore, it is ORDERED that Respondent's teaching certificate be PERMANENTLY REVOKED.
This Order takes effect upon filing.
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filling.
DONE AND ORDERED this 30th day of August, 19,85.
RICHARD RICH, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Richard L. Wahl has been furnished to Hark F. Kelly, Esq, Fire Station No. 8, 401 South Albany, Tampa, Florida 33606, by
U.S. Mail, this 5th day of September, 1835.
COPIES FURNISHED TO:
Marlene T. Greenfield, Administrator Professional Practices Services
Susan Tully, Esquire Attorney General's Office
Judith Brechner, General Counsel Usher L. Brown, Esquire
Donald L. Griesheimer Office of Certification
Florida Administrative Law Reports Dr. Scott Rose, Supt.
Pinellas County Schools
| Issue Date | Proceedings |
|---|---|
| Dec. 04, 1990 | Final Order filed. |
| May 22, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 30, 1985 | Agency Final Order | |
| May 22, 1985 | Recommended Order | Respondent is guilty of molesting stepdaughter. Recommend one-year suspension. |
PINELLAS COUNTY SCHOOL BOARD vs. JIM WILKINS, 84-002724 (1984)
PROFESSIONAL PRACTICES COUNCIL vs. JOHN A. LETTELLEIR, 84-002724 (1984)
HOWARD J. GREER vs. PINELLAS COUNTY SCHOOL BOARD, 84-002724 (1984)
DEPARTMENT OF EDUCATION, EDUCATION PRACTICES COMMISSION vs. ALVIN H. DANA, 84-002724 (1984)
PINELLAS COUNTY SCHOOL BOARD vs. CLARENCE DAVIS, 84-002724 (1984)
