STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1592

)

ROBERT M. CANNON, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 29, 1987, in Sanford, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: John A. Baldwin, Esquire

Baldwin & Baum

7100 South Highway 17-92 Fern Park, Florida 32730

BACKGROUND AND PROCEDURAL MATTERS

This proceeding commenced on February 20, 1987, when Petitioner filed its Administrative Complaint against the Respondent, alleging that while employed as a High School teacher in Seminole County he engaged in sexual activities with a minor female student, took her on dates, wrote notes of a romantic nature and gave the student gifts, in violation of Section 231.28, F.S. and Rule 6B-1.06 FAC.

Respondent asserted his right to a formal hearing, filed an answer and moved to dismiss the Administrative Complaint. That motion is DENIED, based upon the findings and conclusions set forth herein.

At the hearing, Petitioner presented the testimony of six witnesses, including the female student who was the subject of the relationship described in the Administrative Complaint. Petitioner offered twelve exhibits. These were received, except for exhibit 12, a deposition that was rejected for lack of adequate notice to Respondent. Exhibits 5 and 6 were marked for identification and ruling was reserved. Those exhibits are received for the limited purpose for which they were offered: hearsay evidence which supplements, explains or

corroborates other direct evidence. See section 120.58(1)(a), F.S. Without objection, a photograph of exhibit 9 was substituted for the item, a gold bracelet.

Respondent called no witnesses. He sought to testify on his own behalf, but only as to the subject of mitigating a penalty. Counsel argued the analogy of a criminal case which is bifurcated in a trial as to quilt and a separate penalty phase. The request to limit testimony was denied. There no authority, to my knowledge, to bifurcate an administrative case, however penal in nature; the process makes no sense. Respondent had the opportunity to request an informal hearing before the Educational Practices Commission and present evidence in mitigation or opposition to a penalty. See Rule 6B-12.012 F.A.C. Further, while findings of fact recommended by a hearing officer can be disturbed only in the absence of competent substantial evidence or noncompliance with essential requirements of law, an agency enjoys somewhat more discretion in its assessment of a penalty. See section 120.57(1)(6)9, F.S.

Respondent's one exhibit was received into evidence.

After the transcript was filed both parties submitted proposed findings of fact and conclusions of law. The findings of fact proposed by both parties are substantially adopted in this recommended order. The findings proposed by each were virtually verbatim, denoting stipulation as to the material facts.

Except as otherwise noted, the following are those facts proposed by both parties and supported by the evidence. References to the transcript will be designated T-; references to the parties' exhibits will be prefixed P- or R-.

FINDINGS OF FACT

1. The Respondent holds Florida teaching certificate 327703 covering the area of Drafting and Technical Construction.

   
   

2. During the 1985-1986 school year, the Respondent was employed as a teacher at Lyman High School in the Seminole County School District. (T-85)

   
   

3. Jilliana Holt attended Lyman High School as a senior during the 1985- 1986 school year. (T-84) At the time, she was 17 years old. (T-84) Jill met the Respondent in the fall of 1985 through a friend of hers who was a student in the Respondent's class at the time. (T-85) Although the Respondent did not teach any of Jill's classes, she saw him at school everyday when she visited her friend, Darla Franklin, on her way to class (T-86, Petitioner's proposed Finding #3.)

   
   

4. Jill came to know the Respondent through casual conversation. (T-86) Eventually, they found that they shared a common interest in motorcycles. (T-

   86) The Respondent owned a motorcycle. (T-86; P-11)

   
   

5. In January 1986, the Respondent invited Jill to take a ride on his motorcycle with him. (T-87)

   
   

6. In late January 1986, the Respondent took Jill out for a day-long motorcycle ride. (T-89) The trip took place on a Saturday, while Jill's mother was at work. (T-89) There was no predetermined destination. (T-89)

   
   

7. After picking Jill up at her house on Saturday morning, they eventually arrived in Clermont between 12:00 noon and 2:00 P.M. (T-90) There they stopped

   at Quincy's Restaurant where they discussed some of Jill's personal and family problems. The Respondent indicated to her that he had taken some psychology courses in college and that he would work with her to help her with her problems. (T-90) The Respondent suggested that they go to a motel where they could sit and talk. Jill demurred, but the couple ended up at a nearby Howard Johnson's motel. (T-91, Petitioner's proposed findings #8 and 9.)

