STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF PALM )

BEACH COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5411

)

TOM F. BREWER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 18 and 19, 1988, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Abbey G. Hairston, Esquire

Post Office Box 24690

West Palm Beach, Florida 33416-4690

For Respondent: Sally C. Gertz, Esquire

208 West Pensacola Street Tallahassee, Florida 32301

and

Robert C. Fallon, Esquire

325 Clematis Street, Suite B West Palm Beach, Florida 33401

BACKGROUND

By petition for dismissal filed on December 3, 1987, petitioner, The School Board of Palm Beach County, alleged that respondent, Tom F. Brewer, a classroom teacher, had violated Section 231.36, Florida Statutes (1987), by virtue of having been criminally charged with contributing to the delinquency of a minor and thereby losing his effectiveness as a teacher. On March 9, 1988 petitioner filed an amended petition for dismissal incorporating the additional charges that respondent had permitted minors to regularly visit his home for the past nine years, allowed those minors to drink alcoholic beverages in his home, loaned money to and performed favors for neighborhood children, and used profanity and other inappropriate language in the presence of a minor.

According to the amended petition, these acts constituted misconduct in office, immorality and personal conduct which seriously reduced Brewer's effectiveness as a teacher. Petitioner seeks to punish Brewer by dismissing him from his position as a classroom teacher.

Respondent requested a formal hearing to contest the above allegations.

The matter was referred by petitioner to the Division of Administrative Hearings on December 18, 1987, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated December 30, 1987 a final hearing was scheduled on February 9, 1988 in West Palm Beach, Florida. At respondent's request, the matter was rescheduled to February 29, 1988. The parties stipulated to a further continuance and the matter was reset to March 30, 1988. Because of an amendment to the petition for dismissal, the parties agreed to continue the matter to May 18 and 19, 1988 at West Palm Beach, Florida. Respondent's request for another continuance was denied by order dated May 9, 1988.

At final hearing petitioner presented the testimony of Dr. Thomas J. Mills, Sandra K. Cownden, Steven E. Erickson, Tina M. Luciano, Kim M. McKenna, Sharon

L. Peck, George Peck, III, Irma Peck, Margie Hill, Hilda Barrett and Angela M. Elsey. It also offered petitioner's exhibits 1-5. All exhibits were received into evidence. Exhibits 3 and 5 are the depositions of Helen Happ and Robin Mahoney. Respondent testified on his own behalf and presented the testimony of Robert Sell, Dr. James G. Daniels, Norman S. Patterson, James H. Williams, Rene Corbett, Ann Roberts and Sean Morris. He also offered respondent's exhibits 1 and 2. Both exhibits were received in evidence. Finally, the parties stipulated into evidence joint exhibits 1 and 2.

The transcript of hearing (three volumes) was filed on June 6, 1988.

Proposed findings of fact and conclusions of law were filed by the parties on June 22, 1988. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

At issue is whether respondent should be dismissed as a teacher in the Palm Beach County school system for the reasons stated in the Amended Petition for Dismissal.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. A Backdrop to the Charges

   
   

   1. At all times relevant hereto, respondent, Tom F. Brewer, was a teacher at Crestwood Middle School (CMS) in Royal Palm Beach, Florida. He is employed by petitioner, The School Board of Palm Beach County (Board). Respondent, who is now fifty-four years old, is certified as a middle school teacher with a specialty in the area of mathematics. He has taught in the Palm Beach County school system since August, 1973 and has consistently received satisfactory evaluations. Most recently, he was assigned to CMS to teach mathematics to seventh and eighth graders.

      
      

   2. Since CMS is ten miles from his home, Brewer left for work each school day around 7:50 a.m. and returned around 4:20 p.m. In addition, until September, 1985 he spent two weekends a month at National Guard drills where he was the unit first sergeant. From November, 1982 until March, 1984 he worked on his other weekends as a security guard at a local country club.

