STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1925

)

GEORGE HERSHEL ALLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings in Jacksonville, Florida.

APPEARANCES

For Petitioner: Lane Burnett, Esquire

331 E. Union Street Jacksonville, Florida 32202

For Respondent: Homer C. Bliss, Esquire

503 E. Monroe Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent, George Hershel Allen, should suffer revocation of his teaching certificate or other sanction authorized in the pertinent provisions of Chapter 231, Florida Statutes, if it be proven that he committed the misconduct alleged in the Administrative Complaint filed in this proceeding. Specifically it must be determined whether the Respondent violated Section 231.28(1)(c) and (f), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint by the Petitioner agency against the Respondent seeking revocation of his teaching certificate. In essence it is alleged that during the period of 1985-1987, while the Respondent was a teacher in the Duval County School system that he fondled his stepdaughter by touching her genital area over and under her clothing as well as attempting intercourse with her. The Respondent allegedly was arrested on March 27, 1990 in Jacksonville, Florida and charged with lewd and lascivious assault on a minor. On or about April 24, 1990 the Respondent entered into a pre-trial intervention program whereby prosecution of the case was deferred for a period of 24 months while he met certain terms and conditions of probation. The Respondent successfully completed that program and ultimately an order sealing his criminal record was signed by Circuit Judge John Southwood on May 10, 1991.

The Respondent holds teaching certificate number 576534 which was valid through June 30, 1991. Subsequent to that date he has not applied for a renewal of that license nor has he requested employment with the Duval County School Board.

Pursuant to Section 231.262(1)(a), Florida Statutes the Petitioner is prosecuting the Administrative Complaint even though the teaching certificate has expired since the acts involved in the allegations of the complaint were committed while the Respondent possessed a valid teaching certificate and this statutory provision thus permits this action even after expiration of the certificate.

The cause came on for hearing as noticed. At the hearing the Respondent's former wife, the mother of the child who allegedly was the victim of Respondent's advances, testified against the Respondent. After lengthy testimony on direct and cross-examination and the introduction of four exhibits on behalf of the Petitioner (with exhibits 3 and 4 being omitted only on a limited basis as announced on the record), a recess was called. Subsequent to the recess the parties elected to enter into a negotiated settlement of their disputes and advised the Hearing Officer that they would submit a stipulation of facts within ten days for incorporation into a Recommended Order. Thereupon the hearing was concluded. The following Findings of Fact are entered based upon that joint stipulation of fact submitted by the parties.

FINDINGS OF FACT

During the course of the hearing, the Petitioner, Betty Castor as Commissioner of Education and the Respondent George Hershel Allen, by and through their attorneys stipulated and agreed as follows, in resolution of all disputes between those parties.

1. The Respondent George Hershel Allen holds Florida teaching certificate number 576534, issued on November 4, 1986, by the Florida Department of Education, covering the area of elementary education.

   
   

2. The Respondent George Hershel Allen, was employed as a teacher in the Duval County School District.

   
   

3. On or about February 25, 1991, the Commissioner of Education filed an Administrative Complaint against the Respondent, a copy of which is attached to the stipulation of facts and incorporated by reference in this Recommended Order, alleging violations of Florida Statutes, Section 231.28(1)(c) and (f).

   
   

4. By this stipulation, the Respondent revokes his answer to the Administrative Complaint and elects not to contest any allegation of the Administrative Complaint. The Respondent admits to the violations alleged in paragraphs 2, 3, 5.

   
   

5. The parties agreed to the following:

   
   

   1. Respondent's teaching certificate is revoked for a ten year period beginning on the date the Education Practices Commission enters its final order.

   2. During the tenth year or subsequently, the Respondent shall engage in counseling with a licensed psychiatrist or psychologist and shall receive

      treatment as necessary in order for him to return to the classroom. Upon completion of treatment the psychologist or psychiatrist must provide written verification that the Respondent is capable of assuming all responsibilities of an educator. The Education Practices Commission reserves the right to get a second opinion from a licensed psychologist or psychiatrist and the defendant will make him available and cooperate if asked to do so.

   3. Upon reemployment with any Florida School District, the Respondent shall be placed on three years probation. During the period of his probation, the Respondent agrees to arrange for his immediate supervisor to monitor his performance and prepare quarterly reports to the Education Practices Commission concerning his performance on forms to be provided by the Education Practices Commission. The report shall state whether or not any problems similar to those described in the Administrative Complaint have occurred.

      
      

6. The Respondent agreed to the stipulation and acknowledged that copies of the Administrative Complaint and the Joint Stipulation shall be placed in the Respondent's personnel certification files.

   
   

7. If illness or temporarily disability should prevent the Respondent from teaching in the probation period, any failure of the Respondent to obtain reports as to his performance will not cause him to be in violation of this agreement. However, the probation period shall be lengthened by the amount of time that the Respondent is so prevented from complying with this stipulation.

   
   

8. The parties agreed that the stipulation shall be submitted to the Education Practices Commission for its consideration and adoption as the Commission's final disposition of the Administrative Complaint against the Respondent.

   
   

9. The Commissioner and the Respondent understand that the Education Practices Commission has the discretion to reject the stipulation and order a full evidential hearing into the charges if, in its judgment, it deems such action as necessary or appropriate.

   
   

10. The Respondent acknowledged that he fully understands the provisions of the stipulation, the contents of the Administrative Complaint and his rights to an evidentiary on the allegations set forth in the Complaint. The Respondent acknowledged that he has received legal advice concerning the execution of the stipulation and that he is under no duress, coercion or undue influence in signing the stipulation. The Respondent requests that the Education Practices Commission accept and adopt the terms of the stipulation as its final disposition of this proceeding. If the Respondent fails to comply with the terms of the stipulation the Respondent agrees that the Education Practices Commission shall advise the Commissioner of Education of the non-compliance for the purpose of renewing the prosecution of the Administrative Complaint.

    
    

11. The above stipulation was freely entered into between the parties and they agreed that this matter remain a Section 120.57(1), Florida Statutes proceeding and that this stipulation of facts be incorporated into the Recommended Order as the Findings of Fact to be made in this proceeding.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. See Section 120.57(1), Florida Statutes.

RECOMMENDATION

Having considered the testimony of record and the stipulation of facts entered into by the parties, filed with the Hearing Officer and stipulated to be incorporated into the Recommended Order, the stipulation is accepted. That eventuality results in no disputed material fact remaining pending before the Hearing Officer and accordingly, it is therefore recommended that, based upon the stipulation of the parties, that jurisdiction of this matter be relinquished to the Petitioner agency named above.

RECOMMENDED this 3rd day of April, 1992, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1992.

COPIES FURNISHED:

Lane Burnett, Esquire

331 E. Union Street Jacksonville, FL 32202

Homer C. Bliss, Esquire

503 E. Monroe Street Jacksonville, FL 32202

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08 Tallahassee, FL 32399-0400

Karen Barr Wilde, Exec. Dir. Education Practices Commission

301 Fla. Eduation Center

325 W. Gaines Street Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Fla. Education Center

325 W. Gaines Street Tallahassee, FL 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. 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: 91-001925

Orders for Case No: 91-001925