The Issue This issue in this case is whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact Since 1976, and at all times material to this case, Philip Chase (Respondent) was employed by the Pinellas County School Board (Petitioner) under a continuing contract pursuant to Section 231.36(4)(a), Florida Statutes. The Respondent has a Masters Degree in Education. In 1988, the Respondent was a teacher and wrestling coach at Dunedin High School. On February 8, 1988, the Respondent received a letter of reprimand for addressing three students as "street niggers." In 1991, while still teaching at Dunedin High, the Respondent received a three day suspension for kicking a student. Due to budgetary constraints in the 1992-1993 school year, some Pinellas County high school teachers were reassigned to other schools. The Respondent was transferred to Cypress Woods Elementary School as a Physical Education (P. E.) teacher. The Respondent received an evaluation while at Cypress Woods Elementary by the school principal. Although the evaluation is generally positive, the principal noted that the Respondent should avoid raising his voice in the classroom and suggested should refrain from singling out a student (apparently for misbehaving) in the presence of other students. In the 1994-1995 school year, the Respondent taught P. E. at the Sandy Lane Elementary School. The transfer to Sandy Lane was voluntary. Each Sandy Lane P. E. class is divided into four sections. Each section is taught by one of two P. E. teachers or one of two teacher assistants for up to four weeks, at which time each section rotates to another adult instructor. The P. E. teachers are responsible for development of lesson plans. The teacher must explain the lesson plan to the assistant. When an assistant is responsible for a section of students, the assistant instructs according to the lesson plan developed by the teacher. The teacher is responsible for grading the students. During the 1994-95 school year, the Respondent was verbally abusive towards students. On September 12, 1994, early in the school year, the Respondent received a letter of warning from the assistant principal of Sandy Lane Elementary for making inappropriate comments to children. Students were called derogatory names by the Respondent, including the use of "four-eyes" in reference to a child wearing classes. The Respondent referred to some students as "wimps" or "sissies." The Respondent made other inappropriate remarks to children, including telling students that if he were their father, he would administer corporal punishment. During another class, a child running laps paused momentarily, and was berated as "lazy" by the Respondent. On a few occasions the Respondent reacted in an inappropriate physical manner with students. In one case, he intervened in a fight between two students and pushed one child to the ground. In another case, the Respondent grabbed a child who was refusing to remain in line and pushed the child into the line. On February 20, 1995, the Respondent received a memo from the principal of Sandy Lane in which he was directed to alter his behavior with students including inappropriate raising of his voice and physical interaction. According to the testimony of witnesses observing his teaching method, students were unhappy at the prospect of rotating into his section and would make up excuses to avoid his class. Other P. E. Teachers or assistants in the vicinity of the Respondent's class had to address his behavior with their students. At times he raised his voice loud enough to draw the attention of their students and disrupt their classes. On several occasions, in addition to the letter and memo regarding the school's concerns, the Sandy Lane Principal met with the Respondent to address the issues related to his classroom behavior. During the 1994-95 school year, the Respondent's preparation of lesson plans was inadequate. Elementary school P. E. lessons should focus initially on basic motor skills and progress to more concise hand-eye skill development. He did not establish appropriate skill levels for the students. The Respondent frequently instructed all children to play games without regard to skill level. He failed to provide proper instruction to the teacher assistants. The Respondent sometimes spoke about colleagues in an inappropriate manner. During the 1994-95 school year, on two occasions, the Respondent complained to one teacher about another, calling the disfavored teacher a "bitch." During the 1995-96 school year, a new P. E. teacher joined the Respondent on the staff of Sandy Lane. The evidence establishes that the Respondent's behavior continued to be unacceptable. During the 1995-96 school year, the Respondent continued to address students inappropriately, using such terms as "bonehead" or "meathead." Again he was overhead stating that were he the student's father, he'd administer corporal punishment. During the 1995-96 school year, the Respondent continued to yell at children in order to maintain control of his students. He continued to disrupt nearby classes with the volume and tone of his voice. Other P. E. teachers or assistants in the vicinity of the Respondent's class had to address his behavior with their students. During the 1995-96 