STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 05-1505PL

)

DANA SORENSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 20, 2005, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Steve Rossi, Esquire

Braverman & Rossi

625 Northeast Third Avenue Fort Lauderdale, Florida 33304

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Administrative Complaint issued February 17, 2005, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On February 17, 2005, John L. Winn, as the Commissioner of Education ("Commissioner"), filed a seven-count Administrative Complaint charging Dana Sorensen with violations of

Section 1012.795(1), Florida Statutes (2005),1 and of Florida Administrative Code Rule 6B-1.006, Principles of Professional Conduct for the Education Profession in Florida. The charges were based on the following factual allegations:

1. During the 1999-2001 school years, Respondent engaged in inappropriate conduct with students. The conduct included, but is not limited to the following:

   
   

   1. Respondent kept inappropriate pictures of nude or scantily clad females, some of whom were students, in his classroom or on his school issued computer. Respondent showed these pictures to students.

      
      

   2. Respondent communicated via the Internet with a female student under the age of

16 years. During these communications with the student, Respondent made numerous sexual or otherwise inappropriate comments, inquiries, requests of or innuendos directed at the student. These inappropriate Internet conversations often were continued the next day in person at school.

The Commissioner also alleged that Mr. Sorensen had been arrested and charged with the offense of lewd and lascivious conduct; that he pled no contest to the lesser included offense of contributing to the delinquency of a minor; and that he was placed on probation for 12 months. The Commissioner alleged that these acts violated Section 1012.795(1)(c), (f), and (i), Florida Statutes, and Florida Administrative Code Rule 6B- 1.006(3)(a), (e), (g), and (h). Mr. Sorensen timely requested a formal administrative hearing, and the matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge.

At the final hearing, the Commissioner presented the testimony of the following witnesses: Tomas Hernandez, Beverly James, Curt Navarro, R.J., and Joseph A. Melita; the testimony of Dr. Melita was taken by deposition on November 21, 2005, and the deposition transcript was filed as Volume II of the transcript of the proceedings.2 Petitioner's Exhibits 1, 4 through 13, 15 through 18, 20, 23, and 28 were offered and received into evidence3; Petitioner's Exhibits 2 and 3 were offered into evidence, but ruling was withheld to allow the parties the opportunity to submit written argument on the admissibility of the exhibits. Mr. Sorensen testified in his own behalf and presented the testimony of Keith Franklin;

Respondent's Exhibits 1 and 2 were offered and received into evidence.

Mr. Sorensen submitted a post-hearing memorandum of law in opposition to the admission of Petitioner's Exhibits 2 and 3 into evidence; Petitioner's Exhibit 2 is the sworn statement of Mr. Sorensen, and Petitioner's Exhibit 3 is the sworn statement of the student R.J. Having considered the arguments and legal authority set forth in the memorandum, as well as the arguments of counsel relative to the admissibility of the documents during the hearing, Mr. Sorensen's objections are overruled, and Petitioner's Exhibits 2 and 3 are received into evidence. It is, however, noted that R.J.'s statement is admitted subject to the limitations on the use of hearsay evidence set forth in Section 120.57(1)(c), Florida Statutes.

Volume I of the transcript of the proceedings was filed on November 9, 2005, and Volume II of the transcript was filed on December 13, 2005. The parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Education is the state agency responsible for investigating complaints against teachers holding Florida educator certificates for violations of

   Section 1012.795, Florida Statutes, and, in those cases in which probable cause is found, the Commissioner is responsible for filing a formal complaint and prosecuting a person holding a Florida educator certificate. § 1012.796, Fla. Stat. Pursuant to Section 1012.795(1), Florida Statutes, the Education Practices Commission ("EPC") is the entity responsible for imposing discipline for any of the violations set forth in that statute.

2. Mr. Sorensen holds Florida Educator Certificate No. 807290.

3. In 1998, Mr. Sorensen was hired by the Broward County public school system as an exceptional student education teacher and coach, and, from 1998 to the times material to this proceeding, he taught and coached various sports teams at McArthur High School ("McArthur").

4. From 1992 until his employment as a teacher,

   
   

   Mr. Sorensen was employed by the Broward County public school system as an assistant coach, a teacher's aide, and a substitute teacher.

