STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-2908

)

DAVID W. MERRITT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Stephen F. Dean, held a formal hearing in this case on September 9, 1998, in Bushnell, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 489

DeFuniak Springs, Florida 32435

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A. 2595 Tampa Road, Suite J

Palm Harbor, Florida 34584 STATEMENT OF THE ISSUE

Whether the Education Practices Commission (EPC) should suspend, revoke, or otherwise discipline the Respondent's Florida teaching certificate for the violations alleged in the Administrative Complaint filed by the Petitioner herein.

PRELIMINARY STATEMENT

Frank T. Brogan, as Commissioner of Education, filed an Administrative Complaint against the Respondent. The complaint alleges that on or about May 15, 1996, while employed as a teacher at Webster Elementary School in Sumter County, Florida, the Respondent fondled the leg, genital area and buttocks of a minor male student in a lewd and indecent manner. The complaint alleged that his actions resulted in the Respondent's criminal prosecution for lewd and lascivious acts on a child under sixteen years of age, and the Respondent plead guilty to a lesser charge of battery receiving a sentence of one year of probation.

Respondent's probation requires that he have no contact with children under the age of eighteen without adult supervision and not teach while on probation. As a result of the alleged conduct and criminal prosecution, the Petitioner alleges that the Respondent was suspended without pay by the Sumter County School Board.

The Petitioner's Administrative Complaint alleges that the conduct described in the Administrative Complaint violates Sections 231.28(1)(c),(e) and (i), 231.28(2), Florida Statutes, and Rule 6B-1.006(3)(a), (e) and (h), Florida Administrative Code.

On December 2, 1997, the Respondent executed an Election of Rights disputing all material allegations and counts contained in the Administrative Complaint and requested a formal hearing. The case was referred to the Division of Administrative Hearings to

conduct a formal hearing. Pursuant to notice, a formal hearing was held on September 9, 1998.

At the hearing, the Petitioner presented the testimony of five witnesses and offered three exhibits which were received in evidence. The Respondent presented his testimony and that of five other witnesses. Respondent offered one exhibit which was admitted.

A transcript of the hearing was filed and the parties submitted Proposed Recommended Orders which were read and considered.

FINDINGS OF FACT

1. The Respondent holds Florida teaching certificate 456761, covering the area of Elementary Education, which is valid through June 30, 1999.

2. During the 1995-1996 school year, the Respondent was employed by the Sumter County School District as a reading teacher at Webster Elementary School.

3. During the 1995-1996 school year, Shaun Boone was enrolled at Webster Elementary School as a fifth grade student. Shawn Boone was born on February 22, 1985, and was eleven years of age at the time of the incident.

4. During the 1995-196 school year, Respondent taught reading to Shaun Boone in a "pullout program" in which students were assigned to go the Respondent's classroom each school day for fifty minutes.

5. During the 1995-1996 school year, the Respondent shared a classroom with Patsy Rogers, another reading teacher. The room was divided in half by a row of bookshelves and file cabinets extending from one wall approximately three-quarters of the length of the room. Each teacher was assigned his and her own class of students.

6. During Shaun's reading class on May 22, 1996, both the Respondent's and Ms. Rogers' students were gathered on the Respondent's side of the classroom to watch a videotape. During this class period Shaun was working on a reading exercise in Ms. Roger's side of the room. Shaun asked the Respondent for help with his reading exercise.

7. The Respondent and Shaun sat down side by side at a table in Ms. Roger's area with the reading exercise papers on the table in front of them. The Respondent sat to the right of Shaun. Their backs were to the bookshelves and cabinets which divided the room.

8. While seated in this position, the Respondent placed his left hand on top of Shaun's right leg and began to rub his leg. He then moved his hand up to Shaun's groin area and rubbed the student's genitals through his clothing. This touching occurred beneath the table in front of them.

9. The Respondent's touching of his leg and genitals frightened Shaun. He immediately stood up and started to move away. As he stood up, the Respondent grabbed and squeezed his

   buttocks. Shaun slapped the Respondent's hand away from his buttocks and moved away from him.

10. After school, Shaun went to Wednesday night church services; however, he told his parents what the Respondent had done to him at school that day when they got home from church. Shaun's father became very upset and, together with his wife, took Shaun to school the next morning. He met the school's principal, Ms. Carolyn Stephens, on the steps of the school when she arrived at 7:30 a.m. the next day, May 23, 1996.

