STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

GERALD ANTHONY DIPANFILO,

Respondent.

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) Case No. 10-0151PL

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RECOMMENDED ORDER

In lieu of a final hearing, the parties agreed to the issuance of a Recommended Order based on joint exhibits filed by the parties; the Transcript of Pinellas County School Board v.

Gerald A. Dipanfilo, Case No. 08-1078 (DOAH July 30, 2008); and Respondent’s exhibit.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19, North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(e), 1012.795(1)(f), and

1012.795(1)(i), Florida Statutes (2007),1 and Florida

Administrative Code Rule 6B-1.006(3)(a), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 11, 2009, Dr. Eric J. Smith, as Commissioner of Education, issued an Administrative Complaint against Respondent, Gerald Anthony Dipanfilo (Mr. Dipanfilo), alleging that he had violated Subsections 1012.795(1)(d), 1012.795(1)(f), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2007),2 and Florida Administrative Code Rule 6B-1.006(3)(a). The case was forwarded to the Division of Administrative Hearings on

January 13, 2010, for assignment to an Administrative Law Judge to conduct the final hearing.

The case was scheduled for final hearing on April 12, 2010. On March 22, 2010, the parties filed a Pre-hearing Stipulation, advising that an evidentiary hearing would not be necessary and that the parties would rely on the Transcript of the final hearing in Pinellas County School Board v. Gerald A. Dipanfilo, Case No. 08-1078 (DOAH July 30, 2008); the exhibits filed in DOAH Case No. 08-1078, with the exception of Exhibit No. 7; and Respondent’s exhibit, a letter from Mr. Dipanfilo’s physician.

An Order was entered on March 23, 2010, canceling the final hearing and requiring the parties to file their exhibits on or before April 12, 2010, and to file any proposed recommended orders on or before April 22, 2010.

The parties filed their Proposed Recommended Orders on April 22, 2010. On April 22, 2010, the exhibits were filed, along with the Transcript. The Transcript was inadvertently returned to the parties. When the undersigned learned of the error, a request was made to the parties to re-file the Transcript. The undersigned received the Transcript on May 25, 2010.

FINDINGS OF FACT

1. At all times relevant to the Administrative Complaint, Mr. Dipanfilo held Florida Educator’s Certificate No. 451902, covering the area of art, which is valid through June 30, 2013.

2. Mr. Dipanfilo has taught art for almost 27 years. In April and July 2007, Mr. Dipanfilo was employed by the Pinellas County School District at Seminole High School, where he has taught for more than half his career.

3. On April 28, 2007, Mr. Dipanfilo was arrested for driving under the influence. He ran his automobile into the rear of a police vehicle, damaging the police vehicle.

   Mr. Dipanfilo was also arrested for possession of drugs without a prescription. The drugs were two Viagra tablets, which his physician had given to him as samples. He pled guilty to driving under the influence and nolo contendere to the charge of possession of drugs without a prescription.

   
   

4. On July 11, 2007, Mr. Dipanfilo went to a gay bar called the Grand Central located in St. Petersburg, Florida. Mr. Dipanfilo had had too much alcohol to drink and had asked the bartender to call a taxi for him. While Mr. Dipanfilo was waiting for the taxi, he met J.G. At that time, J.G., a 17- year-old male, was enrolled as a student in the Pinellas County School District.

5. At the final hearing, Mr. Dipanfilo testified as follows. When the taxi came to pick Mr. Dipanfilo up, J.G. forced his way into the taxi. The taxi let Mr. Dipanfilo off at a Publix that was located near Mr. Dipanfilo’s condominium.

   Mr. Dipanfilo did not recall why he got out at Publix.

   
   

   Mr. Dipanfilo walked home alone and stopped at his garage to retrieve some cigarettes from his car. When Mr. Dipanfilo got his cigarettes, J.G. appeared in the garage, asking for a drink of water. Mr. Dipanfilo took J.G. up to Mr. Dipanfilo’s condominium and gave him a bottle of water. J.G. started to take his shirt off, and Mr. Dipanfilo said “Whoa.” J.G. asked to use Mr. Dipanfilo’s cell phone and Mr. Dipanfilo gave it to him. J.G. went into the hall way to use the phone and never returned. Mr. Dipanfilo realized that his car keys were missing and discovered that his car had been stolen by J.G.

   Mr. Dipanfilo immediately called the police to report the car as stolen. The report to the police was made at 2:58 a.m.

   
   

   Mr. Dipanfilo adamantly denied at the final hearing that any sexual activity had occurred with J.G.