      
      

   3. Forest Estates Drive in West Palm Beach, Florida is the focal point of this proceeding. In November, 1978 respondent moved into a home in the 300

      block on Forest Estates Drive. Other residents on the street at that time were James H. Williams, Sandra Cownden and her daughter, Tina Luciano (Tina), Margaret Hill and her daughter and stepdaughter, Robin Mahoney (Robin) and Kim McKenna (Kim), and Hilda Barrett. Shortly after Brewer moved into the neighborhood, the Pecks moved in next door. Mr. Peck is a uniformed deputy sheriff with a marked patrol car. In 1982, Helen Happ moved with her family into a home on the same block. In 1985, Stephen Erickson moved into the home previously occupied by Hilda Barrett and which was directly across the street from Brewer. All of the above neighbors testified at final hearing or gave deposition testimony and are a part of this neighborhood drama. Some lived there only part of the time since 1978 while a few were neighbors for the entire nine year period.

      
      

   4. Respondent is divorced and lives by himself at his home on Forest Estates Drive. He has three grown children, a girl and two boys, living in the West Palm Beach area. The children, who are now 28, 26 and 25 years of age, regularly visited Brewer several times a week during the years in question.

      
      

   5. As might be expected, Brewer became reasonably acquainted with all of his neighbors since moving to Forest Estates Drive almost ten years ago. They became aware of the fact that he was a school teacher. The principal prosecution witness is Tina, who lived with her divorced mother two houses away from Brewer. Tina, who was born on March 16, 1969, was not bashful or shy, and at the age of nine, began going to Brewer's house when he first moved in the neighborhood. As she frequently did with other neighbors, Tina asked Brewer for money and favors. Brewer responded by giving Tina odd jobs to do around his house such as washing his car, mowing the yard or cleaning windows. Therefore, over the years it was not unusual to see Tina going to and from Brewer's house. As she grew older, Tina began using Brewer's telephone to call friends and to watch Brewer's widescreen television set which was wired for cable. It should be noted here that Tina has a reputation as being an untruthful person.

      
      

   6. Against this backdrop, respondent was arrested by the Palm Beach County Sheriff's Office in March, 1987 for contributing to the delinquency of a seventeen year old minor (Tina), a misdemeanor charge. He was subsequently acquitted after a three day jury trial in March, 1988. After learning that respondent had been arrested, the Board suspended Brewer without pay on November 17, 1987. This action was formalized by a petition for dismissal issued on December 3, 1987. Respondent has remained suspended without pay pending the outcome of this proceeding. As amended, the petition for dismissal alleges that on January 1, 1987 respondent "allowed two females, then 16 and 17 years old, to visit him at his home," that he "supplied and/or permitted the females to consume liquor in his home," and that he "requested and received back rubs from both females and requested sex from the 16 year old." In addition, the amended petition charges that respondent allowed "other males and females in the neighborhood" to visit his home "on a regular basis for the past nine (9) years" and "to drink alcohol in his presence," and that he "regularly loaned money to the neighborhood children and gave them rides to various locations in the vicinity," all without the knowledge or consent of the parents. Finally, it is alleged that in June, 1987 respondent "used profanity in the presence of a minor

      . . . and engaged in other inappropriate conversation." These allegations will be examined separately hereinafter in the order in which they are raised in the petition.

2. The Criminal Arrest and Attendant Notoriety

   
   

   1. In March, 1987 respondent was arrested and charged with contributing to the delinquency of a minor, a misdemeanor. The charges stemmed from an incident that allegedly occurred on January 1, 1987 at Brewer's home and involved Tina, then seventeen years old, and her sixteen year old friend, Angie. After school resumed in January, 1987 Brewer reported to his principal that he was involved in a "run in with the law" on New Year's Day. This information was conveyed to the deputy Superintendent who advised that no action should be taken until "something official happened." For some reason, the school either failed to learn of Brewer's arrest in March or did nothing at that time. In any event, the arrest was eventually reported in articles published in a local newspaper on November 8 and 19, 1987. Brewer's three day trial in March, 1988 received even more widespread newspaper and television coverage.

