The Issue Whether there is "just cause" to terminate Respondent, Edward Starcher, from employment as a teacher in the Collier County School District.
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: Respondent is a teacher certified by the State of Florida in the areas of physical education, recreational dance, and driver's education. On August 18, 1986, the School Board hired Respondent as a teacher. Since being hired in 1986, Respondent taught continually in the Collier County public school system, except for a one-year leave of absence. Respondent began his career at Highland Elementary School and taught there for approximately two to three years. He then taught for nine years at Village Oaks Elementary School. Respondent, subsequently, taught at Gulf Coast High School, where he also served as a basketball coach. In the 2000-2001 school year, Respondent was employed at NHS as a physical education teacher, driver's education teacher, and head basketball coach for the boys' varsity basketball team. At all times relevant herein, Respondent was a driver's education teacher and head coach of the boys' basketball team at NHS. Throughout his teaching career with the School Board, Respondent received positive evaluations and was recognized for having a passion for coaching. Prior to the disciplinary action at issue in this proceeding, there is no evidence that Respondent has been previously disciplined by the School Board. At all times relevant herein, A.K., a female, was a high school student in her senior year at NHS. In January 2003, A.K. was enrolled as a peer tutor under the direction of Respondent, along with two other students--A.D., a female, and A.F., a male. A.K., A.D., and A.F. were enrolled as peer tutors during the fourth block, which commenced at 12:45 p.m. As peer tutors, they assisted Respondent with doing the laundry, folding towels and T-shirts, and delivering them to the storage closet. At the beginning of fourth block, the peer tutors would typically meet Respondent in his coaching office or outside of it, and he would give them their assignment for the day. On Monday, February 10, 2003 (February 10), A.K. reported to Respondent's office during fourth block for her peer tutor responsibilities. A.D., another peer tutor, was absent that day, but A.F. and K.C. were present. K.C., an NHS student, was not assigned as Respondent's peer tutor, but he sometimes assisted Respondent and his peer tutors during the fourth block. On February 10, as Respondent and the peer tutors were exiting Respondent's office to walk to the laundry room, Respondent "put [A.K.] in a little bit of a headlock," in a playful manner. After arriving at the laundry room, Respondent and the peer tutor folded laundry. At some point, Respondent handed A.K. a pile of towels and told her to take it to the storage closet. Respondent also took a pile of towels or jerseys and both A.K. and Respondent proceeded from the laundry area across the gym to the boys' locker room. On this trip to the storage closet, only A.K. went with Respondent across the gym to the storage closet area. A.F. remained in the laundry room because Respondent told only A.K. to come with him. The storage closet was located in the boys' football locker room on the opposite side of the auxiliary gym from the laundry room. On February 10, there was a physical education class with at least 20 students and an instructor on the gym floor playing volleyball. The physical education class was divided into two groups at the opposite ends of the gym so that when the peer tutors and Respondent took the laundry across the gym floor to the storage closet, they would pass between the two groups. Respondent and A.K. entered the boys' locker room area and proceeded to the storage closet to drop off the towels and/or jerseys. A.K. entered the storage closet area first followed by Respondent. After A.K. put the towels down, she noticed Respondent shutting the door quickly, turning the lights off and on, and then opening the door. A.K. asked Respondent what he was doing, and he replied that he was just joking around. During the first trip to the storage closet, as A.K. was walking through the locker room, she saw J.C., a NHS student, near his locker. Some time after Respondent and A.K. walked through the locker room, J.C. walked around to the bench near the storage closet doorway to put on a knee brace. Thereafter, J.C. saw Respondent in the doorway of the storage closet, and Respondent introduced him to A.K. J.C.'s locker was adjacent to the storage closet wall, and he had to walk to the end of the wall and around the corner to get to the doorway of the storage closet. Due to the location of his locker, there was a period of time when J.C. was not near the doorway of the storage closet and could not see that doorway. At some point while A.K. and Respondent were in the storage closet, Corporal Ronald Byington (Coach Byington), the NHS youth relations deputy and an assistant football coach at the school, walked through the locker room from the adjacent coaches' room. Coach Byington stopped and talked to Respondent about a minute and a half. During his very brief conversation with Respondent, Coach Byington did not observe anything out of the ordinary. After briefly talking with J.C., Respondent and A.K. returned to the laundry room. After a short period of time, Respondent handed A.K. a bag of jerseys to take with her to the storage closet and proceeded alone with her back across the gym to the boys' locker room. J.C. was not in the locker room when Respondent and A.K. returned to the storage closet. When A.K. and Respondent returned to the storage closet with laundry a second time, Respondent again followed her into the storage closet, closed the door, and turned off the lights. Respondent then kissed A.K. on her neck and lips, grabbed her leg, and pushed it up against his side. A.K. pushed Respondent away from her, after which he turned on the lights, grabbed himself and remarked, "This is what you do to me." As A.K. approached the door to walk out, he placed A.K.'s hand on his groin. A.K. described the manner in which Respondent kissed her on the neck as "more of a sucking" than a kiss. After the incident described in paragraph 16, A.K. returned to the laundry room followed by Respondent. Upon returning, A.F. and K.C. noticed that A.K.'s neck was red and told her so. When A.F. and K.C. commented about the red mark on her neck, Respondent stated that it was because he had put her in a headlock. After the brief discussion about the red mark on A.K.'s neck, A.K. returned to the boys' locker room a third time, this time with A.F. and Respondent. A.K. had to wait outside the locker room since there were football players in there changing for weight training. Because A.K. could not enter the locker room, she handed the laundry she was carrying to A.F. and/or Respondent. Upon returning to the laundry room from the third trip to the storage closet, Respondent "kind of stopped [A.K.]" as they were walking across the gym floor. He then had A.K. hold her hand up while he did the same and intertwined his little finger with hers while he asked her to "pinkie swear" (promise) she would not tell anybody, and she agreed to do so. However, Respondent then told A.K. that he could not promise that it would not happen again. This brief exchange took place out of A.F.'s earshot. Moreover, given the considerable activity in the gym, it is reasonable that A.F. did not hear this conversation. A.K. returned a fourth time to the locker room to get her book bag and left school. She was in a state of shock, drove home, changed, and left for work. That evening A.K. did not tell her parents about the incident with Respondent because she was embarrassed and uncertain as to how they would react. The next morning, Tuesday, February 11, 2003 (February 11), A.K. was sitting in her car in the NHS parking lot waiting for the first-block bell to ring when her friend, E.W., a senior at NHS, approached her. E.W. noticed that there was something wrong and asked A.K. what was the matter. A.K. started to cry and told E.W. that Respondent had kissed her. As they walked to class, A.K. told E.W. more of what happened. A.K. told E.W. that on the first visit to the storage closet Respondent shut the lights off. A.K. asked him what he was doing and he turned them on. A.K. also told E.W. that on the second visit, Respondent shut the lights off and imposed himself on her, including kissing her on the neck and lips and grabbing her leg. Sometime during the course of the day, A.K. told E.W. about Respondent's having her touch his penis area. On the morning of February 11, soon after A.K. told E.W. about the incident, E.W. asked A.K. whether she had told anyone. A.K. replied that she had not. E.W. then told A.K. that she needed to report the incident to Mary Ellen Bergsma, the school guidance counselor. Although A.K. agreed to do so, she was hesitant and embarrassed to discuss the incident with Ms. Bergsma or anyone. At the beginning of the first block, E.W. accompanied A.K. to Ms. Bergsma's office. Ms. Bergsma invited both girls into her office and shut the door. Initially, when she went into Ms. Bergsma's office, A.K. was visibly upset, choked up, and unable to speak. After being encouraged by E.W., A.K. told Ms. Bergsma about the incident with Respondent. A.K. told Ms. Bergsma that Respondent had "hit on her," meaning that he had kissed her. In response to her question, A.K. told Ms. Bergsma that the event occurred in the storage closet area and then explained what happened in more detail. During this time, A.K. continued crying and had a hard time talking. After A.K. told Ms. Bergsma about the incident, Ms. Bergsma informed A.K. that she would have to talk with Gary Brown, the principal of NHS, about the incident. Later that morning, Ms. Bergsma accompanied A.K. to Mr. Brown's office. Although A.K. appeared uncomfortable and nervous and was crying, she told Mr. Brown basically what she had told Ms. Bergsma. At the end of the day, E.W. went to Ms. Bergsma to report some of the additional details that A.K. was too embarrassed to tell Ms. Bergsma, including Respondent's putting her hand on his genital and saying, "This is what you do to me." Over the next few weeks, Ms. Bergsma had follow-up conversations with A.K. to see how she was doing. She found that A.K. was having difficulty concentrating at school, not sleeping well, and, overall, was "having a tough time." On February 11, after A.K. reported the incident to Ms. Bergsma, she decided to remove A.K. from Respondent's peer tutor class. At 9:02 a.m. that morning, Ms. Bergsma e-mailed Respondent advising the following: "FYI – A.K. is out of your class 4th block." The e-mail was opened by Respondent at 9:05 a.m. and deleted by him at 9:05 a.m. Five minutes later, at 9:10 a.m., Respondent prepared a separate E-mail stating, "Thanks for the info. Have a great day." Respondent never contacted Ms. Bergsma to find out why A.K. was no longer in his fourth-block class. Respondent testified that the e-mail was no big deal to him and that it might have meant A.K. was out just that day since the e-mail from Ms. Bergsma did not have the word "permanently" contained in it. Between approximately 12:00 to 12:30 p.m., on February 11, Mr. Brown told Respondent in person that he wanted to meet with him in Mr. Brown's office at about 2:00 p.m. When Respondent met with Mr. Brown in his office that afternoon, Mr. Brown asked Respondent if he knew why he had been called to his office. Respondent seemed to think about the question and replied that it must be a parent complaining about his basketball program. He thought up several possibilities until Mr. Brown told him it had nothing to do with basketball. Mr. Brown then told Respondent that the meeting pertained to a complaint from a female student who had peer counseling with him and related to inappropriate physical contact that Respondent had with the student. After progressing through each of his classes and being informed by Mr. Brown that it regarded a complaint from the fourth block the preceding day, Respondent stated that the complainant had to be A.K. because she was the only female present that period on February 10. After Mr. Brown informed Respondent of the allegations, Respondent's head dropped down. He had tears in his eyes and stated that he could not believe this was happening to him. Mr. Brown then asked Respondent if he could think of any reason why A.K. would make such an accusation against him. Respondent told Mr. Brown about an incident at the NHS basketball game on January 31, 2003, which involved A.K. Respondent stated that he had spoken with A.K. on February 3, 2003, about her conduct at the game. Respondent then retrieved a letter from his brief case and presented it to Mr. Brown. The letter was dated February 3, 2003, and was addressed to Coach Byington. Respondent had authored the letter and typed it on a computer. The letter stated that during half-time of the January 31, 2003, basketball game, while Respondent was outside for "a breath of fresh air," he saw A.K. and two other NHS students, K.S. and S.W., and a former NHS student, J.W., outside. In the letter, Respondent indicated that the students appeared to be intoxicated and under the influence of drugs or alcohol; that two of the students approached him; and that A.K. then began making derogatory comments about two NHS assistant football coaches, one of whom was Coach Byington. Also, the letter indicated that on February 3, 2003, Respondent spoke to A.K., during fourth block about her being intoxicated. According to the letter, Respondent told A.K. that she and those with her on January 31, 2003, were "lucky that [Respondent] was in the middle of a game and [they] had not been caught." In addition to information about A.K.'s being intoxicated at the game, Respondent included statements in the letter which were unrelated to the January 31, 2003, incident. Apparently, referring to his February 3, 2003, conversation with A.K., Respondent wrote in the letter: It was during this conversation that I figured out [A.K.] was extremely bitter about coaches at NHS. After further research, it was determined that [A.K.] need not be trusted. [A.K.] on several occasions accused Byington and the football staff of starting rumors about her . . . and she claimed people had given her a hard time about being a senior dating a freshman. I had never heard of such rumors and felt that she was overplaying this to an extreme. After refusing to discuss any more of these matters with her, she became very irate and said that I [Respondent] was just like the others. In quotes "jerks". [sic] Just wanted you to have this information on file. Respondent told Mr. Brown that he had never given the letter to Coach Byington because he did not want to get A.K. in trouble. Coach Byington never received Respondent's letter dated February 3, 2003, nor did Respondent speak to Coach Byington about its contents. If a letter with allegations like the ones made in the letter dated February 3, 2003, were brought to his attention, Coach Byington would look into the matter or take some action. The letter dated February 3, 2003, accurately states and it is undisputed that (1) Respondent saw NHS students, A.K., K.S., and S.W., and a former NHS student, J.W., on January 31, 2003, during half-time at the basketball game that evening; (2) the students, including A.K., were intoxicated; and (3) on February 3, 2003, Respondent talked to A.K. about being intoxicated at the basketball game. The letter dated February 3, 2003, falsely and inaccurately states when Respondent saw A.K. on January 31, 2003, she talked to him about her dislike for two of NHS football coaches and said derogatory things about them. Rather, after exiting the gym at half-time, A.K. and K.S. spoke to Respondent only briefly, about a minute. During that conversation, A.K. asked Respondent about his daughter, Callie, and how the basketball game was going; she also wished him luck in the second half. A.K. and K.S., along with S.W. and J.W., continued to walk to A.K.'s friend's car to have a few shots of alcohol during half-time. On the evening of January 31, 2003, A.K. never said anything to Respondent about Coach Byington or any other coach at NHS. In light of the purpose for which Respondent claimed he wrote the letter dated February 3, 2003, there is no reasonable explanation for Respondent's inclusion in the letter of the statement that "[a]fter further research, it was determined that [A.K.] need not be trusted and that A.K. said that Respondent was jerk [sic], just like the other coaches. Since becoming a peer tutor for Respondent and prior to January 31, 2003, A.K. had talked to Respondent on several occasions and told him that she did not like Coach Byington. The reason A.K. did not like Coach Byington was that she believed that he gave preferential treatment to football players and had made A.K. the butt of jokes because she was dating a freshman football player. A.K. made no secret that she "did not care" for Coach Byington and candidly admitted her feelings about Coach Byington at hearing. There were no other coaches at NHS who A.K. disliked or told Respondent that she disliked. The letter dated February 3, 2003, also inaccurately and falsely stated that when Respondent talked to A.K. at school on February 