   
   

8. Jill and the Respondent engaged in sexual relations at the motel. (T-

92)

1. Following their trip to Clermont, the Respondent and Jill began to see

   each other in a dating relationship. (T-93) Fellow students, Sam Frazier and Darla Franklin, covered for Jill with her parents so that she could see the Respondent secretively. (T-94-97) On one occasion, Sam picked Jill up at her home ostensibly to go on a date. Instead, he dropped her off to meet the Respondent and later picked her up and took her home after she saw the Respondent. (T-94, 95) On another occasion, Darla covered for Jill one weekend when Jill accompanied the Respondent on an overnight boating trip. Jill was supposed to be spending the night with Darla when in fact she accompanied the Respondent to Port Canaveral and spent the night alone with the Respondent in his boat on the Atlantic Ocean. (T-95-99)

   
   

2. The Respondent engaged in sexual intercourse and oral sex with Jill while on his boat. (T-98) This trip occurred near the end of March or the first of April 1986. (T-96)

   
   

3. Jill visited the Respondent at his home on two occasions. (T-99) On one occasion, they had sexual intercourse in the Respondent's bedroom. (T-100)

   
   

4. The Respondent took Jill to the Diplomat Inn in Orlando on two occasions. The first occurred in February 1986. (T-106; P-2) After arriving at the hotel on the Respondent's motorcycle (T-106; P-2) the Respondent obtained a room. While there, the Respondent engaged in sexual intercourse with Jill. (T-106)

   
   

5. The Respondent took Jill to the Diplomat Inn on a second occasion in his pickup truck. (T-107; P-3) The Respondent was not feeling well when they arrived, so no sexual activity took place beyond hugging and kissing. (T-107)

   
   

6. (Petitioner's proposed finding of fact #16.) On Valentines Day 1986, the Respondent met Jill and Darla Franklin at a Quincy's restaurant for dinner. The Respondent gave Jill a teddy bear with a golzd bracelet around its neck.

   (T-109; P-5, P-9) Later that evening Jill saw the Respondent at the school's curriculum fair. (T-109) When the Respondent returned to his classroom, Jill hugged, kissed and thanked him for the presents. (T-110)

   
   

7. (Petitioner's proposed finding #17.) In addition to engaging in sexual intercourse in hotel rooms, his home and his boat, the Respondent drove Jill to an orange grove on a number of occasions where sexual intercourse and/or oral sex took place. (T-119, 120) On another occasion the Respondent took Jill to a wooded area where they had sexual intercourse. (T-113) Afterward, the Respondent gave Jill a key chain with his initials on it. (T-112) In addition to the gifts previously mentioned, the Respondent gave Jill a computer disc box and several computer discs for use in her computer class at school. (T-114) He also gave her some scuba gear for her use when he took Jill on a diving trip to Cow Sink. (T-114)

8. (Petitioner's proposed finding #18.) The Respondent wrote Jill four short notes which he gave to her at school. (T-116; P-4)

   
   

9. (Respondent's proposed finding #14.) The parties developed a strong relationship between themselves and Jill believed that she was in love with Respondent. (T-128, 133, 134)

   
   

10. While the relationship was ongoing, the Respondent told Jill that he loved her, that he planned to divorce his wife and that he wanted to marry her and move to West Palm Beach. (T-102, 104, 105)

    
    

11. The Respondent resigned from his employment with the Seminole County School Board on April 30, 1986. (T-151)

    
    

12. (Petitioner's proposed finding #22) After Jill's disclosure of her relationship with the Respondent to law enforcement officers, the relationship quickly became known at Lyman High School and in her community. (T-124, 148; P- 10)

    
    

