STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, 1/ AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 86-0508

)

FORREST TAYLOR, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings in St. Augustine, Florida, on December 3, 1986. The transcript of proceedings was filed with the Division of Administrative Hearings on December 30, 1986. The petitioner filed its proposed recommended order on January 20, 1987; respondent had earlier filed on January 12, 1987. Proposed findings of fact are addressed by number in the attached appendix.

The parties are represented by counsel:

For Petitioner: Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

For Respondent: Phillip J. Padovano, Esquire

Post Office Box 873 Tallahassee, Florida 32302

These proceedings began with the filing of an administrative complaint. In response to respondent's request for formal hearing, the Department of Education transmitted this matter to the Division of Administrative Hearings for a formal administrative proceeding, in accordance with Section 120. 57(1)(b)3., Florida Statutes (1985). An amended administrative complaint was subsequently filed, and leave was granted at hearing to proceed on the amended administrative complaint, there being no objection from the respondent.

In the amended administrative complaint, petitioner alleges that respondent "holds Florida teacher's certificate number 35846, issued on December 16, 1983, covering the areas of drafting and administrative supervision"; that at "all times material . . . [he] was employed as a drafting and welding classroom teacher at the Florida School for the Deaf and Blind located in St. Augustine, Florida"; that "[o]n or about January 18, 1985, a student entered Respondent's classroom in a playful manner and pretended to hit respondent . . . [whereupon] he became angered . . . grabbed the student by the throat and forced him against the counter . . . [then moved] toward the student [who] ran out of the classroom and was told by respondent to report to the vocational office"; when the student entered the office, the amended administrative complaint alleges, "it was

obvious to those present that an altercation had taken place due to the red marks on the student's neck"; that when respondent "was interviewed regarding the incident by school administrators [he] indicated the rules were absurd and he would not comply with said school rules without additional compensation"; that at various times beginning in the fall of 1984 and continuing into 1985 "Respondent periodically committed acts of sexual misconduct with female students consisting of, but not limited to the following:

1. Respondent would frequently and unnecessarily touch female students about their waists and/or

   put his arms around the students, causing them much embarrassment.

2. Respondent would occasionally touch or attempt to touch female students' breasts.

3. Respondent would occasionally approach a student's desk and push a T-square against a female student's breast.

4. Respondent would periodically make sexual remarks and stare at female students, thus making them uncomfortable and becoming embarrassed.

5. Respondent would grab female student's arms or otherwise shake them to purposefully cause their breasts to move;

that respondent was, on account of the foregoing, "dismissed from his employment with the Florida School for the Deaf and Blind"; that respondent has violated Section 231.28(1)(f) and (h), Florida Statutes'(1983) in that he "has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board and has violated the Rules of the State Board of Education"; specifically that respondent has violated "Chapter 6B-1, Code of Ethics for the Education Profession of Florida and Section 6B-1.06(3)(a) (e) and (f), Florida Administrative Code, in that . . . [he] has failed to make reasonable efforts to protect the students from conditions harmful to learning or to health or safety, has intentionally exposed a student to unnecessary embarrassment or disparagement and has intentionally violated or denied a student's legal rights."

Two students, Kim Benefield and John Sharpton, and three school administrators, Brad Thompson, Raymond Butler and Danny Hutto, testified at the hearing for petitioner. In addition, petitioner offered depositions of three students, Nubia Argenal, Jill Hughes and Scotty Alford. Respondent testified in his own behalf and the American Sign Language translator at the hearing, Sandra

1. Acuff, was called as a witness by respondent.

   
   

   ISSUE

   
   

   Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

   
   

   FINDINGS OF FACT

   
   

   1. The parties stipulated that respondent Albert Forrest Taylor holds Florida teacher's certificate number 356846, issued on December 16, 1983, covering the areas of drafting and administrative supervision, and the evidence so showed. Petitioner's Exhibit No. 1. As the parties also stipulated, respondent was at all times pertinent employed as a teacher of drafting and

      welding at Florida School for the Deaf and Blind in St. Augustine. He began in that job in the fall of 1979 and continued until his dismissal in January of 1985.