3, 2003, about being intoxicated at the January 31, 2003, basketball game, she became irate. Respondent's testimony at hearing regarding this conversation is not credible. Contrary to Respondent's account, the conversation took place in the gym and not in Respondent's office. Moreover, during the conversation, Respondent seemed to be joking with A.K. about her being intoxicated at the January 31, 2003, basketball game. At no time during that conversation did Respondent talk to A.K. about the kind of people she should hang out with. Respondent also never indicated to A.K., during that conversation or at any other time, that he would report her to school officials or tell her parents that she was intoxicated. Respondent provided confusing and contradictory testimony in connection with the letter dated February 3, 2003. First, despite the date on the letter, it is not clear when Respondent wrote the letter. Respondent testified that he prepared the letter on Monday, February 3, 2003, but also testified that he could have finished it later that week. This testimony is consistent with a letter Respondent wrote in March 2003, in response to the report of the School Board's investigator. Respondent also testified that even if he did not finish the letter on February 3, 2003, he would not have changed the date because he did not consider the letter an official document. During the investigation of A.K.'s complaint against Respondent, the School Board's computer system technicians checked the school's computers and found no record of the letter in the system. If, as Respondent testified, he made changes to the letter over a period of time, the letter would have been saved on the system and the computer technicians would have been able to retrieve it. Respondent's testimony and representations regarding the preparation of the letter dated February 3, 2003, are confusing and not reasonable. In his March 2003 letter to the School Board in response to the investigator's report, Respondent stated that after initially writing the February 3, 2003, letter, he waited to review it before delivering it to Coach Byington. Despite all the time Respondent indicated he took to write, review, and edit the letter, Respondent never gave the letter to Coach Byington, even though Coach Byington's office was only a 20- to 30-second walk from Respondent's office. According to Respondent, the reason was that he had a busy basketball schedule. Respondent testified that the reason he prepared the letter dated February 3, 2003, was to give Coach Byington a "heads up." Yet, Respondent provided no explanation as to why Coach Byington needed a "heads up." Respondent's testimony regarding the reason he wrote the letter dated February 3, 2003, is not credible. Respondent did not prepare the letter dated February 3, 2003, to give to Coach Byington and did not deliver it to him or discuss it with him. The letter was instead prepared to give to Mr. Brown to undermine the credibility of A.K. At all times relevant to this proceeding, E.M., a male, was a student at NHS. E.M. and Respondent had a close relationship and have known each other for about five years, having first met when E.M. was in the sixth grade and was coached by Respondent. While a coach at NHS, Respondent sometimes gave E.M. lunch money and also hired E.M. to work in summer basketball camps. During the investigation of Respondent, E.M. voluntarily came forward to provide information supportive of Respondent. E.M. told Mr. Brown and testified at hearing that when he was in the boys' locker room on February 3, 2003, he overheard Respondent tell A.K. that she should hang out with better people; that he then saw Respondent leave his office; that he saw A.K. leave the office soon after Respondent left the office; and that he noticed that as she was leaving, A.K. was on a cell phone saying to someone that she hated the coaches at NHS and was going to get back at them. A.K. did not make a cell phone call from school on February 3, 2003. In fact, she does not bring her cell phone to school. Moreover, A.K.'s cell phone records show that no call was made at the time E.M. claimed the call was made. Finally, as noted in paragraph 45, the February 3, 2003, conversation between Respondent and A.K. took place in the gym, not in Respondent's office. The testimony of E.M. was not credible and was refuted by competent and substantial evidence. There is no reasonable explanation for A.K. to file false charges against Respondent. As even Respondent admitted, A.K.'s animus was directed to Coach Byington, not toward Respondent. Prior to the February 10 incident in the storage closet, A.K. liked Respondent and considered him a good friend. She had been a student in Respondent's aerobics class during her sophomore year at NHS. During the first semester of her senior year, A.K. had been an office assistant at NHS and in that capacity, she was required to hand out passes to designated or assigned teachers. Respondent was one of the teachers A.K. had to deliver passes to on an almost daily basis. When A.K. delivered the passes to Respondent, they often had conversations. The second semester of her senior year, A.K. specifically requested to be a peer tutor for Respondent because she thought he was a "cool teacher." As a consequence of the February 10, 2003, incident, A.K., in a consultation with her parents, began seeing Dr. Marta Gallego, a clinical psychologist in Naples, to help her address her fears and concerns. The counseling sessions began on or about February 19, 2003, with the initial intake session involving A.K. and her family, and continued until early May 2003. The therapy sessions with Dr. Gallego focused on A.K.'s reactions to the incident, helping her deal with her reactions, and processing the incident. During the counseling sessions, A.K. exhibited symptoms related to the trauma, was anxious at times, and was depressed. Also, after the February 10 incident, A.K. withdrew from friends and family, had difficulty concentrating at school, and felt pain over the impact that the incident had on her family. Finally, A.K. expressed to Dr. Gallego that she could not understand how a teacher that she trusted could violate her trust.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent from his position as a teacher with the Collier County School Board. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 4th day of June, 2004. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Jon D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive, Third Floor Naples, Florida 34103 Dr. H. Benjamin Marlin Superintendent of Collier County School Board 5775 Osceola Trail Naples, Florida 34109-0919 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times material to these proceedings, the Respondent Ivory Scott, held Teaching Certificate Number 460227, issued by the Department of Education for the State of Florida. The Respondent was employed with the School Board of Lee County Florida, and was assigned to Mariner High School. In addition to his duties as a health teacher and drivers' education instructor during the 1987-1988 school year, the Respondent coached the boy's varsity basketball team. M. C., a fifteen-year old female minor student at Mariner High School, participated in after school sports activities as the head statistician for the boy's varsity basketball team and as a player for the girl's basketball team. The Respondent first became acquainted with M.C. when she attended his health class during the first semester of the school year. Before the basketball season began, the student approached the Respondent and told him that she kept statistics for the boy's basketball team at her former high school the year before. The student volunteered to be one of the statisticians for the Respondent's team. She was interviewed by Respondent regarding her recordkeeping abilities and knowledge of the game. Based upon the interview and the student's display of knowledge, she was made the team's head statistician. Prior to granting permission to allow M.C. to participate in the boy's basketball program as a student athletic assistant, her mother voiced concern to the Respondent about transportation problems which could occur when a family member was occasionally unable to meet the student at the school after a game. The Respondent solved this problem with an offer to provide the student with a ride home whenever the family was unable to pick up the student. This potential solution to the problem was accepted by the mother, and the Respondent did give the student a ride home after a few games during the basketball season. On February 9, 1988, the student M.C. wanted to go home before she played in a basketball game at school at 4:00 p.m. The student asked the Respondent for a ride, and he agreed to give her a ride after school ended at 2:20 p.m. When the Respondent left the school grounds with the student, no one else was in the vehicle. The Respondent drove in a direction away from the student's home. Once an isolated area was located, the Respondent engaged in sexual intercourse with M.C. The Respondent then drove M.C. home, and told her not to tell anyone about the incident. During the following week, but before February 19, 1988, the Respondent again left the school grounds alone with the student M.C. They traveled to another isolated area and the Respondent again had sexual intercourse with the student. When the student was driven home, she was instructed not to tell anyone about the incident. On February 19, 1988, the student M.C. was crying in an hysterical manner in the courtyard area of the school grounds. The child's schoolfriend, A.F., tried to comfort the child, but was unable to calm her. The assistant principal who observed the scene, took the girls to the guidance area so that they could deal with M.C.'s loss of control in a more private area. A female guidance counselor was asked to keep an eye on the students because of M.C.'s unusual behavior. In an attempt to assist the student, the guidance counselor asked M.C. if she would like to go to the counselor's private office. The student accepted the offer, but did not discuss why she was upset. On Monday, February 22, 1988, M.C. returned to the guidance counselor's office. She implied that her problem was of a sexual nature, but was unwilling to discuss the matter further. A few days later, the counselor gave the student the Abuse Counseling Center telephone number. On Friday, February 26, 1988, the child M.C. contacted the guidance counselor and revealed that she had seen the man involved in her problems the evening before. The police officer on campus was contacted. The student revealed to the counselor and the officer that she was in a relationship with a man who was twenty-five years old, married, and the father of a child. Although the Respondent was married and had a child, he was older than twenty-five years of age. The evening before the limited revelations to the counselor and officer occurred, M.C. had attended the school district's boy's basketball tournament. The Respondent was present at the tournament. The following week, the counselor and the police officer urged M.C. to tell her parents about her relationship with the man. When the student did not tell her parents, the police officer called the student's mother and told her what the student had told him. The student was taken for a medical examination by her mother on March 3, 1988, and it was determined that her hymen was no longer intact. The student would not tell her mother the name of the man involved, but she agreed to tell the guidance counselor on Friday, March 4, 1988. On the appointed date, the student told the counselor the man involved was the Respondent, Ivory Scott. The guidance counselor informed the assistant principal who brought the student into the guidance office on February 19, 1988, about the allegations. The assistant principal advised the principal. When the principal was informed of the student's accusations, he sent for the Respondent immediately to prevent him from hearing the news from less reliable sources. After the principal notified the Respondent of the student's accusations, the Respondent admitted to having the student M.C. alone with him in his vehicle on several occasions. The Respondent denied that any sexual activity took place during these times, and he was unable to speculate why the child might be motivated to make the accusations against him. During the hearing, the Respondent denied that the student M.C. had ever been alone in his vehicle with him, or that the events testified to by the student regarding sexual intercourse had ever occurred. It was his testimony that M.C. had once confided to him that her stepbrother had intercourse with her. The Respondent did not report this purported confidence to the authorities, and there was no evidence in the record to substantiate that the student had a stepbrother. A number of students from the high school testified at hearing. Members of the basketball team and a student athletic assistant testified that on Thursday, February 25, 1988, M.C. was behaving in a flirtatious, sexually aggressive manner with a member of the boy's basketball team in the back of the bus. The basketball player and his mother testified as to M.C.'s persistent need to seek attention from the player. A former boyfriend of M.C.'s testified that, contrary to her statements that she had not kissed with boys prior to the sexual incidents with Respondent, he had engaged in kissing activity with her. The former boyfriend also testified that M.C. told him that nothing has happened between her and the Respondent. She told him this after a newspaper article related her accusations and the Respondent's arrest. The former boyfriend had telephoned her to discuss the matter after his grandparents mentioned that they read about the accusations in the newspaper. Diane Goldberg, a licensed clinical social worker who was accepted as an expert in the area of child sexual abuse counseling, opined that M.C.'s behavior after the alleged incidents of sexual intercourse with the Respondent was congruent, and consistent with behavioral indicators which reflect that sexual molestation has occurred.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent's Florida teaching certificate be revoked for violating Section 231.28(1)(c) and (h), Florida Statutes and Rule 6B-1.006(3)(a) and (h), Florida Administrative Code, of the State Board of Education. That the allegation that Respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, be dismissed. DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4544 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3. Rejected as to the finding that the student relied on Respondent for rides home after her basketball practices prior to the alleged incidents. Accept that she occasionally relied on Respondent for rides home after games. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Reject as to two week time period. See HO #7. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #7. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. See HO #11. Accepted. See HO #15. Accepted. See HO #16. Accepted. See HO #17. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #17. Rejected. Witness incompetent to render legal conclusion. Rejected. Improper summary, Accepted. See HO #21. Respondent's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #8-#10, #11, #13 and #15. Reject the first sentence. Contrary to fact. M.C. referred only to rides home, not rides home after games. See HO #6 and #7. Reject the second sentence as contrary to fact. See HO #6 and #7. The rest of paragraph 3 is rejected as contrary to fact. See HO #6 and #7. Accept first sentence. See HO #6. All but the last sentence in the first paragraph are accepted as facts presented. Although probative, these facts were not determinative. See Conclusions of Law. The last sentence is rejected as contrary to fact. See HO #6 and #7. The first two sentences in the second paragraph of proposed finding of fact number 4 is accepted. See HO #6 and #7. The third sentence is accepted as testimony. The finding of fact based on the evidence is found in HO #7. The last paragraph in proposed finding of fact number 4 is rejected as it is argument as opposed to a proposed factual finding. See Conclusions of Law. Rejected. Improper summary. See HO #19 and Conclusions of Law. Accept the first paragraph of proposed finding of fact number 6. See HO #14 and #15. The second paragraph is rejected as it is argument as opposed to a proposed finding of fact. See Conclusions of Law. Accept the first sentence. See HO #13 and #15. The rest of proposed finding of fact number 7 is rejected as irrelevant to these proceedings. Rejected. Dr. Seitz's testimony was not filed in Case NO. 88-4544. COPIES FURNISHED: Wilbur C. Smith, III, Esquire Post Office Drawer 8 Fort Myers, Florida 33902-0008 Craig R. Wilson, Esquire 1201 U.S. Highway One, Suite 315 North Palm Beach, Florida 33408-3581 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed certain alleged acts of improper conduct in the form of inappropriate statements to female students and whether he committed acts of inappropriate touching of a female student and therefore, whether the Petitioner has just cause to terminate him as a contract teacher (Physical Education teacher and basketball coach).
