STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6923

)

CURTIS E. CLARKE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 18 and 19, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory A. Chaires, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William DuFresne, Esquire

DuFresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On October 15, 1992, Petitioner issued an Administrative Complaint alleging that Respondent, a Florida-certified teacher, engaged in the following conduct that warranted the taking of disciplinary action against him: "purchased school related items without depositing and disbursing funds through the school treasurer's office;" "acted improperly and unprofessionally in that he inappropriately touched minor female students;" "made inappropriate comments to minor female students;" "acted inappropriately and unprofessionally in that he hugged many students face to face and side to side . . . [and] also rubbed the shoulders and backs of many female students;" "acted inappropriately and unprofessionally in that he threatened physical violence on students who were being disruptive;" "yelled and made disparaging comments to both students and

staff members;" and "used foul and profane language in the classroom." Respondent denied the allegations of wrongdoing alleged in the Administrative Complaint and requested a formal hearing on the matter. On November 20, 1992, the case was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the hearing Respondent had requested.

At the final hearing, which was held on May 18 and 19, 1993,1/ Petitioner presented the testimony of thirteen witnesses: Judy Cospito, the school treasurer at Miami Sunset Senior High School (hereinafter referred to as "Sunset High"); Marilyn Smith, a teacher who formerly taught music at Sunset High; Carolyn Ellis, Chairman of Sunset High's Department of Performing Arts; Dennis Davis, the principal at Sunset High; and E.H., A.W., M.F., J.J., T.G., V.N., J.S., A.B., and J.A., all of whom were students of Respondent at Sunset High.

In addition to the testimony of these thirteen witnesses, Petitioner offered one composite exhibit (Petitioner's Exhibit 1) into evidence. The exhibit was admitted by the Hearing Officer.

Respondent presented his own testimony as well as the testimony of eight other witnesses: Dr. Ronald W. Todd, Jr., former president of the Sunset Choral Parents Association; and seven of Respondent's former students at Sunset High, S.B., K.T., S.L., J.S., A.G., D.L., and J.W. He presented no other evidence.

At the close of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the transcript on June 9, 1993. On June 11, 1993, Respondent filed an unopposed motion requesting an extension of the deadline for the filing of post-hearing submittals. By order issued June 14, 1993, Respondent's motion was granted and the deadline for the filing of post-hearing submittals was extended to June 30, 1993.

Petitioner and Respondent filed their post-hearing submittals on June 30, 1993, and July 3, 1993, respectively. These post-hearing submittals contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, the stipulations of the parties, and the record as a whole, the following Findings of Fact are made:

Teaching Certification and Experience

1. Respondent holds Florida teaching certificate 177890, which covers the area of music and is valid through June 30, 1995.

   
   

2. He has been a teacher for the past 27 years.

   
   

3. Respondent has spent his entire teaching career teaching music in the Dade County public school system.

   
   

4. For fourteen of these years, including the 1990-91 school year and a portion of the 1991-92 school year, he was a music teacher at Sunset High.

   
   

5. In terms of student population, Sunset High is one of the largest high schools in the state. During the 1990-91 school year there were approximately

   3200 to 3300 students enrolled at the school. As a result of its large student enrollment, classrooms and hallways were crowded and teaching conditions were less than optimum.

   
   

6. At all times material to the instant case, Respondent was the teacher responsible for Sunset High's choral program, which enjoyed an excellent reputation due in large measure to Respondent's efforts and dedication. He often stayed at school until late in the afternoon working with his students.

   
   

7. Respondent taught beginning, intermediate and advanced chorus at Sunset High.

   
   

8. The advanced chorus classes had fewer students than did the other chorus classes.

   
   

9. One of the advanced chorus classes Respondent taught was comprised exclusively of female students, approximately 20 in number. It was referred to as "Nightingales."

   
   

10. The other advanced chorus class had both male and female students. It was known as "Camelot."

    
    

11. The students in "Nightingales" and "Camelot" not only sang in class, they also performed for others, particularly during the holiday season.

    
    

12. Rehearsals for these performances were held after the regular school

    day.

    
    

    Verbal Attacks

    
    

13. Respondent was very demanding of his students. He reprimanded them, often loudly and in an angry tone of voice, when they did not follow his instructions or when their singing in class or during rehearsals failed to meet his expectations.

