STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0286

)

ESTON MANSFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on May 21, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Bruce Taylor, Esquire

501 First Avenue North, Suite 600 St. Petersburg, Florida 33701

For Respondent: Sheldon Zipkin, Esquire

Twenty Twenty Professional Center

2020 Northeast 163rd Street, Suite 300 North Miami Beach, Florida 33162

STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint, as amended, and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated October 3, 1995, as amended at hearing, 1/ petitioner charged that respondent, the holder of a Florida teaching certificate, had, on or about February 25, 1993, provided A. E., a 15-year-old female, with an alcoholic beverage and took several photographs of her in lingerie, as well as 20 to 30 nude photographs. It was further alleged that while taking the nude photographs, respondent rubbed A. E.'s breasts with his hands and fingers, as well as his mouth, so that her nipples would be "hard for the pictures." As a consequence, petitioner contended that respondent violated the provisions of Subsections 231.28(1)(c), (f) and (i), Florida Statutes, and Rules 6B-1.006(3)(a), (e), and (f), Florida Administrative Code.

Respondent filed an election of rights which disputed the allegations of the administrative complaint, and requested a formal hearing. Consistent with

such election, petitioner referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called A. E. and Wendy Colvin, as witnesses, and its exhibit 1 was received into evidence. Respondent testified on his own behalf, but offered no exhibits.

The transcript of the hearing was filed June 7, 1996, and the parties were accorded ten days from that date to file proposed recommended orders.

Petitioner elected to file such a proposal, and the proposed findings of fact contained therein are addressed in the appendix to this recommended order.

FINDINGS OF FACT

Preliminary matters

1. At all times material hereto, respondent, Eston Mansfield, held Florida teaching certificate number 691581, covering the area of middle grades mathematics, grades 5 through 9. Such certificate expired June 30, 1995.

   
   

2. At the time of the incidents at issue, respondent was, from time to time, employed as a substitute teacher by the School Board of Dade County, Florida, and the School Board of Broward County, Florida. Moreover, during such times, respondent was also self-employed, as a professional photographer.

   
   

   The incident in question

   
   

3. In or about February 1993, A. E., a fifteen year old female, was referred to respondent, who she understood to be a professional photographer. 2/ At the time, A. E. was entertaining an interest in modeling, and had need for a modeling portfolio.

   
   

4. A. E. and respondent spoke by telephone, and respondent agreed to do the photographs for the portfolio, and quoted a price between $1,500 and $2,000. When A. E. told respondent she could not afford the cost, respondent countered by telling her that he was looking for a model to practice some nude photography and that if she would agree to pose for the photographs he would do the photographs for the portfolio at no charge. A. E. agreed to the trade.

   
   

5. At the time A. E. spoke with respondent, she was not a student, having "legally withdrawn" from school, was sharing an apartment with her older sister, age 18, and their respective boyfriends. A. E.'s boyfriend at the time was older than A. E., and A. E., although underage, was not a stranger to alcohol.

   
   

6. Although A. E. and respondent had no personal contact prior to their telephone conversation, respondent had visited with her sister in the past, in an effort to interest her in a wedding portfolio, and was aware of A. E. and her living arrangements. Respondent was further aware that A. E. was the younger of the two sisters and knew, before the photography session hereinafter discussed, that A. E. was 15 years of age.

   
   

7. In February or March, 1993, A. E., together with her friend, Wendy Colvin, went to respondent's home for the anticipated photography session. As described at hearing, respondent's home included an area that was suitably equipped for professional photography and the session, based on the persuasive proof, appears to have been conducted in a professional manner. 3/

8. Before the session began, respondent offered and A. E. accepted an alcoholic drink to help her "relax". Thereafter, A. E. posed in several sets of lingerie that she had brought for the session, and then posed for a number of nude photographs.

