STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0676

)

PAUL W. LANE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 21, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Alcee L. Hastings, Esquire

1055 Northwest 183rd Street Miami, Florida 33169

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated December 20, 1990, petitioner charged that respondent, the holder of a Florida teaching certificate, had, during the course of the 1989-90 school year, inappropriately touched and made sexually explicit comments to several of his female students. As a consequence, petitioner contended that respondent violated the provisions of Sections 231.28(1)(c), (f), and (h), Florida Statutes, and Rules 6B-1.006(3)(a), (e), and (h), Florida Administrative Code. Respondent filed an election of rights form which disputed the allegations of the administrative complaint, and requested a formal hearing. Consistent with such election, petitioner referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called as witnesses: Ronald Wright, Chantalle Habersham, Marilyn Gonzales, Catherine Illiano, and Debi Keefe. Petitioner offered no exhibits. Respondent testified on his own behalf, and called Jack McCoy and Johnny Alexander, as witnesses. Respondent's exhibit 1 was received into evidence.

The transcript of hearing was filed June 21, 1991, and the parties were granted leave, at their request, until July 11, 1991, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I- 6.031, Florida Administrative Code. Petitioner elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Paul W. Lane, holds teacher's certificate number 323312, issued by the Florida Department of Education, covering the area of substitute teaching. Such certificate is valid through June 30, 1993.

   
   

2. Pertinent to this case, respondent was on a list of authorized substitute teachers in the Broward County School District, and during the 1989-

   90 school year he was assigned as a substitute teacher at Plantation Middle School.

   
   

3. In May 1990, a complaint was lodged with school authorities by one of respondent's students, Debi Keefe, regarding respondent's conduct. Following investigation, respondent was removed from the list of approved substitute teachers for the Broward County School District. 1/

   
   

4. Regarding the complaint lodged by Debi Keefe (Debi), the proof demonstrates that during the course of the 1989-90 school year, she was an eighth grade student at Plantation Middle School and was occasionally assigned to respondent's internal suspension class (ISC). On or about May 10, 1990, she was informed by a member of the faculty that he was going to return her to respondent's ISC, at which time Debi objected and accused respondent of various acts of misconduct which she contended occurred while previously assigned to his ISC.

   
   

5. The acts of misconduct voiced by Debi, that were identified at hearing, were essentially four in number. First, she testified that when she wore her bicycle shorts to school, respondent would tell her to lift her shirt so he could see her "fat thing" (vagina). Second, when, following respondent's inquiry as to where she would be going for spring break, and Debi informing him that she would be at the beach, respondent stated that if she did "they could do it in [the] car". Third, upon becoming aware that Debi was dating her friend's cousin, respondent stated "I hope he fucks you so he makes you scream."

   Finally, Debi testified that on one occasion during ISC, respondent grabbed her on the leg, and she pushed his hand away. Regarding the later allegation, Debi had no recollection of the circumstances surrounding the event, and no conclusion can be drawn regarding the propriety of respondent's action in grabbing Debi's leg from the paucity of proof.

   
   

6. According to Debi, she at first thought respondent's remarks to be a joke, but because they had continued, she elected to make her disclosure when faced with reassignment to his ISC. She was not really scared or embarrassed by respondent's remarks, but they did make her feel uncomfortable.

7. Following Debi's revelations to the authorities at Plantation Middle School, an investigation was undertaken which included interviews with other students who had been in respondent's classes that school year. During the course of that investigation, three other students revealed what they felt was objectionable conduct by respondent. Those three students, Chantalle Habersham, Marilyn Gonzales, and Catherine Illiano testified at hearing as to the events which follow.