5. Mr. Sorensen was a very popular teacher and coach with the students at McArthur.

6. Mr. Sorensen was removed from the classroom in the spring of 2001, and he has not worked with children since that time. Mr. Sorensen resigned his position with the Broward County School Board in 2005.

7. Mr. Sorensen married in April 2002, and he currently resides with his wife and two children in Ocala, Florida.

8. Mr. Sorensen has not been the subject of any prior disciplinary action or complaint by a student or fellow teacher.

9. R.J. began attending McArthur in the 1999-2000 school year as a freshman. During the 2000-2001 school year, R.J. was in the 10th grade. R.J. turned 16 years of age during the three months material to this proceeding.

10. Until the events that are the subject of this proceeding, Mr. Sorensen did not know R.J., although he knew of her from having seen her around school. R.J. knew Mr. Sorensen from seeing him at school, and she eventually introduced herself to him.

11. On the evening of March 1, 2001, R.J. and Officer Tomas Hernandez had a conversation at South Broward High School.

    R.J. was attending night classes to make up some high school credits, and Officer Hernandez was working on his off-duty hours as a security guard at the school. Officer Hernandez's normal assignment was as a school resource officer at McArthur. During the conversation, R.J. mentioned to Officer Hernandez that he

    needed to watch one of the teachers at McArthur. Officer Hernandez pressed R.J. to identify the teacher, and she told him it was "Coach" Sorensen. According to Officer Hernandez's report, R.J. told him that Mr. Sorensen had pictures of naked female McArthur students on his school laptop computer; that he had shown these photographs to her; and that, while she was chatting with Mr. Sorensen by computer, he told her that he had a place at the beach, and she "felt" he wanted her to go there with him.4

12. Officer Hernandez reported the information to the Hollywood Police Department early the next morning, March 2, 2001, and he was told to transport R.J. from McArthur to the police station for an interview. Officer Hernandez then contacted R.J.'s father and her sister.5 R.J. was taken out of her first-period class shortly after school started. Officer Hernandez took her by car to the Hollywood police station, where she was interviewed by Detectives Navarro and Horne. At this time, R.J. gave a sworn statement regarding her contacts with Mr. Sorensen.

13. Investigations of the charges R.J. made against

    
    

    Mr. Sorensen were conducted concurrently by the Hollywood Police Department and the Broward County School Board.

14. As a result of the investigation by the Hollywood Police Department, Mr. Sorensen was arrested and charged with

    lewd and lascivious conduct with a child, which is a felony. He pled nolo contendere to a lesser charge of contributing to the delinquency of a minor, a misdemeanor. Adjudication was withheld, and Mr. Sorensen was placed on probation for one year, which he successfully completed.6

15. Information about the accusations R.J. had made about Mr. Sorensen found its way to the media, and R.J. was pursued by reporters at school and at her home. R.J. felt that the students at McArthur were hostile towards her, and she claimed to have received threats from fellow students, both in person and on the Internet, in which she was told to drop the charges against Mr. Sorensen. R.J. spoke with Beverly James, the principal at McArthur, about her fears for her safety.

    Ms. James apparently did not allay her concerns, and R.J. moved to her sister's home and transferred to South Broward High School. R.J. quit school a few months later because she felt that the students and some of the teachers at South Broward High School "looked at [her] wrong" and were "cold" towards her.7 Photographs

16. At or about the end of January or the beginning of February 2001, a member of McArthur's yearbook staff showed Mr. Sorensen the layout for the photographs of the wrestling team. Mr. Sorensen noticed that the photographs included

    several students who had been members of the wrestling team but

    who had quit the team after the photographs were taken for the yearbook. Mr. Sorensen felt it was unfair to include students in the yearbook photographs who were not, at the time, members of the team. Mr. Sorensen decided to provide the yearbook staff with some photographs of the then-current wresting team from his own collection to substitute in the yearbook for the out-dated photographs.

17. Mr. Sorensen forgot to go through his photographs at home to choose the ones he wanted to give to the yearbook staff. He remembered one morning as he was getting ready to leave for school, and he grabbed a packet containing his personal photographs and tossed the packet into his duffle bag.8

    Mr. Sorensen kept supplies for his wrestling team, such as tape and ointment, in the duffle bag.