school year, he continued to touch students inappropriately. He grabbed children by the arms to maintain control of the class. He pushed a recalcitrant student to the ground when the student hesitated to sit down. At one point during a P. E. class, the Respondent sent one child to "time-out" and called attention to the child's misbehavior by having the other students applaud the child for "earning" a time-out. The students applauded the child as he walked to the time-out area. During the 1995-96 school year, the Respondent's preparation of lesson plans remained inadequate. He did not establish appropriate skill levels for the students. "Lessons" were basically games with little regard to skill development of the students. His instruction to teaching assistants remained inadequate. Little if any written lesson instruction was provided. One assistant testified that when she requested additional clarification, the Respondent offered no guidance. When she voiced her concerns to the school principal, the Respondent confronted her in front of students and told her she was to do whatever he told her to do. On December 7, 1995, James Barker, the Petitioner's Administrator for the Office of Professional Standards, met with the Respondent to discuss the matters addressed herein. At that time, the Respondent received a latter of reprimand related to aggressive physical interaction with students and embarrassing a student (during the time-out incident.) The letter states that such acts constitute misconduct in office and insubordination. The letter advises that such behavior cease and that continued incidents will result in further disciplinary action including suspension or dismissal. During the spring of 1996, the other Sandy Lane P. E. teacher went on maternity leave. During the tenure of the substitute teacher, the Respondent continued to have inadequate (if any) lesson plans. He often met with the substitute at the beginning of the day and the two would discuss what to do immediately prior to each day's classes. The Sandy Lane principal continued to be concerned about the Respondent's lack of adequate lesson plan preparation. In March 1996, he requested that the Petitioner's Supervisor for Physical Education meet with the Respondent and the principal to review the existing plans. During the meeting, the supervisor determined that the lesson content was minimal, lacked any sequence of skill development, and had little regard for the grades and skill levels of students. The supervisor discussed his concerns with the Respondent. He reviewed an elementary textbook with the Respondent, and used a sample lesson planning book to demonstrate the kind of information which would be included in an acceptable lesson plan. The Respondent argued with the supervisor and was resistant to his suggestions. The supervisor followed up the meeting with the Respondent by providing copies of curriculum materials to the Respondent. Despite the guidance from the supervisor, the Respondent's lesson planning continued to be inadequate. The Respondent continued to speak about colleagues in an inappropriate manner. During the 1995-96 school year, in discussing a female teacher with another male teacher, the Respondent used the word "tits" in describing her appearance. During the 1995-96 school year, responsibility for an aggressive emotionally handicapped child was assigned to the Respondent because the pregnant female P. E. teacher was concerned about her safety. The assignment was made by the school principal at a meeting with the teachers and the child's parent. The Respondent agreed to the assignment. The Respondent failed to monitor the child. On both the first and second days of the assignment, the Respondent inquired of the pregnant teacher about the child's behavior so that he could complete the evaluation sheet. On the second day of the assignment, the child got involved in a fight, left his P. E. class and returned to another classroom. The Respondent was unaware of the incident until he inquired of the pregnant teacher as to the child's behavior. Afterwards, the Respondent complained to another teacher about the pregnant teacher, calling her a "bitch." The Respondent was responsible for grading other emotionally handicapped children in his classes. On one occasion during the 1995-96 school year, the Respondent turned his grades over to an "EH" assistant, commenting that he had forgotten to write them down during the classes, and that if she disagreed with them, she could change them. She reviewed the grades and determined that they did not reflect the actual conduct of the EH students, so she changed them. At one point during the 1995-96 school year, the Respondent, speaking in the vicinity of kindergarten children, commented to another teacher that "[t]hey're on my ass again," apparently in reference to the continuing issues related to his teaching. During the 1995-96 school year, students continued to express their displeasure to other teachers at being rotated into the Respondent's P. E. section. During his term of employment at Sandy Lane Elementary, the Respondent's behavior provided ineffective guidance to students. At times, after standing in front of a misbehaving student and yelling at the child, he'd "high-five" or