vs. ) CASE NO. 94-0312
Respondent. )
The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on February 3, 1995, in Perry, Florida.
For Petitioner: Robert J. Boyd, Esquire
For Respondent: J. Victor Africano, Esquire
The issue in this case is whether Respondent's license as a teacher in the State of Florida should be disciplined.
On April 6, 1993, the Commissioner of Education entered an Administrative Complaint against Respondent, Daniel Klahn. Mr. Klahn requested a formal administrative hearing to contest the allegations of the Administrative Complaint by letter dated May 3, 1993 and an Election of Rights form executed April 30, 1993.
The request for hearing was filed with the Division of Administrative Hearings on January 20, 1994. The matter was designated case number 94-0312 and was assigned to the undersigned.
The final hearing was scheduled for June 10, 1994, by Notice for Hearing entered February 11, 1994. Two continuances were requested and granted. The final hearing was scheduled for a third time by a Third Notice of Hearing entered December 6, 1994.
At the final hearing Petitioner presented the testimony of L. S. and Nancy Arlene Maginness by deposition. Petitioner offered 5 exhibits, including the depositions of L. S. and Ms. Maginness. The exhibits were accepted into evidence.
Respondent testified on his own behalf and presented the testimony of Daniel M. Klahn, II, John D. Klahn and Shirley K. Klahn. Respondent offered 5 exhibits, which were accepted into evidence.
A transcript of the final hearing was filed on February 22, 1995. Neither party filed a proposed recommended order.
At all times relevant to this proceeding, Respondent, Daniel Klahn, was the holder of Florida teaching certificate 634054. The certificate is for the area of Social Studies and was valid through June 30, 1994.
During the 1990-1991 school year, Mr. Klahn was employed as a teacher by the Taylor County School Board.
Mr. Klahn and his wife have two sons, Daniel M. Klahn, II, and John D. Klahn.
During the 1990-1991 school year, Mr. Klahn and his wife decided they wanted to adopt a female child. Toward this end, they agreed to be foster parents for the Florida Department of Health and Rehabilitative Services.
L. S., a nine-year-old female child was placed as a foster child in the Klahns' home during the 1991-1992 school year.
L. S. was born on May 3, 1982. She underwent surgery for ruptured blood vessels in her brain shortly after she was born. L. S. suffers from epilepsy.
In approximately 1987, L. S. lived with her mother, step-father and two half-brothers. L. S. reported that her step-father had been sexually abusing her.
L. S. was taken out of the home and placed in foster care as a result of her allegations against her step-father.
L. S. ultimately admitted that it had been one of her step-brothers, Nathan Wheeler, that had abused her and not her step-father. Nathan was approximately 16 or 17 when the incident was reported by L. S.
L. S. had originally accused her step-father because she had been told by Nathan that he would kill or otherwise harm her mother and step-father if she ever told on him. Nathan was eventually moved out of L. S.'s home. L. S. was not, however, allowed to go back to her mother for two years.
During the two years that L. S. was in foster care she lived in four different foster care households, including Mr. Klahn's.
Mr. Klahn's home was the fourth foster care home L. S. was placed in. She stayed in the home for approximately 3 months. L. S. was approximately 8 or
9 years old while she lived with Mr. Klahn.
L. S., as a result of having been sexually abused, having been taken away from her mother and having been placed in various foster homes, was anxious to get back to her mother. When she was unhappy about a foster home, she would act out and become unruly.
L. S. did not like being in Mr. Klahn's home. She believed that Mr. and Ms. Klahn treated her harder than they did their two sons. Mr. and Ms. Klahn were not very understanding of her situation and treated her as a child who simply lacked discipline. As a result of these facts and those described in finding of fact 13, L. S.'s grades started to slip and she became more troublesome.
While in Mr. Klahn's home, L. S. continued to visit on occasion with the family that she had previously lived with, the Bennetts. At some point, L.
S. reported to the Ms. Bennett that Mr. Klahn was abusing her. She eventually reported the alleged incidents to her mother.
The alleged incidents reported by L. S., which form the bases of the Administrative Complaint against Mr. Klahn, are as follows:
the Respondent inappropriately touched
L. S. in the chest and vaginal area.
when L. S. misbehaved the Respondent and his wife held down L. S. and attempted to place pepper in her mouth. The Respondent and
his wife then placed liquid soap on L. S.'s mouth;
the Respondent applied medication to
L. S.'s vaginal area;
the Respondent made inappropriate suggestive comments in front of L. S.
Alleged Inappropriate Touching.
The evidence failed to prove that Mr. Klahn "touched L. S. in the chest and vaginal area", except as discussed, infra.
Pepper and Soap Incident.
On one occasion, L. S. was in the dining room doing homework. Mr. Klahn was attempting to assist her when she became angry and threw a temper tantrum.
L. S. called Ms. Klahn a "mother fucking witch." When she did, Ms. Klahn picked up a pepper shaker and told L. S. to stick out her tongue. L. S. refused. Ms. Klahn then went into the kitchen and got the dish washing liquid soap and returned to the dining room.