Findings Of Fact Wilfred Brown is a black male who was employed under an annual contract by the Jackson County School Board. He was employed in the position of a physical education teacher and as the boys' basketball head coach at Sneads High School. Sneads High School actually enrolls both middle and high school students. Wilfred Brown was generally called "Coach Brown" at school. When he assumed the head coach position, he was permitted to select an assistant basketball coach to assist him. James Taylor had previously been an assistant basketball coach, but was not selected to be an assistant basketball coach by Coach Brown. Charlsie Maphis was a white female student at Sneads High School. She was a junior during the 2000-2001 school term. She dated a black male basketball player named Jason Brown. Her father did not approve of inter-racial dating and therefore, she was unable to openly date Jason Brown. Because of this Charlsie Maphis would come to the Sneads High School gym in order to spend time with Jason Brown. On a number of occasions Jason Brown and Charlsie Maphis would demonstrate inappropriate displays of affection, in terms of the Student Conduct Code, while they were in the gym. They would, for instance, sit between each others legs, lay their heads in each others' laps and otherwise engage in close physical contact, none of which was considered appropriate student behavior. When Coach Brown observed this behavior he would make them stop. Charlsie Maphis explained to Coach Brown that due to their racial differences she could not date Jason outside of school and also stated that the gym was the only place that they could spend any time together. Coach Brown did not accept this explanation and did not respond in a sympathetic way. Instead, he continued to enforce the Student Conduct Code. He would thus not allow Charlsie Maphis and Jason Brown to "hang-out" in the gym and demonstrate inappropriate conduct. Charlsie Maphis opined that Coach Brown was a racist and treated her and Jason Brown more harshly or unjustly because of their inter-racial dating. She did not feel that Coach Brown treated other students the same way. The evidence demonstrated, however, that Coach Brown enforced the rules of conduct on other student couples as well. Other students, however, did not exhibit the anger or attitude that Charlsie Maphis exhibited against Coach Brown because he so enforced the rules of conduct. Coach Brown, at some point, told Charlsie Maphis that she was a distraction to Jason Brown and because of that and her conduct, Jason Brown was not giving the basketball program his best effort. Coach Brown eventually removed Jason Brown from the basketball team during his senior year because Jason did not cooperate with the Coach and did not "have his heart in the game." Coach Brown also removed two other black male basketball players from the team. They were Lamar Colston and Lynn Colston. Lamar and Lynn Colston were considered talented basketball players but did not get along with Coach Brown. Their step-father was James Taylor who had once served as assistant basketball coach at Sneads High School before Coach Brown became the head coach. Coach Brown selected another person to replace James Taylor as assistant basketball coach. This appeared to cause ill-feeling between James Taylor and Coach Brown as well as his step-sons, Lamar and Lynn Colston. In this regard, Charlsie Maphis claimed that she did not really know James Taylor. However, James Taylor and his step-sons lived in the same neighborhood as Charlsie Maphis and James Taylor was sometimes the umpire for the softball team on which Charlsie Maphis served as catcher and third baseperson. Charlsie Maphis' friend, Sarranda Hall, testified that she saw Charlsie Maphis talking to James Taylor after a ballgame. Kerri Maphis, the younger sister of Charlsie Maphis, also testified that their mother was a long-time friend of James Taylor. Charlsie Maphis also admitted, on cross-examination, that she gave "shoulder-rubs" to Lamar Colston and the evidence demonstrates that she must have been fairly close friends with Lamar Colston and at least to some extent with his step-father James Taylor. In consideration of the above facts and the fact that James Taylor had been the assistant basketball coach at Sneads High School, Charlsie Maphis' statement that she did not really know James Taylor is not deemed credible. Moreover, her failure to readily admit her knowledge of and acquaintanceship with James Taylor casts doubt upon her testimony concerning her motivation to conceal or testify with a lack of candor. In any event, after Coach Brown removed the Colston brothers from the basketball team, James Taylor started a campaign to get Coach Brown fired. Mr. Taylor met with the principal, administrators, the superintendent and the School Board itself in an unsuccessful attempt to have Coach Brown terminated from his position. Charlsie Maphis's father learned that she was dating Jason Brown and ordered her to stop sometime during the 2000- 2001 school year. Therefore, Charlsie Maphis was supposed to have stopped dating Jason Brown and she testified that when Jason Brown graduated in May 2001, they were no longer dating. Jason Brown, however, testified that they did not end their relationship until much later in the year 2001. When school resumed for the 2001-2002 school year, Charlsie Maphis was no longer in Coach Brown's class. Generally she would only see him in passing on the school campus or when she specifically made a trip to the gym. Nonetheless, according to Charlsie Maphis, even after Jason Brown had graduated, when Coach Brown would see her at school he would still "get in her business" by asking her if she and Jason Brown were still together and how was Jason getting along. It became clear during that 2000-2001 school year and the 2001-2002 school year that Charlsie Maphis did not like Coach Brown, based upon her own testimony and that of other students who were aware that she did not like Coach Brown based upon things they heard her say or the way she acted when she was in his presence. Charlsie Maphis' alleges that around the month of December 2001, she went to the gym and asked Coach Brown to let her use the phone in his office to call her mother. She testified that after she came into his office she "slumped down in a chair" resulting in her abdominal area and waist being exposed to his view because her undershirt slid up when she slumped down in the chair, according to her testimony. She contends that after Coach Brown saw her stomach and waistline he made inappropriate comments about her, such as that she had a "sexy waistline" and purportedly touched her inappropriately around her abdominal area and licked her exposed stomach area and placed his hand on the waistline of her pants. Coach Brown denied each allegation by Charlsie Maphis that he made inappropriate statements to her or engaged in inappropriate physical conduct or touching toward her. In this regard Charlsie Maphis made a written statement, dated February 20, 2002, setting forth her allegations against Coach Brown, testifying in a similar manner at hearing concerning her allegations. In her written statement, Charlsie Maphis states that it was nothing out of the ordinary for her to go to Coach Brown's office. However, under the facts and circumstances of their strained relationship, as revealed by the testimony at hearing, it is apparent that she did not like Coach Brown and was not in his class that year and therefore, it is very unlikely that she would regularly go to his office for any reason. Most of her time in school she avoided being around Coach Brown and tried to avoid even speaking to him, according to her own testimony. When he spoke to her, she, by her own admission, forced herself to be cordial or publicly respectful. It thus appears very unusual for her to go to Coach Brown's office, particularly on a regular basis, as she contends. In essence, Charlsie Maphis claims that the incident in the office occurred after part of her body was exposed when her undershirt slid up because she sat slumped in a chair. However, when Charlsie Maphis first reported her allegations to Ms. Dixon, the assistant principal, she claimed that she sat on a table, not in a chair, in Coach Brown's office on the occasion in question. This is established by Ms. Dixon's testimony, which is credited. Although Coach Brown is alleged to have made inappropriate statements and acted inappropriately after Charlsie sat slumped in the chair, Ms. Maphis' bare abdominal area and waistline were not seen and could not be seen beneath her over-shirt when she demonstrated, during the hearing, dressed in the same clothing, sitting with the same posture and holding her hands in the same position as she allegedly was in on the occasion of the incident. Contrary to her allegations that Coach Brown licked her on the stomach, Ms. Maphis told two of her friends that Coach Brown had licked her ear and offered her money to lick her ear, not her stomach or waistline. These parts of the body are so far apart and different that her statements to two different people to the effect that it was her ear and not her stomach involved in the incident cannot be regarded as an inadvertent mis-statement. Under the circumstances, its probative value reflects negatively on the credibility of Charlsie Maphis. Ms. Maphis claimed to be so surprised by Coach Brown's statements and actions that she was unable to move when he allegedly touched and licked her inappropriately and she claimed that she had to find an excuse to leave the room after she told him to "back-up." Her statements are not credible because, based upon her demeanor, she is obviously an assertive person who was not and is not afraid of Coach Brown. Additionally, it is found, based upon her testimony that Coach Brown talked on the phone several times at his desk while she was allegedly sitting in the chair in his office, that she would have had ample opportunity to move or leave the office without the necessity of searching for an excuse to leave. Moreover, at the time of the alleged incident, Coach Brown had a class waiting for him outside of his office door in the gym, and his students, players and assistants were constantly coming in and out of the office. Having observed the candor and demeanor of Charlsie Maphis in testifying to these incidents and occurrences, and also observing the candor and demeanor and apparent credibility of the witnesses opposed to her testimony, it is found that the incident did not occur as alleged by Charlsie Maphis and her testimony is not credited. Ms. Maphis also alleged that Coach Brown discussed meeting her one weekend to exchange massages at his parents' home were he lived when his parents would be away. This allegation is not credible because the evidence shows that, contrary to Ms. Maphis' claim, Coach Brown's parents had a strict rule that no child of theirs, including Coach Brown, could entertain any female in their home while they were not present. Coach Brown lived in their home. They were not away for any weekend which would have allowed such an occurrence to happen during the time period in question, and it is not established that Coach Brown had any such intention. Ms. Maphis' testimony in this regard is not credited. There may have been a financial motive for the allegations by Ms. Maphis. After the allegations became public she told one of her friends that she was going to get some money out of Coach Brown and admitted consulting an attorney about a civil lawsuit against Coach Brown. In fact, Ms. Maphis told the School Resource Police Officer, Brian Stagner, that "she felt she could get some money out of this." Although Ms. Maphis claims that Coach Brown had engaged in inappropriate conduct with other students or former students, each one of these students or former students denied that any such conduct had ever occurred. In fact, each of them testified that Coach Brown was completely professional in his conduct toward them at all times. Ms. Maphis may also have been motivated out of dislike for Coach Brown. She told Office Brian Stagner, that ". . . she was going to do everything she could to fuck him up." She told Officer Stagner that "if she could not go after him criminally that she would go after him civilly" and that she felt she "could get some money out of this." This conversation took place during a school day at Sneads High School where Officer Stagner was the Police Department's School Resource Officer. In any event, after observing Charlsie Maphis and her testimony at the hearing and listening to the testimony of Officer Stagner, other witnesses, and considering all the other evidence, it is concluded that Charlsie Maphis' testimony may be motivated by some malicious intent toward Coach Brown. Due to her general lack of credibility, I also do not credit her allegations that Coach Brown asked her to meet him one weekend; that he called her into his office and offered her $75.00 to let him "lick her again"; or that he asked her to come to his home one weekend to exchange massages. Holly Roberts claims that around the month of December 2001, she went to Coach Brown's office to use the telephone and when she arrived Coach Brown asked her to input some student absentees into his computer. While she was doing this and while he was having a telephone conversation, she observed a vacation brochure on his desk related to Hawaii. Holly Roberts admits asking Coach Brown if she could go with him to Hawaii. She then alleges that he told her that he would buy her a ticket to go with him to Hawaii. It is apparent from the totality of the testimony and circumstances that she asked him if she could go to Hawaii more or less in jest or in a joking manner. Coach Brown denies that he offered to buy her a ticket to Hawaii. Holly Roberts also maintains that Coach Brown asked her to come to his home while his parents were out of town for the weekend to give him a massage. Coach Brown admits that Holly Roberts asked him if she could go to Hawaii, but denies offering to buy the ticket and moreover testified that he jokingly told Holly Roberts that she could go to Hawaii with him if she would pay $9,000.00 or $10,000.00 for tickets and costs for everybody in his party to go. He denies ever talking to her concerning her coming to his parents' home during their absence or giving him massages or shoulder rubs. The preponderant evidence establishes that Holly Roberts is not a credible witness in this regard. The totality of the evidence and circumstances related to her and to witness Montario Garrett establishes that she was dating, or in a close personal relationship with Montario Garrett. She did not tell the truth about the nature of the letter that she wrote to Montario Garrett. She maintained that she wrote it to help him break up with Lauren Faircloth, a fellow student. Montario Garrett testified contrarily, however, that it was a "love letter" and that they were in a dating relationship. The plain language of the letter clearly supports his version of its nature. It appears likely that she misrepresented the nature of their relationship due to her fear of her parents or her father's disapproval of her inter-racial dating relationship with Montario Garrett since Holly Roberts is white and Montario Garrett is black. She falsely accused Montario Garrett and Michael Reed of telling her that Coach Brown had inquired if she would date "black boys." She also falsely testified that she was afraid of Coach Brown because Montario Garrett had told her that Coach Brown had a history of "messing with other young girls." Montario Garrett categorically denied that he ever told her that story. Moreover, Holly Roberts minimizes her acquaintanship with Charlsie Maphis. However, there were numerous opportunities for Holly Roberts and Charlsie Maphis to be together and to communicate during their tenure at Sneads High School. They were both in the same DCT class for two semesters in the 2001-2002 school year. They were on the softball team together in February of 2002 when these allegations were made public. Holly Roberts rode to school everyday with one of the best friends of Charlsie Maphis' younger sister. Before the allegations against the Respondent became public the younger sister Kerri Maphis, Nicole Rabon and their other friend Samantha Wilkerson, had been discussing rumors about alleged inappropriate conduct by Coach Brown including the rumors of his alleged misconduct towards Charlsie Maphis, Kerri's older sister. During the first and second semester of the 2001-2002 school year, Charlsie Maphis and Holly Roberts were in Mr. Stoutamires' Career Development class. Charlsie Maphis and Holly Roberts testified that Mr. Stoutamire did not require students enrolled in this class to attend class everyday. Instead, students were on their own and could go and come to work or even go