The Issue Whether Respondent committed any of the acts alleged in Petitioner’s Amended Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Background on Mr. Alden Mr. Alden began working as an educator in 2004 when he was hired to work at the Clark County Alternative School in Athens, Georgia. When that school closed in 2009, Mr. Alden relocated to Clark Central High School. After taking a year off to care for his terminally ill mother, Mr. Alden relocated to Florida and took a position with Gateway High School in Osceola County in 2011.3 In 2017, Mr. Alden took a teaching position with Lecanto High School (“Lecanto High”) in Citrus County, Florida. During the 2018-19 school year, Mr. Alden was an economics and government instructor at Lecanto High. He also taught one section of world history. Allegations by students regarding Mr. Alden’s conduct led to the initiation of an investigation in September of 2018 and the issuance of a written reprimand on September 25, 2018. A second investigation began on May 2, 2019, but was closed on May 9, 2019, due to Mr. Alden’s resignation from Lecanto High. Mr. Alden worked as a sixth-grade world history teacher at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. As explained in more detail below, two incidents during the 2019-20 school year led to Mr. Alden not being recommended for reappointment. 3 Mr. Alden holds Florida Educator’s Certificate 1186313, covering the areas of Educational Leadership, Elementary Education, Gifted, and Social Science, which is valid through June 30, 2022. Findings as to Whether Mr. Alden Referred to Students as “Dumb,” “Stupid,” or Words to that Effect S.H. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. S.H. has a learning disability and reported in September of 2018 to her case manager, Karen Harper, a math teacher at Lecanto High, that Mr. Alden would become angry with her for asking questions. Mr. Alden supposedly displayed that anger by sighing heavily and telling S.H. that she didn’t know what she was talking about.4 S.H. offered the following testimony during the final hearing: Q: Tell us about what your concerns were in Mr. Alden’s class. A: Well, I was – not repeatedly, but I have heard him putting down students. On top of that I was making a statement about something he said and he said that I didn’t know what I was talking about and that I was stupid. Q: Okay. Now, did that bother you what Mr. Alden said to you? * * * A: Yes, sir. Q: When he called you stupid, did he say this in front of other students? A: Yes, sir. Q: What you just told us here today, was that some of what you told Mr. Harper? 4 Ms. Harper also acted as a case manager for a student named A.M., who stated to her that Mr. Alden referred to him as stupid and a failure when he sought assistance from Mr. Alden. Because A.M. did not testify during the final hearing, the portion of Ms. Harper’s testimony concerning A.M.’s allegations is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). A: Yes, sir, * * * Q: Okay. You say he has put you down when asked questions. What do you mean by that? What did he do? What was going on? * * * A: Like anything I would say – and, honestly, it sounded pretty dumb in my mind as well, my questions, but I could understand why he put me down, but it’s still unacceptable. But I was just saying things that provoked it. So. He put me down, like, you know, called me, you know, stupid, tell me I wasn’t – I didn’t know what I was talking about. Like that. Q: Okay. So even if you felt like you asked a dumb question, you didn’t expect him to call you stupid in front of your peers? * * * A: Yes. Because my other teachers don’t do that. Q: Okay. How did that make you feel for him to call you stupid? A: Not good. It just made me feel kind of depressed, like I wasn’t good enough for his class. Just did not feel good about it. Other former students of Mr. Alden’s from the 2018-19 school year did not corroborate S.H.’s testimony. For example, J.S. testified that Mr. Alden implied that particular students were dumb or stupid but never directly said so. However, J.S. did not explain how that implication was expressed. K.S. did not remember Mr. Alden using the words “dumb” or “stupid.” M.M. could not recall any instances in which Mr. Alden demeaned a student. C.S. denied ever observing Mr. Alden disparage a student or call a student “stupid” or “dumb.” B.S. never heard Mr. Alden call a student “dumb” or “stupid” and did not recall Mr. Alden disparaging or embarrassing any students. S.C. never witnessed Mr. Alden disparage or belittle any students and never heard Mr. Alden call any students “stupid” or “ignorant.” M.J. never observed Mr. Alden disparaging any students or call a student “dumb” or “stupid.” R.C. denied ever observing Mr. Alden disparage a student. When asked if he remembered Mr. Alden explaining the difference between “stupid” and “ignorant,” R.C. gave the following testimony: A: I remember the comment. If I believe. I mean, it’s been two years, but to my best knowledge I believe that the comment was made on the note