   
   

9. Apart from the observation that some of the lingerie A. E. wore was her sister's wedding lingerie, the record is devoid of any descriptive observations from which one could draw any reliable, as opposed to speculative, conclusion as to its character. Likewise, the record is largely devoid of any descriptive observations of the lingerie or nude photographs, such that one cannot draw any reliable, as opposed to speculative, conclusion regarding their character or content.

   
   

10. Notably, the photographs were not exhibited or offered at hearing, and only the vaguest of descriptions elicited from the witnesses. In A. E.'s opinion, some of the photographs "were tasteful, some were not." In respondent's opinion, some of the photographs that might be described as "tasteless" did not meet "a professional standard," which he attributed to A. E.'s amateur status and unfamiliarity with proper positioning or posing. 4/

    
    

11. Given the paucity of proof concerning the character or content of the photographs, it cannot be concluded that the photographs, in whole or in part, offended contemporary community standards by predominantly appealing to prurient, shameful or morbid interest, that the photographs were without any serious artistic value, or that the photographs were otherwise obscene, as that term is commonly understood. Moreover, there was no proof offered, by student, teacher, or otherwise, that respondent's practice of nude photography, albeit with a 15-year-old girl, otherwise offended community values or reduced his effectiveness as a teacher.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.57(1) and 231.262(5), Florida Statutes.

    
    

13. Where, as here, it is proposed that the Education Practices Commission take action to revoke, suspend, or otherwise discipline the certificate of a teacher, petitioner bears the burden of proving the charges contained in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). "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, 492 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

14. Moreover, in determining whether respondent violated the provisions of Section 231.28, as alleged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the licensee." Lester

    1. Department of Professional and Occupational Regulation, 348 So.2d 923, 925 (Fla. 1st DCA 1977). Finally, the disciplinary action taken can be based only upon the facts specifically alleged in the administrative complaint. See, MacMillan v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993),

       Kinney v. Department of State, 501 So.2d 129 (Fla. 1st DCA 1987), and Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).

       
       

15. Pertinent to this case, the administrative complaint charges that by providing A. E., age 15, with an alcoholic beverage, and taking photographs of her in lingerie, as well as nude photographs, respondent violated the provisions of subsections 231.28(1)(c), (f), and (i), Florida Statutes, and Rules 6B- 1.006(3)(a), (e), and (f), Florida Administrative Code.5

    
    

16. Those provisions of subsection 231.28(1), relied upon by petitioner, authorize the Education Practices Commission to revoke, suspend or otherwise discipline a teaching certificate provided that it can be shown the teacher:

    
    

    (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;

    * * *

    1. Has violated the Principles of Professional Conduct for the Education Profession described by State Board of Education rules....

       
       

       To sustain the alleged violation of subsection 231.28(1)(i), petitioner relies upon the provisions of Rule 6B-1.006, which provides:

       
       

       1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

       3. Obligation to the student requires that the individual:

          1. Shall 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.

    * * *

    1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    2. Shall not intentionally violate or deny a student's legal rights. . . .

    
    

17. Addressing first the charge that respondent's conduct violated the provisions of Rule 6B-1.006(3)(a), (e) and (f), and therefore subsection 231.28(1)(i), Florida Statutes, it is observed that the proof clearly demonstrates that, at the time of the incident in question, A. E. was not a student, and the record is devoid of any suggestion or proof that when she was a student A. E. ever knew of or was associated with respondent in any fashion. Moreover, the record is devoid of proof from which it could be reasonably concluded that respondent's conduct exposed A. E. to mental or physical harm, intentionally exposed A. E. to unnecessary embarrassment or disparagement, or

    intentionally violated or denied A. E.'s legal rights. Consequently, the proof fails to support the conclusion that respondent's conduct violated subsection 231.28(1)(i), Florida Statutes.

    
    

18. Having rejected subsection 231.28(1)(i) as a basis for discipline, this case resolves itself to whether respondent's conduct, under the circumstances, constitutes "gross immorality or an act involving moral turpitude", as proscribed by subsection 231.28(1)(c), or "conduct which seriously reduces. . . [his] . . . effectiveness as an employee of the school board," as proscribed by subsection 231.28(l)(f).