      
      

   2. After the articles appeared in the local newspaper in November, 1987, the superintendent of schools was contacted by one parent whose child was a student in respondent's classroom. Other than this one contact, the Superintendent had no other personal knowledge of any parent concern over respondent's arrest. However, based upon his review of the matter, and having assumed the charges herein to be true, the superintendent concluded that the resulting notoriety attendant to respondent's arrest impaired his effectiveness as a teacher. He further opined that respondent is now vulnerable to accusations of similar improper behavior in the future, and he believes that parents would object if respondent was reassigned to the classroom. Also believing the charges to be true, several neighbors reported that they were concerned with respondent's behavior, and they did not wish their children to be around him. Finally, after the arrest became public, one witness in this proceeding was contacted by several CMS students inquiring about the charges.

      
      

3. The January 1, 1987 Incident

   
   

   1. Angela (Angie) is a girlfriend of Tina who had just turned sixteen on December 18, 1986. At that time she was enrolled as a student at a local high school but was not attending classes. She was also on probation for burglary and grand theft and has a reputation of being an untruthful person. She stayed overnight with Tina on December 31, 1986 to celebrate the holiday, and the two spent New Year's Eve partying with friends until dawn. During the course of the evening Angela consumed a great deal of whiskey and got very drunk. The whiskey was bought for Angie by an undisclosed third party.

      
      

   2. On January 1, 1987 Tina and Angie spent most of the day at Tina's house with Tina's mother and grandparents. Around 5:00 or 5:30 p.m., the two went to Brewer's house so that Tina could use his telephone to call her boyfriend, Matt. Angie, who was recuperating from a substantial hangover, just wanted to stretch out on Brewer's couch. They found Brewer watching the football bowl games on television.

      
      

   3. Tina made several calls, including one to Matt, and another to Tommy, who had just broken up with Angie. After the calls were completed, Tina returned to her house to eat dinner. Angie remained on Brewer's couch, still nursing her hangover. After finishing her meal, Tina returned to Brewer's house. Angie then departed to Tina's house to shower and change clothes. Tina also returned to her home a short while later to see what was taking Angie so long. The two eventually returned to Brewer's house around 7:00 or 7:30 p.m. Tina then asked Brewer for a ride to pick up Matt and bring him back to her house. Brewer agreed and the two left leaving Angie watching television.

   4. When Tina, Brewer and Matt returned to Brewer's house around 8:00 p.m., they found Angie gone. According to Tina's mother, Angie returned to Tina's house while Tina and Brewer were gone and had left with two male friends. Not knowing this, Tina and Matt left Brewer's house to find Angie but returned about twenty minutes later, by now Brewer's twenty-six year old son, Chuck, had arrived to watch the Orange Bowl football game with his father. A while later, two male friends of Matt showed up at the doorstep and were invited in to watch television. Tina, Matt and his two friends stayed for about 45 minutes watching the football game and then left.

      
      

   5. Around 10:30 p.m. that evening, a disturbance occurred in the street in front of Tina's house. Brewer's next door neighbor, George Peck, III, who happens to be a uniformed deputy sheriff, observed a girl "screaming and crying" in the middle of the street. The girl (Angie) was with a young man. When the two would not tell him what was the matter, the deputy told the two to leave the neighborhood. In contrast to the testimony of both Tina and Angie that Angie was intoxicated that evening, the deputy did not detect any odor of alcohol on Angie's breath and she did not appear to be intoxicated. Further, the deputy's testimony that the above event occurred around 10:30 p.m. is accepted as being more credible than Angie's testimony that Peck spoke with her some two and one- half hours earlier. Another disturbance occurred in front of Tina's house around midnight involving Tina, Angie and several male teenagers. The police were called and an investigation was begun. As a result of accusations by Tina and Angie, Brewer was later arrested and charged with contributing to Tina's delinquency.

      
      

   6. At no time during the day or evening of January 1, 1987 did Brewer offer or furnish alcoholic beverages to Tina and Angela nor did the two girls consume alcoholic beverages at his home. He did not ask the girls to give him a back rub, engage in a sexual activity or make any improper overtures towards the girls. Testimony by Tina and Angela to the contrary is rejected as not being credible.

