STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education )

)

Petitioner, )

)

vs. ) CASE NO. 92-5336

)

DAVID LANGSTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly-designated Hearing Officer, Diane Cleavinger, on February 10 and 11, 1993, in Port St. Joe, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

BOND & BOYD, P.A.

411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302

For Respondent: David Brooks Kundin, Esquire

906 Thomasville Road Post Office Box 430

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

Whether the Education Practices Commission (EPC) should revoke or suspend the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Administrative Complaint dated June 9, 1992.

PRELIMINARY STATEMENT

On June 9, 1992, Petitioner filed an Administrative Complaint against the Respondent for allegedly violating Chapter 231, Florida Statutes, and Chapter 6B-1, Florida Administrative Code. Specifically, the agency alleged that Respondent's teaching certificate was subject to discipline for violating Section 231.28, Florida Statutes (1991), and Rule 6B-1.006, Florida

Administrative Code, in that the Respondent was guilty of gross immorality or an act involving moral turpitude, had been found guilty of personal conduct which seriously reduced his effectiveness as an employee of the school board, had violated the provisions of law or the rules of the State Board of Education (the penalty for which is the revocation of his teaching certificate), had failed to make a reasonable effort to protect students from conditions harmful to learning

or to their health and safety, had intentionally exposed students to unnecessary embarrassment or disparagement, and that the Respondent had exploited a professional relationship with a student for personal gain or advantage.

Respondent filed an Election of Rights on June 18, 1992, which denied all of the allegations of the Administrative Complaint, except for paragraphs 1 through 4, which were admitted, and requested a formal hearing in connection with the charges. The case was forwarded to the Division of Administrative Hearings (DOAH) for purposes of hearing.

At the hearing, the Petitioner presented the testimony of the following five (5) witnesses: Sabrina Marie Warren, Trabon Scott Gowan, Helen Ramsey, Antoine Allen, and Heavenly Ellen Bailey. Additionally, the Petitioner offered ten (10) exhibits into evidence. All the exhibits were marked and accepted into evidence except for Petitioner's Exhibits Nos. 8, 9 and 10. Petitioner's Exhibits Nos. 8, 9 and 10 were proffered by the Petitioner and marked for identification but were not admitted into evidence. The Respondent testified on his own behalf and presented the testimony of the following five witnesses: Martha Sanborn, Carolyn Rish, George Bryant, III, Rachel Smith Crews, and Yolanda Shamplain. Additionally, the Respondent offered two (2) exhibits into evidence. All of Respondent's exhibits were marked and accepted into evidence.

After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on April 2, 1993, and May 3, 1993, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Florida teaching certificate number 375765, covering the area of journalism. Petitioner's teaching certificate is valid through June 30, 1995.

   
   

2. The Respondent was employed by the Gulf County School District during the school years of 1983-1984, 1988-1989, 1989-1990 and 1990-91. During the 1983-1984 school year Respondent was employed by the District on a part-time basis as a physical education instructor at the Port St. Joe Elementary School. During the 1988-1991 school years the Respondent was employed by the District as an alternative education teacher at the Port St. Joe Junior/Senior High School.

   
   

3. The alternative education class was created to function as a dropout prevention program. The students who were placed in the alternative education program were placed in the program because the regular education system was failing them and because the students grades or attendance indicated that the student was likely to drop out of school. In general, these students lacked motivation, had poor attendance, poor attitudes and often came from homes with serious familial problems.

   
   

4. Mr. Langston did not receive any particular training to fulfill his role as the alternative education teacher. However, he felt that a program which included aspects of the discipline and self-motivation he learned from his college and pro basketball career would be beneficial to such alternative education students. Additionally, Respondent believed that the students would not benefit from having the nastier side of life outside school glossed over,

   but believed frank discussions of such things as well as using outside life examples and models would help motivate alternative education students to beat the odds and overcome life's obstacles. Mr. Langston also wanted to impart to each student that he was there for them. In that regard, Mr. Langston gave each student his telephone number and had each student give him their telephone number or a number where the student could be reached. Mr. Langston would use this information to contact any student who was missing too much school in order to ascertain why and to encourage him or her to return. To his credit, even though some may disagree with some of Mr. Langston's methods as not being politically correct, Mr. Langston was very successful with his alternative education students and caused them to stay in school and improve their grades.