6. At the final hearing, Mr. Dipanfilo did not explain where J.G. left the taxi, why Mr. Dipanfilo would have gotten out of the taxi at Publix, or how J.G. knew where Mr. Dipanfilo lived.

7. On July 11, 2007, Mr. Dipanfilo told the police officer, who responded to Mr. Dipanfilo’s reporting his car stolen, that he and J.G.3 had participated in some “recreational activity” in his apartment. At this time, Mr. Dipanfilo had no reason to believe that he would become a suspect of any crime because the focus was on the stolen vehicle.

8. On July 16, 2007, a police officer called Mr. Dipanfilo to follow up on the investigation of the stolen car.

   Mr. Dipanfilo told the police officer that he had had too much to drink and that he and J.G. had gone up to Mr. Dipanfilo’s apartment where they “messed around.”

9. On July 16, 2007, Mr. Dipanfilo came to the

   
   

   St. Petersburg Police Department and gave a sworn, written statement to a police officer. Mr. Dipanfilo stated that J.G. had asked if he could hitch a ride in the taxi, and

   Mr. Dipanfilo agreed to give J.G. a lift. Mr. Dipanfilo further stated that they were dropped off at Mr. Dipanfilo’s apartment

   
   

   and went up to the apartment. Once inside the apartment, Mr. Dipanfilo stated that J.G. “messed around” with him.

10. On July 20, 2007, Mr. Dipanfilo was interviewed by Police Officer David Wawrzynski. Mr. Dipanfilo told Officer Wawrzynski that he and J.G. had left Grand Central in a taxi together and were kissing one another en route to

    Mr. Dipanfilo’s apartment. Mr. Dipanfilo further stated that once they were in his apartment that he and J.G. disrobed and began rubbing each other and touching each other’s penis.

    Mr. Dipanfilo stated that he may have given J.G. some money, but that he really could not recall. At a second interview on

    July 20, 2007, at Mr. Dipanfilo’s apartment, Mr. Dipanfilo told Officer Wawrzynski that there had been some “touchy feely” going on with J.G. on July 11, 2007. At the final hearing,

    Mr. Dipanfilo stated that he did recall making such statements to the police and does not know why he would make such statements.

11. J.G. testified at the final hearing as follows. He went to Grand Central, which he knew was a bar frequented by gay persons. He met Mr. Dipanfilo at the bar, and Mr. Dipanfilo offered him a ride. They went to Mr. Dipanfilo’s apartment, and Mr. Dipanfilo asked if he could get any drugs. J.G. told him that he could get some drugs from his cousin. J.G. and

    Mr. Dipanfilo went to the ATM machine at Publix near

    
    

    Mr. Dipanfilo’s apartment and withdrew some money. They went back to the apartment where Mr. Dipanfilo began to touch him in his private areas and other parts of his body. J.G. had his clothes on, but Mr. Dipanfilo had his pants down. The touching went on for five-to-seven minutes. Mr. Dipanfilo asked J.G. to call his cousin to see if he could get some drugs. J.G. pretended to call his cousin. Mr. Dipanfilo gave him some money and the car keys, and J.G. left with the phone and the car keys, never to return.

12. At the final hearing, J.G. stated that he told Mr. Dipanfilo that he was 17 years old at some point during

    their encounter. The reason he gave for telling Mr. Dipanfilo his age was “because I wasn’t feeling what was going on at the time.” Mr. Dipanfilo denies that he knew that J.G. was a minor. According to Mr. Dipanfilo, he thought that J.G. was in his 30’s. Mr. Dipanfilo’s testimony is not credible. Mr. Dipanfilo taught high school students and should have been able to tell that a teen-ager was not in his 30’s or, at least, should have made inquiries concerning the age of the person with whom he was “messing around.” However, there is no evidence to establish that Mr. Dipanfilo knew or should have known that J.G. was a student.

13. For such a young person, J.G. has a long criminal history. In 2005, J.G. did some jail time for stealing an

    
    

    automobile. From April 2006 to June 2007, J.G. was in a juvenile detention facility for his robberies. In September 2007, J.G. was again incarcerated for battery,

    possession of marijuana, and violation of probation, and he was still serving that sentence at the time of the final hearing.

14. J.G. readily admitted that he intended to hustle Mr. Dipanfilo for money when he went to Mr. Dipanfilo’s apartment.

15. Mr. Dipanfilo’s testimony at final hearing concerning the events at his apartment with J.G. is not credible. He gave inconsistent written and oral statements to the police on five different occasions. Additionally, what Mr. Dipanfilo told the police is more in line with J.G.’s testimony at the final hearing. It is clear that some sexual activity occurred between

    J.G. and Mr. Dipanfilo at Mr. Dipanfilo’s apartment.

