STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4900

)

SERGIO M. PEREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case on January 8, 1993, at Miami, Florida. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134 For Respondent: No Appearance

STATEMENT OF THE ISSUES

This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on grounds that the Respondent, an annual teacher, has engaged in conduct which constitutes immorality, moral turpitude, and/or violation of the Petitioner's rules.

PRELIMINARY STATEMENT

The formal hearing in this case was noticed to begin at 9:00 a.m. As a result of the Respondent's failure to appear, the Hearing Officer waited until 9:30 a.m. to commence the hearing. At the formal hearing the Petitioner presented the testimony of three witnesses. The Petitioner also offered three documentary exhibits, all of which were received in evidence. At the conclusion of the formal hearing the parties were allowed 10 days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on February 4, 1993. The Petitioner filed a proposed recommended order on February 16, 1993.

As of the date of this Recommended Order, the Respondent has not filed any post- hearing document. The findings of fact proposed by the Petitioner are addressed with specificity in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Sergio M. Perez, was employed by Petitioner as a teacher within the School District of Dade County, Florida, assigned to Norland Middle School, pursuant to an annual contract.

   
   

2. On or about July 15, 1991, at approximately 1:00 a.m., the Respondent was outdoors on a public beach performing fellatio on another adult male and then allowing the adult male to perform fellatio on the Respondent. During the course of such activity, the Respondent exposed his sexual organs in a public place. These two incidents of public oral sexual activity and public exposure of sexual organs, were observed by two undercover police officers of the City of Miami Beach. The Respondent and his partner-in-crime were arrested by the police officers. The Respondent was charged with exposure of sexual organs, in violation of Section 800.02, Florida Statutes (1991), and with committing an unnatural act, in violation of Section 800.03, Florida Statutes (1991).

   
   

3. In a related license discipline proceeding before the Education Practices Commission of the State of Florida, EPC Case No. 92-003-RT, it was determined, inter alia, that the Respondent was guilty of gross immorality or of an act involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes (1993).

   
   

4. The facts surrounding the Respondent's sex related activity, including a police arrest and the determination by the Florida Education Practices Commission that he was guilty of gross immorality or an act involving moral turpitude, became known to school administrators, other teachers, clerical workers, and other government agencies.

   
   

5. In the opinion of the expert witness called by the Petitioner, the Respondent's conduct on the beach was inconsistent with the public conscience and with good morals, and, when taken together with the notoriety that accompanied the incident, met the regulatory definition of immorality as set forth in Rule 6B-4.009(2), Florida Administrative Code, and further provided just cause and grounds for termination of Respondent's employment under Section 231.36, Florida Statutes. The expert witness called by the Petitioner was also of the opinion that the vileness of the Respondent's conduct constituted moral turpitude as defined in Rule 6B-4.009(6), Florida Administrative Code, and also constituted just cause and grounds for the termination of Respondent's employment pursuant to Section 231.36, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 231.36, Florida Statutes, provides for the dismissal for an annual contract teacher during the term of the contract for "just cause" as follows:

   
   

   (1)(a) . . . Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

8. Section 231.02, Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. To be eligible for appointment in any position in any district school system, a person shall be of good moral character;. . .

      
      

9. Petitioner alleged in Count I of the Notice of Specific Charges that Respondent's conduct constituted immorality. Rule 6B-4.009(2), Florida Administrative Code, defines the term "immorality" as follows:

   
   

   (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

   
   

10. The Respondent's conduct in this case constitutes "immorality" as that term is defined in Rule 6B-4.009(2), Florida Administrative Code. Accordingly, such conduct demonstrates a lack of the good moral character required by Section 231.02, Florida Statutes, and constitutes just cause for dismissal pursuant to Section 231.36(1)(a), Florida Statutes.

    
    

11. Count II of the Notice of Specific Charges alleges that the Respondent should also be dismissed on the basis of "conviction of a crime involving moral turpitude." The crimes with which the Respondent was charged appear to be crimes involving moral turpitude, but the evidence in this case is insufficient to prove that the Respondent was convicted of any crime. Accordingly, Count II should be dismissed for failure of proof.

    
    

12. Count III of the Notice of Specific Charges alleges that the Respondent should also be dismissed on the basis of violation of School Board rules regarding misconduct and conduct unbecoming a School Board employee. This count must also be dismissed for failure of proof, because the record in this case is insufficient to establish the specific requirements of the rules that were allegedly violated. The School Board's rules were not offered in evidence and, unlike rules published in the Florida Administrative Code, the School Board's rules are inappropriate subjects for official recognition absent inclusion of a copy of the subject rules in the record of the proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a Final Order in this case to the following effect:

1. Dismissing the charges alleged in Counts II and III of the Notice of Specific Charges for failure of proof;

   
   

2. Concluding that the Respondent is guilty of the violation alleged in Count I of the Notice of Specific Charges; and

   
   

3. Sustaining the Respondent's suspension and dismissing him from his employment with the School Board of Dade County.

DONE AND ENTERED this 1st day of June, 1993, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 1st day of June, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4900

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed Findings submitted by Petitioner:

Except as specifically noted below, all proposed findings submitted by the Petitioner have been accepted in substance.

Paragraph 3: The evidence is insufficient to establish the facts alleged in this paragraph.

Paragraph 6: Omitted as subordinate and unnecessary details. Proposed Findings submitted by Respondent:

(None submitted.)

COPIES FURNISHED:

James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

Mr. Sergio M. Perez

5825 West 25th Court, #301

Hialeah, Florida 33016

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue Miami, Florida 33132

Madelyn P. Schere, Esquire Assistant School Board Attorney

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33122

Honorable Betty Castor Commissioner of Education The Capitol

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 ten 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: 92-004900

Orders for Case No: 92-004900