home, according to their testimony. Both Charlsie Maphis and Holly Roberts had an unexcused absence from two of their classes on February 20, 2002, and apparently left the campus together. During the first and second semester of the 2001-2002 school year, Charlsie Maphis and Holly Roberts played softball together, beginning in February 2002. Charlsie Maphis was the catcher and James Taylor, who also had a history of enmity towards the Respondent, was an umpire at some of those softball games. Moreover, it is significant that the most serious conduct alleged against Coach Brown is alleged to have occurred months before it was ever reported. The initial reports were not even made by the alleged victims. The manner and timing in which the allegations of Charlsie Maphis and Holly Roberts became public appears to have been planned. Kerri Maphis, Charlsie's younger sister, and Nicole Rabon, who rode to school daily with Holly Roberts and their friend Samantha Wilkerson, went to the office of Ms. Dixon, the assistant principal, together to report to Ms. Dixon the rumors concerning Coach Brown. Within a short time after they spoke with Ms. Dixon, both Charlsie Maphis and Holly Roberts voluntarily reported their allegations to the School Resource Officer, Brian Stagner. Moreover, the unrefuted testimony of Coach April Goodwin reveals that Holly Roberts did not have the best reputation in her school community for truth and veracity. Consequently, Holly Roberts' testimony regarding the facts and the nature of the interaction she had with Coach Brown, concerning which she made her complaints, is not credited. It is apparent that whatever occurred in this interaction with Coach Brown in his office concerning a trip to Hawaii was, at most, simply a joking or jesting reference to their going to Hawaii on a vacation trip. It is determined, based upon the testimony of Coach Brown and of his parents, as well as the numerous witnesses who described Coach Brown as being an instructional employee and coach who never exhibited any unprofessional or inappropriate conduct or behavior, that the incident concerning his purported invitation to Holly Roberts to come to his home on the weekend, when his parents were purportedly to be absent, simply did not occur. Wilfred Brown grew up in Jackson County and attended Jackson County public schools. His parents are respected and respectable citizens who retired from employment with the state. Wilfred Brown and his brothers participated in high school sports, and after graduating from high school, Wilfred Brown attended college. Upon graduating from college he returned home to Jackson County and ultimately was hired as the head coach of the Sneads boys basketball team. Respondent Brown primarily resided with his mother and father at times pertinent hereto. His mother and father do not allow him or his brothers to bring female companions to their home when the parents are not at home and do not allow their sons' female friends to stay overnight in their residence. Coach Brown is a Deacon in his church and a Sunday school teacher. He also works with the youth in his church and community. He provides free basketball camps for youth athletes during the summer. He has an outstanding reputation in his community for truth and veracity. He has a reputation among students at school for requiring them to abide by the rules of good conduct and of being professional and an exhibitor of good conduct himself. There is no evidence that Coach Brown has ever been previously accused or found guilty of any inappropriate, unprofessional statements or behavior towards students or young females at any time or location. Upon observing and considering the demeanor of Wilfred Brown and his testimony, carefully weighing and comparing his testimony to that of the complaining witnesses, and in consideration of the numerous witnesses as to Coach Brown's reputation in his community for truth and veracity as well as, more specifically, the testimony concerning his failure to ever exhibit any inappropriate, unprofessional conduct toward female students or others, it is determined that Coach Brown is credible as a witness. His testimony is credited over that of Holly Roberts and Charlsie Maphis. The testimony of the numerous witnesses as to his competent performance as a teacher and coach and his good personal conduct and character, including towards female students, along with and the lack of any testimony, other than that of the discredited complaining witnesses, concerning any unprofessional, inappropriate behavior on his part has been carefully considered. It is determined that preponderant evidence has been adduced which establishes that Coach Brown has not lost his effectiveness as a teacher and a coach in the Jackson County School community nor in Sneads High School in particular.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Jackson County finding that the allegations made against the Respondent Wilfred Brown are not established and that he be re-instated to his position as teacher and basketball coach with back pay and with renewal of his annual contract. DONE AND ENTERED this 1st day of November, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 1st day of November, 2002. COPIES FURNISHED: Marva A. Davis, Esquire 121 South Madison Street Post Office Drawer 551 Quincy, Florida 32353-0551 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Daniel Sims, Superintendent Jackson County School Board Post Office Box 5958 Marianna, Florida 32447 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact The parties entered into a stipulation to the effect that the Respondent, Dr. Thomas L. Richey, Superintendent of Collier County Schools, and the Chiller County School Board, does not admit that Petitioner, James Morgan is qualified for out of zone assignment to Barron Collier High School. However, due to his performance record over the past two school years, 1986-1987 and 1987-1988, the school system believes that it is in his best interests that he not be moved at this time and that he be permitted to continue his education at Barron Collier High School through completion of academic requirements and the award of a high school diploma.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the School Board of Collier County accept the stipulation as presented and enter a Final Order consistent with the terms thereof, permitting Petitioner to remain a student at Barron Collier High School through his graduation. RECOMMENDED this 20th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1988. COPIES FURNISHED: Thomas L. Richey, Superintendent Collier County Public Schools 3710 Estey Avenue Naples, Florida 33942 Frank P. Murphy, Esquire 850 Central Avenue, Suite 300 Naples, Florida 33940-6036 James H. Siesky, Esquire 791 Tenth Street South, Suite B Naples, Florida 33940-6725
Findings Of Fact The Respondent has been employed by the School Board for 26 years. The Respondent has served in numerous teaching and administrative positions with the School Board. In 1971 the Respondent was named principal of Piper High School, and he continues to serve in that capacity. Piper High School was first opened in 1971, and the Respondent has been its only principal. The task of organizing a new high school, and developing it into an institution with strong traditions is a difficult one. The Respondent has taken a strong lead at Piper High School, and has been the motivating force in developing it into a respected high school with many innovative programs and excellent spirit on the part of the instructional staff and the student body. The Respondent is a strong disciplinarian, and has enforced a rigorous dress and conduct code at Piper High School. The Respondent does not enjoy one hundred percent support from his faculty, but it is apparent that he does have the respect of many members of the faculty. The Respondent is also liked and respected by the student body, and enjoys much support and respect from parents of students at Piper High School. During the entire course of his employment with the School Board, the Respondent has received satisfactory or better evaluations. The Respondent is an outstanding high school principal. Respondent is presently employed with the School Board on a continuing contract basis. Instructional personnel within the Broward County school system are given an opportunity to perform supplemental duties for which they receive supplemental pay. Athletic coaches, and athletic trainers received such stipends. On September 2, 1976, the Respondent, acting in his capacity as principal of Piper High School, placed William T. Drake on a supplemental payroll for an amount of $500, indicating that Drake would be performing duties as a soccer coach. The Respondent approved payroll forms for each pay period during the 1976-77 school year through March 31, 1977 allowing these supplemental payments to be made to Mr. Drake on a monthly basis. Supplemental payments were in fact paid by the School Board to Drake from September, 1976 through March, 1977, for performance of services as the Piper High School soccer coach pursuant to the request and authorization of the Respondent. The total amount paid to Drake on this basis was $272.67. When the Respondent placed Drake on the supplemental payroll as soccer coach, the Respondent knew that Drake was not going to perform any services as soccer coach at Piper High School. When he approved the payroll forms he knew that Drake was not performing duties as soccer coach, and in fact that Piper High School had no soccer team. Piper High School had had a soccer team during the 1975-76 school year, but it was discontinued. From the 1971-72 school year, through the 1974-75 school year Piper High School had on its supplemental payroll an athletic trainer and an assistant athletic trainer. Mr. Drake had served as assistant athletic trainer during the 1974-75 school year. After that year the head trainer left the school system, and Drake became the head trainer for the 1975-76 school year. the Respondent was not successful in finding a member of his instructional staff who could have served as assistant trainer, and Mr. Drake therefore served virtual double duty. During the 1975-76 school year Drake worked approximately 810 hours as athletic trainer, and received a supplemental compensation of $1,500. At the beginning of the 1976-77 school year the Respondent again looked for a member of his instructional staff who would have qualified to serve as assistant trainer, but found no one. Drake was willing to continue to perform the double duty, and the Respondent wished to adequately compensate him. It is for this reason that the Respondent designated Drake as soccer coach, and authorized the additional supplemental payment. While Drake did not perform the duties of soccer coach during the 1976-77 school year he did perform the duties of both the head trainer and the assistant head trainer. Under the School Board's rules and regulations the respondent could have designated Drake in both capacities. He did not do that because the assistant trainer position would have entitled Drake to a $1,000 supplemental payment, and the Respondent did not want to divert that much of his budget from other areas. Furthermore, the Respondent wished to avoid additional administrative difficulties. The school was already authorized the position of soccer coach, and forms would have needed to be filled out in order to have the position of assistant trainer authorized. When the Respondent placed Drake on the supplemental payroll as a soccer coach, and when he approved payroll forms for Drake in that capacity, he violated the School Board's rules and regulations. His motivations for violating the regulations were good ones - to adequately compensate a member of his instructional staff for duties that were being performed above and beyond those assigned. The Respondent did not profit personally from his violation of the regulations. In fact, when his violation of the rules was brought to his attention, the Respondent made full restitution to the School Board for the supplemental payments that had been made to Drake. The Respondent has never disavowed responsibility for his violation of the rules. He has acknowledged his error, made full restitution, and has learned a valuable lesson. Evidence was offered at the hearing showing that the Respondent enjoys an excellent reputation for truth and veracity. He testified that he will not again knowingly violate any of the School Board's rules and his testimony is both believable and compelling.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Robert E. Mancill holds Teacher's Certificate No. 544370, issued by respondent on July 1, 1984, and valid through June 30, 1989. Mr. Mancill began as a teacher and coach at Paxton High School in Walton County in the fall of 1984. Gary Carnley was among the basketball players he coached that year and the next. Like Gary, Casandra Washington (Cocoa) was a close friend of their mutual classmate, Paula Powell. Paula, who was never assigned to Mancill as a student, was born on August 23, 1968. During the 1985-1986 school year, Mr. Mancill asked Cocoa to ask Paula to come to his house, which Paula agreed to do. In keeping with their arrangement, Paula drove from her house to Leslie Harrison's house, on January 26, 1985. From Leslie's house, Paula and Leslie set out in Leslie's car for Cocoa's house where they picked up Cocoa and went on together to the home of Chandler Wilson. The four teenagers then kept their rendezvous with Coach Mancill at the Florala City School. Coach Mancill was waiting when they arrived. The teenagers disembarked, except for Leslie who drove off. Coach Mancill, Paula, Cocoa, and Chandler then drove in the Coach's car to his home. With the others seated in the living room, the coach entered the kitchen, and the students soon heard the sounds of a blender. The coach produced four drinks which smelt like lemonade and looked like crushed ice. He told his guests the concoction was "Gin Whoopee" (T. 48) and offered a drink to each. Chandler declined. Cocoa had a little. Paula drank the one glass she was offered, her first alcoholic beverage. Mr. Mancill then said to Cocoa and Chandler, with reference to bedrooms opening off the hallway he began down with Paula, "the room on the left is yours, the room on the right is mine and Paula's." Once inside the bedroom with Paula he sat her on the bed, disrobed her, undressed himself, and engaged in sexual intercourse with her. Later he told Cocoa about Paula's blood on the sheets, expressing surprise at her erstwhile virginity. Three quarters of an hour after they entered the bedroom, they emerged to find Cocoa and Chandler playing records in the living room. By the time the foursome reached the Florala City School, it was about half past ten. Leslie dropped Chandler off then took the two girls back to her house where Paula's car was still parked. On the way to Cocoa's house, Paula told her what had happened saying she did not believe it herself. Cocoa could tell she was afraid. Paula continued to see the respondent nevertheless. "He would talk to Casandra and tell her to tell [Paula] where to meet and all, and what time." (T. 35) On January 26, February 2, March 2, March 16, March 23 and finally on March 29, 1985, respondent Mancill and Paula had sexual intercourse in his car. (T. 14, 43) "[W]hen all the teachers and students found out" (T.70), Gary Carnley confronted respondent who "said he shouldn't have done it." (T. 70) Paula's own basketball coach, Tom Pitman, a friend of the family, advised Paula that she needed to let her parents know about Mancill. She accepted his offer to come over to her house to be on hand when she told her parents on April 14, 1985. (T.37) Two days earlier respondent had written Mrs. Virginia Pridgen, Paxton High School's principal, as follows: Since turning in my letter of intent, (not to be asked to be recommended back), I feel that I have lost most of my effectiveness as a teacher. After hearing certain rumors during the last two weeks, I feel that my teaching is impaired even though these rumors are false. The rumors are there and will be there for the remainder of the year. These rumors have affected me personally, socially, and emotionally in regards to my family. After much consideration, I feel it would be to my best interest to resign my position at Paxton High School. Robert Earl Mancill After writing this letter, Mr. Mancill never returned to work at Paxton High School. His misconduct with Paula Powell did in fact "diminish[] any effectiveness ... he may have had as an instructor." (T.78) Ms. Powell's involvement with respondent hurt her emotionally and also tarnished her reputation. But she has persevered, staying on at Paxton High School for her senior year and finishing first in her call. She planned to begin at Troy State University a week after the final hearing.