    
    

14. These reprimands became more frequent as a performance date grew nearer.

    
    

15. Occasionally, Respondent's reprimands included foul language, such as the words "asshole," "bitch" and "shit."

    
    

16. There were also times that Respondent called a student with whom he was displeased "stupid" or an "idiot."

    
    

17. Respondent's outbursts reduced some of his students to tears because they did not want to be a disappointment to Respondent.

    
    

18. The students in Respondent's classes were not the only ones subjected to his tirades. Respondent also lambasted other students at the school and, on isolated occasions, even staff members.

    
    

19. For example, during the 1990-91 school year Respondent occasionally yelled at guitar students who were practicing in the hallway in the only space that was available to them for that purpose and threatened to throw them against the wall if they did not leave the area.

20. During that same school year, he was also rude to Marilyn Smith, another music teacher at the school, in the presence of students.

    
    

21. Respondent also yelled at Judy Cospito, the school treasurer, for a considerable amount of time in front of approximately 200 people waiting in the lobby of the school auditorium to purchase tickets to a student choral performance. Cospito had volunteered to sell tickets to the performance and Respondent was upset that she had not arrived at the auditorium earlier. Cospito never again offered to do any volunteer work for Respondent.

    
    

    Touching of Students

    
    

22. Respondent was not always ill-tempered.

    
    

23. On many occasions he acted as a deeply caring teacher with great affection for his students.

    
    

24. Respondent openly displayed his affection for his students, particularly his female students towards whom he was more affectionate than their male counterparts.

    
    

25. He hugged female students, on some occasions approaching them from the side and on other occasions approaching them from the front. On one occasion, one of Respondent's female students, E.H., was seated at the piano, when Respondent approached her from behind, put his arms around her and touched her breasts. E.H. was startled by Respondent's actions and she jumped up from her seat. Respondent then walked away.

    
    

26. This was not the only time that Respondent touched the breast of a female student in his class. After class one day at the beginning of the 1991-

    92 school year, J.J., a member of "Nightingales," tried on for Respondent at his request a used performance costume that one of the returning members of the class had offered to sell to her. Upon seeing J.J. in the costume, Respondent thought that it might be too tight around J.J.'s chest. He therefore, pointing at her chest, asked her if it fit there. The finger with which Respondent pointed made contact with one of J.J.'s breasts. Immediately after touching her, Respondent moved his finger away.

    
    

27. Respondent kissed female students on the cheek. J.S. was among the female students that Respondent kissed in this manner.

    
    

28. Respondent put his hand on the knee of female students, including E.H., T.G. and A.B., when they were sitting next to him. He did this to E.H. with some regularity. On one such occasion, when E.H. and Respondent were alone in Respondent's office, Respondent moved his hand a little above her knee.

    
    

29. Respondent shook the hands of female students and, as he did so, rubbed one his fingers against the palms of their hands. J.J. was one of the students to whom Respondent did this.

    
    

30. Respondent also held the hands of his female students. One such instance of hand-holding occurred during a school trip to Tampa, Florida, where five of Respondent's students, including T.G., performed in a statewide competition. As T.G. entered the auditorium where the competition was being held, Respondent grabbed her hand and led her to her seat. He continued to hold her hand after they were seated, making her feel uncomfortable. He eventually let go of her hand.

31. Respondent gave his female students shoulder rubs and back massages. He also scratched their backs. T.G. was one of the students whose back Respondent scratched.

    
    

32. On one occasion, Respondent playfully stroked the hair of V.N., a member of "Nightingales."

    
    

33. On another occasion, he patted M.F., a female student of his, on the buttocks with his hand. M.F. was angered by the incident.

    
    

34. Some of Respondent's students, such as E.H., J.J., J.S., and T.G., felt uncomfortable when he touched them, but said nothing about their discomfort to Respondent. Neither did they bring the matter to the attention of the school administration. They thought that if they did tell, the school's choral program would suffer, which was something that they did not want to happen.

    
    

35. V.N. and M.F. were two students who let Respondent, at least, know that they did not like it when he touched them. After being made aware of their feelings on the matter, Respondent stopped touching them.

    
    

36. There were some students, such as A.B., 2/ who did not find Respondent touching them objectionable.

    Stares and Suggestive Remarks

    
    

37. Respondent appeared at times to stare at T.G., making her feel uncomfortable.

    
    

38. He also made comments in class regarding the physical appearance and clothing of his female students.

    
    

39. For instance, during deep breathing exercises he commented to the larger breasted girls in the class that he liked the way they were sitting in their chairs.