    
    

19. Rule 6B-4.009(2), Florida Administrative Code, defines immorality as follows:

    
    

    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.

    
    

    Moreover, the term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practice Commission v. Knox, 3 FALR 1373-A (DOE 1981). Accord, State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), wherein the court concluded:

    
    

    Moral turpitude [or synonymously, "gross immorality" as that term is also used in the subject statute] 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 uninten- tionally committed through error of judgment when wrong was not contemplated.

    
    

20. The moral standard to be upheld must be viewed in context with the profession at issue. See Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Teachers "charged by Sections 231.09 and 231.28(1) with providing leadership and maintaining effectiveness as teachers . . . are traditionally held to a high moral standard in the community." Adams, supra, at page 1172. Accord, Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975), wherein the court observed at page 160:

    
    

    A school teacher holds a position of great trust.

    We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character;

    to require less would jeopardize the future lives of our children.

21. While teachers are certainly held to a high moral standard in the community, the quantum of proof adduced in this case fails to substantiate wrongdoing on respondent's part warranting disciplinary action. In so concluding, it is observed that the isolated instance of according A. E. one alcoholic beverage, considering the circumstances, and the act of photographing

1. E., albeit fifteen years of age, in lingerie and nude, was not shown to be a crime or a violation of any rule or statute. 6/ Moreover, while some segments of American population might consider respondent's conduct offensive, there was no proof at hearing that it offended community standards, that it had an adverse effect on students, or that his effectiveness as a teacher had been impaired. Consequently, the proof fails to demonstrate, clearly and convincingly, that respondent's conduct constituted "gross immorality or an act involving moral turpitude," as proscribed by subsection 231.28(1)(c) or "conduct which seriously reduces . . . [his] . . . effectiveness as an employee of the school board," as proscribed by subsection 231.28(1)(f). See, Tenbroeck v. Castor, 640 So.2d 164,

167 (Fla. 1st DCA 1994) ("Speculation, surmise and suspicion cannot form the basis of disciplinary action against a teacher's professional license."), and Sherburne v. School Board of Suwannee County, 445 So.2d 1057 (Fla. 1st DCA 1984).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED:

That a final order be rendered dismissing the charges filed against respondent.

DONE AND ENTERED this 1st day of August, 1996, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.

ENDNOTES

1/ The administrative complaint alleged that "on or about February 25, 1995, Respondent photographed A. E., a 15-year-old female, at his home." At hearing, the date was amended to read "February 25, 1993."

2/ A. E. expressed her desire for a modeling portfolio to her friend Wendy Colvin. At the time, Wendy was 18 years of age, and worked for a company that catered weddings, bar mitzvahs, and other social events. Respondent frequently photographed those events, was known to Wendy, and she referred A. E. to respondent, who she deemed a professional photographer, to do the portfolio work.

3/ At hearing, A. E. testified on direct examination that before the nude session began, and while Wendy was in the bathroom, the respondent "told me he would have to get my nipples hard for the picture" and that he then "used his fingers and rubbed them." While not mentioned on direct, A. E. elaborated on cross, and further testified that respondent "licked [her] nipples." Respondent denied any such activity. Having considered the circumstances, including respondent's awareness of A. E.'s age, the proximity of Wendy, the fact that A.

1. never mentioned such actions to Wendy, the evolving nature of A. E.'s testimony, and the professional manner in which the session was apparently conducted, it is concluded that the proof is not persuasive respondent touched or licked A. E.'s nipples.

   In concluding that the session was apparently professionally conducted, Wendy's testimony that "[t]he only time I really questioned [respondent's professionalism] was when he was taking photographs of me" has not been overlooked. (Such testimony referred to a time respondent was taking photographs of her in a bathing suit, which occurred while A. E. was in the bathroom changing for the nude session.) No elaboration of Wendy's comment was sought at hearing, and the record is quite devoid of any explanation of what she considered unprofessional. Consequently, such testimony is of little value in resolving the issues in this case. Notably, however, her observations of the lingerie and nude session with A. E. speaks positively for respondent's professionalism.