verbally praise the child. According to witnesses for the Petitioner, such signals are confusing and fail to provide clear direction to the child as to what types of behavior are acceptable. The Respondent also used exercise as a form of punishment for misbehavior. There is evidence that using exercise as punishment is counterproductive to teaching children about the benefits of exercise and encouraging students to exercise as a from of recreation. The evidence establishes that the Respondent is verbally and physically inappropriate with elementary school students and that he fails to perform proper instructional planning. Generally, when the Respondent's various inappropriate behaviors were called to attention, he would minimally attempt to improve the situation, but the improvements were marginal and of brief duration. On April 1, 1997, the Respondent was notified by certified letter that the Superintendent of Pinellas County Schools would recommend termination of the Respondent's employment. The letter states that the termination is for incompetency, misconduct in office, and gross insubordination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Pinellas County enter a Final Order terminating the employment of Philip Chase. DONE and ENTERED this 7th day of February, 1997 in Tallahassee, Florida. COPIES FURNISHED: WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1997. Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street Northwest Post Office Box 2942 Largo, Florida 34640 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Mark Herdman, Esquire 34650 U. S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
Findings Of Fact At all times relevant hereto Scarlett P. Faulk and Scarlett Faulk and Associates, Inc. were licensed as a broker and corporate broker, respectively, by the Florida Board of Real Estate. Lily Nelson, broker at Sandpiper Realty, managed property at 1800 Gulf Boulevard, Bellaire Shores, owned by Larry and Sheena Bowa, who resided out of state. This property consisted of a residence which Ms. Nelson rented on behalf of the Bowas. Scarlett Faulk owned a residence located at 1720 Gulf Boulevard which she had purchased in June, 1986. In late June, 1986, Faulk telephoned Lily Nelson to ask if the Bowas were interested in selling their property at 1800 Gulf Boulevard as she might have a client interested in the property. Ms. Faulk's brother, Mac Phillips, was planning to move to Clearwater and was looking for a residence. Also, Faulk had another client, Clarence Trice, to whom she had sold several properties over the past few years. At the time, Trice was contemplating the purchase of property at 1420 Gulf Boulevard and had asked Faulk to join him in a joint venture to purchase this property. Faulk declined, but suggested that her brother, Mac Phillips, might be interested. On June 25, 1986, Phillips wired $62,500 to Faulk to participate in this purchase, but Trice opted to purchase the property by himself. Faulk held these funds in her escrow account (Exhibit 2). Mrs. Bowa told Lily Nelson that she would talk it over with her husband and call back. When she did call back to say they were interested in selling, she inquired about prices in the neighborhood. Mrs. Bowa then agreed to have the property listed for $600,000. This was communicated to Ms. Faulk who passed the information to Phillips. Phillips made an offer of $500,000 for the property, and Bowa countered with $525,000 which Phillips accepted. The contract to purchase the property at 1800 Gulf Boulevard was executed by the buyer on July 1, 1986, and by the sellers on July 7, 1986. Rebecca Watson, at all times relevant, was registered as a real estate sales person and associated with the Respondent. Ms. Watson had a client, Scane Bowler, whose wife was interested in having a house built on a lot facing the Gulf of Mexico. Lots on the west side of Gulf Boulevard face the Gulf of Mexico. Rebecca Watson asked Respondent Faulk if she could show the Bowlers the residence at 1720 Gulf Boulevard that Faulk had recently purchased. Faulk agreed, met Watson and her client, and allowed Watson to show the house. This was the occasion on which Faulk first met the Bowlers. This meeting occurred June 27, 1986, the day the Bowlers departed to attend the tennis matches at Wimbleton. Bowler told Watson the price Faulk was asking, $725,000, was more than the $600,000 he was willing to pay for gulf front property. Bowler asked Watson to keep looking and he would contact her when they returned from Wimbleton in about ten days. When Bowler returned to Clearwater from Wimbleton on July 10, 1986, he contacted Watson to inquire if any lots had become available. Watson showed the Bowlers 1800 Gulf Boulevard and told them that Phillips, the brother of Faulk, had a contract to purchase the property. The Bowlers liked the property and inquired if Phillips would sell the contract to them. Following some negotiation, Phillips sold the contract to the Bowlers for $100,000, and Bowler was the grantee on the deed executed by Bowa. When Bowa learned from Bowler that Bowler was paying $625,000 for the property for which Bowa was getting only $525,000, Ms. Bowa wrote a letter to the Florida Board of Real Estate. After the closing, Bowler instituted civil proceedings against Faulk.