The Issue The issue in this case is whether Respondent, Kevin R. Sanders, committed the offenses alleged in an Administrative Complaint filed by the Commissioner of Education with the Education Practices Commission on June 10, 1997.
Findings Of Fact Petitioner, Frank T. Brogan, as the Commissioner of Education of the State of Florida, is authorized to enter complaints against persons holding teaching certificates in the State of Florida. Respondent, Kevin R. Sanders, has held at all times relevant to this proceeding Florida Teaching Certificate No. 660581. The certificate was issued by the Department of Education and is valid through June 30, 2002. Mr. Sanders is authorized to teach in the areas of physical education and general science. (Stipulated Facts). At all times relevant to this proceeding, Mr. Sanders was employed by the Escambia County School District (Stipulated Fact). During the 1995-1996 school year1, Mr. Sanders served as a teacher and coach at Pensacola High School (hereinafter referred to as the “Pensacola High”) (Stipulated Fact). Mr. Sanders was assigned responsibility for the supervision of an in-school suspension class (hereinafter referred to as the “ISS Class”) (Stipulated Fact). Mr. Sanders was assigned to serve as the ISS Class teacher for each class period except for one period, which was his planning period. ISS Class students went to a physical education class taught by Jack Jackson during Mr. Sanders’ planning period. Pensacola High’s ISS Class was a disciplinary program established for students who have exhibited behavior warranting suspension from school. Rather that suspending the student from school, the student is assigned to the ISS Class so that he or she will continue to attend school and receive academic instruction. Deans at Pensacola High responsible for disciplinary actions determine whether a student’s conduct warranted referral to the ISS Class and the length of the referral. Students assigned to the ISS Class would continue to receive academic assignments from their teachers. They were required to work on those assignments while in the ISS Class. While students were in the ISS Class, they were not allowed to talk or to sleep. Mr. Sanders wrote the in-school suspension program for Pensacola High, so he was familiar with the purpose of the program. Class periods at Pensacola High were one and one-half hours in duration. There were seven class periods, numbered 1 through 7. On even days, i.e., October 4, class periods 2, 4, 6, and 8 were held. On odd days, i.e., October 5, class periods 1, 3, 5, and 7 were held. Class period 7 was the last class period held on odd days and class period 8 was the last class period held on even days. A “varsity sports” class was scheduled for the last school period, period 7 or 8, of the school day. The varsity sports class consisted of two combined physical education classes. The teachers responsible for these classes were Mr. Jackson and Toby Peer. During the fall of 1995, students in the varsity sports class engaged in weightlifting. Mr. Sanders wanted to act as the instructor. Mr. Sanders was not, however, scheduled to participate in the varsity sports class. His responsibility was to supervise the ISS Class. Early during the fall of 1995, Mr. Sanders, Horace Jones, the Principal of Pensacola High, and David Wilson, the head football coach at Pensacola High, met to discuss allowing Mr. Sanders to supervise the weight training program for the varsity sports class. Mr. Sanders and Mr. Wilson explained to Mr. Jones that weightlifting would only be taught every other day, on odd days. They asked Mr. Jones for permission for Mr. Sanders to go the football stadium where the varsity sports class was held to supervise the weightlifting. Mr. Jones agreed to allow Mr. Sanders to go to the football stadium during class period 7 to supervise weightlifting. Mr. Jones did, however, indicate that Mr. Sanders’ ISS Class should be supervised. The testimony in this proceeding concerning the conditions, if any, that Mr. Jones imposed on Mr. Sanders and/or Mr. Wilson, was contradictory. Mr. Jones indicated that he did not give Mr. Sanders permission to take his ISS Class to the stadium or otherwise remove them from their normally assigned classroom. Mr. Sanders testified that Mr. Jones was aware that Mr. Sanders was taking the students to the stadium on the days that he supervised weightlifting. Based upon the weight of the evidence, Mr. Jones either gave express permission for the ISS Class to be taken to the stadium when Mr. Sanders was supervising weightlifting or was aware that the ISS Class was being taken to the stadium. Mr. Sanders’ ISS Class was assigned to room 30-A, which was located on the second floor of the main classroom building of Pensacola High. Room 30-A is located on the west end of the main classroom building. Subsequent to obtaining permission to supervise weightlifting for the varsity sports class, Mr. Sanders took his ISS Class to the football stadium during class period 7. Mr. Sanders left the students in the bleachers of the stadium above the weightlifting room. The weightlifting room was located in a room just below the bleachers where he left the students. While the students were in the bleachers, they were not directly supervised by any teacher or adult. There were assistant football coaches on the football field in the stadium supervising athletes engaged in football drills some of the time that the ISS Class was left in the bleachers, but they were not assigned the responsibility to supervise the ISS Class. Mr. Sanders would usually, but not always, inform Mr. Wilson that he had arrived to supervise the weightlifting training. Mr. Sanders did not, however, insure that the students in his ISS class were actually being directly supervised by another teacher or adult. Nor did Mr. Wilson tell Mr. Sanders that any arrangement had been made to provide supervision for the ISS Class on October 17, 1995, or on any other occasion. On October 17, 1995, Mr. Sanders had eight students assigned to the ISS. For class period 7, Mr. Sanders escorted his class from classroom 30A to the stadium (Stipulated Fact). When the ISS class arrived at the stadium, Mr. Sanders directed the eight students to sit in the bleachers and told them to remain seated there. Mr. Sanders then left the eight students, went around the side of the stadium and went into the weight room located just below where he had left his students. Mr. Sanders could not see or hear the eight students that he left in the bleachers from the weight room. When Mr. Sanders left the eight students, there were no other teachers or adults left to supervise the eight students. Mr. Sanders left them unsupervised despite the fact that the eight students had evidenced disciplinary problems and, therefore, had evidenced a need for close supervision. Some of the students were in the ISS Class due to truancy, but were left unsupervised by Mr. Sanders. Although there were other assistant coaches present to supervise students in the stadium area, the evidence failed to prove that any of those coaches, including Mr. Core, who was on the stadium football field part of the time that the ISS Class was sitting in the bleachers, were in charge of supervising the ISS Class. The evidence failed to prove that Mr. Core or any other teacher present that day had been given such an assignment. Because Mr. Core was engaged in supervising passing drills with the football team, even if it had been proved that he was in charge of the ISS Class, he could not be expected to provide reasonable supervision of the ISS Class and supervise passing drills. Despite Mr. Sanders' testimony that supervision of the ISS Class was the responsibility of Mr. Wilson, he also testified that he left the weightlifting room on several occasions to check on the students. The evidence failed to support either explanation. At some time after Mr. Sanders left the ISS Class students in the stadium, a 15 year-old female student (hereinafter referred to as “Student X”) that had been assigned to the class that day left the other students to go to the ladies’ restroom under the stadium (Stipulated Fact). She was gone approximately 45 minutes. Student X had been determined to have a Specific Learning Disability and was in the exceptional student education program. While Student X was under the stadium stands, she performed oral sex on several male students in the ladies’ bathroom (Stipulated Fact). Eight male students were subsequently arrested, charged and prosecuted for committing an unnatural and lascivious act with Student X. Seven students pled no contest to the charge, and one was tried and acquitted (Stipulated Fact). Five of the male students were supposed to be in the varsity sports class. At or close to the end of class period 7, an assistant coach came into the weightlifting room and told Mr. Sanders that he had heard that there was a girl underneath the stadium and suggested that Mr. Sanders “might want to go check.” Mr. Sanders left the weight room and began searching under the stadium from the north end where the weight room was located, to the south end. Mr. Sanders eventually found Student X and a male student in a small room in the back of the boys’ junior varsity locker room under the south end of the stadium. Mr. Sanders found Student X and the other student talking. He instructed the male student to return to his drivers' education class. Mr. Sanders took Student X back to the bleachers and the ISS Class. Mr. Sanders did not report the incident nor take any action against Student X or the male student he found her with. The next day, Student X reported that students in ISS Class were teasing her about having done something bad. Although not known by teachers at the time, Student X was being teased about what had happened to her on October 17, 1995. She reported the teasing to the Dean's office. Richard Souza, the head of the exceptional student education program, talked to Student X and concluded that Student X should not be sent back to the ISS Class. 38. Student X was teased further on the bus and in other parts of the school about the incident. What had happened to Student X on October 17, 1995, was not discovered until several days after the event took place. Student X was ultimately transferred to another school. Mr. Sanders' was issued a written reprimand for his involvement in the October 17, 1995, incident by the Superintendent of Schools, School District of Escambia County. Mr. Sanders was subsequently transferred to Workman Middle School as a physical education teacher. Mr. Sanders contested the suggestion in the reprimand that he was required to "provide direct supervision" of the ISS Class. Based upon the weight of the evidence, it is concluded that Mr. Sanders breached his responsibility to the ISS Class when he failed to make reasonable effort to protect the students of the ISS Class from conditions harmful to learning and/or to their mental and/or physical health and/or safety. He breached his responsibility when he left the students unattended and unsupervised. Until he knew that another teacher or adult had taken over the supervision of the ISS Class, it was unreasonable for him to abandon them. The evidence failed to prove that Mr. Sanders "intentionally" exposed any student to unnecessary embarrassment or disparagement. The evidence in this case proved the following facts concerning the aggravating and mitigating circumstances required to be considered in disciplinary cases by Rule 6B-11.007(3), Florida Administrative Code: The offense is this case was severe. Mr. Sanders breached one of the most important duties of a teacher: to insure that the students under his charge were properly supervised. The offense did not constitute a danger to the "public." The evidence only proved one repetition of Mr. Sanders' offense. It has been almost four years since the incident. Mr. Sanders has not been disciplined by the Education Practices Commission. Mr. Sanders has been an educator for approximately ten years and was, and still is, well thought of by some in the Escambia County School Board. He has been an educator in Florida since the 1989-1990 school year and was an educator in Alabama for one year prior to that. The actual damage as a result of the lack of supervision of the ISS students was severe. One student was severely harmed and the other students, who had evidenced a great need for supervision, were left unattended. The penalty will not be as effective a deterrent as the publicity concerning the incident. If Mr. Sanders is suspended, as recommended by Petitioner, it would have a serious impact on his livelihood. The evidence failed to prove any effort at rehabilitation by Mr. Sanders, nor is there any rehabilitation reasonably necessary in this matter. Mr. Sanders was not forthright concerning his responsibility in this matter. Mr. Sanders did not admit his responsibility to stay with the students at a minimum until he knew they were supervised. Instead, he attempted to lay the blame elsewhere. Mr. Sanders is currently employed as a teacher for the Escambia County School District. He is employed at Tate School. There was only one violation. Therefore, there was no need for any "[a]ttempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation." There have been no related violations against Mr. Sanders in another state, including findings of guilt or innocence, penalties imposed and penalties served. Mr. Sanders was negligent in his actions, but he did not commit any violation independent of his neglect. There were no penalties imposed for related offenses. No pecuniary benefit or self-gain enured to Mr. Sanders. The degree of physical and mental harm to Student X was great. No physical and/or mental condition contributed to Mr. Sanders' violation, including recovery from addiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Kevin R. Sanders has violated the provisions of Section 231.29(1)(i), Florida Statutes, in that he violated Rule 6B- 1.006(3)(a), Florida Administrative Code, as alleged in Count One and Count Two of the Administrative Complaint. It is further RECOMMENDED that Count Three of the Administrative Complaint alleging that Mr. Sanders violated Rule 6b-1.006(3)(e), Florida Administrative Code, be dismissed. It is further RECOMMENDED that Mr. Sanders' teaching certificate be suspended for a period of six months, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension. DONE AND ENTERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1998.