18. Mr. Sorensen put the duffle bag into his truck. At some point, while Mr. Sorensen was driving several members of his wrestling team to practice, two male students who were seniors at McArthur, opened the duffle bag, discovered the packet of photographs, and began looking through them. The students came across a photograph of a nude female and several other pictures of females who were semi-nude or wearing thong bikinis. When Mr. Sorensen noticed the two students looking at these photographs, he told them to put the photographs back in the duffle bag. Mr. Sorensen did not take the photographs from

    the students because he was driving at the time, but the students put the photographs back into the duffle bag.

19. After practice, Mr. Sorensen went to McArthur and dropped off his duffle bag in his classroom. At some point, Mr. Sorensen took the packet of photographs out of the duffle bag and put them in the bottom left-hand drawer of the desk in his classroom. Mr. Sorensen later looked through some of the photographs and chose several photographs of the wrestling team that he wanted to include in the yearbook.

20. R.J. often went into Mr. Sorensen's classroom during the school day, sometimes to see her friend, M., who was in

    Mr. Sorensen's special education class. R.J. regularly checked her e-mail on Mr. Sorensen's school computer and hung around his desk. At some point in the two weeks prior to her conversation with Officer Hernandez, R.J. went through the photographs in Mr. Sorensen's desk drawer. She saw two photographs of nude or semi-nude females, several photographs of females in thong bikinis, and a photograph of a McArthur student named Mandy, whom R.J. knew from school. Except for Mandy, R.J. did not know the identity of the females in these photographs.

21. Contrary to her statements to Officer Hernandez and Detectives Navarro and Horne, R.J. did not see any photographs of nude or partially nude women on Mr. Sorensen's classroom computer or on his school laptop computer.

22. After R.J. gave her statement to Detectives Navarro and Horne, a number of school and local police investigators, together with Ms. James, McArthur's principal, went to

    Mr. Sorensen's classroom and asked if they could look through his desk. Several photographs of nude, semi-nude, and scantily- clad females were found among the photographs in Mr. Sorensen's desk drawer. The investigators also confiscated Mr. Sorensen's computer, and it was sent to an Apple Computer technician located outside of Florida, who recovered one photograph of a partially nude woman from the computer's hard drive.9

23. About a week before Mr. Sorensen's desk was searched, Mandy, who was a 12th grade student at McArthur, gave

    Mr. Sorensen a photograph of herself wearing tight clothing and standing in a provocative pose; the student had written her name and telephone numbers on the back. Mr. Sorensen put the photograph in his desk drawer, with the other photographs. The photograph of Mandy was among those discovered in the search of Mr. Sorensen's desk drawer.

24. In addition to the photographs he kept in his desk drawer, Mr. Sorensen had numerous photographs on the top of his desk, under glass or plastic, including photographs of ex- girlfriends, of females in both regular and bikini bathing suits, and of members of the various sports teams he coached. These photographs were visible to anyone who came into his

    classroom and had been on his desk for quite a long time. None of the photographs on the top of the desk were considered to be inappropriate by McArthur's principal.

25. Even if Mr. Sorensen did not realize when he put the packet of photographs into his duffle bag that photographs of a nude and several scantily-clad females were among the other photographs he took from his house, it is reasonable to infer that he knew that these pictures were among the ones he put into his desk drawer because he knew that two members of his wrestling team had gone through the photographs in the duffle bag and had looked at these photographs. In addition,

    Mr. Sorensen had himself gone through a number of the photographs after he put them in the desk drawer. In placing and leaving these photographs for over a month in his classroom desk where they were accessible to students, Mr. Sorensen created conditions that were potentially harmful to learning and to the mental health of any student who might happen to see the photographs in his desk. This conduct also exposed students to unnecessary embarrassment if a student were to come across the inappropriate photographs in Mr. Sorensen's desk.

26. The evidence presented by the Commissioner is, however, not sufficient to establish clearly and convincingly that Mr. Sorensen showed the photographs to any students.10

    Inappropriate communications of a sexual nature

    
    

27. Mr. Sorensen maintained an Internet access account with America Online ("AOL"), and he had a screen-name he used for instant messaging feature on the Internet. One feature of AOL instant messaging is a "buddy list" in which a person can list the screen-names of other AOL instant-messaging users; when a person logs onto the Internet, all users who have that person's screen-name on their "buddy lists" are alerted that the person is online.