      
      

4. Neighborhood Saint or Sinner?

   
   

   1. The amended complaint alleges that Tina, "along with other males and females in the neighborhood, under the age of 18, have visited Respondent at his home on a regular basis for the past nine (9) years," and that such minors were unchaperoned and consumed alcoholic beverages in his home. As to this allegation, the Board has stipulated that none of the minors were students from Crestwood Middle School.

      
      

   2. There were numerous confirmed visits by Tina to Brewer's house over the years. She was accompanied on several visits by Robin, who once lived on the street and later lived with Tina for a short time in 1984, and by Angie. In addition, Tina would sometimes bring a boyfriend or another girlfriend, including Theresa, Diane or Kim, who either lived for brief periods of time with Tina or who happened to be in the neighborhood to visit her. Neighbors on the street observed Tina and other similarly aged females visiting Brewer's house from time to time. Except for Robin, the neighbors could not identify the girls and were nonspecific as to the dates and frequency of such visits. None of the neighbors knew the purpose of the visits or what occurred once the visitors entered his home. Most did not know if the guest might be Brewer's daughter, a teenager during part of this period, and who visited him several times a week. While they suspected sinister motives on the part of Brewer, none had any proof of this.

   3. There is no competent, credible evidence that Brewer ever furnished alcoholic beverages to minors or allowed them to consume the same at his house. At hearing both Angie and Tina claimed that Brewer often either purchased beer for or gave it to their friend, Rob. However, this assertion was denied by Rob, and his testimony is deemed to be the most credible. Angie claimed that during the last few months of 1986 Brewer would frequently furnish her and Tina with wine coolers or beer. However, she later testified that, except for the January 1, 1987 incident, she never drank an alcoholic beverage at Brewer's home. Her testimony is not deemed to be credible. There was further testimony by neighbor Erickson that he saw a girl (who he did not know) leaving Brewer's house one day during the summer of 1986 carrying what he thought was a can of beer. He thought the girl carrying the can was accompanied by Tina. Erickson also occasionally saw persons of Tina's age leaving Brewer's house carrying brown paper bags. He did not know what the bags contained. Neighbor Barrett reported that in 1978, when she was thirteen, she frequently saw Tina and Robin, then nine years old or so, with sacks of beer and cigarettes after leaving Brewer's house. This testimony is rejected as being incredible. Neighbor Happ reported seeing Tina and a friend leaving Brewer's house around 7:30 a.m. one day and assumed they had spent the night. However, other testimony revealed that the two had actually spent the night at Tina's home before going to Brewer's house that morning. All other testimony in favor of the allegation has either been rejected as not being credible or has been disregarded since it is based solely on hearsay and rumor.

      
      

   4. Robin is one year older than Tina and once lived in Forest Estates Drive. She also lived with Tina for a few months in 1984. To avoid honoring a subpoena compelling her attendance at this hearing, Robin temporarily left the State of Florida. However, over objection of respondent, her deposition was received in evidence as petitioner's exhibit 5. According to Robin's deposition, she and Tina visited Brewer's home when Robin was around fourteen or fifteen years of age and would drink beer given to them by Brewer. Claiming a lack of recollection, she was unable to give any other details concerning these incidents. Other allegations made by Robin were even more vague and distant. Tina's mother stated that around midnight one evening in 1985 she drove her car to Brewer's house (two doors away) to pick up Robin. Robin's statement as to why she needed a ride is either irrelevant to the charges or discredited. Robin's testimony was contradicted by Brewer who acknowledged that Robin and Tina came over a number of times in 1984 when Robin lived with Tina but only to watch cable TV. This testimony is accepted as being the most credible. It is accordingly found that at no time did Brewer ever offer or furnish alcoholic beverages to Robin or allow her to bring them into his home for consumption.

      
      

   5. Tina's many visits to Brewer's home are confirmed in the record. Indeed, she regularly visited Brewer's house from the time he moved into the neighborhood in 1978 through 1986. While Tina's mother permitted Tina and her friends to drink in her own home, testimony by Tina that she occasionally drank a beer or wine cooler at Brewer's home is rejected as not being credible.