13. (Petitioner's proposed finding #23) The resulting publicity put a great deal of stress on Jill's relationship with her family (T-125) and her fellow students. (T-124) She was ostracized at school. (T-124) Her graduation was put in jeopardy. (T-125) She was embarrassed at her senior prom. (T-125) Students booed her during graduation exercises at the end of the school year. (T-126)

    
    

14. (Petitioner's proposed finding #24.) Dr. Hortense Evans testified in her expert opinion that the Respondent's effectiveness as an employee of the Seminole County School Board was seriously reduced as the result of his relationship with student Jilliana Holt. (T-145, 146) In her expert opinion, children are sent to school to receive an education, not to be sexually abused or exploited. (T-147) Respondent's conduct violates the trust which parents place in the school system to care for their children properly and professionally.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1), F.S.

    
    

16. Section 231.28(1), F.S. provides that the Education Practices Commission may suspend, revoke or permanently revoke or the teaching certificate of any person who (as alleged in the administrative complaint in this case):

    
    

    (c) Has been guilty of gross immorality or an act involving moral turpitude;

    * * *

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

    * * *

    (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

17. Respondent is charged with violations of the following principles of professional conduct for the education profession in Florida:

    
    

    6B-1.006 (3) Obligation to the student requires that the individual:

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

       * * *

       (c) 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.

       
       

18. The standard of proof for the revocation of a professional license, including that of a teacher, is that the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

    In this case the parties agree that the sexual relationship existed between the Respondent and a minor high school student. Moreover, Petitioner proved with clear and convincing evidence that the relationship and resultant impact on the student and the teacher's effectiveness constituted violations of the above statutes and rules.

    
    

    The moral standard to be upheld by teachers is different from that of other professionals, for example, realtors; teachers are charged with providing leadership and maintaining effectiveness as teachers. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Acts which may be morally permissible in some quarters may be considered immoral when committed by a teacher. Department of Education, Educational Practices Commission v. Davenport, DOAH case #85-3689, Recommended Order adopted in Final Order at 8 FALR 3339, July 6, 1986.

    
    

    In Davenport, supra, the facts were strikingly similar to those in this case: a "romantic" and sexual relationship was maintained between a high school teacher/coach and a female student at the school who neither attended his classes nor participated in the sports he coached.

    
    

    Respondent argues that there are moral implications to the relationship since the parties were not married, but that such relationships occur regularly today between consenting adults.

    
    

    As liberally as today's society may view such relationships, society does not condone or tolerate any sexual relationship between a teacher and non-adult student. The teacher, by virtue of his standing, age, and concomitant experience has the advantage; the parties are not on equal footing. The teacher is held responsible, not the student, for the relationship and its inevitably unhappy consequences.

    
    

19. For a penalty, counsel for Petitioner proposes permanent revocation; Respondent proposes a two-year suspension.

In the recent past, the Educational Practices Commission has consistently dealt the harshest penalty available-- permanent revocation-- to teachers found guilty of sexual activity with students. See Davenport, supra, and State of Florida, Department of Education v. Robert Mancill, 9 FALR 1414 (Final order dated March 6, 1987). Less serious dalliances merit a lesser penalty, such as a 3-year revocation. See Turlington v. Ronald Landen, 7 FALR 3427 (Final Order dated January 31, 1985), wherein a Junior High teacher wrote love notes, held hands and took motorcycle rides with a 14-year old student.

In the record before me I find no basis to recommend that the agency deviate from its prior practice. Such deviation needs explanation. Section 120.68(12)(c), F.S.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That Respondent's Florida teaching certificate be permanently revoked for violating Section 231.28(1), F.S., and rules of the State Department of Education.

DONE and RECOMMENDED this 2nd day of October, 1987, in Tallahassee, Florida.

MARY CLARK

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 2nd day of October, 1987.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

John A. Baldwin, Esquire Baldwin & Baum

7100 South Highway 17-92 Fern Park, Florida 32730

Karen Barr Wilde Executive Director

Education Practices Commission Department of Education

Room 418, Knott Building Tallahassee, Florida 32399

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Sydney McKenzie, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32399

Docket for Case No: 87-001592

Orders for Case No: 87-001592