28. Mr. Sorensen gave his AOL instant-messaging screen- name to numerous students at McArthur, including students in his class and members of the various teams he coached, so they could contact him about school work and schedules. If he was on the "buddy list" of any of these individuals, they would be alerted whenever he logged onto the Internet through AOL, and they could send him instant messages.

29. Mr. Sorensen logged onto AOL to check his e-mail every night, and he would regularly receive instant messages from McArthur students. For the most part, these messages had no substance but consisted primarily of students and Mr. Sorensen asking each other what was going on.

30. Mr. Sorensen and R.J. exchanged instant messages on an average of every other day for about four months prior to

    March 1, 2001.11 On most occasions, their exchanges consisted of

    short discussions of events at school. On several occasions,

    
    

    R.J. and Mr. Sorensen discussed R.J.'s boyfriend, and R.J. confided in Mr. Sorensen that she was pregnant and intended to get an abortion.12

31. R.J. did not report any inappropriate sexual communications from Mr. Sorensen until her conversation with Officer Hernandez, even though, on more than one occasion, Officer Flasher observed R.J. instant messaging Mr. Sorensen on the computer owned by Officer Flasher and questioned her about e-mailing a teacher.13

32. In considering and weighing the evidence submitted in this case relating to Mr. Sorensen's alleged inappropriate sexual communications with R.J., the undersigned has been mindful that, as discussed further in the Conclusions of Law below, the Commissioner bears the burden in this case of proving by clear and convincing evidence the factual bases for the statutory and rule violations alleged in the Administrative Complaint. The Commissioner presented evidence to the effect that Mr. Sorensen engaged in the sexual misconduct described in the Administrative Complaint, but the totality of the evidence presented by the Commissioner is not sufficiently persuasive to constitute clear and convincing evidence that Mr. Sorensen committed the acts of sexual misconduct alleged in the Administrative Complaint.14

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

34. In its Administrative Complaint, the Commissioner seeks, among other penalties, the revocation or suspension of Mr. Sorensen's educator certificate. Therefore, the Commissioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See

    Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Clear and convincing evidence is the proper standard in license or certificate revocation proceedings because they are penal in nature and implicate significant property rights. Department of Banking and Finance v. Osbourne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996); Walker v. Florida Department of Business and

    Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

35. In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court explained:

Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the 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).

Judge Sharp, in her dissenting opinion in Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d

the power to suspend or revoke the educator certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, and the statute sets out the

bases for the imposition of such penalties. The Commissioner has charged Mr. Sorensen with having violated three provisions of Section 1012.795(1), Florida Statutes.

Inappropriate communications of a sexual nature

1. As set forth in the findings of fact herein, the Commissioner has failed to meet his burden of proving by clear and convincing evidence that Mr. Sorensen made sexual remarks, suggestions, and requests to R.J., and this conduct cannot, therefore, be made the basis for violations of

   Section 1012.795(1), Florida Statutes, or of Florida Administrative Code Rule 6B-1.006, Principles of Professional Conduct for the Education Profession in Florida.

   Photographs

   
   

2. The Commissioner charged Mr. Sorensen in Count 1 of the Administrative Complaint with violating Section 1012.795(1)(c), Florida Statutes, which provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude."

   Section 1012.795, Florida Statutes, does not contain a definition of gross immorality or of moral turpitude. "Gross immorality" has, however, been defined as follows:

   [t]he 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 Practices Commission

   v. Knox, 3 FALR 1373-A (DOE 1981).

   
   

   Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (Education Practices Commission Sept. 27, 1996).