   
   

5. During the 1990-91 school year at Port St. Joe Junior/Senior High School, the Respondent showed movies, such as "Die Hard", "Witness", "Platoon", and "Lean on Me". Some of the movies had themes of violence with explicit language. "Platoon" was about Vietnam and was shown during a time when the class was studying about Vietnam. "Lean On Me" was a movie about students who were similarly situated to Respondent's students and the favorable relationship they developed with the principal of the school. Both movies had educational value. The movies were generally shown for either entertainment or education as part of the class' reward system known as "recreation time". Occasionally, Respondent would also allow the students in his class to turn the television on during recreation time or other class breaks. Sometimes, during these breaks, the students elected to watch the soap operas on the television. Again these breaks were part of the reward system used in the class. There was no evidence presented at the hearing that the system was overused or substituted for teaching. Additionally, the evidence did not demonstrate that Respondent tried to hide either the movie showing or television watching from other teachers or administration personnel.

   
   

6. An "R" rated movie is recommended to be restricted to anyone over the age of 17 years old unless they have adult supervision. The evidence did not demonstrate which of the above-listed movies were "R" rated. Admittedly, however, some of the movies may have had an "R" rating from the movie industry. The movie industry rating system was not shown to be mandatory and all of the listed movies have been shown on television with a little editing for any age viewer to watch. Indeed at least one, if not all, of these movies had been seen on television or VCR by the students who testified at the hearing and probably by most of the students in the class. In fact, the movies are so common Respondent did not check the rating of any of the movies he showed to his class, did not know what an "R" rating was and did not think to inquire whether the School Board had any rules about showing movies to eighth-grade students without prior approval from the principal and parents. At least one of the movies had been shown in another teacher's class.

   
   

7. The School Board did have a policy which allowed the showing of "R" rated movies if approved by the Principal and parental approval was sought before airing the movie. Respondent admitted to unknowingly violating the School Board's rules since he did not ask permission to show some of the films in his class.

   
   

8. Respondent was disciplined for this violation by the School Board as outlined later in this Recommended Order. More importantly, however, the evidence did not even remotely demonstrate that the Respondent's showing of movies or the viewing of television, either for education or entertainment, was detrimental or potentially detrimental to any student in his class in any way. Nor did the evidence show a violation of any other statute or rule governing the

   teaching profession. In fact, the evidence showed that the Respondent's system of rewards involving recreation time and breaks worked and served to enhance and encourage the students' performance. Therefore the charges contained in the Administrative Complaint involving the above facts should be dismissed.

   
   

9. The Respondent, on a very few occasions, used the words "damn" and "hell" in his class. The evidence did not show that Respondent used the words "shit", "ass" or "motherfucker" in his class. When put in context, Respondent did not use the words "damn" or "hell" as swear words. Nor were they used in a foul or vulgar manner. Nor were they directed at any student or cause harm to any student. The context of the words was quite ordinary and did not violate any rules of the EPC. Therefore the charges contained in the Administrative Complaint involving Respondent's use of language should be dismissed.

   
   

10. Because the Respondent was close to some of his students and wanted to relate to them he gave some of the students nicknames after they gave him a couple of nicknames. The nicknames were used occasionally in class but never in a derogatory manner.

    
    

11. For example, Antoine Allen, an African-American student of Respondent, was called "Black Moses" by Respondent. Heavenly Bailey was called "bull dog" or "wally gator" by Respondent. "Black Moses" was actually a compliment and was perceived as such by Mr. Allen and those who understood the nickname's meaning. The nicknames were not considered inappropriate by either the nicknamed students or the other students in the class and were seen as terms of affection and not as terms of derogation.

    
    

12. The evidence did not demonstrate that the nicknames used by Respondent harmed or were potentially harmful to any students in any way. The evidence did not show that any student was embarrassed or likely to be embarrassed by the nicknames. Likewise, no other violation of a statute or rule was shown by the evidence. Therefore the charges contained in the Administrative Complaint involving Respondent's use of nicknames should be dismissed.