      
      

   2. Throughout the time Forrest Taylor taught at the Florida School for the Deaf and Blind, the school's administration, in particular Raymond Butler, then supervisor in the vocational education program for the deaf, received numerous complaints from numerous students, male and female, about Mr. Taylor's "physically touching and punching, and squeezing, and coming into physical contact with" (T.91) students. Two or three times a week female students complained "about Mr. Taylor's attitude towards them; how he looked at them." (T.62). His students usually complained "about his manhandling them, or pushing them, or twisting their arm, or things of that nature" (T.95), although they also complained about his sleeping in class and his "[t]alking to them all the time," (T.92) instead of communicating with them in sign language. In general, he had no "rapport with the students." (T.92)

      
      

   3. He ordinarily taught high school students, but he began the 1984-1985 school year also teaching drafting to younger students, including six or seven mainly eighth graders, during the period that began at one o'clock in the afternoon. Nubia Argenal, who testified she was in the seventh grade at the time, was in the class, as were Sandra, Michele and Scotty Alford. Together in another of Mr. Taylor's drafting classes that year were Kim Benefield, John Sharpton, Theresa Smith and perhaps eight more students. (T.47)

      
      

      ALFORD

      
      

   4. On January 18, 1985, Scott Alford finished his assignment, about halfway through respondent's one o'clock class. Respondent Taylor was at another student's desk at the time. With papers in one hand and a ruled T- square in the other, Scott left his seat and began hitting an air-conditioning vent with the T-square, which made a loud noise. He "was sort of bored, didn't have anything to do, so ... [he] was tapping the air- conditioning." Petitioner's Exhibit No. 2, pp. 21-22. He persisted even after Mr. Taylor told him to stop and came over to him.

      
      

   5. With playful intention, Scott hit his teacher with his fist, striking his arm just below the shoulder, "what we used to call a frog," petitioner's Exhibit No. 2, p. 32, although it was just [a] light punch." Id., p. 33. Unamused, Mr. Taylor grabbed Scott by the throat and pushed him backward against some shelves. When he got loose, Scott made for the classroom door, and Mr. Taylor sent him to Brad Thompson's office.

      
      

   6. Scott recounted events in Brad Thompson's office, where Mr. Thompson, the school's coordinator of vocational services, noticed red marks on both sides of Scott's neck. After he had spoken to Scott, Mr. Thompson left to speak to Mr. Taylor, who admitted "that he did grab Scott ... [but said] that he did it in self defense ... (T.60) In the course of this conversation, certain rules were mentioned, and Mr. Taylor replied "that the rules were full of shit." (T.60)

      
      

   7. Afterwards, Mr. Thompson went into Mr. Butler's office and brought Mr. Butler into his office where Scott had been waiting. According to Mr. Butler, Scott was very upset, although he was not crying. He "was flushed in the face

      and [his] hair was tousled ..." (T.83), and had "red welt-type finger marks on his neck ... at least two on one side and one on the other side." Id. He admitted hitting his teacher, but indicated that this type of horseplay was common, with Mr. Taylor frequently doing the hitting.

      
      

   8. Mr. Butler telephoned Danny Hutto, Assistant Principal, who asked that the matter be investigated further. By the time other students had been interviewed, the school day, a Friday, was over. After school on Monday, Messrs. Taylor, Thompson, Butler and Hutto gathered in Mr. Hutto's office to discuss the incident. Arrogant and profane, Mr. Taylor denied touching Scott Alford's neck, saying "he more or less grabbed him on the shoulder." (T.86)

      
      

   9. Whether the confrontation one of Scott's classmates, Nubia Argenal, adverted to when she testified that respondent "tried to strangle Scotty," Petitioner's Exhibit No. 4, p. 4, is the same as the imbroglio of January 18, 1985, is not clear from the evidence.

      
      

      SHARPTON

      
      

   10. John Sharpton, who was born December 11, 1969, (T.46) was in another of Mr. Taylor's drafting classes in 1984 and early 1985. On one occasion, Mr. Taylor grabbed John's throat, too, "or in there." (T.51) "It was a little bit red and then went away ... [with] some ice on it." (T.52) John would not voluntarily take another class from respondent for fear Mr. Taylor would hit him again. (T.52)

       
       

       BENEFIELD

       
       

   11. Kim Benefield erased something she had written on a piece of paper while in Mr. Taylor's drafting class one day in the fall of 1984 or January of 1985. Bits of the pink eraser (T.34) rubbed off by the erasure (T.23) fell into her lap. When she began brushing them off her dress, Mr. Taylor joined in. He touched her dress and she felt his touch "around the knee." (T.23) Kim said, "No, I will do it myself." (T.35) "Don't touch me, because it makes me feel weird." (T.22) "But he stayed just a little bit more. And he [his hand] went down ... [her] leg." (T. 35-36).