    
    

40. To girls who were wearing outfits that were more revealing than usual he would remark that they looked sexy and that they should wear these outfits more often. Among the girls to whom such remarks were directed were J.J. and J.S., both of whom suffered embarrassment as a result. The remarks embarrassed

    J.S. to such an extent that when she came home from school she cried.

    
    

41. On one occasion, Respondent jokingly told the class that he was going out on a date with J.J. Although Respondent was simply trying to be funny (there was no "date" planned), J.J. was not amused. To the contrary, she was embarrassed by the remark.

    
    

    Handling of Booster Club Monies

    
    

42. The Sunset Choral Parents Association (hereinafter referred to as the "Association") is a booster club that supports the choral program at Sunset High. It is an independent entity that operates outside the control of the Dade County School Board.

    
    

43. Dade County School Board policy prohibits School Board employees from participating in the fund-raising activities of booster clubs such as the Association.

44. The Association sold jackets and shirts to raise money.

    
    

45. Normally, one of the parent members of the Association would come to school to collect money from any student or staff member who wished to purchase a jacket or shirt.

    
    

46. On one occasion, a security guard at the school wanted to purchase a jacket from the Association, but there was no Association member available to take her money and give her a receipt. She therefore handed the money to Respondent, who provided her with a receipt. Respondent turned the money over to the Association that afternoon.

    
    

    School Board Disciplinary Action and Respondent's Subsequent Conduct

    
    

47. On or about February 4, 1992, Respondent was temporarily transferred from Sunset High and reassigned to administrative duty pending the completion of the Dade County School Board's Special Investigative Unit's investigation of allegations of misconduct made against him.

    
    

48. The investigation substantiated that Respondent had engaged in conduct that was unbecoming a School Board employee.

    
    

49. Following the completion of the investigation, Respondent returned to Sunset High.

    
    

50. On June 11, 1992, he was given the following written reprimand by the principal of Sunset High, Dennis Davis:

    
    

    On January 31, 1992, it was reported that you had displayed inappropriate behavior by yelling at students, using profanity to students and touching female students in an improper manner while teaching chorus in room 122.

    
    

    You violated the United Teachers of Dade Contract Article VII, Section I, as well as School and Dade County School Board Rule 6GX13-4A-1.21 Employee Conduct, and Chapter 6B-1.01(3) Code of Ethics of the Education Profession in Florida.

    
    

    You are accountable for your actions in your capacity as a certificated professional educator and should act in a manner which is consistent with the documents listed above.

    
    

    You are directed to refrain from using inappropriate behavior in the performance of your assigned duties.

    
    

    Any recurrences of the above infractions will result in further disciplinary action.

51. On June 11, 1992, Respondent also received the following written administrative directives from Principal Davis:

    
    

    As stated to you during the re-entry conference on Tuesday, April 21, 1992, written administrative directives would be

    forthcoming. By this memorandum, I am direct- ing you to refrain from yelling. Additionally, there is to be no use of profanity in class.

    You are further directed to curtail all touching of female students and remarks that can be construed as sexual or improper.

    
    

    The names and statements of the students who were involved in this investigation have been made known to you. You are directed to avoid any remark or action to any of these students

    that can be construed as punitive or retaliatory.

    
    

    Your signature below signifies receipt of this memorandum and your intent to comply with these directives.

    
    

52. Respondent has complied with these administrative directives since his return to the classroom. 3/

    
    

    CONCLUSIONS OF LAW

    
    

53. The Education Practices Commission (Commission) is statutorily empowered to take disciplinary action against a teacher certified to teach in the State of Florida based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: permanent certificate revocation; certificate revocation, with reinstatement; certificate suspension for a period of time not to exceed three years; imposition of an administrative fine not to exceed

    $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the Commission may specify. Sections 231.261(8)(b), 231.262(6) and 231.28(1), Fla. Stat.

    
    

54. Subsection (1)(c) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as been guilty of gross immorality or an act involving moral turpitude."

    
    

55. "Immorality" is defined in Rule 6B-4.009(2), Florida Administrative Code, as "conduct that is inconsistent with the standards of public conscience and good morals" and that is "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."

    
    

56. "Moral turpitude" is defined in Rule 6B-4.009(6), Florida Administrative Code, as "a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition fixes the moral turpitude."

57. Subsection (1)(f) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board."

    
    

58. Subsection (1)(h) of Section 231.28, Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "[h]as 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."

    
    

59. Rule 6B-1.006, Florida Administrative Code, contains the "Principles of Professional Conduct for the Education Profession in Florida." Certificate revocation is one of the penalties prescribed in the rule for violation of these principles. Rule 6B-1.006(2), Fla. Admin. Code.