    
    

13. There was no evidence that Respondent slept during or in his class. Respondent did read the newspaper during his class, but only when the class was engaged in other individual activities and only to find material to use in the current affairs portion of the alternative education class. Respondent did on occasion find it necessary to leave the classroom for either a restroom break or at the request of another teacher. However, Respondent always tried to use the "buddy system" of having a teacher next door keep an eye on his classroom when he had to step out. If Respondent left the classroom with no other adults to monitor the students it was only for a few minutes at a time while the students were engaged in other activities. There was certainly nothing in the record which suggests that such behavior was improper or even comes close to violating any statute or rule governing the teaching profession. Therefore the charges contained in the Administrative Complaint involving Respondent's classroom conduct should be dismissed.

    
    

14. Respondent separated the students in his class whose work was unsatisfactory to one side of the classroom. The section of the classroom where the students were placed whose work was unsatisfactory was called the "ghetto". The seating arrangement was used solely as a motivational tool for students to perform their school and class assignments. The evidence demonstrated that only one student was placed in the "ghetto" for a very short period of time until that student worked his or her way out. There was no evidence that the Respondent mistreated or ignored the educational needs of the one student

    assigned to sit in the "ghetto". Likewise, there was no evidence that the seating arrangement was made on any criteria other than performance. In short, the technique worked and served to maintain an appropriate level of performance in his class. Furthermore, the evidence did not show that any student was harmed or could be harmed in any way by Respondent's motivational technique.

    The evidence did not show any other violation of a statute or rule governing the teaching profession. Therefore the charges contained in the Administrative Complaint involving Respondent's classroom conduct should be dismissed.

    
    

15. On or about March 27, 1991, Respondent received a Statement of Complaint from the Gulf County School Board for using profane language and showing unapproved and inappropriate movies to students. The complaint did not contain any specific facts regarding the charges. The complaint therefore grossly overstated the ultimate charges of misconduct (misconduct in office, gross insubordination and willful neglect of duty as defined in Section 231.36(6)(a), Florida Statutes) with which Respondent was charged. However, the charges generally involved the facts outlined above. The facts did not involve any of the facts involving the allegations of sexual misconduct related to Sabrina Warren. However, by the time of the complaint, the allegations of Ms. Warren were known and more than likely caused the eventual result discussed below even though no hearing or evidence was ever held on the Warren allegations of sexual misconduct.

    
    

16. On April 8, 1991, Respondent was suspended with pay by the Gulf County School Board as a result of the incidents outlined in the above Findings of Fact.

    
    

17. Respondent did not contest the underlying facts of the complaint and no hearing with appropriate evidence was held on the complaint. Therefore, on April 10, 1991, Respondent was suspended without pay for the remainder of the 1990-91 school year and his annual teaching contract with Gulf County schools was not renewed.

    
    

18. From April 10, 1991, until sometime in September of 1991, Respondent was without employment in any school district in the State of Florida. However, the evidence did not show that Respondent was seeking employment as a teacher during this time period or that such employment was available. The evidence did show that Respondent had decided to take some time off and was not actively seeking employment. Later when Respondent did decide to return to teaching he was employed in the Levy County School System. Moreover, the evidence was clear that Respondent was an effective teacher and many of his students and parents want him to return because of the improvement he achieved with their children. There was no evidence that Respondent lost his effectiveness as a teacher because of the uncontested disciplinary action of the Gulf County School Board. Therefore the charges contained in the Administrative Complaint involving Respondent's classroom conduct should be dismissed.

    
    

19. Around the beginning of March, 1991, the Respondent taught a student by the name of Sabrina Warren in his eighth-grade alternative education class at Port St. Joe Junior/Senior High School. Ms. Warren had been placed in the alternative education class because she was chronically and frequently absent for weeks at a time from school and other less intense interventions to improve her attendance had failed. Her grades were not good and she had an attitude that was not conducive to improvement or attendance. She had a great deal of experience in sexual matters and therefore had a considerable amount of knowledge in that regard. She also had a reputation of being untruthful and clearly embellished facts during the hearing especially when she felt that was

    the answer someone wanted to hear. Ms. Warren was then 13 years old at the time she was enrolled in Respondent's class and was in Respondent's class for the majority of the day but alternated class periods with Respondent's class.