that, as long as you’re – as long as you’re trying and you’re asking questions and you’re trying to be engaged and learn, that you can’t be stupid. But if you’re choosing not to learn and you’re choosing not to try and give no effort, then you’re just ignorant. But you can’t be stupid as long as you try. Q: Okay. And did you ever observe Mr. Alden, you know, directly, call a student stupid or dumb? A: No, sir. Mr. Alden vehemently denied Petitioner’s allegation that he referred to students as “dumb” or “stupid”: A: I spent 15 years in the classroom working with kids that have been disparaged by their community and their families. Came to me using I am stupid as their – as their – as an excuse for not putting effort into their education. They had to – they had been convinced that there was no point in trying because they weren’t – they were going to fail. I spent 15 years, from the minute I walked into the classroom, trying to convince these kids that they were not stupid, that they were, in fact, more than capable and trying to deprogram them from the belief that there was no point in trying. I made, every year, the first day of the – the first day of class I made a point to illustrate to the kids that there was a difference between ignorant and stupid. Because a lot of them conflated those two terms. I would point out that ignorant means you have not learned and stupid means you cannot learn. And to drive the point home, especially with the age group that I worked with, I went into a little conversation about human growth and development and the formation of the prefrontal cortex and that that’s the part of your brain that allows you to make rational decisions and it doesn’t finish forming until your early-to-mid 20s. * * * I also used the secondary working definition of stupidity that ignorant means you don’t know any better and stupid means you know better, but you do it anyway. And I use that to short circuit what a lot of these kids would interpret as a disparaging remark from other adults. That when an adult might say, that was stupid, they weren’t talking about you as a person, they’re talking [about] your actions. * * * Q: How often would you have to have that sort of discussion with your students? A: Well, as I said, I would do it at the beginning of the term, just to sort of begin that deprogramming process. I would also reiterate the lesson at every available opportunity. If I heard a kid say, I’m stupid, I would stop the world and point out to them, no, you’re not, you can’t be. It’s physiologically impossible and all the rest. If I heard a kid disparage another student, say that was stupid or are you stupid or don’t be stupid, I would clarify for both the student making the comment as well as the student the comment was towards, that that’s not how you want to say that. You want to say, that was careless, that was thoughtless, that was reckless. Not that that was stupid. And stress to the student that was – that had engaged in observable behavior that could be defined as a stupid action and say, look, you’re not stupid. You knew better. Think about what you’re doing before you do it. And, you know, you don’t have to worry about people coming to the wrong conclusions. Findings as to Whether Mr. Alden Told His Students That a Class Was Divided Into “Smart” and “Dumb” Sections S.B. was a sophomore at Lecanto High during the 2018-19 school year and had Mr. Alden for world history. When asked about how Mr. Alden seated students in his classroom, S.B. gave the following testimony: A: He would separate the classroom. Smart people would be in the back of the classroom and then the dumber kids, or what he would refer [to as] the kids who failed the test or didn’t make good enough grades, he would put them in the front and refer to them as dumb. Q: How did you know Mr. Alden was putting the smart kids in the back? A: He had said it. Q: And the not so smart or dumb kids in the front? How did you know that? A: He had said it himself. A kid has asked why we were being separated and he just said that he had separated the kids because the smart kids go in the back and the dumb kids go up front, is what I had overheard in the class period. Q: Okay. Did that make you feel any particular way when he would put – separate kids like that? A: Yes. Because that’s not how a teacher should be speaking to their students. So I don’t think that was right. * * * Q: Now, even though you’re in the smart group, did you feel bad for the kids that were in the, what he described, as you say, the dumb group? A: Yes, of course. Because he would always repeat and make it known that those were the dumber kids. Q: Okay. And what did he tell you he based putting the smart kids in the smart group and the dumb kids in the dumb group? How did he – did he tell you how he made that determination as to which kids were going to go in any particular group? A: Usually it would be because of the quiz grades or the test grades that we had received [that] day. J.D. was a senior at Lecanto High during the 2018-19 school year and was one of