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 At issue herein is whether or not the teaching certificate of Raymond A. Brooks, Respondent, should be revoked based on conduct set forth hereinafter in detail for alleged violations of Sections 231.28 and 231.09, Florida Statutes, and Sections 6A-4.37, 6B-1 and 6B-5, Rules of the State Board of Education, as alleged in the Petition filed herein.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Raymond A. Brooks, Respondent, holds Florida Teaching Certificate No. 150640, Graduate, Rank III, valid through June 30, 1979, covering the area of auto mechanics. During times material, Respondent has been employed in the public schools of Brevard County at Cocoa Beach High School as a shop teacher. He is currently on temporary duty elsewhere outside a classroom setting. This case was initiated based on a report received by the Florida Professional Practices Council on November 15, 1978, by officials of the Brevard County School Board alleging that Respondent may have committed acts providing grounds for revocation of his Florida Teaching Certificate. Pursuant to Florida Administrative Code Rule 6A-4.37, an investigation of the matter was undertaken and a report submitted to the Executive Committee of the Professional Practices Council (Petitioner). On January 9, 1979, the Executive Committee found that there existed probable cause to believe that Respondent was guilty of acts which provide grounds for the revocation of his Florida Teaching Certificate, which finding was forwarded to the Commissioner of Education who also found such probable cause and directed the filing of the instant Petition filed herein on January 25, 1979. Said Petition alleged that Respondent had engaged in conduct that is "inconsistent with good morals and the public conscience, conduct which is not a proper example for students and conduct which is sufficiently notorious to bring Raymond A. Brooks and the education profession into public disgrace and disrespect." It is further alleged that his alleged conduct reduced his effectiveness as a School Board employee. The material allegations of the Petition are that: Respondent, while acting in his capacity as a teacher at Cocoa Beach High School, entered into discussions with students in his classroom regarding the growth and cultivation of marijuana, which led them to believe that he condoned the use of marijuana. Respondent allowed students to clean stems and seeds from marijuana in his classroom. Respondent allowed students to roll marijuana cigarettes in his classroom. Respondent allowed students to bring marijuana to his classroom. Respondent bought a camera from a student who told him the camera was stolen. Respondent misrepresented to students, provisions of the school's student handbook regarding possession of marijuana on school grounds. Respondent served as a "lookout" for students while they smoked marijuana. On March 27, 1979, Respondent answered the allegations admitting jurisdiction, but denying the substantive allegations contained in the Petition. The Petitioner presented the testimony of eight (8) male high school students: Perry Morton, Paulo Carlini, Mark Murphy, Thomas Miller, John Gore, Hugh Baker, John Mason and Kirk Vanomer (by deposition). In addition, Petitioner offered the testimony of H. D. Smith, Principal of Cocoa Beach High School, who testified that, in his opinion, Respondent's effectiveness as an employee of the Brevard County School System had been seriously reduced as a result of the alleged misconduct on Respondent's part. All of the student witnesses who testified were enrolled in Respondent's fourth period power mechanics class and were present when Respondent discussed the growing of marijuana with them in their classroom during their fourth period class. It suffices to say that according to their testimony, Respondent explained to them how to cut marijuana stalks in order to increase the potency of marijuana in the plant leaves. Respondent also made known to his fourth period students his personal belief that marijuana should be legalized. Testimony also reveals that at least on one occasion, Respondent told his students that they could roll a joint in his class but that they could not light it up. Student Carlini also testified that other teachers at the high school talked to them about drugs. (TR. 34-35) The testimony is clear that all of the student witnesses recalled Respondent advising them that the possession and use of marijuana was against school regulations and against the law. In this regard, Respondent testified that when the subject of marijuana came up during a free period in class, he related what information he knew based on his personal observations and a pamphlet provided him by the Brevard Sheriff's Department to advise students and address questions posed to him by such students. And, as stated, Respondent advised students that it was his personal opinion that the use of marijuana should be legalized based on the costs of enforcement and increased revenues derived from a "use" tax on marijuana. Respondent further testified that he neither advocated nor condoned the use of marijuana. In support of its allegations that Respondent permitted