3. The court in State ex rel. Tullidge v. Hollingsworth,

   
   

   146 So. 660, 661 (1933), observed that "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.

   
   

4. Teachers "are traditionally held to a high moral standard in the community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981). As set forth in the findings of fact herein, the Commissioner proved by clear and convincing evidence that Mr. Sorensen stored inappropriate photographs in the drawer of the desk in his classroom. The circumstances were such that it can reasonably be inferred that Mr. Sorensen knew these photographs were among those in the desk drawer. Mr. Sorensen showed an appalling lack of judgment when he placed the photographs of nude and scantily- clad females in his desk drawer, compounded by his failure to remove them promptly from school property. Mr. Sorensen's conduct in placing and leaving such photographs in a place

   accessible to students does not, however, rise to the level of "inherent baseness or depravity," nor does it constitute a "flagrant disregard of proper moral standards." The Commissioner has, therefore, failed to meet his burden of proving that Mr. Sorensen violated Section 1012.795(1)(c), Florida Statutes, and Count 1 of the Administrative Complaint should be dismissed.

5. The Commissioner charged Mr. Sorensen in Count 2 of the Administrative Complaint with having violated

   Section 1012.795(1)(f), Florida Statutes, which provides that a teacher may be disciplined if he or she "[u]pon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board." As set forth in the findings of fact herein, the Commissioner has met his burden of proving by clear and convincing evidence that Mr. Sorensen knowingly placed photographs of nude and scantily-clad females in the drawer of the desk in his classroom. The question then becomes whether this act seriously reduced Mr. Sorensen's effectiveness as a teacher.

6. Proof of a serious reduction in a teacher's effectiveness as an employee of a district school board is integral to proof of a violation of Section 1012.795(1)(f), Florida Statutes. Cf. McNeill v. Pinellas County School Board,

   678 So. 2d 476, 477 (Fla. 2d DCA 1996)(impaired effectiveness as a teacher is element of offense of misconduct in office).

   Although the record contains some conclusory remarks concerning Mr. Sorensen's loss of effectiveness as a teacher, this evidence is not sufficient to prove by clear and convincing evidence that Mr. Sorensen's effectiveness was, in fact, reduced.

7. In some situations, however, even in the absence of direct evidence, impaired effectiveness can be inferred from the nature and seriousness of the misconduct. Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000); cf. Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2nd DCA 2000)(inference of ineffectiveness may be appropriate when misconduct involves interaction with students). Mr. Sorensen's failure to remove inappropriate photographs from his desk drawer does not support such an inference because, as set forth in the findings of fact herein, there is insufficient persuasive evidence to establish that Mr. Sorensen showed the photographs to any students. The Commissioner has, therefore, failed to carry his burden of proving that Mr. Sorensen's conduct with respect to the photographs was so egregious that it seriously reduced his effectiveness as a teacher in the Broward County public school system.

8. The Commissioner charged Mr. Sorensen in Count 3 of the Administrative Complaint with violating Section

   1012.795(1)(i), Florida Statutes, which provides that a teacher may be disciplined if he or she "[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules." The Commissioner did not identify in Count 3 any specific rules that Mr. Sorensen allegedly violated, but he charged in Counts 4, 5, 6, and 7 of the Administrative Complaint that Mr. Sorensen had violated the Principles of Professional Conduct for the Education Profession in Florida set forth in Florida Administrative Code Rule 6B- 1.006(3)(a), (e), (g), and (h), which, if proven, would constitute a violation of Section 1012.795(1)(i), Florida Statutes.

9. Florida Administrative Code Rule 6B-1.006 provides in pertinent part:

   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.

         * * *

         
         

         (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

         
         

         * * *

         
         

         1. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

            
            

         2. Shall not exploit a relationship with a student for personal gain or advantage.

         
         

10. As set forth in the findings of fact herein, the Commissioner has proven by clear and convincing evidence that, with respect to placing and leaving the inappropriate photographs in his classroom desk drawer, Mr. Sorensen violated Florida Administrative Code Rule 6B-1.006(3)(a) and (e), and thereby violated Section 1012.795(1)(i), Florida Statutes.

    Mr. Sorensen failed to protect his students from conditions potentially harmful to learning within the meaning of Florida Administrative Code Rule 6B-1.006(3)(a), but, rather, actually created a condition potentially harmful to learning and to the mental health of the students in his class and of the students whom he permitted to visit his class and sit at or near his desk. Mr. Sorensen additionally created a condition in his

    classroom that had the potential of causing his students unnecessary embarrassment were they to view the photographs in his desk drawer; even if he did not intend that students look at the photographs, the photographs were in his desk drawer as a result of his intentional act of placing them there. Finally, under the circumstances of this case, it is not necessary for the Commissioner to prove that any student's ability to learn or mental health was actually harmed, or that any student was actually embarrassed, by the presence of the photographs in

    Mr. Sorensen's desk drawer; the potential for harm and embarrassment, under the circumstances of this case, is sufficient to establish a violation of Florida Administrative Code Rule 6B-1.006(3)(a) and (e).