    
    

60. Subsection (3)(a) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety."

    
    

61. Subsection (3)(e) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not intentionally expose a student to unnecessary embarrassment or disparagement."

    
    

62. Subsection (3)(h) of Rule 6B-1.006, Florida Administrative Code, requires that a teacher "not exploit a relationship with a student for personal gain or advantage."

    
    

63. The foregoing statutory and rule provisions are "in effect, . . . penal statute[s and rules] . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

64. A teacher's certificate may be suspended or revoked based upon the foregoing statutory and rule provisions only if the grounds for suspension or revocation are established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "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." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

65. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129,

    133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

66. The Administrative Complaint issued in the instant case alleges that Respondent engaged in the following misconduct since the 1990-91 school year: "purchased school related items without depositing and disbursing funds through

    the school treasurer's office;" "acted improperly and unprofessionally in that he inappropriately touched minor female students;" "made inappropriate comments to minor female students;" "acted inappropriately and unprofessionally in that he hugged many students face to face and side to side . . . [and] also rubbed the shoulders and backs of many female students;" "acted inappropriately and unprofessionally in that he threatened physical violence on students who were being disruptive;" "yelled and made disparaging comments to both students and staff members;" and "used foul and profane language in the classroom." The Administrative Complaint further alleges that, in engaging in such conduct, he violated subsection (1)(c) of Section 231.28, Florida Statutes (Count I), subsection (1)(f) of Section 231.28, Florida Statutes (Count II), subsection (1)(h) of Section 231.28, Florida Statutes (Count III), subsection (3)(a) of Rule 6B-1.006, Florida Administrative Code (Count IV), subsection (3)(e) of Rule 6B-1.006, Florida Administrative Code (Count V), and subsection (3)(h) of Rule 6B-1.006, Florida Administrative Code (Count VI).

    
    

67. The evidence clearly and convincingly establishes that during the 1990-91 school year and much of the 1991-92 school year, while a teacher at Sunset High, Respondent touched female students on the breast, buttocks, knee and elsewhere in an inappropriate manner and thereby engaged in conduct proscribed by subsection (1)(c) of Section 231.28, Florida Statutes, as alleged in the Administrative Complaint.

    
    

68. It has further been clearly and convincingly demonstrated that these inappropriate actions, coupled with the suggestive, vulgar, rude, disparaging, and threatening remarks that he made to students and others at school, "seriously reduced [Respondent's] effectiveness as an employee of the [Dade County S]chool [B]oard," within the meaning of subsection (1)(f) of Section 231.28, Florida Statutes, as alleged in the Administrative Complaint.

    
    

69. Clear and convincing evidence also supports the allegation advanced in the Administrative Complaint that Respondent's inappropriate actions and remarks in the classroom created conditions harmful to students in violation of subsection (3)(a) of Rule 6B-1.006, Florida Administrative Code, and intentionally exposed students to unnecessary embarrassment and disparagement contrary to subsection (3)(e) of Rule 6B-1.006, Florida Administrative Code.

    
    

70. Furthermore, there is clear and convincing evidence supporting the allegation advanced in the Administrative Complaint that, by inappropriately touching certain female students in his class, he exploited his relationship with them for personal gain or advantage in violation of subsection (3)(h) of Rule 6B-1.006, Florida Administrative Code.

    
    

71. By violating the provisions of subsection (3)(a), (e) and (h) of Rule 6B-1.006, Florida Administrative Code, Respondent also violated subsection (1)(h) of Section 231.28, Florida Statutes.

    
    

72. Inasmuch as it has been established by clear and convincing evidence that Respondent engaged in conduct violative of subsections (1)(c), (1)(f) and (1)(h) of Section 231.28, Florida Statutes, as alleged in the Administrative Complaint, 4/ the Commission has the authority to take disciplinary action against Respondent.

73. In her proposed recommended order, Petitioner argues that the Commission should

    
    

    issue a letter of reprimand to the Respondent, suspend the Respondent from teaching for the period of one year, place the Respondent on three years of probation with the [Commission], and have a psychological evaluation and undergo treatment, if necessary, that insures the Respondent is not a threat to children. 5/

    The terms of the probation shall include the requirement that the Respondent:

    1. shall make arrangements for h[is] immediate supervisor to provide the [Commission] with quarterly reports of his performance, including but not limited to compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent;

    2. shall make arrangements for h[is] immediate supervisor to provide the [Commission] with a true and accurate copy of each written performance evaluation prepared by h[is] supervisor, within ten

       (10) days of its issuance;

    3. shall satisfactorily perform h[is]

       assigned duties in a competent professional manner;

    4. shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006; and

    5. during the period of probation shall successfully complete two (2) college courses or the equivalent inservice training courses in the areas of assertive discipline, and adolescent behavior, with progress and comple- tion to be monitored by the [Commission].