    
    

16. Mr. Dipanfilo’s arrest in connection with his sexual activities with J.G. received publicity in a local newspaper. Students at Seminole High School became aware of the newspaper article and posted copies of the article on the school campus. Administrators of the school were contacted by parents who had concerns over the allegations against Mr. Dipanfilo. The school principal and a school district administrator felt that

    Mr. Dipanfilo’s effectiveness as a teacher had been impaired as a result of the events on July 11, 2007. Because a teacher is

    
    

    held to a higher ethical and moral standard, it would be difficult for Mr. Dipanfilo to function in a classroom with students who were aware of the circumstances surrounding

    Mr. Dipanfilo’s arrest for his inappropriate activity with J.G.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

18. Petitioner has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

19. Petitioner has alleged that Mr. Dipanfilo violated Subsections 1012.795(1)(c), 1012.795(1)(e), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes, which provide:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with

       
       

       reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       
       

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       (c) Has been guilty of gross immorality or an act involving moral turpitude.

       
       

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       1. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.

          
          

       2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

       
       

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       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

20. The terms “gross immorality” and “moral turpitude” are not defined in the context of Section 1012.795, Florida Statutes, but guidance may be found in Florida Administrative Code Rule 6B-4.009, which provides the basis for charges upon which dismissal action by the school districts against

    
    

    instructional personnel may be taken. Florida Administrative Code Rule 6B-4.009 provides:

    (2) 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.

    
    

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    (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

21. “Moral turpitude” has also been defined by the Florida Supreme Court as follows:

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

    
    

    State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933).

22. Petitioner has established by clear and convincing evidence that Mr. Dipanfilo is guilty of gross immorality and

    
    

    moral turpitude in violation of Subsection 1012.795(1)(c), Florida Statutes. Mr. Dipanfilo engaged in inappropriate sexual activity with a 17-year-old male.

23. Petitioner has established that Mr. Dipanfilo violated Subsection 1012.795(1)(e), Florida Statutes, by being convicted of driving under the influence. The crime of driving under the influence is not a minor traffic offense. See Winn v. Martin, Case No. 07-3592PL (DOAH February 13, 2008).

24. Petitioner has established by clear and convincing evidence that Mr. Dipanfilo violated Subsection 1012.795(1)(f), Florida Statutes. Mr. Dipanfilo’s sexual activity with a minor has reduced his effectiveness in the classroom. The students at Seminole High School became aware of the arrest and posted newspaper articles around the school campus. It is hard to believe that Mr. Dipanfilo could maintain the respect of his students and colleagues based on his activities with J.G.

25. Petitioner also alleged that Mr. Dipanfilo violated Florida Administrative Code Rule 6B-1.006(3)(a), which provides that a teacher has an obligation to the student to “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.”

26. There is no evidence to establish that Mr. Dipanfilo knew that J.G. was a student. Additionally, the evidence is

unclear whether Mr. Dipanfilo had been considered a student the year prior to the incident since J.G. had been incarcerated.

Petitioner has failed to establish by clear and convincing evidence that Mr. Dipanfilo violated Florida Administrative Code Rule 6B-1.006(3)(a) and, therefore, Subsection 1012.795(1)(i), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Dipanfilo violated Subsections 1012.795(1)(c), 1012.795(e), and 1012.795(1)(f), Florida Statutes, and revoking his educator’s certificate for eight years.

DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2007 version. Some of the incidents alleged are governed by the 2006 version of the Florida Statutes. The numbering of the applicable subsections in the 2006 and 2007 versions are the same; thus, the citation will be to the 2007 version.

2/ The applicable Florida statutes are the 2006 and 2007 versions. The subsections cited in the Administrative Complaint are to the 2009 version. However, the Administrative Complaint paraphrased the applicable subsections with such specificity that it is clear which subsections of the 2006 and 2007 versions are applicable. For example, in Count 1 of the Administrative Complaint, Petitioner alleges a violation of Subsection 1012.795(1)(d), Florida Statutes, stating that Respondent “has been guilty of gross immorality or an act involving moral turpitude as defined by the rule of the State Board of Education.” The applicable subsection for the 2007 version is Subsection 1012.795(1)(c), which states: “Has been guilty of gross immorality or an act involving moral turpitude.”

3/ Mr. Dipanfilo had referred to J.G. to the police as “C.J.,” who apparently was another person he had previously met at the Grand Central. It is clear that the person who left Grand Central with Mr. Dipanfilo and went to Mr. Dipanfilo’s apartment on July 11, 2007, is J.G.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19, North, Suite 110

Clearwater, Florida 33761

Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

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: 10-000151PL

Orders for Case No: 10-000151PL