    
    

20. Upon being placed in Respondent's class, Mr. Langston gathered the biographical information including phone numbers he needed from Ms. Warren and gave her his phone number in case she needed to talk to him. Ms. Warren attempted to remind the Respondent that she had been enrolled in one of his physical education classes when she was either in first grade or kindergarten at Port St. Joe Elementary School. The Respondent had only taught such classes during the 1983-1984 school year, but did not recall teaching Ms. Warren in one of those classes. Ms. Warren indicated that she looked different from when she was in Respondent's physical education class since she had worn glasses at the time. Respondent still did not recall her being in his class and asked Ms. Warren to bring pictures of herself from that time period to his class. Ms. Warren said she would. The discussion was an ordinary discussion which occurred in front of the whole class. Respondent frequently talked to his students because he was interested in them and wanted to develop a rapport with them as well as allow the other students in the class to interact with each other.

    
    

21. Ms. Warren brought some pictures of herself from when she was younger and wore glasses. Again the discussion occurred in front of the class. The Respondent showed the class the pictures of Sabrina Warren when she was younger. The pictures did not make an impression on anyone else in the class. However, at the hearing, Ms. Warren claimed she was embarrassed that the Respondent showed the pictures to the class. Clearly, this claim of embarrassment by Ms. Warren is not credible. There was nothing in this so-called picture incident that even suggests a person would likely be embarrassed and it is highly unlikely that Ms. Warren was embarrassed by the pictures being shown. Many of these kids had grown up together, had been in Ms. Warren's grade school class and knew she had worn glasses. Additionally, Ms. Warren's demeanor did not appear to be one of high embarrassment potential. If anything, Ms. Warren had a great need for attention. Finally, Ms. Warren's complaint about the pictures was not even raised until after she had made other more serious charges against Respondent and only serves to illustrate Ms. Warren's general lack of credibility throughout this case.

    
    

22. Ms. Warren alleged that in March of 1991, while in the Respondent's class, the Respondent had taken Ms. Warren's notebook pad and wrote to ask permission to ask Ms. Warren some personal questions. Ms. Warren allegedly wrote back on the same pad that he could and that she did not mind.

    
    

23. Ms. Warren allegedly then gave the notebook pad back to the Respondent. The Respondent allegedly wrote back and asked her if she ever went to bed with anybody. Ms. Warren wrote back and told him that she had been to bed with one person. Ms. Warren handed the notebook pad to the Respondent, and he wrote back asking if she enjoyed it. Ms. Warren then wrote back that it was all right. She wrote that it was all right because it was her boyfriend.

    
    

24. The Respondent allegedly then wrote a statement on the pad that he wanted to go to bed with her. Ms. Warren claimed she was shocked and embarrassed when the Respondent wrote that he wanted to go to bed with her and she allegedly wrote back, "No."

    
    

25. All of this note writing allegedly took place during several noncontiguous class periods with Mr. Langston or during a class break when Mr. Langston was cooking hamburgers for the class. Ms. Warren was very vague on the

    time period. Ms. Warren claimed that she covered the pad while she wrote on it and when the bells were ringing between class periods. She also claimed that the Respondent would keep the pad covered on his desk when he had it and wrote a note on the pad telling her not to let anybody else see the pad or see the notes.

    
    

26. Ms. Warren claimed that the Respondent kept the notes and notebook pad and subsequently threw the notes away. She also claimed that the Respondent eventually gave her notebook pad back by way of another student. The other student did not testify at the hearing as to whether she had taken a notebook to Ms. Warren from Mr. Langston. Likewise, no other student in the class testified that they witnessed any exchange of notes between Respondent and Ms. Warren even though at least one student could have readily observed the note-passing incident if it had occurred.

    
    

27. Importantly, on the same day Ms. Warren created the above story Mr. Langston had critiqued Ms. Warren for her continued poor attendance, admonished her to improve and informed her that if she did not he would have to report her to the main office.

    
    

28. In her next class, Ms. Warren told her earth science teacher a somewhat but materially different story about how Mr. Langston allegedly came to show interest in her.

    
    

29. The earth science teacher did not believe Ms. Warren but did advise Ms. Warren to tell her parents and that if she had a problem to go see the guidance counsellor. Again Ms. Warren's testimony of her conversation with the earth science teacher differed materially from the teacher's testimony and serves to highlight Ms. Warren's lack of credibility in this case.