   
   

   4/ The only testimony that might arguably shed a different light or suggest a different conclusion would be A. E.'s testimony at page 15 of the transcript, where she testified as follows to the question posed:

   Q. Do you remember him saying anything to you that was vulgar while he was taking the pictures?

   A. He did made a comment about one of the pictures he had taken. He said it would have been all, excuse my language, "pussy in stockings."

   However, to attach any significance to that statement, in assessing the character or content of the photographs, would require unwarranted speculation, surmise and speculation. Indeed, such comment is as susceptible to an observation of lack of professional quality, attributable to improper posing, as it is to any other characterization of the photographs.

   
   

   5/ As noted in the preliminary statement, the administrative complaint also charged that respondent rubbed A. E.'s breasts with his hands and fingers, as well as his mouth, so that her nipples would be "hard for the pictures." As heretofore found, such allegation has not been sustained by clear and convincing evidence. Therefore, it is unnecessary to address those allegations further.

   
   

   6/ Petitioner cited no criminal law violated, and independent research has disclosed none. In reaching such conclusion, the laws of the State of Florida governing abuse of children, Chapter 827, Florida Statutes; obscene literature, profanity, Chapter 847, Florida Statutes; the beverage law, Chapter 562, Florida Statutes, and in particularly subsection 562.11(1)(a), which was designed to regulate licensed vendors of alcoholic beverages upon the licensed premises and not individuals (See, Bonds v. Fleming 539 So.2d 583 (Fla. 5th DCA 1989), and Bryant v. Pistulka, 366 So.2d 479 (Fla. 1st DCA 1979); and lewdness, Chapter 800, Florida Statutes, have not been overlooked. Respondent's conduct was not, however, shown to violate any of these statutory prohibitions.

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0286

   
   

   Petitioner's proposed findings of fact are addressed as follows:

   
   

   1. Addressed in paragraph 1.

   2. Addressed in paragraph 2.

   3. Addressed in endnote 2.

   4. Addressed in paragraph 2.

   5. Addressed in endnote 2.

   6. Subordinate and unnecessary detail.

7 and 8. Addressed in paragraph 3.

1. Addressed in endnote 2, otherwise contrary to the proof.

2. Unnecessary detail.

11 through 16. Addressed in paragraphs 3 through 6, otherwise subordinate or unnecessary detail.

17 through 20. Addressed in paragraphs 7 and 8, and endnote 3, otherwise contrary to the facts as found.

1. Rejected as not relevant in view of the conclusions drawn, as reflected in endnote 3.

2. Not relevant or unnecessary detail.

3. Not relevant.

4. Addressed in endnote 3, otherwise unnecessary detail.

5. Addressed in endnote 4.

COPIES FURNISHED:

Bruce Taylor, Esquire

501 First Avenue North, Suite 600 St. Petersburg, Florida 33701

Sheldon Zipkin, Esquire

Twenty Twenty Professional Center

2020 Northeast 163rd Street, Suite 300 North Miami Beach, Florida 33162

Karen Barr Wilde, Executive Director Florida Education Center

224-B Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Fla. 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 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA EDUCATION PRACTICES COMMISSION

FRANK BROGAN, as

Commissioner of Education,

Petitioner, EPC CASE NO. 95-307-RT DOAH CASE NO. 96-0286

vs. EPC INDEX NO. 96-160-FOF

ESTON MANSFIELD,

Respondent.

/

Respondent, ESTON MANSFIELD, held Florida educator's certificate no. 691581 which expired June 30,1995. Petitioner has filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on August 1, 1996, was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this order.)

A panel of the Education Practices Commission (EPC) met on September 27, 1996, in Tampa, Florida, to take final agency action. Petitioner was represented by David Holder, Attorney at Law. Respondent was neither present nor represented. The panel reviewed the entire record in this case.