and/or allowed students to clean and roll marijuana in his classroom, Petitioner presented the testimony of student Paulo Carlini. Carlini acknowledged the fact that during each of two prior days before the date in question, he and other students had been rolling pencil shavings in the form of marijuana cigarettes. Carlini further acknowledged that Respondent told them that the possession of marijuana was against school regulations. A second witness presented by Petitioner was Perry Morton. Morton testified that he gave a bag of marijuana to Joe Schraffenberger during class on the day of the incident in questions. Like Carlini, Morton acknowledged that during the two days immediately preceding the incident the students had been rolling pencil shavings in the form of marijuana cigarettes. The purpose of this was to trick the teachers and administration into believing that they had marijuana in their possession and then embarrassing them when it proved to be pencil shavings. Rollin Burch, one of the student witnesses who testified indicated that he also saw pencil shavings being rolled that day on which it is alleged that the Respondent permitted marijuana cigarettes to be rolled in his class. The substance claimed to be marijuana was not presented during the hearing. Additionally, Respondent denied having any knowledge of marijuana in his classroom, nor did he give permission for his students to roll marijuana in his classroom. Respondent testified that on the two days prior to the incident involved herein, several students had been rolling pencil shavings contained in a transparent bag in the form of marijuana cigarettes. Respondent, on each of the two days in question, checked the bag and the cigarettes to make sure that what they were rolling were in fact pencil shavings. On each instance, pencil shavings were being rolled by the students. On the day of the incident, Respondent was busy working at his desk on student failure reports that were due. Carlini showed him a transparent bag and asked permission to roll the substance inside. Respondent glanced up, viewed what he thought to be pencil shavings, nodded his consent and resumed work on his reports. Later, seeing a rolled cigarette, Respondent smelled it, concluded that it smelled like pencil shavings, and returned it to the student. Finally, in response to the allegations that Respondent misrepresented school regulations by permitting students to roll marijuana in his classroom, Respondent acknowledged that he made the statement that, "You can roll them, but you can't light them up." Respondent further acknowledged that he represented to the students that nothing in the school regulations prohibited the rolling of pencil shavings into the form of marijuana cigarettes, although all smoking is prohibited. During the period in which the pencil shavings were being rolled, a student asked whether he could smoke one of the pencil shaving cigarettes, whereupon Respondent replied: "You can roll them, but don't light them up." All of the students testified during cross-examination that the above statement was made during the time when pencil shavings were being rolled. Respondent confronted several students in a prohibited area of the school grounds and advised them that they should carefully return to the school grounds inasmuch as Dean Wright was in the area. By such statement, the students apparently assumed that Respondent knew that they were there to "smoke some pot." Marijuana was never mentioned and, although Respondent's comment was made in the form of a warning, the students assumed that Respondent knew some of them smoked marijuana and that that was their purpose for being there. The students questioned on the subject acknowledged that at the time of the incident, they were doing nothing illegal and that Respondent had no way of knowing their purpose for being in that area. The Petitioner offered no evidence in support of the allegation that the Respondent bought a camera which he knew was stolen. Finally, Petitioner, through the testimony of Principal H. D. Smith, urges a finding that Respondent's conduct is inconsistent with good morals, public conscience or sufficiently notorious as to bring Respondent and the educational profession into public disgrace and disrespect or that it has impaired his effectiveness a teacher. Principal Smith acknowledged the fact that Respondent was employed to teach power mechanics and vocational shop during his tenure as principal for the past three years. Principal Smith, prompted by reports that he received from two parents and a student, Kirk Vanomer, contacted school security who investigated reports that Respondent was permitting students to clean seeds and roll marijuana in his power mechanics class. (TR. 119-120) Based on the findings of the investigation conducted by school security, Principal Smith voiced his opinion that Respondent violated the Code of Ethics in that he permitted students to engage in an activity that was "both criminal and in violation of school board regulations." (TR. 126) Principal Smith pointed to page 25 of the School Board Regulations, Section 44.7, which provides in pertinent part that, "It is against school board regulations for students to have possession of or be under the