    
    

30. Ms. Warren did not return to school the next day and for several days thereafter.

    
    

31. At this time, Ms. Warren was living with an Aunt on Port St. Joe beach. The Respondent called one of Ms. Warren's aunts at home and inquired as to why Ms. Warren had not returned to school. Her mother was at the hospital with her father in Tallahassee. Ms. Warren did not tell her aunt of the incident and did not inform either of her parents until approximately ten days to two weeks later and only after Ms. Warren discovered that another aunt and the aunt she was staying with were inquiring as to why she was not at school.

    
    

32. After Ms. Warren told her mother, her mother made an appointment to talk with a child abuse investigator with the Department of Health and Rehabilitative Services (HRS), Jim Boseman. Mr. Boseman and Ms. Warren's mother informed the Superintendent of the Gulf County School Board of the alleged incident.

    
    

33. The Superintendent of the Gulf County School Board, Walter Wilder, gave Ms. Warren permission to stay out of school until this situation was addressed and straightened out.

    
    

34. After Mr. Langston was suspended, Ms. Warren eventually went back to school but soon became tired about everyone asking her what was going on between her and the Respondent. In reality Ms. Warren simply did not want to go to school. As a result, Ms. Warren was enrolled at Faith Christian School in Port

    St. Joe, Florida by her mother. She stayed at Faith Christian for a short period of time and then was enrolled in the adult school in Panama City, Florida because she was pregnant.

    
    

35. Mr. Langston has continuously denied the note-writing incident with Sabrina Warren ever occurred and the resolution of this case involving Sabrina Warren turns on the credibility of Ms. Warren. As indicated, Ms. Warren's testimony has not been consistent with her other statements and with other witnesses in this case. Her testimony is neither reliable or credible. Therefore, the facts involving the allegations of sexual misconduct contained in the Administrative Complaint should be dismissed.

    
    

36. In June of 1990, the Respondent was investigated by Professional Practices Services (PPS) for allegedly making inappropriate comments to students and committing acts of misconduct.

    
    

37. On or about June 5, 1990, the Respondent and the Petitioner entered into a Deferred Prosecution Agreement. According to the Agreement, the deferral period was to last through the end of the 1990-91 school year.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

39. The EPC is the agency with regard to the imposition of discipline and penalties against a teacher's certificate. Sections 231.261, 231.262 and 321.28, Florida Statutes. Section 231.28, Florida Statutes, sets forth the criteria for disciplining a teacher's certificate:

    
    

    4. Section 231.28, Florida Statutes, provides, in pertinent part:

    
    

    (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.

    
    

40. Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession, as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida, as adopted in Rule 6B

    individual's effectiveness in the school system.

    
    

41. Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    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 a 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 disparagement.

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

          
          

42. Rule 6B-4.009(2), Florida Administrative Code, defines immorality as "conduct that is inconsistent with the standards of the 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".

    
    

43. Petitioner has the burden of proof in this proceeding to establish by clear and convincing evidence that the allegations contained in the Administrative Complaint are true and constitute violations of Chapter 231, Florida Statutes, and the rules promulgated pursuant thereto. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

44. In this case, the Petitioner has not proven by clear and convincing evidence that the Respondent, as indicated by the stipulated, documentary, and

    testimonial record in this matter violated Sections 231.28(1)(c), (f), and (h), Florida Statutes, and Rules 6B-1.006(3)(a), (e), and (h), Florida Administrative Code.

    
    

45. The record did not prove by clear and convincing evidence that the Respondent was guilty of gross immorality or of an act involving moral turpitude, pursuant to Section 231.28(1)(c), Florida Statutes. The testimony of Ms. Warren was not credible and was unreliable. Therefore the charges of the Administrative Complaint relating to Ms. Warren cannot be sustained and should therefore be dismissed.