Neither Petitioner nor Respondent filed exceptions to the Recommended Order.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1-11 of the hearing officer's Findings of Fact.

CONCLUSIONS OF LAW

Except as hereafter stated, the Commission adopts paragraphs 12-21 in the hearing officer's Conclusions of Law as its Conclusions of Law.

The Commission rejects the conclusion of law in that portion of paragraph

21 of the Recommended Order which reads:

[T]he isolated instance of according A.E. one alcoholic beverage, considering the circum- stances, and the act of photographing A. E., albeit fifteen years of age, in lingerie and in the nude, was not shown to be a crime or a violation of any rule or statute. ...

Consequently, the proof fails to demonstrate, clearly and convincingly, that respondent's conduct constituted "gross immorality or

an act involving moral turpitude," as proscribed by subsection 231.28(1)(c) [Florida Statutes]...

On the contrary, the Commission concludes, that the facts, established and found, to-wit: that the respondent, an adult male, gave an alcoholic beverage to a minor female person and photographed her in lingerie and in the nude, constitute, as a matter of law, gross immorality or acts involving moral turpitude, as proscribed by subsection 231.28(1)(c), Florida Statutes.

The Commission has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57 and Chapter 231, F.S, and because of the foregoing findings and modified conclusions, hereby deviates from the Hearing Officer's recommended disposition.

WHEREFORE, it is ORDERED AND ADJUDGED as follows:

1. Respondent shall not receive a Florida educator's certificate for a period of four years from the effective date of this order.

   
   

2. As conditions for recertification, respondent shall:

1. Provide written verification from a Florida licensed psychologist, psychiatrist or mental health counselor that applicant poses no threat to children and is capable of assuming the responsibilities of an educator.

   
   

2. Provide a certified college or in-service program transcript to verify successful a grade of "pass" or a letter grade no lower than a "B" completion of a course in the area of professional ethics.

Upon employment in a position requiring a Florida educator's certificate, Respondent shall be placed on three employment years of probation with the conditions that during that period, he shall:

1. Notify EPC immediately upon his employment as an educator in any public or private Florida school.

   
   

2. Have his immediate supervisor submit performance reports to the EPC at least every three months.

   
   

3. Within ten days of issuance, submit to the EPC copies of all formal observation/evaluation forms.

   
   

4. During the first three months of each probation year, pay to the EPC the sum of $150.00 to defray the costs of monitoring probation during that year.

All costs incurred in fulfilling the terms of probation shall be borne by the Respondent.

This Order becomes effective upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120-68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of filing.

DONE AND ORDERED, this 27th day of September, 1996.

COPIES FURNISHED:

Kathleen Richards, Program Director Toni Brummond, Toni Brummond

Professional Practices Services Presiding Officer

Florida Admin. Law Reports I HEREBY CERTIFY that a copy of

the foregoing Order in the matter Frank R. Petruzielo, Supt. of Brogan vs. Eston Mansfield, was Broward County Schools Zipkin, mailed to Sheldon Zipkin, Attorney

K.C. Wright Bldg. 10th Flr. at Law, 2020 NE 163rd St., Suite 600 S.E. 3rd Ave. 300, North Miami Beach, Fl. 33162 Ft. Lauderdale, Florida 33301 this 12th day of October, 1996,

by U.S. Mail.

Mark S. Seigle Associate Supt.

Personnel, Governmental and Community Relations KAREN B. WILDE, Clerk

Broward County Schools

David Holder, Attorney at Law

14 South 9th St.

DuFuniak Springs, Florida 32433

William J. Kendrick, Hearing Officer Division of Administrative

Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Ann Cole, Clerk

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Larry T. Richardson, Dir. Recovery Network Program

P.O. Box 37206

Jacksonville, Florida 32236-7206

(904) 387-2005

Bruce Taylor, Esquire

5011st Ave. North, Suite 600 St. Petersburg, Florida 33162

Eston Mansfield, Reg. and Cert.

Docket for Case No: 96-000286

Orders for Case No: 96-000286