       
       

   12. On another occasion, a day after a night on which Kim had painted her fingernails, Mr. Taylor, whose son was visiting the class that day, summoned her to where he stood with his son, took her hand, and showed it to his son. (T. 23, 24) Kim found this embarrassing.

       
       

   13. On still another occasion, Mr. Taylor stood behind Kim and placed his hand on her shoulder, then in the general area of her armpit. She feared further forward movement of his hand, and, thinking "he tried to . . touch [her] breast, ... [she] put [her] arms down," (T.24) to prevent it. At the time, she was talking to a student who sat next to her, and Mr. Taylor "sort of got in between" (T.24) the two students.

       
       

   14. In a separate incident, after class one day, Kim started to leave even though Mr. Taylor was speaking to her, telling her he was going to give her detention hall. He grabbed her arm hard enough to leave three marks. (T.28-29)

       
       

   15. Kim, who was born on December 13, 1968 (T.21), would be afraid to return to a class respondent taught.

       SMITH

       
       

   16. One day in this same drafting class, Kim thought she saw Mr. Taylor look down the dress of another student, Theresa Smith. (T.26) John Sharpton recalled seven or eight times that respondent "flirted" with Theresa Smith, including one occasion on which he touched her just below her breast.

       
       

       MICHELLE

       
       

   17. Respondent once poked the end of a T-square "to Michelle's breast ... and said, `You have dirt inside your blouse ...'" Petitioner's Exhibit No. 4, p. 10.

       
       

       ARGENAL

       
       

   18. From time to time, respondent asked Nubia Argenal, "What is inside your blouse?" Petitioner's Exhibit No. 4, p. 29. He also asked this question of Nubia's classmate Sandra. He said to Nubia, "I like you. You're pretty. You have a pretty body. You're a pretty girl."

       
       

   19. Mr. Taylor once placed a T-square against Nubia so that it touched her breast, although his hand came in contact only with her chest at a point above her bosom. Petitioner's Exhibit No. 4, p. 66.

       
       

   20. At least once, Mr. Taylor stood behind Nubia, who was seated at a drafting table, and massaged her shoulders, until her protests dissuaded him. Petitioner's Exhibit No. 4, pp. 55- 56. On one occasion, when she was leaning on her table, he shook the table, with the result that her breasts moved. Petitioner's Exhibit No. 4, pp. 52-55. Other times he took her hands and shook her arms with the same result. Petitioner's Exhibit No. 4, pp. 48-51. On these occasions, respondent laughed.

       
       

       HUGHES

       
       

   21. Jill Hughes was a junior at the Florida School for the Deaf and Blind during the 1984-1985 school year. She took drafting from Mr. Taylor, but not in either of the classes made up of junior high students. Mr. Taylor rubbed her back on several occasions. Standing behind her in class, "he kind of did his hand, lightly, over the center of . . . [her] back. Petitioner's Exhibit No. 3,

       p. 23. Ms. Hughes explained:

       
       

       He was walking around the class, and he would walk over to me. Sometimes, when I asked him for help he would walk over to me and put his hand on my shoulder, and I thought at first, the first time that he touched me, I thought nothing was wrong, because I thought it was nice.

       And then after that, when he started

       moving his hand, I thought it was funny. So I didn't say anything. And then afterwards I asked for help [with schoolwork], when I was through with that, and then again I asked for help [with schoolwork], and the same thing, he moved his hand and my other friend, he did the same thing to her, touched her, the same way.

       And I began to notice, and I heard

       stories and so that was when I told him, "If you touch me again, if you touch me again, I'll tell my mother."

       
       

       Petitioner's Exhibit No. 3, p. 21. On cross-examination, in response to the question, "Isn't it possible that Mr. Taylor was just being fatherly, paternal?", Jill answered, "I don't know." (T.24) Further cross-examination elicited the following:

       
       

       Q. Wasn't it possible that he was merely trying to be supportive?

       A. It didn't seem that way to me, not the way he touched me.

       
       

       Petitioner's Exhibit No. 3, p. 31. Over a period of "[m]aybe two months," Petitioner's Exhibit No. 3, p. 9, Mr. Taylor complimented her on her legs (great, beautiful, nice), hair (pretty, beautiful blonde), eyes (beautiful), make-up (pretty) and muscles (good). Petitioner's Exhibit No. 3, pp. 7, 9, 17,

       18.