    
    

46. Likewise the record did not prove by clear and convincing evidence that the Respondent was guilty of personal conduct which seriously reduced his effectiveness as an employee of the school board, pursuant to Section 231.28(1)(f), Florida Statutes, or 231.28(1)(h), Florida Statutes, failed to make an effort to protect students from conditions harmful to learning or to health or safety, pursuant to Rule 6B-1.006(3)(a), Florida Administrative Code, intentionally exposed students to unnecessary embarrassment or disparagement, pursuant to Rule 6B

professional relationship with a student for personal gain or advantage, pursuant to Rule 6B-1.006(3)(h), Florida Administrative Code. None of the facts involving nicknames, motivational techniques, movies or television support any violations listed above. In fact, the evidence was that Mr. Langston was effective as a teacher and improved his students performance where other perhaps more gentle teaching and motivational techniques had failed. The Administrative Complaint should therefore be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED that the Respondent be found not guilty of violating Chapter 231, Florida Statutes, or Rules 6B-1.006(3)(a), (e), and (h), Florida Administrative Code and the Administrative Complaint is dismissed.

DONE AND ORDERED this 3rd day of January, 1994, in Tallahassee, Florida.

DIANE CLEAVINGER, 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 January, 1994.

APPENDIX TO DOAH CASE NO. 92-5336

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 36, 39, 53, 55, 60, 62, 63, 64 and 65 of Petitioner's proposed findings of fact are adopted in substance insofar as material.

2. The facts contained in paragraphs 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 34, 35, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 57 and 59 of Petitioner's proposed findings of fact are subordinate.

3. The facts contained in paragraphs 23, 32, 33, 48, 52, 54, 56, 58 and 61 of Petitioner's proposed findings of fact were not shown by the evidence.

4. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, second paragraph 11 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 of Respondent's proposed findings of fact are adopted in substance insofar as material.

5. The facts contained in paragraphs first paragraph 11 and 18 of Respondent's proposed findings of fact are subordinate.

COPIES FURNISHED:

Robert J. Boyd, Esquire BOND & BOYD, P.A.

411 East College Avenue Post Office Box 26 Tallahassee, FL 32302

Dave Kundin, Esquire Post Office Box 430 Tallahassee, FL 32302

Karen B. Wilde, Executive Director Department of Education

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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.

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DAVID B. LANGSTON, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 94-1184

DOAH CASE NO. 92-5336

DOUG JAMERSON, as

Commissioner of Education,

Appellee.

/ Opinion filed April 13, 1995.

An appeal from an order of the Education Practices Commission. David Brooks Kundin, Tallahassee, for Appellant.

J. David Holder, Tallahassee, for Appellee.

DAVIS, J.

David Langston appeals an order of the Education Practices Commission (EPC) issuing a letter of reprimand and placing him on three years probation (with conditions regarding notice and supervision) as sanctions against his teaching certificate. The EPC concluded Mr. Langston had breached his profession's Code of Ethics. Specifically, the EPC concluded that Mr. Langston had violated Rule 6B-1.006(3)(a)(failing "to protect the students from conditions harmful to learning") and Rule 6B-1.006(3)(e)(intentionally exposing students to unnecessary embarrassment or disparagement). A two day evidentiary hearing was held before a Hearing Officer from the Division of Administrative Hearings, resulting in a recommended order with extensive findings of fact concluding that Mr. Langston committed no violations and recommending that all charges against him be dismissed. The EPC adopted all of the findings of fact exonerating Mr.

Langston contained in the recommended order of the hearing officer, but imposed sanctions on Mr. Langston after purportedly rejecting the hearing officer's conclusions of law. We conclude that the agency abused its discretion and reverse.

Mr. Langston was employed by the Gulf County School District at Port St.

Joe Junior/Senior High School as an alternative education teacher. His classes were composed of students deemed likely candidates to drop out, with problems such as poor grades and poor attendance. In order to develop a rapport with his students and prevent them from dropping out, Mr. Langston instituted a number of practices in his classroom which might seem unorthodox. For example, Mr.

Langston gave his home phone number to students, and called some students by nicknames. It is not necessary to recount all of the facts regarding the charges of misconduct against Mr. Langston because the Hearing Officer found that there was no misconduct and the EPC adopted the Hearing Officer's findings of fact without exception.