      
      

5. Giving Money and Rides to Neighborhood Children

   
   

   1. It is alleged that Brewer "regularly loaned money to the neighborhood children and gave them rides to various locations in the vicinity." Much of the testimony relating to this allegation comes from Tina who had a reputation for approaching any and all neighbors for "loans" or "rides." Indeed, practically every neighbor was aware of Tina's habits, and each had been approached by her for favors at one time or another. The other "neighborhood children" are not

      identified in the petition, but Brewer acknowledged that he occasionally transported not only Tina but also some of her friends. Except for Brewer's voluntary admission that he gave approximately $20 to Kim, a friend of Tina, during the last year, there is no evidence of any other "neighborhood children" receiving loans from Brewer. As to Kim, she is not a resident of the neighborhood, and her age and address are unknown.

      
      

   2. Brewer readily acknowledged that during recent years, he occasionally gave Tina a few dollars and bought her meals since he felt sorry for her, and she always appeared to be hungry and broke. Prior to that, he had also given her money for odd jobs around his house. He readily acknowledged that he gave her rides to or from various places since she had no transportation. This was because her mother refused to provide transportation once she dropped out of school. There were no sinister motives in providing this assistance since he thought of her as a daughter who had a very troubled childhood. Finally, while the mothers of both Tina and Robin disapproved of Brewer and instructed their daughters not to see him, they knew what Brewer was doing but never personally told Brewer to stop allowing their daughters into his home or, in the case of Tina, to stop giving her rides or occasional financial assistance.

      
      

6. Using Profanity in the Presence of a Minor

   
   

   1. The amended complaint alleges that Brewer used profanity in the presence of a minor and engaged in "other inappropriate conversation." This charge stems from a visit by Tina to Brewer's home in June, 1987. Tina admitted that Brewer never used profanity in her presence prior to that visit. However, by June 25, 1987 Brewer had been charged with a misdemeanor and was extremely upset at Tina, who was responsible in part for police filing charges against him after the January 1, 1987 On incident.

      
      

   2. June 25 Tina briefly visited Brewer's home where the two discussed the criminal charges. Tina was told by Brewer that their conversation was being taped. A transcription of the conversation has been received in evidence as petitioner's exhibit 4. Brewer proceeded to question Tina about the January 1 incident. During the course of the conversation Brewer used the words "bullshit," "dammit," "damn," and "shit." However, Tina was then an adult (eighteen years of age) and was not a student since, according to her mother, she had not "officially" attended school since she was thirteen.

      
      

7. Miscellaneous

1. Despite Tina's continued truancy from school, Brewer attempted to persuade Tina to stay in school and to obtain an education. However, if he spoke with her for any length of time on this subject, she would simply leave the room. She ignored all of his advice.

   
   

2. Tina was observed driving Brewer's car around the block on one occasion when she was fifteen years old which was prior to her receiving a driver's license. However, it was done without Brewer's knowledge and consent.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

4. Because the Board intends only to dismiss Brewer as an employee, and the revocation of his professional license is not at stake, the Board must prove the allegations in the amended petition by the preponderance of evidence. Cf. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987) (where professional license subject to revocation, agency must prove its allegations by clear and convincing evidence)

   
   

5. In the amended petition, the Board contends that Brewer's conduct constituted misconduct in office, acts of immorality involving moral turpitude and personal conduct which seriously reduced his effectiveness as a Board employee within the meaning of Section 231.36, Florida Statutes (1987). In addition, the Board contends that Brewer violated Rule 6B-1.01, Florida Administrative Code (1987) by failing to achieve and sustain the highest degree of ethical conduct and Rule 6B-1.06(3)(a), (e) and (h), Florida Administrative Code (1987) by failing to make a reasonable effort to protect students from conditions harmful to learning or to health and safety, exposing a student to unnecessary embarrassment and disparagement, and exploiting a professional relationship with students for personal gain or advantage.