influence of drugs or alcoholic beverages." He further testified that students are given copies of the student handbook during the pre-planning period (the first week of the school year) and that the teachers are responsible for advising students of their rights and responsibilities as related to the student handbook. (TR. 128) Principal Smith indicated that several parents called in inquire about what disciplinary measures would be taken against Respondent and that several students had expressed anxiety to him about being assigned to Respondent's inasmuch as they had testified against him. (TR. 130-131) George Arthur Powell, Jr., a woodworking instructor at Brevard County Public School System for approximately fifteen years, testified that the Respondent is regarded as a strict disciplinarian among fellow teachers in the school system. Mr. Powell testified that he encountered disciplinary problems with the administration supporting him with respect to his attempts to discipline students at Cocoa Beach High School. According to Mr. Powell, during the October of 1978, he queried Respondent about students using fake marijuana cigarettes rolled from pencil dust or shavings from sawdust. Powell testified that based on his experience, it would serve no purpose to send a student to the administrators for disciplining inasmuch as the administration would probably make fund of the instructor who made such a referral. (TR. 142-144) The Respondent testified on his own behalf indicating that he had been employed by the Brevard County School District for approximately eight years during which time he had taught auto mechanics and mathematics. Prior to the subject incident, Respondent had not been the subject of any disciplinary proceedings. During his initial employment as a teacher at Rockledge High School, Respondent was admonished because of his strict enforcement of the discipline code. During this same period, Respondent's performance and evaluation ratings were excellent. When Respondent was transferred to Cocoa Beach High School during the school year 1978, he was questioned extensively by Principals Hank Smith and Nelson Rutledge regarding his policy on discipline. Testimony reveals that Respondent was selected due to his reputation for being a strict disciplinarian at Rockledge High School during the prior six years. As previously stated, Respondent voiced his opinion that marijuana should be legalized based on the fact that millions of dollars are spent of taxpayers' money each year to "corral, confiscate and apprehend the various pushers and peddlers of drugs and marijuana." Secondly, he indicated that if marijuana was a controlled substance, the taxpayer or the government would realize some revenue from the legalization. Finally, he thought that if marijuana was controlled, like tobacco, alcohol and drugs, it could be regulated and the taxpayers would realize revenues rather than expending revenues to police the borders, towns and cities for pushers and sellers. (TR. 157) Respondent conveyed this opinion to his students during discussions when the subject of marijuana, etc. was initiated or brought up in class. (TR. 158) Respondent denied telling students that he condoned the use of marijuana or advocated its use and advised them that it was illegal, both lawfully and by school rule and regulation, to possess marijuana; that the penalties were whatever the law imposed because in most cases, the student not only received a school suspension but also faced a juvenile court judge because it (possession) was definitely illegal. (TR. 160-161) Respondent admitted advising students, in response to questions posed to him, about the cultivation of drugs. Respondent denied any knowledge that marijuana was, in fact, being rolled in his classroom. Additionally, Respondent denied that he served as a "lookout" for a group of students. (TR. 174) Inasmuch as the instant proceeding is one wherein the Respondent's means of livelihood is threatened, the evidence to substantiate the allegations must be both clear and convincing. See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970), and Walker v. Florida State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975). The mere fact of Respondent's warning students that they should return to a permissible area of the school grounds provides no basis of concluding that the Respondent served as a "lookout" for students while they smoked marijuana. Testimony reveals that the students were not smoking marijuana in the restricted area nor did the Respondent have any way of knowing the students' purpose for being in the restricted area. No evidence was offered to establish that the Respondent purchased a camera known to be stolen as alleged. Based on the evidence presented, no competent and substantial evidence was offered to establish that the Respondent, during class discussions, advocated or condoned the use of marijuana. Likewise, Petitioner failed to satisfy is burden of proof of establishing that Respondent allowed students to clean and roll marijuana in his classroom or misrepresent to the students, school regulations regarding such matters. Finally, in view of the above conclusions, Petitioner failed to establish that Respondent's conduct is inconsistent with good morals, public conscience or sufficiently notorious as to bring Respondent and the education profession into public disgrace and disrespect, or that his effectiveness as a teacher has been impaired, as alleged. Accordingly, I shall recommend that the Petition filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Petition for Revocation filed herein be DISMISSED in its entirety. DONE AND ENTERED this 22nd day of August 1979 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1979. COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301 Gene "Hal" Johnson, Esquire Staff Attorney, FEA/United 208 West Pensacola Street Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: RAYMOND A. BROOKS CASE NO. 79-478 /
