The Issue Whether respondent, an elementary school principal, is guilty of immorality and misconduct in office where he allegedly solicited another to commit a lewd act and was arrested for such solicitation. By its petition of January 29, 1981, seeking dismissal of Russell W. Rowe ("Respondent") from the Broward County school system, petitioner School Board of Broward County 1/ ("the School Board") alleged that respondent: . . . is guilty of immorality and/or misconduct in office [in violation of Section 231.36(6), Florida Statutes (1979)] in that [he] on or about January 22, 1981, made to Sergeant Thomas [sic], a female police officer, an offer of ten dollars for her to engage in an act of masturbation with him, the act resulting in his being arrested for solicitation of prostitution. (P-6.) By appeal dated February 6, 1981, respondent denied the allegations and requested a formal hearing; thereafter, the School Board referred this case to the Division of Administrative Hearings. Final hearing was initially set for March 26, 1981. Upon the parties' joint request for continuance, hearing was rescheduled for May 12 and 13, 1981. On May 7, 1981, respondent moved to dismiss or strike the School Board's petition for dismissal insofar as it was based on Chapters 6B-3, 6B-4, and 6B-5, Florida Administrative Code--rules promulgated by the State Professional Practices Council. After the School Board filed a responsive memorandum, the motion was denied. At final hearing, the School Board called as its witnesses: Russell W. Rowe, William T. McFatter, Emil Mosny, Norman Swigler, Sandra Ledegang, Alan L. Van Sant, Emmett R. Thomas, Dollye R. G. Woodside, Barbara N. Simmons, and Geraldine Introcaso. It offered into evidence Petitioner's Exhibit 2/ Nos. 1 through 12, inclusive, each of which was received. The respondent testified in his own behalf and called as his witnesses: Larry Katz, Warren S. Goldstein, Millicent Sworn, Patricia Mason, Perry Rollins, and Ronald Broman; he offered into evidence Respondent's Exhibit 2/ Nos. 1 through 14, inclusive, each of which was received. On June 24, 1981, the parties submitted proposed findings of fact and conclusions of law. It was agreed that the 30-day time period for submittal of a recommended order to the School Board would commence on that date. Based upon the evidence adduced at hearing, the following evidentiary and ultimate facts are determined:
Findings Of Fact The Respondent Respondent has been employed by the Broward County School Board for 27 years. He Has served as an elementary school principal for 20 of those years; since 1975 he has been principal of Sanders Park Elementary School, located in Pompano Beach, Florida. (Testimony of Rowe.) Prior to his alleged misconduct on January 22, 1981, respondent had an unblemished employment record with the School Board. He had never been disciplined. His performance evaluations were always "satisfactory" --the highest rating obtainable. At Sanders Park Elementary, he worked closely with parents and teachers; 3/ his programs were credited with a dramatic rise in student achievement levels. His supervisor considered him an above-average principal, a principal who has proven competent, effective, and efficient. (Testimony of Rowe, Sworn, Swigler, McFatter.) Since 1972, in addition to his employment by the School Board, respondent has been employed as a part-time instructor at Broward Community College. In that capacity, he has taught various courses, including psychology sociology, and education. Although his alleged January 22, 1981, misconduct caused the School Board to suspend him from his employment, Broward Community College has continued to employ him as an instructor. (Testimony of Rowe, McFatter.) During the 1980 fall semester, he taught introductory sociology and social problems courses at Broward Community College. In January, 1981, he began teaching an educational course and another social problems course. He ordinarily teaches the social problems course by proceeding through a course textbook, chapter by chapter. The third chapter discusses variations in human sexuality, including such topics as homosexuality, prostitution, lesbianism, and pornography. To supplement the text, he frequently invites persons with special expertise or personal experience in an area to lecture his class. In connection with the topic of prostitution, he has interviewed prostitutes in the past for the purpose of obtaining information for his course. During January, 1981, Fort Lauderdale was experiencing a substantial increase in the number of prostitutes and street walkers openly soliciting business along Federal Highway: it was recognized as a growing community social problem. Respondent was aware of this prostitution problem aid had previously interviewed several prostitutes along Federal Highway. During the later part of January, at a time when Fort Lauderdale was experiencing this increasing prostitution problem, respondent--in his Broward Community College social problems course--was preparing to teach the third chapter of the course textbook, the chapter covering prostitution. (Testimony of Rowe, R-9.) II. The Alleged Misconduct At approximately 5:15 p.m., on January 22, 1981, respondent was driving south on Federal Highway, en route to check on his boat which was moored nearby. Heavy traffic brought him to a standstill at the corner of Southeast 18th Court and South Federal Highway. There he observed a young, casually dressed female standing on the sidewalk. [Unknown to respondent, she was Officer Sandra Ledegang, a Fort Lauderdale police officer working as a decoy on South Federal Highway. Her task was to stand on the corner and arrest men, referred to as "Johns," who approached her and made offers with reference to prostitution.] Respondent exchanged glances with