       
       

       EFFECTIVENESS REDUCED

       
       

   22. Respondent's "actions were totally inappropriate. Because of his actions, ... he lost his effectiveness, as far as the students were concerned." (T.114)

       
       

       The students ... were fearful of him.

       And the students particularly did not want to be in his classroom. (T.114).

       
       

       The assistant principal at the Florida School for the Deaf "would not recommend that he teach anywhere in the State of Florida, or anywhere, period." (T.114) It is not a question of his technique in teaching deaf children (T.95-99). It is more a question of "inborn qualities, personal qualities that a person has, feeling[s] toward other people." (T.99)

       
       

       CONCLUSIONS OF LAW

       
       

   23. The Education Practices Commission, within the Department of Education, is authorized to suspend, revoke, or revoke permanently teacher's certificates "or to impose any other penalty provided by law," Section 231.28(1), Florida Statutes (1985), upon proof that the holder of the certificate "[h]as been guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board," Section 231.28(1)(f), Florida Statutes (1985), or upon proof that a teacher has violated "rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate." Section 231.28(1)(h), Florida Statutes (1985). Among the rules for which a certificate may be revoked are those requiring that teachers "make reasonable effort to protect the student from conditions harmful to learning or health or safety." Rule 6B- 1.06(3)(a), Florida Administrative Code; "not intentionally expose a student to unnecessary embarrassment or disparagement," Rule 6B- 1.06(3)(e), Florida Administrative Code; and "not intentionally violate or deny a student's legal rights." Rule 6B-1.06(3)(f), Florida Administrative Code.

   24. 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). Strict procedural protections apply, and the prosecuting agency has the burden of proof, Associated Home Health Agency, Inc.

       v. State Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. 1st DCA 1984), which burden is generally believed to be to prove its case clearly and convincingly. See generally Addington v. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc., v. Department of Business Regulation, etc., 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966). But see Turlington v. Ferris, 496 So.2d 177 (Fla. 1st DCA) pet. rev. pndg. sub nom. Ferris v. Turlington, No. 69,561 (Fla.; Oct. 31, 1986). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

       
       

   25. Because the respondent worked for the Florida School for the Deaf and Blind, and was not "an employee of the school board," Section 231.28(1)(f), Florida Statutes (1985), no violation of subsection (f) was proven. The evidence established clearly and convincingly, however, that respondent Taylor was guilty of misconduct which seriously reduced his effectiveness as a teacher; that he failed to make reasonable efforts to protect students from conditions harmful to learning, health and safety; that he intentionally exposed students to unnecessary embarrassment; and that he violated the legal rights of students by repeated, unlawful touchings. Petitioner proved violations of Section 231.28(1)(h), Florida Statutes (1985), by proving violations of Rules 6B- 1.06(3)(a), (e) and (f), Florida Administrative Code. In their number and frequency, these recurring violations in the classroom demonstrate an unacceptable disregard for the dignity and welfare of the students and the integrity of their persons.

It is accordingly, RECOMMENDED:

That petitioner revoke respondent's teacher's certificate permanently. DONE AND ENTERED this 16th day of February, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II,

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1987.

ENDNOTE

1/ The Hearing Officer has substituted sua sponte the name of the incumbent Commissioner of Education for that of her predecessor, whose name originally appeared in the style of this case.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0508

Petitioner's proposed findings of fact Nos. 1, 3, 9, 10, 11, 12, 13, 14,

15, 16, 17, 18, 21, 22, 23, 24, 25, 26 and 28 have been adopted, in substance, insofar as material.

Paragraph two of petitioner's proposed findings of fact has been adopted, except to the extent that it suggests that all of the students involved were in the same class.

Paragraph four of petitioner's proposed findings of fact has not been adopted in its entirety. Scott was tapping an air-conditioning vent, not a counter. The evidence showed that Scot hit respondent.

The details of the altercation between Scott and respondent are addressed in paragraphs four through seven of the findings of fact.

Petitioner's proposed finding of Fact No. 7 has been adopted, in substance, except that respondent did not deny he had struggled with Scott.