   
   

8. Chantalle Habersham (Chantalle) was a seventh grade student in respondent's drop out prevention class for the 1989-90 school year. On Chantalle's fourteenth birthday, in May 1990, respondent announced that, following the end of class, he was going to give Chantalle some birthday "licks" (spanks), thereafter took her over his knee, and gave her fourteen licks across her buttocks. According to Chantalle, each time respondent gave her a lick, he rubbed his hand across her buttocks, but she declined to characterize such contact as a caress. At the time, Chantalle was wearing slacks and the spanking occurred in front of approximately four other students. Although embarrassed by the incident, it did not really scare Chantalle or make her angry. Nor was Chantalle's birthday spanking the first of such events in respondent's class. Rather, such had become a ritual or game, although perhaps ill advised, during the course of the year.

   
   

9. Chantalle further testified regarding a spelling test where respondent used the word "saliva" in a sentence to demonstrate its meaning to the class. According to Chantalle, the sentence selected by respondent was as follows: "When I kiss Chantalle, saliva ran out my mouth". Chantalle did not, at the time, interpret respondent's statement to be a sexual or intimate reference on his part, but did find it embarrassing.

   
   

10. Marilyn Gonzales (Marilyn) was a seventh grade student in respondent's language arts class, during the 1989-90 school year and also participated in track, where respondent was her coach. According to Marilyn, on one occasion during the school year she experienced a cramp in her thigh while running and respondent offered his assistance to alleviate the problem. While rubbing her thigh to isolate the area where the pain was located, Marilyn says that respondent "touched [her] vagina" once. Marilyn further testified that respondent, on another occasion, "touched [her] butt". On each of these occasions Marilyn was wearing shorts, and respondent did not then, nor did he ever, make any sexually suggestive remarks toward her.

    
    

11. Regarding Marilyn's allegations of "touching," the record is devoid of any specificity as to the manner in which respondent "touched" Marilyn's vagina on one occasion and the manner in which or the circumstances surrounding the one occasion on which he "touched" her buttocks. Under such circumstances, the proof is as susceptible of demonstrating accidental contact, as it is an improper touching on respondent's part.

    
    

12. Finally, Marilyn testified regarding an event that occurred in respondent's ISC while she and Chantalle were passing out papers. According to Marilyn, she and Chantalle were discussing, in respondent's presence, Marilyn's sister, who was single and pregnant with her second child. During the course of that conversation, respondent was attributed with saying something to the effect that, "if a girl lay down and spread her legs something would happen." Such statement was not, however, shown to be a sexually suggestive remark, nor was it so taken by Marilyn. Rather, considering the context in which it was uttered, such remark was, as likely as not, intended to evoke caution least the girls find themselves in the same predicament as Marilyn's sister.

13. Catherine Illiano (Catherine) was an eighth grade student at Plantation Middle School during the 1989-90 school year and participated in after school athletics, discus and shot put, for which respondent was the coach. According to Catherine, on one such afternoon she and Marilyn Gonzales, along with the other girls who were participating in shot put and discus, were gathered, and respondent stated to Marilyn that "he liked her big titties", and then turned to Catherine and stated "don't worry, I like little ones too."

    While such statements were certainly improper, the circumstances surrounding such remarks were not adequately explicated at hearing to demonstrate baseness or depravity.

    
    

14. Finally, Catherine also testified that on another afternoon respondent stated to her that her "father wouldn't like it if [she] had a black hand across [her] ass". When asked why respondent made such a statement, Catherine answered:

    
    

    I don't know. We were just talking about the shot put and we were all playing around and he bursted out with that.

    
    

    While the circumstances surrounding the incident are sparse, they suggest, as likely as not, that respondent's statement was intended as a reproach for Catherine's disruptive conduct at the time, rather than for any improper motivation.

    
    

15. Contrasted with the recollections of Debi, Chantalle, Marilyn and Catherine, respondent testified that, but for the birthday spanking of Chantalle, which did occur, and his current lack of recollection regarding the statement made by him during the spelling test, that the remaining statements or conduct attributed to him by the other students did not occur.

