STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as Commissioner of Education,

Petitioner,

vs.

TIMOTHY HOLMES,

Respondent.

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) Case No. 05-0361PL

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on April 20, 2005, in Bartow, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: James Domineck, Jr., Esquire

Law Offices of James Domineck, Jr., P.A.

100 South Kentucky Avenue Lakeland, Florida 33801-5096

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what

penalty, if any, should Petitioner impose on Respondent's teaching certificate.

PRELIMINARY STATEMENT

On October 25, 2004, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of three witnesses. Respondent testified and submitted two exhibits.

The ALJ granted Respondent 10 days to file copies of the original exhibits, but Respondent failed to file the original exhibits or copies of the exhibits within 10 days after the administrative hearing. The identity of witnesses and exhibits and the rulings regarding each are reported in the one-volume Transcript of the hearing filed with DOAH on May 5, 2005.

Petitioner filed its Proposed Recommended Order (PRO) on May 16, 2005. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is authorized to teach mathematics pursuant to Florida Educator's Certificate No. 793778. The certificate is valid through June 30, 2005.

2. At all times pertinent hereto, Respondent was employed as a math teacher at the Discovery Academy in the Polk County

   School District (Discovery). Discovery was formerly known as the Lake Alfred Middle School.

3. Student C.H. first attended Discovery in the fall of 1997 as a sixth-grade student and continued at Discovery for approximately two and one half years. In the sixth grade, C.H. was assigned to a math class taught by Respondent.

4. During the sixth grade, Respondent issued C.H. a referral on one occasion for being out of her designated area, but did not discipline C.H. on any other occasion while C.H. attended Discovery. Respondent did not teach C.H. in either the seventh or eighth grades.

5. Sometime in November 1999, when C.H. was in the eighth grade at Discovery, Respondent called C.H. out of her gym class. The gym teacher allowed C.H. to leave and sent another student with her who needed to use the restroom.

6. While the other student was using the restroom, Respondent and C.H. entered an empty classroom. Respondent leaned against a table, within reach of C.H., stated that he was watching C.H. from the window and that she was "looking good." Respondent then grabbed C.H. by the waist and forced a kiss onto the lips of C.H. Respondent attempted to "stick his tongue" into the mouth of C.H. C.H. backed away and returned to her gym class.

7. Later in the week, C.H. reported the incident to an assistant principal. As a result of Respondent's conduct, the administration at Discovery granted C.H. a transfer to a different middle school. The report of the incident and transfer to another middle school did not result in the circulation of rumors among the students or other adverse notoriety.

8. During the 2001-2002 school year, student K.V. was in the eighth grade at Discovery. K.V. met Respondent through another teacher while socializing in the school courtyard in the mornings before classes began. Respondent never taught K.V. in any of his classes and never disciplined K.V. for any reason.

9. Discovery conducted its commencement ceremony for the 2001-2002 school year on May 21, 2002, the last day of that school year. K.V. arrived approximately 30 minutes early to meet a friend to prepare for the commencement ceremony.

10. K.V. walked across campus to meet her friend and encountered Respondent and a male student of Respondent. At Respondent's request, K.V. agreed to accompany Respondent to his classroom to sign his yearbook.

11. The classroom was empty. The male student placed his belongings on a desk and left the classroom for the basketball court. Respondent and K.V. were alone in the classroom.

12. K.V. noticed a series of photographs of Respondent and his family on a table in the corner of the classroom. While

    K.V. was looking at the photographs, Respondent approached K.V. from behind, leaned back on a table that was behind him, and pulled K.V. onto his lap. Respondent said to K.V. that he "would get with" her "small waist and big hips . . . any day."

    K.V. immediately pulled away from Respondent.

    
    

13. K.V. had never had such an experience with an educator or other authority figure. K.V. was frightened and shocked.

14. K.V. stayed in the classroom and signed Respondent's yearbook. K.V. feared what Respondent may have done if K.V. had declined to sign the yearbook. After K.V. signed the yearbook, Respondent suggested that they walk to the basketball court.

15. While walking through an empty adjoining room, Respondent stopped and asked K.V. for a goodbye hug. K.V. put one arm around Respondent's side, at which point Respondent pulled K.V. face to face. Respondent proceeded to "peck kiss"

    K.V. on her lips. Although K.V. attempted to pull away, Respondent pulled her back and again kissed her on the lips. Respondent also attempted to "stick his tongue" into the mouth of K.V. K.V. pulled away from Respondent and told him that she needed to leave.