Ms. Klahn then put soap on L. S.'s lips. Mr. Klahn had to hold L. S. in order for Ms. Klahn to put the soap on L. S.'s lips.
Vaginal Medication.
Shortly after being placed in Mr. Klahn's home, L. S. was diagnosed as suffering from a yeast infection. Medication for the infection was prescribed by a physician.
Mr. Klahn applied the medicine to L. S.'s vaginal area.
L. S. felt that she was old enough to put the medicine on herself or that Ms. Klahn should have put the medicine on rather than Mr. Klahn. L. S. did not, however, tell Mr. Klahn how she felt.
The evidence failed to prove that Mr. Klahn put the medicine on L. S. because she refused to do it herself or because she refused to let anyone except Mr. Klahn put the medicine on.
Suggestive Comments.
The evidence failed to prove that Mr. Klahn made inappropriate suggestive comments in front of L. S.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).
Burden of Proof.
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d
249 (Fla. 1st DCA 1977).
In this proceeding, the Petitioner has the ultimate burden to establish by clear and convincing evidence that Mr. Klahn committed the violations contained in the Administrative Complaint entered by the Petitioner. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner's Charges.
Petitioner is charged with authority to impose discipline against a teacher's certificate in Florida. Sections 231.261, 231.262 and 231.28, Florida Statutes.
In this proceeding, Petitioner has alleged in the Administrative Complaint against Mr. Klahn that the incidents described in finding of fact 16 constituted the following violations:
Gross immorality or an act of moral turpitude in violation of Section 231.28(1)(c), Florida Statutes. (First Count).
Violations of the following provisions of law or rules of the State Board of Education (Second Count):
Rule 6B-1.006(3)(a), Florida Administrative Code, in that Mr. Klahn failed to make a reasonable effort to protect a student from conditions harmful to learning, health or safety. (Third Count).
Rule 6B-1.006(3)(e), Florida Administrative Code, in that Mr. Klahn intentionally exposed a student to unnecessary embarrassment or disparagement. (Fourth Count).
Section 231.28(1)(c), Florida Statutes.
Section 231.28(1)(c), Florida Statutes, provides, in pertinent part:
(1) The Education Practices Commission shall have authority to suspend the teaching certi- ficate 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;
* * *
The term "immorality" is defined in Rule 6B-4.009(2), Florida Administrative Code, as follows:
Immorality is defined as conduct that is inconsistent with the standard 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.
The terms "moral turpitude" are defined in Rule 6B-4.009(6), Florida Administrative Code, as follows:
Moral turpitude is 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 by statue fixes the moral turpitude.
The terms "moral turpitude" have also been defined by the Supreme Court of Florida as follows:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by
man to society . . . . It has also been defined as anything done contrary to justice, honesty,
principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
Tullidge v. Hollingsworth, 108 Fla. 607, 146 So.2d 660, 661 (1933).
The evidence in this case failed to prove that Mr. Klahn committed the following acts charged in the Administrative Complaint:
the Respondent inappropriately touched
L. S. in the chest and vaginal area.
* * *
(d) the Respondent made inappropriate suggestive comments in front of L. S.
The evidence did prove that Mr. Klahn committed the following acts charged in the Administrative Complaint:
when L. S. misbehaved the Respondent and his wife held down L. S. and attempted to place pepper in her mouth. The Respondent and his wife then placed liquid soap on L. S.'s mouth;
the Respondent applied medication to L. S.'s vaginal area;
The evidence failed to prove that the two charged acts that Mr. Klahn committed constituted "immorality". The evidence failed to prove that any of Mr. Klahn's conduct was "notorious" or known to the public.
The evidence also failed to proved that the two charged acts that Mr. Klahn committed constituted "moral turpitude" with the definition of those terms quoted, supra. While washing a child's mouth with soap may be questionable as a suitable punishment, it does not rise to the level of an "act of baseness, vileness or depravity".
In light of the fact that L. S. had been sexually abused in the past and the fact that she had only been in Mr. Klahn's care for a short period of time, Mr. Klahn was, at least, insensitive to L. S. condition when he applied medicine to her vaginal area. This is not, however, the issue. At issue is whether Mr. Klahn's conduct constituted "moral turpitude".
Based upon the weight of the evidence, it cannot be concluded that Mr. Klahn's conduct in applying the medicine constituted "moral turpitude" as defined supra.
Rules 6B-1.006(3)(a) and (e), Florida Administrative Code.
Rules 6B-1.006(3)(a) and (e), Florida Administrative Code, provide, in pertinent part:
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.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual's teacher's certificate, or the other penalties provided for by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
* * *
The evidence in this case failed to prove that Mr. Klahn's conduct in holding L. S. while his wife put soap on her lips, and in applying medicine to
L. S.'s vaginal area violated Rules 6B-001(3)(a) and (e), Florida Administrative Code.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative
Complaint against Daniel Klahn.
DONE AND ENTERED this 3rd day of April, 1995, in Tallahassee Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1995.
Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302
J. Victor Africano, Esquire Post Office Box 1450
Karen B. Wilde
Kathleen M. Richards, Administrator Professional Practices Services
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