11. After speaking to the parents and interviewing the student. Ms. Stephens called the Superintendent of Schools to report the incident. Ms. Stephens was instructed to report the matter to the School Resource Officer and did so.

12. Later on that same day, May 23, 1996, FDLE Special Agent (S/A) Alfred Danna arrived at Webster Elementary School to conduct an investigation at the request of the Sumter County Sheriff's office. S/A Danna was based in Tampa. Prior to that day, S/A Danna did not know any of the individuals involved in this matter.

13. S/A Danna interviewed Shaun in the Principal's office. Shaun related the same information to S/A Danna that he had shared with his parents the previous day and with Ms. Stephens earlier on May 23.

14. After interviewing Shaun, S/A Danna interviewed the Respondent in Ms. Stephens' office. S/A Danna explained to the Respondent that he did not have to talk with him.

15. After initially denying any knowledge of the incident, the Respondent admitted to S/A Danna that he had accidentally touched Shaun's leg while getting out of his chair. After S/A agent Danna's confrontational questioning, the Respondent admitted that he had rubbed Shaun's leg and groin and touched his buttocks, but explained that he was an affectionate person and that the touchings were not intended to be sexual in nature, only affectionate.

16. Based upon S/A Danna's investigation, the Respondent was arrested and charged by the State Attorney for the Fifth Judicial Circuit with two counts of lewd and lascivious act upon a child under sixteen years of age. The charging information was filed on June 3, 1996.

17. On February 6, 1997, the Respondent entered a plea of nolo contendere to one count of Battery. The Respondent was adjudicated by the Court to be guilty of Battery and was sentenced to probation for one year, and ordered to pay a $1,000 fine within nine months. The Respondent was specifically ordered to have no contact with children under 18 without adult supervision and to not teach anyone under the age of 18 while on probation.

18. Based upon the report of the incident described above, the Respondent was suspended without pay by the Sumter County School Board and remained under suspension at the time of the formal hearing on September 9, 1998.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over this proceeding and the subject matter hereof pursuant to Section 120.57, Florida Statutes.

20. Petitioner has the burden of proof in this proceeding. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

21. 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:

       
       

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       (c) has been guilty of gross immorality or an act involving moral turpitude;

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       (e) has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.

       
       

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       (i) 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.

       
       

22. In Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 2d 660 (Fla. 1933), moral turpitude was defined as:

    Moral turpitude involves the idea of inherent baseness or depravity in the private and social relations or duties owed by man to man or man to society. . . . it has also been defined as anything done contrary to justice, honesty, principle, or good morals, through error of judgment when wrong was not contemplated.

23. The fondling of a minor for sexual gratification is base and depraved. Although the Respondent did not pled guilty to the charges of lewd and lascivious conduct with a minor, he admitted this conduct against his interest to S/A Danna. Shaun Boone testified regarding the conduct.

24. Based on the authority cited, it is concluded that the Respondent's conduct constitutes acts of gross immorality and moral turpitude.

25. Section 231.28(1)(c), Florida Statutes, provides that any teacher guilty of gross immorality may have his or her certificate suspended or revoked.

26. Section 231.28(1)(e), Florida Statutes, provides a teacher may be disciplined if it is proven that the certificate holder has been convicted of a misdemeanor or felony, or other criminal charge other than a minor traffic violation. Respondent's adjudication of guilt by the Circuit Court of the Fifth Judicial Circuit for the offense of Battery constitutes additional grounds for the discipline of the Respondent's teaching certificate.

27. Rule 6B-11.007, Florida Administrative Code, sets forth the disciplinary guidelines for the Education Practices Commission. These guidelines provide for a penalty ranging from a period of suspension to a period of revocation for sexual misconduct with any student.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, and considering the disciplinary guidelines, it is

RECOMMENDED:

That the Education Practices Commission enter a final order revoking the Respondent's certificate.

DONE AND ENTERED this 2nd day of December, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1998.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 489

DeFuniak Springs, Florida 32435

Mark Herdman, Esquire

Herdman and Sabellarides, P.A. 2595 Tampa Road, Suite J

Palm Harbor, Florida 34584

Kathleen M. Richards, Executive Director Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Services Department of Education

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 within

15 days from the date of 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: 98-002908

Orders for Case No: 98-002908