Officer Ledegang. He interpreted her gestures and facial movements as a typical "come-on" (Tr. 13-53); 4/ he believed she was a prostitute. He then pulled alongside the rear of a nearby building, and she walked to his car. He rolled down his window and they engaged in some general conversation for several minutes. He asked her if she was a police officer, and she said no. She, in turn, asked him if he was a police officer, and he said no. Respondent indicated that she looked like a police officer; she reassured him she wasn't. After inquiring about prices for different sexual favors, he asked, "Do you do hand jobs;" she answered "yes." (Tr. 13-62.) He asked her the price, but she resisted giving a figure. Instead, she asked him what it was worth to him; she insisted he name a price. He continued asking her to name the price. After several minutes of this back-and-forth conversation, she advised him that she didn't have time to talk, turned away, and began walking back towards the corner. Respondent, wanting to continue the conversation, called her back, and said, "How about $10?" or words to that effect. She immediately told him to pull across the street behind a restaurant- -which was a signal for her back-up officers to move in. Within seconds, Lieutenant Van Sant and Sergeant Thomas surrounded respondent, and arrested him for soliciting for prostitution. (Testimony of Rowe, Ledegang, P-1, P-2.) During the conversation between respondent and Officer Ledegang, there was no exchange of money, and no physical contact. No disrobing took place. Although prostitutes ordinarily require payment prior to performing sexual favors, Rowe did not have $10 with him at the time. (Testimony of Rowe, Ledegang.) At the time of his arrest, respondent was noticeably nervous and upset. In response to questions from the police officers, he identified himself as an elementary school principal, but offered no other explanation for his conduct. (Testimony of Ledegang, Van Sant, Thomas.) The charge against respondent--solicitation for prostitution in violation of Section 796.07(3)(b), Florida Statutes--was subsequently nolle prossed; consequently, respondent has neither been convicted nor acquitted of the charge. The court records concerning the offense have been sealed by order of the County Court of Broward County. (Testimony of Rowe, P-11.) Respondent's arrest was reported in one six-inch news article published by a newspaper of general circulation within the county. (Testimony of McFatter.) III. Respondent's Intent and Motive Respondent explains that Officer Ledegang appeared to be an unusually articulate individual who could provide information about prostitution which would be useful to his social problems course; that by assuming the role of a customer--using an investigatory technique known as "participant- observationist"--he could effectively elicit such information. He asserts that, at the time, he did not believe his actions were unlawful or immoral: he had interviewed prostitutes, in like manner, numerous times before. He contends that his question, "What about $10?" was intended to continue the discussion on prices and avoid termination of the interview. (Testimony of Rowe.) Respondent's explanation of his motive and purpose in interviewing Officer Ledegang and asking the question, "What about $10?" is accepted as persuasive. It is plausible, as admitted by both the school superintendent and area supervisor. It was corroborated by independent evidence. Ronald Broman, principal of Mary McLeod Bethune Elementary School, testified that respondent stated--approximately a month before the alleged incident--that he was interviewing prostitutes on the beach in connection with his course at the community college. Broman responded that it appeared to be "an interesting and possibly a difficult assignment. . ." (Tr. 12-399.) Furthermore, since respondent lacked sufficient funds to pay for the ostensible sexual favor--and payment precedes performance--it may be reasonably inferred that his purpose was to elicit information, not sexual acts. Lastly, the offending question which was the cause of his arrest and this dismissal proceeding consists of three words: "What about $10?" 5/ When considered in the context of the conversation between respondent and Officer Ledegang, this question is ambiguous and susceptible to different interpretations. Instead of constituting an unlawful request that another commit a lewd act, it may reasonably be construed as part of a price bargaining exchange. (Testimony of Broman, McFatter, Swigler, Ledegang.) The School Board failed to effectively discredit or rebut respondent's explanation of his conversation with Officer Ledegang. In light of the above, it is concluded that, respondent, in conversing with Officer Ledegang, (1) intended only to elicit information on prostitution which could be useful to his community college course; and (2) did not intend to commit an immoral or unlawful act. IV. Community Reaction to Respondent's Alleged Misconduct Respondent's arrest on the charge of soliciting for prostitution was reported in one county-wide newspaper. Public reaction was mild and relatively quiet. The reaction of students, teachers, and principals in the Broward County school system was favorable toward respondent: there was virtually no negative comment. (Testimony of Mason, McFatter, Sworn, P-14.) The superintendent--upon whose recommendation the School Board instituted this dismissal proceeding--admitted that the immorality of conduct, i.e., whether it offends the public's conscience, can be measured by public reaction: [Superintendent of Schools] I would say the reaction to the. . . [Respondent's alleged misconduct] would reflect public conscience, yes. [Counsel for Respondent] Q. Has the reaction been overwhelming in