11. The Commissioner failed to prove by clear and convincing evidence that Mr. Sorensen harassed or discriminated against any student in violation of Florida Administrative Code Rule 6B-1.006(3)(g) or used his position for personal gain in violation of Florida Administrative Code Rule 6B-1.006(3)(h). Penalty

12. Section 1012.796(7), Florida Statutes, sets forth the various penalties that the EPC may impose on a teacher for violations of the prohibitions in Section 1012.795(1), Florida Statutes, as follows:

    A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

    
    

    * * *

    
    

    1. Revocation or suspension of a certificate.

       
       

    2. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.

       
       

    3. Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum:

       
       

       1. Immediately notify the investigative office in the Department of Education upon employment or termination of employment in the state in any public or private position requiring a Florida educator's certificate.

          
          

       2. Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.

          
          

       3. Pay to the commission within the first 6 months of each probation year the administrative costs of monitoring probation assessed to the educator.

          
          

       4. Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.

          
          

       5. Satisfactorily perform his or her assigned duties in a competent, professional manner.

          
          

       6. Bear all costs of complying with the terms of a final order entered by the commission.

       
       

    4. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

       
       

    5. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

       
       

    6. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

       
       

    7. Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.

    
    

13. Florida Administrative Code Rule 6B-11.007 sets forth disciplinary guidelines for the imposition of the penalties authorized in Section 1012.796(7), Florida Statutes. Florida Administrative Code Rule 6B-11.007(1) provides:

    When the Education Practices Commission finds that a person has committed any act for which the Commission may impose discipline, the Commission shall impose an appropriate penalty within the ranges set forth for various acts or violations in the

    following disciplinary guidelines unless, based upon consideration of aggravating and mitigating factors in the individual case which are among those set out in subsection (3), the Commission determines that a penalty outside the range in those guidelines but within statutory limitation

    is appropriate. In those cases in which the Commission relies on aggravating or mitigating factors to depart from the ranges in these disciplinary guidelines, such aggravating and mitigating factors shall be stated in the record of the case and in the Final Order imposing the applicable penalty.

    
    

14. Florida Administrative Code Rule 6B-11.007(2) includes "disciplinary guidelines [that] shall apply to violations of the below listed statutory and rule violations and to the described actions which may be [the] basis for determining violations of particular statutory or rule provisions." There is no penalty set forth in Florida Administrative Code Rule 6B-11.007(2) covering the actions that are the basis for the statutory and rule violations proven by the Commissioner in this case, so it is appropriate to refer to the penalties set forth in

    Section 1012.796(7), Florida Statutes, in determining the penalty that should be imposed on Mr. Sorensen.

15. As the penalty for the violations established clearly and convincingly by the Commissioner, Mr. Sorensen should be placed on probation for a term of two years, under such conditions as determined by the EPC to be appropriate, to include, but not be limited to, the conditions identified in

Section 1012.796(7)(d), Florida Statutes. In determining that this penalty is appropriate, the following have been considered: Mr. Sorensen had never been previously disciplined or had any complaint made against him prior to R.J.'s complaint;

Mr. Sorensen's principal held him in high regard as an educator; and there was no evidence of actual harm to any student as a result of Mr. Sorensen's conduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order:

1. Dismissing Counts 1, 2, 6 and 7 of the Administrative Complaint;

2. Finding Dana Sorensen guilty of having violated Section 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and (e); and

2. Placing Mr. Sorensen on probation for a term of two years and under such conditions as the Education Practices Commission shall deem appropriate.

DONE AND ENTERED this 21st day of February, 2006, in Tallahassee, Leon County, Florida.

S

PATRICIA M. HART

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 21st day of February, 2006.

ENDNOTES

1/ All references herein are to the 2005 edition of the Florida Statutes unless otherwise indicated.