   
   

6. At hearing petitioner attempted to introduce evidence concerning other alleged improprieties that it uncovered after the amended petition had been filed. Its request was denied on the grounds the injection of new issues was untimely and would deprive respondent of the opportunity to adequately counter those newly raised charges. In its post-hearing filing, petitioner argues that the exclusion of this testimony constituted error since "similar fact" evidence that is probative of a common design or of motive is admissible under Subsection 90.404(2), Florida Statutes (1987). Further, it argues that, under relevant criminal law principles, collateral act evidence demonstrating similarities between the charged sex crime and the collateral act is admissible to demonstrate a sufficiently unique modus operandi. Taking the last contention first, it is doubtful if the criminal rule concerning modus operandi evidence applies to administrative proceedings. Cf. Fla. Dept. of Law Enforcement v. Duke, 484 So.2d 645 (Fla. 4th DCA 1986) (administrative proceeding not a criminal trial). Secondly, Brewer has not been charged with a "sexual crime" thereby bringing into play the suggested concept. Rather, respondent is charged with misconduct" and "immorality" which are underpinned in part by allegations that he received a back rub and requested a sexual favor from a young female.

   As to the contention that the proffered evidence is "similar fact" in nature and is therefore admissible, long established notions of fair play and due process still require that a licensee be given notice of intent to offer such evidence where, as here, the individual's job is at stake. Such notice could have come in the form of a second amendment to the petition, or less preferably, by timely written communication to the licensee prior to the hearing. In this case, neither step was taken, and the new matters were first injected into the proceeding at final hearing under the guise of being proof of a common design or motive on the part of respondent. Because no proper notice was given, and the new matters are highly prejudicial, the ruling is reaffirmed. 1/

   
   

7. Petitioner also suggests that a teacher must maintain a higher standard of conduct than other employees. This principle was, of course, established judicially in Adams v. State Professional Practices Commission, 406 So.2d 1170 (Fla. 1st DCA 1981). However, Adams dealt, inter alia, with the question of whether a teacher's standard of conduct was the same or higher than that of a realtor. Finding a teacher's societal demands to be greater than for a realtor, the court found possession of marijuana by a teacher (but not by a realtor) to be a sufficient basis to revoke his license. Petitioner goes a step further and suggests that Brewer not only had to refrain from all misconduct,

   but he also had an obligation to take affirmative steps while off-campus, such as preventing the neighborhood children from dropping out of school or volunteering to assist them with their homework. The imposition of such a duty is not founded in law, and it is concluded that Brewer had only an obligation to refrain from any acts which might constitute a violation of statute or state rules.

   
   

8. The first charge concerns the notoriety surrounding respondent's arrest. The evidence reflects that respondent's arrest and subsequent trial received widespread media coverage in the West Palm Beach area. There was also testimony by the Superintendent that Brewer's effectiveness as a teacher has been seriously impaired by virtue of this notoriety. Petitioner contends that "respondent's acquittal of the criminal charge is not dispositive of the issues in this case," and that he may be discharged because of his proven misconduct. While this statement is not incorrect, the principles espoused in Baker v. School Board of Marion County, 450 So.2d 1194 (Fla. 5th DCA 1984) bear repeating since it is on all fours with this proceeding. In Baker, the teacher has been arrested and later acquitted for possession of marijuana. Despite his acquittal, the school board saw fit to discharge him on the ground the notoriety of his arrest had impaired his effectiveness as a teacher. In reversing the board's decision, the court held in part:

   
   

   While it is true that the school principal testified as to the impairment of Baker's teaching effectiveness, we must reject this argument, otherwise whenever a teacher is accused of a crime and is subsequently exonerated with no evidence being presented to tie the teacher to the crime, the school board could, nevertheless, dismiss the teacher because the attendant publicity has impaired the teacher's effectiveness. Such a rule would be improper. (citation omitted) Id. at 1195.

   
   

   Under the foregoing rationale, the notoriety surrounding the arrest of a teacher cannot alone serve as a basis for dismissing that teacher if he is later acquitted. To support any disciplinary action, the school board must present independent proof that the licensee violated some statute or rule. Put another way, the Board is obligated here, as in any disciplinary case, to substantiate those allegations that would justify the teacher's dismissal. Therefore, in view of respondent's acquittal, the notoriety surrounding his arrest is not a ground for disciplinary action.