support of Mr. Rowe? A. As far as the petition and the letters and responses that I've had, yes sir. (Tr. 13-106.) He also testified that public reaction should be used to measure whether respondent's effectiveness and fitness as a School Board employee has been diminished. When asked if there had been any overwhelming negative reaction to respondent's alleged misconduct and arrest, the superintendent replied: A. I haven't any overwhelming negative reaction. At any time? A. No. (Tr. 13-107.) (Testimony of McFatter.) Respondent's alleged misconduct and subsequent arrest have not impaired his effectiveness as a principal in the Broward County school system. The superintendent's opinion to the contrary is rejected as unpersuasive since it was based on his experience with several teachers who were guilty of sexual acts with school children. Such offenses are materially different from the charge against respondent. 6/ The faculty of Sanders Park Elementary School unanimously support respondent and petitioned the School Board: We, the faculty of Sanders Park Elementary School in Pompano Beach, stand whole heartedly behind our principal, Russell W. Rowe. Mr. Rowe is known as a fair man and an honest man. He has been at our sides when we needed him in professional and personal crises. We look up to him as our leader. He has the utmost respect from our faculty and students. We feel he is an excellent administrator and friend to all. Mr. Rowe is our guiding light in these troubled times of education. He is the motivation behind the fine academic work at Sanders Park. Our love and respect for Mr. Rowe is never ending. The elementary school principals of Broward County support respondent, as do officials in the Parent Teacher's Associations. Respondent's reinstatement as a principal at Sanders Park Elementary School is supported by a broad cross- section of the educational community. If reinstated, it is likely that he will continue to perform his duties effectively. (Testimony of Rowe, McFatter, Swigler, Simmons, Katz, Goldstein, Sworn, Mason, Rollins, Broman, R-14.)
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a final order dismissing the charges against respondent and reinstating him to his former position. DONE AND ORDERED this 23rd day of July, 1981, in Tallahassee, Florida. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day 23rd of July, 1981.
The Issue Whether Petitioner meets the qualifications prescribed by Chapter 475, Florida Statutes for licensure as a real estate salesman?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is a 1986 graduate of Florida State University. He has a degree in urban politics and real estate. In November, 1989, Petitioner entered a plea of guilty in Palm Beach County Circuit Court to two counts of burglary of a dwelling, one count of petty larceny, and one count of dealing in stolen property. Adjudication of guilt was withheld and Petitioner was placed on five years probation, which, the court specified, was not subject to "early termination." In addition, Petitioner was ordered to pay $360.00 in restitution and $265.00 in court costs. These crimes were all committed in June, 1989, after Petitioner had returned to Palm Beach County from a two or three-month vacation in Colorado. The two counts of burglary involved the same dwelling: the townhouse that Petitioner had lived in, with others, prior to his Colorado vacation. The lease to the townhouse, which was in the name of one of his roommates, had expired before his return from vacation. Contrary to the instructions of the landlord, Petitioner entered the dwelling on at least two separate occasions after coming back from Colorado in order to retrieve personal belongings that remained in the townhouse. The stolen property involved in the dealing in stolen property charge was a stereo that belonged to Petitioner's friend. Petitioner tried to pawn the stereo for $45.00. The petty theft charge involved the taking of ten CD's that were on top of a CD player located in a bar in the vicinity of the townhouse. Since these incidents, Petitioner has not run afoul of the law. Petitioner presently owns and operates the South Florida Adventure Club, a business which plans and organizes social activities for single professionals. In his spare time, he serves as an advisor to two youth groups. Petitioner is still on probation. He has paid in full the restitution ordered by the court. His court costs, however, have not yet been paid in full. He still owes $50.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order finding that Petitioner is not qualified for licensure as a real estate salesman because of his criminal record and denying his application for licensure based upon such a finding, without prejudice to Petitioner filing a subsequent application supported by a showing that, "because of the lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears . . . that the interest of the public and investors will not likely be endangered by granting" the application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of September, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1991. APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent: 1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. 2-4. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 5. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance. 6-10. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony. 11. Rejected because it is more in the nature of a statement of the case than a finding of fact. COPIES FURNISHED: Greg Allen Hinds 2016 Broward Avenue # 3 West Palm Beach, Florida 33407-6112 Joselyn M. Price, Esquire Assistant Attorney General 400 West Robinson Street Suite 107, South Orlando, Florida 32801 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996. APPENDIX TO RECOMMENDED