2/ During Dr. Melita's deposition, the Commissioner marked the investigation report completed by the Broward County School Board as Petitioner's Exhibit 19 and offered it into evidence. This exhibit was not sent with the transcript of Dr. Melita's deposition, nor was it included in the exhibits provided to the undersigned.

3/ Counsel for the Petitioner did not prefile Petitioner's Exhibit 28, and he was directed to forward a copy to the Division of Administrative Hearings at the conclusion of the hearing. There is no record in the office of the Clerk of the Division of Administrative Hearings that this exhibit was received.

4/ According to Officer Hernandez, he and R.J. were engaged in a normal conversation when R.J. brought up the subject of

Mr. Sorensen, and R.J. remained calm as she was discussing her allegations against him.

5/ At the time, R.J.'s sister was either dating or engaged to Officer Tim Flasher, who was a school resource officer and friend of Officer Hernandez.

6/ The Broward County School Board also initiated proceedings to terminate Mr. Sorensen's employment. Mr. Sorensen requested a formal administrative hearing before the Division of Administrative Hearings, but he submitted his resignation prior to the hearing in that case.

7/ Transcript at pages 186-87.

8/ Mr. Sorensen estimated that there were as many as

100 photographs in the packet that he put in his duffle bag.

9/ There was no evidence beyond the conjecture of Detective Navarro that Mr. Sorensen was responsible for placing the photograph in the computer or that he was aware that the photograph was on the computer's hard drive. It can be inferred, however, that the photograph was not accessible to students since the image could not be retrieved by the police department computer specialist but only by an Apple technician.

10/ The Commissioner did not controvert Mr. Sorensen's testimony that he was driving his truck when the two male members of the wrestling team looked through the packet of pictures and saw the photographs of the nude or scantily-clad females. With respect to R.J.'s viewing the photographs, Mr. Sorensen testified unequivocally that he did not show any of the photographs of nude or scantily-clad females to R.J. R.J., on the other hand, testified that Mr. Sorensen showed her the photographs one day in his classroom, but the persuasiveness of this testimony is substantially diminished because of the significant inconsistencies in R.J.'s various statements to Officer Hernandez, to Detectives Navarro and Horne, and in her testimony at the hearing about the circumstances in which she viewed the photographs. In light of the inconsistencies in her statements and of the vagueness of her testimony relating to this accusation, R.J.'s uncorroborated testimony that Mr. Sorensen showed her photographs of nude or semi-nude females is insufficient to establish clearly and convincingly that

Mr. Sorensen in fact did so.

11/ R.J. used a computer that belonged to her sister's boyfriend, a school resource officer employed by the Hollywood

Police Department named Timothy Flasher, and she shared her screen-name and password with her sister.

12/ In her testimony at the hearing, R.J. denied that she had a boyfriend, had an abortion, or was ever pregnant. Keith Franklin, a coach at McArthur who worked with Mr. Sorensen and who knew R.J. as a student in his mathematics class and as a student who attended internal suspension sessions that he supervised, testified, however, that R.J. tried to discuss "abortion and sex" with him on one occasion but that he had refused to speak with her about such matters.

13/ Transcript at pages 222-23; 235-36..

14/ R.J. testified that Mr. Sorensen made sexual comments and suggestions to and requests of her in instant messages they exchanged on the Internet over a three- to four-month period and that he made occasional indirect references to their exchanges during the school day, but she could not recall with precision and clarity many of the details surrounding the events central to her allegations of inappropriate sexual communications on Mr. Sorensen's part. On the other hand, Mr. Sorensen denies making any of the sexual comments, requests, or suggestions attributed to him by R.J. Both R.J. and Mr. Sorensen appeared to be sincere in their testimony, but there is no persuasive evidence that impeaches or corroborates the testimony of either

R.J. or Mr. Sorensen on the salient points of the allegations of inappropriate sexual communications.

COPIES FURNISHED:

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

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

Charles T. Whitelock, Esquire Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Steve Rossi, Esquire Braverman & Rossi

625 Northeast Third Avenue Fort Lauderdale, Florida 33304

Daniel J. Woodring, General Counsel 1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

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

325 West Gaines Street, Suite 224-E 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: 05-001505PL

Orders for Case No: 05-001505PL