16. K.V. first reported the incident to her mother and aunt approximately two weeks after May 21, 2002, during a

    conversation at a restaurant. K.V. suddenly broke down and disclosed the incident. When K.V. disclosed the incident to her mother and aunt, K.V. had no knowledge of the previous incident involving C.H.

17. In June 2002, Respondent telephoned K.V.'s residence on three occasions. During one of the conversations, Respondent spoke with K.V. and asked her if she had told anyone what had happened. During this conversation, Respondent also instructed

    K.V. not to report the incident. On another occasion, Respondent telephoned the residence and asked K.V.'s mother if he could speak with K.V. K.V.'s mother reported the incident to administrators at Discovery shortly after her conversation with Respondent.

    CONCLUSIONS OF LAW

    
    

18. DOAH has jurisdiction over the subject matter and the parties pursuant to Subsection 120.57(1), Florida Statutes, (2004). DOAH provided the parties with adequate notice of the administrative hearing.

19. Petitioner bears the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of the proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

20. Section 231.28, Florida Statutes (1999), 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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       (i) has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules . . . .

       
       

21. Florida Administrative Code Rule 6B-1.006(3)(a) requires Respondent to make reasonable effort to protect students, such as C.H. and K.V., from conditions harmful to learning and/or to the students' mental and/or physical safety. Florida Administrative Code Rule 6B-1.006(3)(e) prohibits Respondent from intentionally exposing students, such as C.H. and K.V., to unnecessary embarrassment or disparagement.

22. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondent is guilty of gross immorality within the meaning of Subsection 231.28(1)(c), Florida Statutes (1999).

23. Gross immorality is defined, by necessary implication, in the disciplinary guidelines prescribed in Florida Administrative Code Rule 6B-11.007(2). Rule 6B-11.007(2)(i) prescribes a penalty that ranges from suspension to revocation for sexual misconduct with a student in violation of the prohibition in Subsection 231.28(1)(c), Florida Statutes (1999), against gross immorality.

24. The acts that Respondent engaged in with C.H. and K.V. constituted sexual misconduct with each student, within the meaning of Florida Administrative Code Rule 6B-11.007(2)(i), and gross immorality, within the meaning of Subsection 231.28(1)(c), Florida Statutes (1999). The same acts committed by Respondent violated Florida Administrative Code Rules 6B-1.006(3)(a)

    and (e) by subjecting C.H. and K.V. to conditions harmful to learning and to each student's mental safety; and by intentionally exposing C.H. and K.V. to unnecessary embarrassment and disparagement. See Castor v. Cannon, DOAH Case No. 87-1592 (October 7, 1987)(acts which may be morally permissible in some quarters may be considered immoral when committed by a teacher); Brogan v. Rito, 1995 WL 1053 (Fla. Div.

    Admin. Hrgs. 1995)(gross immorality involves a flagrant disregard of proper moral standards); Crist v. Hendricks, 2002 WL 31125210 (Fla. Div. Admin. Hrgs. 2002)(fondling of seventeen- year-old student is an act of gross immorality); Brogan v.

    Merritt, 1998 WL 930083 (Fla. Div. Admin. Hrgs. 1998) (fondling of a minor constitutes an act of gross immorality and moral turpitude).

25. Petitioner's PRO seeks permanent revocation of Respondent's teaching certificate. The proposed penalty exceeds relevant disciplinary guideline that range from suspension to revocation. Compare Fla. Admin. Code R. 6B-11.007(2)(i) (prescribing a maximum penalty of "revocation") with Fla. Admin. Code R. 6B-11.007(2)(m)(prescribing a maximum penalty of "permanent revocation").

26. Petitioner did not prove by clear and convincing evidence that aggravating factors prescribed in Florida Administrative Code Rule 6B-11.007(3) support a penalty of permanent revocation. Rather, Respondent has no previous discipline and, while the offenses are severe because they were perpetrated on minors, the evidence is less than clear and convincing that the students suffered serious physical or mental harm within the meaning of Florida Administrative Code Rule

6B-11.007(3)(r).

RECOMMENDATION

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

RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of violating Subsections 231.2615(1)(c) and (i), Florida Statutes (1999), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and revoking educator certificate number 793778 for a period of two years.

DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2005.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400

Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

James Domineck, Jr., Esquire

Law Offices of James Domineck, Jr., P.A.

100 South Kentucky Avenue Lakeland, Florida 33801-5096

Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

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: 05-000361PL

Orders for Case No: 05-000361PL