Although the EPC adopted all the findings of fact, the EPC then concluded that the facts as found by the Hearing Officer actually constituted acts of misconduct under Rules 6B-1.006(3)(a) and 6B-1.006 (3)(e). Generally the construction of a regulation by the agency charged with its enforcement and interpretation is entitled to great deference, but the court need not defer to the agency's construction when that construction amounts to an unreasonable interpretation, or is clearly erroneous as in the present case. Legal Environmental Assistance Foundation Inc. v. Board of County Commissioners of Brevard County, 642 So.2d 1081, 1083-84 (Fla. 1994). The EPC takes the position that it was not bound by the hearing officer's findings that no students were harmed, embarrassed or felt disparaged because the members of the EPC were entitled to decide that the events which took place in Mr. Langston's classroom had the potential to cause harm, embarrassment or a sense of disparagement, and that the hearing officer therefore misconstrued the application of these two rules. This argument fails to acknowledge that, as to three of the alleged violations, the hearing officer specifically found that there was not only no actual harm, but there was no potential for harm to any student. Furthermore, this argument by the EPC must be rejected because the question whether a particular action constituted a violation of one of these two rules is a factual question to be decided in the context of the alleged violation. See, e.g., Forehand v. School Board of Gulf County, 600 So.2d 118 (Fla. 1st DCA 1992)(court engaged in factual analysis with regard to the circumstances and manner in which a teacher used a word which the School Board asserted was profane). The question whether the facts, as found in the recommended order and adopted by the EPC, constituted violations of these rules, was a question of ultimate fact which the agency erred in rejecting without adequate explanation. See Holmes v. Turlington, 480 So.2d 150, 153 (Fla. 1st DCA 1985) (whether there was a deviation from the required standard of conduct is not a conclusion of law, it is an ultimate finding of fact within the fact-finding discretion of the hearing officer) The EPC's order must be reversed because it conflicts with the very findings of the hearing officer which the agency affirmatively adopted.

The action of the EPC is inconsistent with this court's opinion in MacMillan v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993). In MacMillan, Rule 6B-1.006(3)(e) was described as an aspirational rule, violation of which could only justify suspension of a teaching license if there was factual evidence that the violation was so serious as to impair the teacher's effectiveness in the school system. Id. at 228. Furthermore, the court stated that the context in which the alleged improper statements were made was crucial to a determination whether there had been a violation. Id. at 227-28. In the instant case, the hearing officer reviewed the facts and the context in which the complained of events took place and concluded that there was no violation of these rules. The EPC decided that the facts as found by the hearing officer constituted violations as a matter of law, but this determination was clearly a factual question under MacMillan v. Nassau County School Board and Forehand v.

School Board of Gulf County. Thus, the EPC erred in substituting its judgment for that of the hearing officer who was the finder of fact.

Furthermore, one of the two rules the EPC concluded Mr. Langston violated requires a finding that the teacher "intentionally" exposed students to unnecessary embarrassment or disparagement. There can be no violation in the

absence of evidence that the teacher made a conscious decision not to comply with the rule. See Jenkins v. State Board of Education, 399 So.2d 103 (Fla. 1st DCA 1981). There was no evidence whatsoever in the record to support such a conclusion regarding Mr. Langston's intent.

For the foregoing reasons, we reverse the order of the EPC, and order the removal of all sanctions against the teaching certificate of Mr. Langston, including the probationary period and all other conditions imposed by the EPC. Nonetheless, we conclude that the actions of the agency were more a product of misunderstanding than a wanton disregard of Mr. Langston's rights. Accordingly, we decline to award Mr. Langston attorney's fees pursuant to section 120.57(1)(b)(10), Florida Statutes (1993) (authorizing an award of attorney's fees, in pertinent part, when "the agency action which precipitated the appeal was a gross abuse of the agency's discretion"). See Forehand v. School Board of Gulf County, 600 So. 2d 1187, 1194 (Fla. 1st DCA 1992) (use of the same attorney as prosecutor and legal advisor to the Board, finding the teacher guilty based upon uncorroborated hearsay, and imposing the functional equivalent of a monetary fine, were not gross abuses of discretion justifying an award of attorney's fees, because those errors were "more a product of confusion and misunderstanding than evidencing a reckless or wanton disregard of Forehand's legal rights").

REVERSED.

ALLEN, J., and SMITH, Senior Judge, CONCUR.

Docket for Case No: 92-005336

Orders for Case No: 92-005336