The Issue The issue in this case is whether Petitioner owes additional sales and use tax, plus penalties and interest, on the purchase of bowling equipment during the audit period August 1, 1987 to July 31, 1992.
Findings Of Fact The Parties. Petitioner, Beverly Hills Bowl, Inc., is a Florida corporation. Petitioner was formed by Charles and Evelyn Gill, the shareholders of Petitioner. Petitioner was formed to own and operate a bowling alley. Respondent is an agency of the State of Florida charged with, among other things, responsibility for assessing and collecting sales and use taxes in Florida pursuant to Chapter 212, Florida Statutes. The Respondent's Audit. Between July 23, 1992 and October 8, 1992, Respondent performed a sale and use tax audit of Petitioner for the period August 1, 1987 through July 31, 1992. Respondent concluded that Petitioner's books and records were reasonable except for documentation to support the payment of sales and use tax on a purchase by Petitioner of bowling equipment. Respondent issued a Notice of Proposed Assessment on October 29, 1992. Respondent proposed the assessment of $31,609.05 in sales and use tax. Petitioner paid $8,137.05 of the additional tax. The parties stipulated that the additional tax liability at issue in this proceeding amounts to $23,472.00. Respondent also assessed a penalty of $7,888.96 and interest of $5,264.15. Disputed Purchase. Petitioner purchased bowling lane equipment from United Bowling Products, Inc. (hereinafter referred to as "United"), a Florida corporation, during the audit period. Petitioner paid $391,200.00 to United for bowling lanes and equipment described on Petitioner's exhibit 1. Before consummating an agreement to sale bowling lanes to Petitioner, United gave Petitioner a "Proposal" offering to sell bowling lanes to Petitioner for $391,200.00. See Petitioner's exhibit 1. The Proposal states, among other things, the following: * WE OFFER THE ABOVE EQUIPMENT FOR $16,300.00 PER LANE INCLUDING INSTALLATION, FREIGHT, AND FLORIDA SALES TAX. . . . [Emphasis added]. Petitioner accepted the Proposal and purchased the bowling lanes for $391,200.00. Oral communications between Petitioner and United were also consistent with the Proposal concerning the inclusion of sales tax in the purchase price. No written documentation of the agreement between United and Petitioner was entered into. Petitioner received the bowling lanes and paid United $391,200.00. No written documentation or invoices were provided Petitioner by United upon consummation of the sale. The additional assessment at issue in this case is attributable to this sale of bowling equipment by United to Petitioner. Respondent's Treatment of the Purchase. Respondent concluded that, since the amount of sales tax was not separately stated on the Proposal, additional documentation of the payment of the sales tax by Petitioner to United was required. Respondent requested additional documentation but Petitioner was unable to provide it to Respondent's satisfaction. Respondent concluded that Petitioner was responsible for the payment of use tax on the equipment because it could not be proved to Respondent's satisfaction that sales tax had been paid to United. Respondent is also attempting to collect sales tax on the purchase from the primary dealer responsible for the collection and remittance of sales tax.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the assessment dated October 29, 1992 against Beverly Hills Bowl, Inc. DONE AND ENTERED this 26th day of September, 1995, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1995. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Accepted in 2-3, 5-6 and 11. Accepted in 9-11. Accepted in 1, 10 and 12. See 14. What Mr. Aliff may have said during the hearing may not form the basis of a finding of fact. Mr. Aliff was not sworn and did not testify. See 13. Respondent's Proposed Findings of Fact 1 Accepted in 1. 2-3 Accepted in 3. Accepted in 4. The last sentence is a conclusion of law. Hereby accepted. Accepted in 9-10 and 12. Hereby accepted. See 12-13. What the Citrus County Property Appraiser may have reported is hearsay. Accepted in 5. Not relevant. COPIES FURNISHED: Peter C. Johnston, CPA, P.A. 6 Beverly Hills Boulevard Beverly Hills, Florida 34465 Mark T. Aliff Assistant Attorney General Tax Section, Capitol Building Department of Legal Affairs Tallahassee, Florida 32399-1050 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, Esquire Department of Revenue Legal Office 204 Carlton Building Tallahassee, FL 32399-0100