       
       

74. Having carefully considered the facts of the instant case, the Hearing Officer is in agreement with Petitioner that the foregoing represents appropriate punishment for Respondent's transgressions.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations alleged in Counts I through VI of the Administrative Complaint and disciplining him for having committed these violation by imposing the punishment proposed in Petitioner's recommended order which is set forth above.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1993.

STUART M. LERNER

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 5th day of August, 1993.

ENDNOTES

1/ The hearing was originally scheduled to commence on March 18, 1993, but was twice continued, the first time at the request of Respondent and the second time at the request of Petitioner.

2/ A.B., however, did believe that in his interaction with other female students Respondent sometimes "crossed the line between student and teacher."

3/ Respondent finished the 1991-92 regular school year at Sunset High. He also taught summer school there the following summer. Since the beginning of the 1992-93 school year, he has been teaching at Southwood Middle School.

4/ Although the Administrative Complaint alleges that such conduct included Respondent's improper handling of monies that should have been deposited with the school treasurer, the evidence does not clearly and convincingly establish that Respondent engaged in any improper handling of monies that constituted a violation of either subsection (1)(c), (1)(f), or (1)(h) of Section 231.28, Florida Statutes.

5/ The Hearing Officer assumes that Petitioner is suggesting that Respondent undergo such psychological evaluation and any necessary treatment as a condition of his probation.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6923

The following are the Hearing Officer's specific rulings on the "findings of fact" proposed by the parties in their post-hearing submittals:

Petitioner's Proposed Findings

1-5. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding states that on a single occasion Respondent took money from, and gave a receipt to, a Sunset High staff

member who wanted to purchase a jacket from the Association and later that same day turned the money he had been given over to the Association, it has been accepted and incorporated in substance. To the extent that this proposed finding suggests that Respondent was otherwise involved in the Association's fund raising activities in violation of Dade County School Board policy, it has been rejected because it is contrary to the greater weight of the evidence.

9-12. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. To the extent that this proposed finding states that "Respondent would get very angry with the students," it has been accepted and incorporated in substance. The remaining portions of this proposed finding, however, have not been incorporated in this Recommended Order because to do so would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. Accepted and incorporated in substance.

4. To the extent that this proposed finding states that Respondent was not affectionate at all towards male students, it has been rejected because it is contrary to the greater weight of the evidence. To the extent that this proposed finding suggests that Respondent was not as affectionate towards male students as he was towards female students, it has been accepted and incorporated in substance.

17-19. Accepted and incorporated in substance.

20. First sentence: Accepted and incorporated in substance; Second and third sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

21-23. Accepted and incorporated in substance.

24-25. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

26. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

27-30. Accepted and incorporated in substance.

31. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

32-33. Accepted and incorporated in substance.

34. First and second sentences: Accepted and incorporated in substance; Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

35-37. Accepted and incorporated in substance.

38. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

39-52. Accepted and incorporated in substance.

53-55. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

Respondent's Proposed Findings

1-2. Accepted and incorporated in substance.

1. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

2. First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.

5-7. Accepted and incorporated in substance.

8. Rejected as a finding of fact because it is more in the nature of commentary and argument regarding the state of the evidentiary record.

9-10. Accepted and incorporated in substance.

1. First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Rejected because it constitutes unpersuasive argument.

2. To the extent that this proposed finding suggests that "Nightingales" and "Camelot" were beginning chorus classes, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

3. To the extent that this proposed finding suggests that there were students who enjoyed the chorus classes Respondent taught and learned a good deal while in his class, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

4. Accepted and incorporated in substance.

15-18. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.

1. First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.

2. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

21-22. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that Respondent was transferred to Southwood Middle School immediately following the completion of the Dade County School Board's investigation of his misconduct, it has been rejected because it is not supported by persuasive competent substantial evidence.

2. Accepted and incorporated in substance.

COPIES FURNISHED:

Gregory A. Chaires, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William DuFresne, Esquire DuFresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Karen Barr Wilde, Executive Director Education Practices Commission

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 of time 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: 92-006923

Orders for Case No: 92-006923