The Issue The issue is whether Respondent is entitled to an athletic coaching certificate, as described in section 1012.55(2), Florida Statutes, and Florida Administrative Code Rule 6A-4.004(4).
Findings Of Fact Early Life: 1960-1978 Petitioner was born on December 22, 1960. Petitioner is the youngest of five sons born to a Bahamian mother, who worked as a beautician, and a Jamaican father, who worked as a custodian. Petitioner's four older brothers have all earned college degrees. Petitioner's oldest brother served as an Army psychiatrist. Two other brothers also served in the military: one as a comptroller and the other as a Navy pilot. Petitioner's youngest brother is the executive director of a well-known hotel on Miami Beach. Petitioner grew up in the Liberty City section of Miami and graduated from Miami Beach Senior High School in 1978. Liberty City was a dangerous area in which to live with gunfire a familiar sound to residents. Two years after Petitioner graduated, Liberty City and other parts of Miami were torn by race riots. Unlike all of his siblings, Petitioner has never attended college. After high school, Petitioner worked as a washer and cook at a local hospital, but continued to pursue his real interest, which was performing as a disc jockey (DJ). Interning nights at a local radio station, Petitioner acquired enough experience to start a mobile DJ business in Liberty City and Miami Beach, where he worked on weekends. Criminal History: Essentially 1979-1986 Respondent's characterizations of Petitioner's criminal history as "extensive," in the Amended Notice of Reasons, or, worse, "storied," in his proposed recommended order at page 7, are unsupported by the record. As explained in the Conclusions of Law, only two criminal incidents are relevant, and they are misdemeanors that occurred over 25 years ago. The rest of Petitioner's criminal history consists entirely of arrests for which the charges were later dropped, except for a 1986 case in which the court withheld adjudication on a felony weapon charge to which Petitioner's plea is not in the record and a 2009 arrest for unpaid child support for which the purge amount was about $10,000. On August 28, 1979, Petitioner, then 18 years old, was arrested in Dade County for reckless display of a firearm and possession of over five grams of marijuana, both felonies. The marijuana charge--Petitioner's only arrest for drugs or alcohol--was dismissed, but Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and fined $25. This incident will be referred to as the "1979 Misdemeanor." In a letter dated May 7, 2009, to the Miami-Dade School Board Executive Director of Fingerprinting, Petitioner stated that he was in the backyard of his parents' home with one of his brothers and in possession of a bb gun. The small fine corroborates Petitioner's explanation. It is therefore found that a "bb gun" was the weapon in question, although Petitioner's letter misstated that all charges were dropped. On February 12, 1985, Petitioner was arrested in Dade County for loitering and prowling and carrying a concealed weapon, the former a misdemeanor and the latter a felony. By operation of a deemed admission to Respondent's Requests for Admission, Petitioner, while a passenger in a vehicle, was found in possession of a semi-automatic weapon concealed in a ski mask. The misdemeanor charge was dismissed, but the court withheld adjudication of guilt on the felony charge and imposed a fine of an unspecified amount. The record does not disclose Petitioner's plea to this charge. In his May 7, 2009, letter, Petitioner explained that, while he was DJing in a park without a permit, he had a concealed weapon without a permit, but misstated that both charges were dropped. On November 18, 1985, Petitioner was arrested in Dade County for inciting rioting, a felony. This charge was dismissed. In his May 7, 2009, letter, Petitioner explained that he was DJing in a park and was arrested because the music was too loud. On October 4, 1986, Petitioner was arrested in Hillsborough County and charged with grand larceny with a firearm, a felony. Based on a guilty plea, Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and sentenced to time served. This incident will be referred to as the "1986 Misdemeanor." In his May 7, 2009, letter, Petitioner stated that he was DJing a party in Tampa when a group of men started to beat a young woman in the parking lot. When security refused to intervene, Petitioner displayed a firearm to break up the crowd. Petitioner's letter misstates that the charge was dismissed. His explanation fails to account for the portion of the charge involving grand larceny, but makes sense when applied to the charge of which Petitioner was convicted. On December 13, 1987, Petitioner was arrested in Dade County for two or three counts of aggravated assault with a weapon and possession of a weapon to commit a felony, all felonies. These charges were dismissed. In his May 7, 2009, letter, Petitioner explained that a large fight broke out at a skating rink, but surveillance video revealed that he had not been involved in the fight, nor had he possessed a weapon. On or about June 15, 1993, Petitioner was arrested in Cook County, Illinois, and charged with disorderly conduct. This charge was dismissed. In his May 7, 2009, letter, Petitioner stated that he was staying at the Ritz in Chicago. While shopping along the riverfront, a law enforcement officer asked him if he could afford to shop there. A confrontation ensued, and the officer arrested Petitioner, but the charge was later dropped. On May 17, 1994, Petitioner was arrested in Dade County and charged with aggravated assault with a weapon, a felony. The charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight had broken out at a house party, and the police arrested everyone in attendance. There is no record of a 1997 arrest for battery. There is an arrest in July or October 1996 for battery in Louisiana, but Petitioner pleaded not guilty, and the charge was dismissed. In his May 7, 2009, letter, Petitioner mentioned a 1997 case involving a nightclub fight with which he had not been involved. A week later, a complainant claimed that Petitioner had hit him, but the charge was dismissed. On July 5, 1999, Petitioner was arrested in Dade County and charged with battery, a misdemeanor, which may have been raised to aggravated battery, a felony, by the prosecutor. Either way, the charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight broke out at a nightclub, but witnesses verified that Petitioner had not hit the complainant, who originally said that another person had hit him. On October 6, 2002, Petitioner was arrested in Dorchester County, South Carolina, and charged with aiding or procuring a person to expose private parts in a lewd and lascivious manner--namely, the insertion of a soda bottle by two strippers into the vagina of a member of the audience who climbed onstage during a performance, as well as several acts of unspecified obscenities by two male members of the audience with the aforesaid strippers. The charge was that these unlawful acts were in the presence of and with the encouragement of Petitioner. The South Carolina documentation is contradictory as to disposition. The most plausible rendering of the disposition comes from the general sessions docket, which reports that, on October 13, 2003, this charge was dismissed with leave to restore, if Petitioner violated an agreement not to appear in South Carolina for five years at a revenue-producing event. Another document completed by the court clerk states that Petitioner was sentenced to six months in the state Department of Corrections, based on a plea not otherwise described, but the sentence was suspended for five years, pursuant to the agreement identified above. A partial transcript of the October 13, 2003, court proceeding quotes the judge as saying that the state was nolle prossing two charges, and the court was sentencing Petitioner to six months on apparently a third offense, even though nothing in the other documents describes three charges, but the judge suspended the sentence for five years, subject to the above-identified agreement. As noted in the Conclusions of Law, the burden of establishing what took place in South Carolina falls on Respondent. Nothing in the record supports the judge's reference to three charges, which renders the judge's description of events unreliable. The most that can be said of the South Carolina incident is that a lone charge was dropped, subject to reinstatement, if Petitioner made a revenue-producing appearance in South Carolina for five years. The evidence fails to establish any finding of guilt by the court, plea of guilty by Petitioner, or subsequent reinstatement of the charge. In his May 7, 2009, letter, Petitioner stated that the club owner had performers on stage, but Petitioner had nothing to do with their performance. Petitioner testified that he had been paid merely to appear at the club and sign autographs. On February 17, 2009, Petitioner was arrested on a writ of bodily attachment in connection with a finding of contempt of court for failing to pay child support. The purge amount was $10,223.36. The disposition of this matter is unclear, although it is obvious that Petitioner was arrested for an unpaid child-support obligation and was released, presumably after paying the purge amount or such lower amount as the court deemed fit. Luke Records and 2 Live Crew: 1987-1992 After graduating from high school, Petitioner grew his DJ business to the point that, by 1987 or 1988, he had started Luke Records, Inc., a record company devoted to the production and sale of hip-hop music. Using funds provided by his brothers, Petitioner eventually employed over 40 persons in Miami and elsewhere around the United States. The growth of Luke Records was largely the result of its association with 2 Live Crew (2LC), a hip-hop group known for its sexually explicit songs. Not yet under contract with a record company, 2LC visited Petitioner in Miami, where the parties agreed to a recording contract. Petitioner appears to have quickly assumed substantial business and performance roles with 2LC and wrote some of the songs that the group performed. Serving as the frontman for 2LC, Petitioner was prominent in the group's performances, which, according to Petitioner, featured dance music informed by the twin themes of sex and comedy. Clearly, 2LC's songs were dance music that featured sex. Regardless of the role of comedy in 2LC's music, Petitioner himself acknowledges that its sexual themes rendered the music inappropriate for minors. The evidentiary record does not include the lyrics to 2LC's songs, but the more offensive titles include vulgar references to male and female genitalia and a reference to women as "hoes," meaning "whores, as well as at least one album cover featuring Petitioner surrounded by scantily clad women. Given the explicit sexual content of the titles and lyrics, Petitioner helped promote the use of parental advisory stickers to be applied to albums, tapes, and CDs, including those of 2LC, that contained lyrics inappropriate for minors and thus constituted a form of adult entertainment. On the other hand, two unimpeachable sources--the United States Supreme Court and the Eleventh Circuit Court of Appeals--found serious elements in at least certain of the 2LC songs of this era. In a copyright infringement case that arose after Luke Records had sold over 250,000 copies of 2LC's adaptation of Roy Orbison's, "Oh, Pretty Woman," the Supreme Court held, in a case of first impression, that commercial parody could be protected under the fair-use exception to copyright law. Describing the song itself, the Supreme Court opinion states: While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works. Campbell v. Acuff-Rose Music, 510 U.S. 569, 583 (1994). In Luke Records v. Navarro, 960 F.2d 134 (11th Cir.) (per curiam), cert. denied, 506 U.S. 1022 (1992), Petitioner and others won a reversal of a district court declaratory judgment that the 2LC musical recording, "As Nasty As They Wanna Be," was obscene under state and federal law. In another case of first impression--this time applying the obscenity test in Miller v. California, 413 U.S. 15 (1973), to a musical composition containing instrumental music and lyrics--the appellate court relied on the testimony of two newspaper music critics that the subject music possessed serious musical or artistic value. More interestingly, the court relied on the testimony of a Rhodes scholar who was soon to undertake employment as an assistant professor of political science at Columbia University. This testimony, which focused on the lyrics, traced "As Nasty As They Wanna Be" to three oral traditions of African-American music: the "call and response," "doing the dozens," and "boasting." Noting that the lyrics of "As Nasty As They Wanna Be" reflected many aspects of poor, inner-city blacks, this witness added that some of the lyrics contained statements of political significance or used literary devices, such as alliteration, allusion, metaphor, rhyme, and personification. Assuming without deciding that the trial judge had correctly determined that "As Nasty As They Wanna Be" met the first two prongs of the Miller test--i.e., the work as a whole appeals to prurient interest based on contemporary community standards and the work depicts in a patently offensive way sexual conduct specifically defined by state law--the appellate court rejected the trial court's determination that "As Nasty As They Wanna Be" fails the third prong of the Miller test--i.e., that it "lacks serious artistic, scientific, literary or political value." 