Petitioner's proposed finding of fact No. 8 has been adopted in substance, except that female students had also complained frequently before the incident with Scott Alford.

Petitioner's proposed finding of fact No. 19 has been rejected except to the extent reported in paragraphs 16, 17 and 18 of the findings of fact.

Petitioner's proposed finding of fact No. 20 has been adopted, in substance, except that the evidence established that he shook the table on one occasion only.

Petitioner's proposed finding of fact No. 27 recites respondent's testimony which has been rejected in several particulars.

Respondent's proposed findings of fact Nos. 1, 2, 3, 7, 10, 12, 13, 14, 15, 16, 20 and 2 have been adopted, in substance, insofar as material.

The first sentence of respondent's proposed finding of fact No. 4 has been adopted in substance, insofar as material. The remainder of respondent's proposed finding of fact No. 4 has been rejected. Students who testified against respondent at hearing or on deposition came from three separate classes. Jill Hughes was a junior, and Nubia Argenal testified she was in seventh grade at the time.

Respondent's proposed finding of fact No. 5 has been adopted, in substance, except that Scott Alford hit an air- conditioning vent, not a table.

Respondent's proposed finding of fact No. 6 has been rejected to the extent it portrays Scott raising the T-square hatchet-like to hit Mr. Taylor. The "playing with Mr. Taylor" (T.65) consisted of hitting his upper arm just below the shoulder in the same fashion Mr. Taylor sometimes hit the boys.

Respondent's proposed finding of fact No. 8 does not report prior complaints and misstates the "essence of these complaints."

Respondent's proposed finding of fact No. 9 reflects confusion over the type of eraser involved. As a whole, Ms. Benefield's testimony, which has been credited, showed that she felt his hand on her thigh, through clothing which separated hand from thigh.

The subject matter of respondent's proposed finding of fact No. 11 has been treated in paragraph 19 of the findings of fact.

Respondent's proposed findings of fact Nos. 17 and 18 recite the substance of respondent's testimony, which has not been credited in important particulars.

The same is true as regards respondent's proposed finding of fact No. 19.

Although denying all wrong-doing, respondent admitted touching one female student's breast, and conceded the possibility of other accidental touchings.

Respondent's proposed findings of fact Nos. 22 and 23 have been rejected as contrary to the weight of the evidence.

COPIES FURNISHED:

Philip J. Padovano Post Office Box 873

Tallahassee, Florida 32302

Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

Karen B. Wilde, Executive Director Education Practices Commission Knott Building

Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON,

as Commissioner of Education,

Petitioner, EPC CASE NO. 86-005-RT DOAH CASE NO. 86-0508

vs.

FORREST TAYLOR,

Respondent.

/

FINAL ORDER

Respondent, FORREST TAYLOR, holds Florida teaching certificate no. 356846. 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 Commission 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 April 1, 1987, in Orlando, Florida, to take final agency action. The Petitioner was represented by Lane Burnett, Esquire. The Respondent was neither present nor represented. The panel has reviewed the entire record in the case.

The panel adopts the findings of fact and conclusions of law and recommendation of the recommended order. The conclusions of law of the recommended order are adopted with the exception of the hearing officer's conclusion on page 10 of the recommended order regarding Section 23l.28(1)(f),

F.S. That conclusion of law is modified to conclude that, as an employee of the Department of Education, Respondent violated Section 231.28(1)(f), F.S. Wherefore, it is hereby ORDERED that Respondent's 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 filing.

DONE AND ORDERED, this 10th day of April, 1987.

CAROLYN WILSON, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of RDT vs. Forrest Taylor was mailed to Phillip J. Padovano, Esq., Post Office Box 873, Tallahassee, Florida, 32302 this 10th day of April, 1987, by U.S. Mail.

KAREN B. WILDE, Clerk

COPIES FURNISHED TO:

Marlene Greenfield, Administrator

Professional Practices Services

Susan Tully Proctor, Esquire Attorney General's Office

Sydney McKenzie, General Counsel Florida Admin. Law Reports

Robert T. Benton, II Hearing Officer

Div. of Administrative Hearings

A Otis A. Mason, Superintendent St. Johns County Schools Personnel

St. Johns County Schools

Robert T. Dawson, President

Florida School for the Deaf and Blind

Docket for Case No: 86-000508

Orders for Case No: 86-000508