    
    

16. Considering the proof offered in this case, with due deference to the standard of proof applicable to these proceedings, discussed infra, compels the conclusion that respondent was not shown to have committed any improper or immoral act when he touched Debi and Marilyn, and was not shown to have committed an improper or immoral act when he spanked Chantalle on her birthday. Such conduct was also not shown to seriously reduce respondent's effectiveness as an employee of the District, or to constitute the intentional exposure of a student to unnecessary embarrassment or the exploitation of a professional relationship for personal gain or advantage. 2/

    
    

17. Regarding the remarks attributed to respondent by Debi, Chantalle, Marilyn, and Catherine, the proof in this case is compelling that respondent did utter such remarks. The remarks uttered to Debi, a fourteen-year-old girl at the time, were base, exposed her to unnecessary disparagement, and seriously reduced respondent's effectiveness as an employee of the District. The remarks uttered to Chantalle, Marilyn and Catherine, while not shown to be of such inherent baseness as to rise to the level of gross immorality, were nevertheless improper and, to varying degrees, demonstrated respondent's failure to fulfill his duty of providing leadership and effectiveness as a teacher.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1) and 231.262(5), Florida Statutes.

19. In a case of this nature, the petitioner bears the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to

    the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds, at page 958, the following:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance

    of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v.

    Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

20. Pertinent to this case, petitioner charges that respondent's conduct violated the provisions of Sections 231.28(1)(c), (f), and (h), Florida Statutes, and Rules 6B-1.006(3)(a), (e), and (h) Florida Administrative Code. Section 231.28, Florida Statutes, provides:

    
    

    1. The Education Practices Commission shall

       have authority to suspend the teaching certificate of any person as defined in s.228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return

       to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement

       subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       
       

       (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.

       
       

       And, Rule 6B-1.006, Florida Administrative Code, provides:

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.

       
       

    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 or safety.

          
          

          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparage-ment.

          
          

          (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

21. The Supreme Court of Florida has defined moral turpitude: Moral turpitude [or synonymously, "gross immorality"

    as that term is also used in the subject statute]

    involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often

    involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

    State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933).

    
    

22. The moral standard to be upheld must be viewed in context with the profession at issue. See Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Teachers, "charged by Section 231.09 and 231.28(1) with providing leadership and maintaining effectiveness as teachers . . . are traditionally held to a high moral standard in a community." Adams, supra, at page 1172.

    
    

23. Applying the foregoing standards to the facts of this case, it is found that respondent's conduct violated the provisions of Sections 231.28(1)(c), (f), and (h), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code. Respondent's conduct was not, however, shown to violate the provisions of Rule 6B-1.006(3)(a) and (h), Florid Administrative Code.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be rendered which permanently revokes

respondent's teaching certificate.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of August 1991.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August 1991.

ENDNOTES

1/ No adverse inference can be drawn from the Broward County School District's decision to remove respondent from the list of authorized substitute teachers, since such decision was based solely upon an investigative report which is not of record in these proceedings and because the respondent was not accorded an opportunity to provide proof or otherwise question the investigative report considered by the District.

2/ Here, the proof failed to demonstrate that the spanking of Chantalle was sexual in nature or otherwise exceeded the bounds of propriety. Notably, petitioner offered no proof that such physical contact with a student was contrary to any existing policy or law, or that by engaging in such conduct respondent fell below any established professional standards.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-0676

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraph 2.

3-8. Addressed in paragraphs 3, 7, and 17, otherwise rejected as subordinate or not persuasive.

9-12. Addressed in paragraphs 8, 9 and 16.

13-18. Addressed in paragraphs 10-12 and 16.

19-21. Addressed in paragraphs 13, 14 and 16.

22-26. Addressed in paragraphs 3-6 and 16.

1. Subordinate

2. Addressed in paragraph 3.

3. Addressed in paragraph 8, otherwise rejected as subordinate or not persuasive.

30 & 31. Rejected as not shown to be relevant since there was no showing of any such school board policy.

32. Rejected as subordinate.

Copies furnished:

Alcee Hastings, Esquire 1055 Northwest 183rd Street Miami, Florida 33169

Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

George A. Bowen

Acting Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000676

Orders for Case No: 91-000676