   
   

9. The remaining allegations must stand or fall principally on the credibility of the witnesses. As frequently happens, the evidence surrounding the allegations is sharply conflicting. However, the undersigned concludes that respondent's testimony is the more credible and persuasive. In reaching this conclusion, the undersigned has discredited the testimony of Angie and Tina, both of whom have a reputation for untruthfulness, and who both gave conflicting and vague accounts of what happened. Indeed, it affirmatively appears that, in many respects, Tina gave one account of the events in her deposition and police interviews and a different account of facts in this proceeding. She would not concede she was untruthful or mistaken on either occasion. Besides being evasive, both girls claimed faulty memories on many facts, and because of this, would not answer pertinent questions propounded by counsel. Finally, the undersigned has noted conflicts between the testimony of Angie and Tina. All of

   these factors bore adversely on their credibility. As to the remaining prosecution witnesses, much of their testimony is based upon information given to them by Tina, Angie or other third parties and is therefore tainted. Their remaining testimony is deemed to be either not credible or of lesser quality and weight than the evidence submitted by respondent. With this in mind, the individual charges will be examined.

   
   

10. It is alleged that on January 1, 1987 Brewer plied Angie and Tina with liquor, requested and received back rubs from the two girls and solicited sex from the younger one. Finding that the testimony of Angie and Tina is discredited and that the testimony of Brewer is accepted, it is concluded that there is insufficient evidence to substantiate this charge. Therefore, this portion of the petition must fail in its entirety.

    
    

11. It is alleged further that Brewer regularly loaned money and gave rides to neighborhood children. The evidence reflects that, with the exception of Tina, Brewer did not loan or give money to neighborhood children. 2/ Further, with the exception of Tina and occasionally a friend, Brewer gave no neighborhood children rides. However, to this extent, the allegation has been established.

    
    

12. It is next alleged that Brewer permitted unchaperoned males and females in the neighborhood, all under the age of eighteen, to regularly visit his home for the last nine years where they were allowed to drink alcoholic beverages. The more credible evidence belies the charge that respondent provided alcoholic beverages to minors or permitted minors to consume the same at his house. The evidence does show, however, that respondent regularly permitted Tina to visit his home to use his telephone or watch television and that she was occasionally accompanied by a friend.

    
    

13. Lastly, it is alleged that on June 25, 1987 Brewer used profanity and other "inappropriate" language in the presence of a minor (Tina). Petitioner's exhibit 5 and Brewer's admissions substantiate the use of profanity by Brewer on that occasion, and it is concluded that, to this extent, the allegation has been proven.

    
    

14. The next task is to determine whether the proven conduct equates to a violation of the cited statute or rules. Only portions of three allegations have been established. These include a showing that Tina, occasionally accompanied by a friend, visited Brewer's home, that Brewer sometimes provided transportation and small amounts of money to Tina and that occasional rides were also given to her friends, and that Brewer used profanity in Tina's presence in June, 1987. As to the latter charge, it is noted that Tina was eighteen years old when the conversation occurred, and by law (s. 743.07, F.S.) her disability of nonage had been removed. Further, she had long since dropped out of school. Since the conversation occurred in the privacy of respondent's home, and involved an adult non-student, it is concluded that no violation of any rule or statute occurred. Next, it was established that Brewer occasionally gave small amounts of money to Tina and sometimes provided her and a friend with transportation Petitioner suggests that taking young females of school age alone in his car and giving them money "could be grounds for discipline." Even so, the board cites no rule or statute that has been broken and characterizes these actions as constituting "extremely poor judgment" on the part of respondent and being the type of conduct that invites charges of impropriety. However, poor judgment alone is insufficient to establish a violation. Since the conduct does not equate to immorality or misconduct, this charge must fail. Finally, Brewer permitted Tina, with an occasional friend, to regularly visit his home. While

this conduct may have constituted, to use the words of the Board, "extremely poor judgment" on respondent's part, it did not violate any statute or rule. Therefore, the amended petition should be dismissed with prejudice and respondent should be reinstated as an employee.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended petition for dismissal filed against

respondent be dismissed, with prejudice, and that respondent be reinstated retroactive to November 17, 1987 with all attendant back pay.

DONE AND ORDERED this 5th day of July, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 5th day of July, 1988.