960 F.2d at 138 (citing Miller, 413 U.S. at 24). After 2LC: 1992-2008 Petitioner and 2LC parted ways in 1992. Three years later, Petitioner and Luke Records, Inc. filed for bankruptcy, which resulted in the assignment of all masters and copyrights owned by Petitioner or Luke Records, Inc., to a company formed by a former in-house counsel of Luke Records. Thompkins v. Lil' Joe Records, Inc., 476 F.3d 1294, 1299-1301, and 1314n.22 (11th Cir. 2007). To some extent, perhaps due to the bankruptcy, Petitioner lost exclusive use of names associated with him, such as "Uncle Luke." As an asset of Petitioner, the Luther Campbell brand suffered a loss in value. The evidentiary record provides an incomplete picture of what Petitioner did during the ten years following his departure from 2LC. The arrests and Petitioner's explanations suggest that he DJed at house parties, made paid appearances at autograph-signing events, and attended nightclubs, although whether as a performer, audience member, or promoter is not clear. Petitioner released four hip-hop albums from 1992-2006. As always, Petitioner remained in Miami. In 1991 or 1992, Petitioner was among the persons who started the Liberty City Optimist youth football program. Competing with the local John Doe gang, Petitioner and other founders of the Optimist youth football program got kids off the dangerous streets and onto the football field. During the early years of his involvement with the youth football program, Petitioner invested considerable time and money, contributing at least $80,000. Petitioner helped lobby the Miami-Dade County Commission for what was eventually an expenditure of an estimated $14 million in facilities to serve organized football at local parks. Now, the Liberty City Optimist youth programs serve 6000 boys and girls, from 4-16 years of age, through a variety of sports and academic programs. Petitioner's wife, a local attorney and former FSU cheerleader, chairs the Liberty City Optimist youth cheerleading program. Although there have been some football-famous graduates of the program, such as Chad Johnson, the program's larger success is that 90 percent of the first group of youth to complete the program started college. Until 2005, Petitioner was not directly involved with the children in the Optimist youth programs. In 2005, realizing that his entertaining career had "taken a turn," Petitioner began coaching an Optimist youth football team. As he dialed up his involvement with youth, Petitioner tapered off his performances and appearances. Petitioner's two most recent albums are Somethin' Nasty, which was released in 2001, and My Life and Freaky Times, which was released in 2006. In contrast to the earlier cover art of 2LC, the cover art for the last album depicted Petitioner surrounded by fully clothed women. But some of Petitioner's titles would fit easily among the oeuvre of 2LC in its heyday. Somethin' Nasty includes "Suck This Dick," "We Want Big Dick," and "Hoes," and My Life and Freaky Times includes "Pop That Pussy" and "South Beach Bitches." In 2008, Petitioner made his last appearance, to date, with 2LC, at what was limited to an autograph-signing event. At the beginning of this period of Petitioner's life, in 1993, he became acquainted with James Harbor, Jr. Mr. Harbor was working for a state representative and met Petitioner through Congressman Alcee Hastings. Mr. Harbor later did an internship with Petitioner. Still later, Mr. Harbor was elected as a state representative from Palm Beach County and enlisted Petitioner in get-out-the-vote campaigns throughout Florida. Interestingly, Mr. Harbor testified that, as part of a voter-recruitment campaign, Petitioner appeared "in character." Mr. Harbor stressed repeatedly the distinction between the public persona of Petitioner and his private personality. Not a party person, during the time that Mr. Harbor has known him, Petitioner has always been "structured," hard-working and responsible, respectful toward women, and a firm disciplinarian when it came to his children. Mr. Harbor's testimony about the distinction between Petitioner's public persona and private personality finds support throughout the record, including a careful examination of the timelines. The 1979 Misdemeanor and 1986 Misdemeanor both involved weapons, not sex, and 2LC's main theme appears to have been sex, not violence or weapons. Whatever image of garish defiance that Petitioner may have cultivated during his 2LC-era, by the start of that era, he was never arrested again on charges that resulted in an admission of guilt, a no-contest plea, or a finding of guilt, except for the child-support arrest. Although the certification of Petitioner must take into consideration his public persona, to the extent that it still derives from his short-lived career with 2LC, there is no indication over the past 20 years that, outside of his performances and appearances, Petitioner has resembled the sex- song impresario, whom he portrayed with 2LC and in his later albums. High School Football: 2009-Present Starting in the 2009-10 school year, Petitioner turned from coaching Optimist youth football to coaching local high school football. During the 2009-10 and 2010-11 school years, Petitioner served as an assistant football coach at Miami Central Senior High School, where his wife teaches a law class. For the 2011-12 school year, Petitioner served as an assistant football coach at Miami Northwestern Senior High School. Although he would be willing to work as an unpaid volunteer, Petitioner has been required, due to insurance requirements in the school district, to accept the pay of a part-time contract football coach, which is $1000-$1200 per year. No longer living in Liberty City, Petitioner lives closer to another Miami-Dade County high school whose students are less exposed to violence and less at-risk than the students attending Miami Central or Miami Northwestern. Nearby Broward County public high schools do not require an athletic coaching certificate because school district policy allows a volunteer to coach. But Petitioner has decided to help the most vulnerable, most at-risk students from the inner-city neighborhood where he grew up. Petitioner has served these students in ways that other persons would find difficult, if not impossible, to replicate. Trying to combat the sense of hopelessness that sometimes afflicts at-risk youth, Petitioner has worked at both schools to install a sense of school pride in football and academics. When he arrived at Miami Central, the school was an F school, but Petitioner joined a school-wide effort to improve learning conditions, and, when he left two years later, the school was a B school. Similarly, when Petitioner arrived at Miami Northwestern, it was a D school, but it earned a B during the most recent school year. Miami Northwestern is located directly across the street from housing projects, and its students are regularly the targets of violence, often involving weapons. About one-quarter of its students are required to attend gun programs. The football team includes many homeless children and children with children. In the month preceding the hearing, two Miami Northwestern students had been killed. On a positive note, about 70 percent of the 95 students on the Miami Northwestern football team are graduates of the Optimist youth football program. Also, as many as 90 percent of the students who played on the high school football teams that Petitioner has coached are attending college. The students with whom Petitioner works appreciate his dedication and hard work. They know that Petitioner has spent his entire life in Miami and has known some hard times. Generally, they know that, before they were born, Petitioner had been a celebrity as a member and promoter of a hip-hop group, itself known for its frank defiance of convention, at least in terms of graphic sexual language. As Petitioner testified, his students' mothers know Petitioner from when he was a DJ on a streetcorner, through his association with 2LC and discovery of new talent, such as the hip-hop artist Pitbull, and now from his work with youth. This familiarity presents unique mentoring opportunities to Petitioner. For instance, Petitioner knew one student's father, who later went to prison where he was murdered. One day, the student's mother approached Petitioner and asked him to tell her child about the good things that his father had done before he went to prison and died. Reflecting Petitioner's dedication to at-risk youth, for at least the past four years, Petitioner has rented one or two 15-passenger vans and, at his expense, transported interested players to schools in the southeast where they might be able to attend college. Petitioner does not reserve his attention to potential stars; instead, he tries to find colleges and junior colleges at every level that might be interested in admitting an individual student. Steven Field, the head coach of the Miami Northwestern football team, testified on Petitioner's behalf. Coach Field, who has most recently coached at University of Miami and Hampton University in Virginia, also coached at Miami Central from 2000- 2004. Coach Field testified that Petitioner is an "essential" member of his coaching staff, not for his name or past career, but for his way with the students. Petitioner leads by example and always fulfills any promises that he makes to the students--things that may otherwise be lacking in the lives of some of these inner-city youth. According to Coach Field, Petitioner's "no-nonsense, professional" style of dealing with the students commands their attention and respect. For example, as the coach in charge of the weight room, Petitioner does not allow swearing. When one student became disrespectful to another coach, Petitioner ordered the student to leave the premises. Neither Petitioner nor Coach Field would allow 2LC music to be played in the weight room due to its inappropriate adult content. Petitioner testified that, in trying to save students, he will "talk 'till I'm blue in the face," revealing not only the necessary dedication, but, more importantly, the insight that that there are no shortcuts or quick fixes in trying to communicate with at-risk children. Reinforcing the realism evident in Petitioner's testimony, Coach Stevens described his and Petitioner's efforts with the students as not much more than reinforcing the notions of living right at home and "getting your books at school." Coach Stevens stressed that he and Petitioner do not concentrate exclusively on the students who are talented enough to play football in college. At least a half dozen students are in felony programs. With these students, Coach Stevens testified that he and Petitioner do not speak about "getting into Georgia Tech"; they speak about finishing high school and getting a job. Coach Stevens has never heard Petitioner speak to the students about mistakes that he has made, nor does he wish Petitioner to do so. Coach Stevens, Petitioner, and the other coaches try to set a positive tone, so they talk to the students about what they need to do, not about mistakes that the students--or coaches--may have made in the past. However, if the school resource officer tells Petitioner about problems that an individual student is having, Petitioner will talk to the student one-on-one. In such conversations, Petitioner does not shy away from relating personally to what the student is going through. The Application Received on April 27, 2010, the Application answers "yes" to the following questions: Have you ever been found guilty of a criminal offense? Have you ever had adjudication withheld on a criminal offense? Have you ever pled guilty to a criminal offense? The Application answers "no" to the following questions: Have you ever been convicted of a criminal offense? Have you ever pled nolo contendere to a criminal offense? The Application lists the following arrests and states that the disposition of all charges was dismissal, except for the South Carolina charge, which is reported as "guilty/adjudication withheld": Miami--8/79--reckless display of firearm Miami--2/85--loitering/prowling Miami--11/85--inciting riot Miami--12/87--aggravated assault Hillsborough--12/87--aggravated assault Miami--5/94--aggravated assault Miami--7/99--battery Dorchester County--10/22--"dissem promote" The Application is flawed in its disclosure of Petitioner's criminal history. As alleged in the Amended Notice of Reasons, the disclosure of the "loitering/prowling" arrest fails to mention the felony weapons charge, which was part of the same incident, and thus fails to note that the court withheld adjudication on this charge. Also, as alleged in the Amended Notice of Hearing, the Application fails to disclose the 1986 Misdemeanor, which occurred in Hillsborough County. Although the Application discloses a Hillsborough County arrest, it seems to confuse the incident with a later arrest in Dade County, but, more importantly, omits mention of the finding of guilt on this misdemeanor weapon charge. However, these flaws do not prove that Petitioner intentionally concealed information or was less than honest in completing the Application. Obviously, he has had many arrests, so the potential for confusion or even omission exists, and there are comparatively few inaccuracies. On these facts, it is found only that Petitioner filed an inaccurate application, but not that he filed an application with fraudulent or dishonest intent. Petitioner: At Present Petitioner does not pose a risk to the safety of the students entrusted to him. For the past seven years, Petitioner has had significant direct contact with vulnerable youth without any reported problems. In light of this critical fact, the 1979 Misdemeanor, 1986 Misdemeanor, and Petitioner's former involvement with 2LC and the adult entertainment industry lose whatever contrary predictive value that they might otherwise have. Simply put, Petitioner does not resemble the youth who committed the 1979 Misdemeanor or 1986 Misdemeanor or the man who performed with and promoted 2LC 20 years ago. Petitioner resembles the middle-aged man who released sexually explicit songs in 2001 and 2006, but this is addressed below. As noted in the Conclusions of Law, good moral character requires consideration of a person's honesty, fairness, and respect for the rights of others and the law, so consideration of student safety, although important, is not sufficient. But the 1979 Misdemeanor and 1986 Misdemeanor, as old misdemeanors, provide insufficient support for a finding that, today, Petitioner lacks honesty, fairness, or respect for the rights of others and the law. Nor do these criminal offenses support findings that Petitioner has been guilty of gross immorality or moral turpitude, as those terms are defined in the Conclusions of Law. Likewise, Petitioner's 2LC career 20 years ago and even his more recent releases of 2LC-like albums in 2001 and 2006 do not support a finding that he lacks honesty, fairness, or respect for the rights of others and the law or that he is guilty of gross immorality or moral turpitude. For the reasons noted above, the redeeming value to be found in the releases means that they do not violate the law, provided they also conform to any laws restricting their dissemination, such as not to minors or not on television during certain hours of family viewing. Absent an attempt to market the offensive material in some broadly accessible fashion, such as on billboards or the sides of public buses, such non-obscene works similarly do not violate the rights of others. As noted above, the flaws of the Application do not support a finding of dishonesty or fraud. But, in his proposed recommended order, Respondent fairly questions Petitioner's initial refusal to identify his Application at the hearing. This failing of Petitioner, as well as the two others discussed in the succeeding paragraphs, cannot serve as standalone grounds for denial because: 1) they arose at the hearing and thus were not available as grounds in the Amended Notice of Reasons and even if alleged, they do not rise to the level of a lack of good moral character, as in a lack of honesty or fairness. But they do provide part of the justification for adding conditions to any certificate issued to Petitioner. Petitioner's failure at the hearing initially to identify his Application was not due to any confusion. There were not multiple versions of applications from which to choose. There was one Application on the table, and Petitioner initially testified, more than once, that he could not identify it. The temptation appeared palpable for Petitioner to off-load the responsibility for an obviously flawed application onto someone else who may have completed it for Petitioner, who nonetheless signed it. Cannily, Respondent's counsel moved for a summary order. The Administrative Law Judge warned Petitioner that the Division of Administrative Hearings lacked jurisdiction in the absence of an application. Petitioner and his attorney made good use of a short recess to confer. After the recess, Petitioner identified Respondent Exhibit 1 as the Application that he had filed for an athletic coaching certificate. Petitioner's second failing of this type, also noted in Respondent's proposed recommended order, consists of his unwillingness to own up to his role or roles in any of the salacious songs that he has performed or produced. While it is possible that Petitioner might not have been responsible for the more salacious songs performed by 2LC, he clearly was responsible for the five sexually graphic titles on the two most recent, post-2LC albums, which, as discussed above, were released in 2001 and 2006. Petitioner's third failing of this type occurred when he testified about his bad period from 1979 to 1986. Petitioner admitted only to not living a "perfect" life and associating with bad persons. This seems a little lean for two misdemeanor weapons convictions and a withholding of adjudication of guilt on a felony weapon charge--all in the span of seven years. As Respondent points out, Petitioner has displayed minimal contrition for the bad choices that he made during this period. At minimum, he missed an opportunity to describe how he has changed when he "admitted" only that he was not perfect or implied that his legal problems were caused by bad associations. In these three instances, Petitioner sought to escape personal responsibility by claiming or implying that other persons prepared the flawed Application that he was somehow