ENDNOTES

1/ The fact that the matters were first broached during a deposition is immaterial since respondent was not formally notified that the Board intended to raise the newly discovered matters as a part of its case-in-chief.

2/ It was not shown how old Kim was or where she resided. She was the only other person to receive money ($20) from Brewer.

APPENDIX

Petitioner:

1. Rejected as unnecessary.

2-3. Covered in finding of fact 1. 4-5. Covered in finding of fact 3. 6-7. Covered in finding of fact 5.

1. Partially covered in finding of fact 16. The last sentence is rejected as not being credible.

2. Partially covered in findings of fact 23 and 24 to the extent the findings are consistent with the more credible evidence.

3. Covered in finding of fact 18.

4. Covered in findings of fact 16 and 21.

5. Covered in finding of fact 25.

6. Partially covered in findings of fact 16 and 18. The remaining findings have been rejected as not being credible.

7. Partially covered in finding of fact 17 to the extent the findings are consistent with the more credible evidence.

8. Covered in finding of fact 5 to the extent it is relevant.

9. Partially covered in finding of fact 21. The remainder is subordinate to other findings.

10. Partially covered in finding of fact 18 to the extent the same is relevant.

11. Covered in finding of fact 3.

12. Covered in finding of fact 16.

13. Rejected as being subordinate to finding of fact 21.

14. Rejected as irrelevant.

15. Covered in finding of fact 17.

23-24. Covered in finding of fact fact 16.

1. Partially covered in finding of fact 17. The remainder has been rejected as not being credible.

2. Covered in finding of fact 19.

3. Covered in finding of fact 17 to the extent the same is relevant.

4. Covered in finding of fact 20.

5. Covered in findings of fact 9 and 10. 30-37. Rejected as not being credible.

1. Partially covered in finding of fact 13 except that Deputy Peck asked Angie and a male friend to leave the neighborhood.

2. Covered in findings of fact 12 and 13 to the extent the proposed findings conform with the more credible evidence.

40-41. Covered in finding of fact 7.

1. Covered in findings of fact 22 and 23.

2. Covered in finding of fact 7.

3. Covered in finding of fact 6.

4. Covered in finding of fact 6 and 7 46-48. Covered in finding of fact 8.

49. Rejected as irrelevant.

Respondent:

1-2. Covered in finding of fact 1.

1. Covered in finding of fact 7.

2. Covered in findings of fact 6 and 7.

3. Covered in finding of fact 7.

4. Covered in finding of fact 4.

5. Covered in finding of fact 2. 8-9. Rejected as irrelevant.

10. Covered in findings of fact 5 and 23. 11-13. Covered in finding of fact 5.

14-15. Covered in finding of fact 21.

16. Covered in finding of fact 25.

17-18. Covered in finding of fact 21.

1. Covered in finding of fact 16.

2. Covered in finding of fact 21.

3. Rejected as unnecessary.

4. Covered in finding of fact 21.

5. Covered in finding of fact 9.

24-25. Covered in finding of fact 20.

1. Rejected as unnecessary.

2. Covered in finding of fact 17.

3. Covered in findings of fact 22 and 23.

4. Covered in finding of fact i5.

5. Covered in finding of fact 20.

6. Covered in finding of fact 5.

7. Covered in finding of fact 9.

8. Covered in finding of fact 19.

9. Rejected as unnecessary.

10. Covered in finding of fact 9.

11. Covered in finding of fact 10.

12. Covered in finding of fact 11 and conclusion of law 7. 38-50. Covered in findings of fact 10-14.

COPIES FURNISHED:

Abbey G. Hairston, Esquire Post Office Box 24690

West Palm Beach, Florida 33416-4690

Sally C. Gertz, Esquire

208 West Pensacola Street Tallahassee, Florida 32301

Robert C. Fallon, Esquire

325 Clematis Street Suite B

West Palm Beach, Florida 33401

Thomas J. Mills, Superintendent Palm Beach County School Board Post Office Box 24690

West Palm Beach, Florida 33416-4690

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Docket for Case No: 87-005411

Orders for Case No: 87-005411