compelled to sign, other persons forced him to perform songs with five salacious titles in 2001 and 2006, and other persons got him into trouble during the bad period over 25 years ago. Although not evidence of a lack of honesty, Petitioner's failure to affirmatively own up to these acts suggest a lack of self- insight and perhaps even a misapprehension of the extent to which he must subject himself to the regulatory oversight that is imposed on applicants for certificates and, later, certificateholders. The other justification for adding conditions to any certificate issued to Petitioner is the prospect of his return to adult entertainment. In addition to part-time coaching at Miami Northwestern, Petitioner also owns a company, Luke Holdings, which deals in movie scripts and produces elements of television commercials, among other pursuits in the entertainment industry. In recent years, extreme examples of adult entertainment, such as pornography, have emerged bearing the Luther Campbell brand, but Petitioner denied that he has been involved in the production of such material. His denial is credited, although it would have been more persuasive, absent Petitioner's failings described in the preceding paragraphs. As noted above, Petitioner lost exclusive control of his brand after the bankruptcy in 1996, and, presumably, given the shadowy nature of the pornography industry, illegal use of his name is not out of the question. The distinction between past and present involvement in adult entertainment is an important one. In a recent case, EPC did not treat past involvement in the adult entertainment industry the same as involvement while a certificateholder. See In re: The Denial of the Application for Teacher's Certificate of Shawn J. Loftis, EPC Case No. 11-0464D (April 5, 2012) available at http://www.myfloridateacher.com/discipline/icmsorders/101-2590- FO-040512155402.pdf). In Loftis, Respondent denied Mr. Loftis's application for a Florida Educator's Certificate on the grounds of a lack of good moral character, gross immorality, and moral turpitude, as well as personal conduct that seriously reduces one's effectiveness as a school board employee, which violates section 1012.795(1)(g). The factual bases for the denial was that, between 2006 and 2008, Mr. Loftis had appeared in over 20 pornographic films featuring him engaged in explicit sexual activity, and the films were still available for viewing, including on the internet, although this employment had ended prior to Mr. Loftis's temporary employment as an instructor in Miami-Dade County public schools. After an informal hearing, EPC ordered that Mr. Loftis be allowed to continue to pursue certification. EPC stated that, if "found qualified," Mr. Loftis would be issued a Florida Educator's Certificate, subject to the conditions that he obtain from an approved, Florida-licensed provider written verification that he poses no risk to children and is capable of assuming the responsibilities of an educator and that, upon employment that requires possession of a Florida Educator's Certificate, Mr. Loftis be placed on probation, subject to the following conditions: 1) he immediately notify the DOE investigative office upon employment or termination of employment requiring a Florida Educator's Certificate; 2) his immediate supervisor send annual performance reports to the DOE investigative office; he pay EPC $150 for the costs of monitoring his probation; and 4) he violate no law or rules, satisfactorily perform all assigned duties in a professional manner, and bear all costs of compliance with the final order. The Loftis final order illustrates EPC's ability to issue a conditional certificate, even without a finding that the applicant had failed to meet the qualifications for certification. In considering the requirement stated in section 1012.795(1)(g) concerning personal conduct that seriously reduces the effectiveness of the certificateholder as a school board employee, the Notice of Reasons in Loftis, when compared to the Amended Notice of Reasons in the subject case, more closely approaches the most elastic requirement of Florida Administrative Code Rule 6B-1.006(3)(a) that a certificateholder (or applicant) "[s]hall 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." Juxtapose this broader, objective requirement of protecting the student from conditions harmful to learning or harmful to the student's mental health with: 1) Petitioner and Coach Field's efforts to inculcate in their at-risk students such values as strength of character, perseverance, dedication, and hard work in the pursuit of ambitious goals and 2) the future release of more artistic or entertainment efforts along the lines of "Suck This Dick," "We Want Big Dick," "Hoes," "Pop That Pussy," and "South Beach Bitches." Consider the bewildering effect on students if, one afternoon, in the weight room and on the field, Coach Campbell were to promote rectitude and grit and, that night, the same man were to don the garb of the sex-song impresario and promote the escapist pursuit of sexual gratification. The addition of music or elements of African boasting and literary allusion in, say, "Pop That Pussy" or "Suck This Dick," which would rightfully spare these works from successful prosecution as obscenity, would not have any bearing on the extent to which the superficial appeal of this form of adult entertainment could undermine the hard, patient work of these students' coaches, teachers, and parents in trying to shape them into responsible young men. Impressionable inner- city youth might be easily confused by these competing messages, as they compared the paltry sums paid their contract coaches and modest sums paid their regular coaches and teachers with the riches lavished upon the producers of adult entertainment. Although the Loftis final order emphasizes that the applicant no longer is engaged in the making of pornographic films, neither that authority nor the record in this case provides a sufficient basis for attaching a condition to Petitioner's certificate prohibiting his engaging in the adult entertainment industry. Such litigation awaits another day and, one hopes, another certificateholder than Petitioner or Mr. Loftis. However, conditions attached to Petitioner's certificate could focus his attention on the ethical obligations that he has assumed as a certificateholder and the very real possibility that that his return to the performance or production of adult entertainment, while a certificateholder, would be at crosspurposes with the broad mission of education and expose his certificate to suspension or revocation. Petitioner should receive an athletic coaching certificate because he generally meets the substantive certification requirements that call for consideration of such broad criteria as good moral character and the absence of gross immorality and moral turpitude, he possesses unique attributes for reaching at-risk, inner-city youth, and he has demonstrated his commitment to, and effectiveness with, working with these children for at least seven years.
Recommendation It is RECOMMENDED that EPC issue an athletic coaching certificate to Petitioner, subject to the following conditions: The certificateholder shall be placed on probation for five years, immediately upon issuance or, if later, employment that requires a certificate. Upon issuance of the certificate and on each anniversary of issuance, during the term of probation, EPC or its agent shall contact the Department of Revenue and inquire if Petitioner owes any child support arrearages. Upon receipt of written notice of such arrearages from the Department of Revenue or a circuit court, EPC shall immediately suspend the certificate until the arrearages are paid in full. The payment of a purge amount that leaves an arrearage owing does not satisfy this condition. Within six months of issuance of the certificate and within six months of each anniversary of issuance, during the term of probation, Petitioner shall complete 10 hours in coursework in the area of ethics with emphasis on the Principles of Professional Conduct, Florida Administrative Code Rule 6B-1.006 and shall deliver to the DOE investigative office written proof of such coursework. At the start of every school year, during the term of probation, Petitioner and his immediate supervisor will sign a statement certifying that each has read the Principles of Professional Conduct and deliver the signed statement to the DOE investigative office within 20 days of the first day of school. The supervisor's statement shall confirm that he or she understands that his or her professional obligations include the obligation of Rule 6B-1.006(5)(l) that he or she "shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules." Petitioner's statement shall confirm that he understands that his professional obligations include the obligation of Rule 6B-1.006(3)(a) that he "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." If Petitioner's immediate supervisor changes during the school year, the new supervisor shall sign a supervisor's statement within 30 days of his or her assumption of supervisory duties over Petitioner and deliver the signed statement to the DOE investigative office within 60 days of his or her assumption of supervisory duties over Petitioner. Within 30 days of the preparation and delivery of an evaluation to Petitioner, during the term of probation, he shall submit a copy to the DOE investigative office. During the term of probation, if Petitioner becomes actively involved in the adult entertainment industry, in any manner, he shall notify the DOE investigative office, in writing, within 30 days of first involvement. For the purpose of this paragraph, the performance or production of a sexually explicit song that would be inappropriate for the football team weight room or the appearance at an autograph- signing event promoted on the basis of Petitioner's former involvement with 2LC is active involvement in the adult entertainment industry. During the term of probation, the certificateholder shall reimburse EPC or its agent its reasonable costs of monitoring. If any of these conditions, except for the condition stated in paragraph 2, are not timely performed by Petitioner or, if applicable, his supervisor, EPC may suspend the certificate until Petitioner demonstrates compliance (or the term of the certificate expires) or, at its discretion, revoke the certificate. DONE AND ENTERED this 15th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 15th day of May, 2012. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, 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 Michael John Carney, Esquire Kubicki Draper, P.A. Wachovia Bank Building, Suite 1600 One East Broward Boulevard Fort Lauderdale, Florida 33301 mjc@kubickidraper.com Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com
The Issue Whether Lee Mace struck Suarez and is thereby guilty of misconduct in office contrary to the provisions of Section 231.36(6), Florida Statutes.
Findings Of Fact Petitioner, Robert L. Blubaugh, is the superintendent of the School District of Brevard County, Florida. Respondent, Lee Mace, is a member of the instructional staff of the School Board of Brevard County, Florida, employed pursuant to a continuing contract of employment. On or about May 10, 1977, at a meeting of the School Board of Brevard County, Florida, Petitioner recommended to the School Board that Respondent be dismissed from employment. This recommendation was based upon reports that Respondent had, on or about April 22, 1977, struck a student, George Suarez, on the premises of Melbourne High School in Brevard County, Florida. The Board acted upon the Petitioner's recommendation and suspended the Respondent with pay pending an evidentiary hearing pursuant to the provisions of Florida Statutes 231.36(6), upon the allegations asserted by the Petitioner. The School Board further voted to seek the appointment of a hearing officer the Division of Administrative Hearings for the purpose of conducting a hearing on the Petitioner's allegations. The School Board's action was set out in a complaint and request for hearing, dated May 18, 1977, and forwarded to the Division of Administrative Hearings. The Division of Administrative Hearings assigned Stephen F. Dean as Hearing Officer in this matter. Notice of formal hearing was given for a hearing to be conducted on June 30, 1977. George Suarez was a student at Melbourne High School in Brevard County, Florida. He had been a member of the track team at Melbourne High School coached by the Respondent. Immediately prior to April 22, 1977, Suarez quit the track team. This was Suarez's third resignation from the team during the 1977 school year. On April 22, 1977, the Respondent entered the classroom of Ned Brown between second and third period at approximately 9:30 a.m. He asked George Suarez to come into the hall, and Suarez refused. Respondent then sought permission of Ned Brown to enter his classroom and speak with Suarez. He was granted this permission and spoke to Suarez concerning his return of track equipment issued to Suarez. Suarez refused to return the track equipment alleging that the Respondent had entered his track locker and given away his personal belongings to other members of the track team. The Respondent told Suarez that his belongings had been removed from his track locker but had been placed in Respondent's file cabinet in his office where he could pick them up upon return of his track equipment. During this exchange, the discussion became more heated and following New Brown's suggestion, Mace began to leave the classroom. At this time, Suarez called out to Mace words to the effect, "Why don't you beat me up like you said you would?" The Respondent, continuing to leave the room, said to Brown words to the effect, "Scum like him isn't worth beating up" and continued to leave the classroom. At this point, Suarez shouted at Mace, "You are the scum." Mace questioned Suarez concerning what he had said. The testimony of the various witnesses concerning what occurred immediately thereafter is somewhat conflicting, but there is general agreement that Suarez, who had been sitting, jumped to his feet and while doing so or immediately thereafter, Mace struck him cuting Suarez's lip. The witnesses' testimony indicates that Suarez aggressively jumped from his seat to confront Mace, and that Suarez had a reputation for being quick tempered and for fighting. However, Mace admits that Suarez never struck at him. The witnesses' testimony generally agreed that the Respondent had not struck Suarez a deliberate forceful blow, based upon their observations and the fact that the Respondent, a man with the strength and build of a professional athlete, would have severely hurt Suarez had that been his intention. There is no dispute concerning the relevant facts concerning what immediately followed the physical contact between the Respondent and Suarez. Lee Mace enjoys a good reputation as an instructor and coach at Melbourne High School among the students, faculty, and parents. His reputation is based upon his working with student athletic teams and bringing the members of these teams together in activities which build character and which are morally uplifting. The evidence in this case indicates that he had given a great deal of personal attention, and had arranged to provide special coaching to George Suarez in an effort to keep him interested in athletics as a means of self expression to overcome Suarez's disciplinary and academic problems. Mace had also spent many hours of his own time in repainting the football stadium at Melbourne High School and making improvements to the student locker rooms.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend to the School Board that Lee Mace be suspended without pay for a period of thirty (30) days. DONE AND ORDERED this 1st day of September 1977, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mark F. Kelly, Esquire 341 Plant Avenue Tampa, Florida 33606 William C. Walker, Esquire 3435 S. Hopkins Avenue Post Office Box 1084 Titusville, Florida 32780