Mr. Alden’s students. J.D. offered the following testimony about Mr. Alden’s method of seating students: Q: Okay. Let’s start talking about [allegation] 3-A. Tell us what you know about 3-A. A: All right. So 3-A, it says that in the classroom he referred to students as dumb or stupid. I never heard him actually refer to any individual student individually as dumb or stupid, but I know that he did refer to people collectively as not willing to learn. But I do not know that he actually referred to any [ ] particular student as dumb or stupid. Q: Did you hear him use those words toward any group of students as being dumb or stupid? A: Implied, yes. But not directly. Q: Okay. What do you mean when you say implied? A: So, like, in the next part, in 3-B, when he divided the section into smart and dumb students. And smart students were in the back and dumb students were in the front. That did happen and that does imply that he thought that those kids were not as smart as the kids in the back. Q: Okay. So, by the way, were you in either one of those groups? A: Yes, I was. I was in the back. Q: Okay. So, you were in the smart kids’ group; is that right? A: Exactly. Q: Okay. Now, how did you – did you – did that make you feel in any way? How did you know that the smart kids were in the back and the dumb kids were in the front? I mean, how did you know that? A: Because it’s what the other kids were saying. The other kids in the class. It made them feel that the kids in the back were better than they were. And those were – those are words from the students. Like, when I was – so, in the class, I was in the back and me and another student in the back would – we would, you know, bicker and argue. So I asked Mr. Alden to move me to a different setting so that we just wouldn’t bicker and argue anymore. And when I was sitting with those students, they would always refer to me as the smart kid in the group. And it made a distinction. It actually, in a way, segregated the class based on the level of intelligence. * * * Q: Okay. Did Mr. Alden tell you that [was] why he was separating [students] into different groups? The kids who scored well on the exams were put in the back and the kids who didn’t score well, they were put in the front. A: Exactly. That is how he explained it in the beginning of the school year. Q: Okay. And you were talking about the interaction between the kids. Based on the way he had told you all he was segregating you with the kids that scored well in the back and kids that didn’t score well in the front, did that cause some tension or problems between the students in the classroom? A: I wouldn’t say tensions, but it did ostracize people who sat in the front, people who sat in the back. And then when you, like, try to talk to people from a different area, it was, like, you were either below them or above them. Q: Okay. And that was discussions among the students based on where they were placed; is that correct? A: Right. And that is my experience from sitting in a different group. K.S. was aware that Mr. Alden based students’ seat assignments on their class performance. However, he testified that Mr. Alden “never said that we were either stupid or smart in one place or another.” R.C. gave the following testimony about the seating arrangement: Q: How was the seating arrangement in Mr. Alden’s classroom, if you recall? A: It varied. Normally we could sit kind of wherever we want[ed] when we came in. But then, after test days, we would be split into groups where the first row back, if I recall, the highest test grades would be in one area and the lowest test grades in the other. We’d talk and go over the test and then we would be split into groups based on lowest test grades with the highest test grades put together and all mixed out so that everybody could help each other and help each other learn. Q: Okay. And did you find this effective? A: I believe so. Because some days I had a bad test and someone else did better and they could help me. Then if I had a better test and someone else didn’t, I could help them. You got to know everybody in the class better and I feel, again, it was just very productive overall. Q: Did the seating arrangement ever cause you any embarrassment? A: No, sir. C.S. testified that the seating arrangement helped “students that weren’t really doing well on their tests by putting students that had lower grades on tests up in front. That way [Mr. Alden] could do one-on-one with them, if needed.” When asked if the seating arrangement ever caused him embarrassment, C.S. testified that, “I actually really enjoyed it since there would be certain lessons I didn’t understand that well and so being up closer to him, it allowed me to, like, get his attention and be, like, can you help me understand this.” When asked about the seating arrangement in Mr. Alden’s class, B.S. testified that “he just put it to where he thought would be the best for people that needed to learn a little bit better. But it wasn’t like anything like embarrassing or anything like that. Like it was what he thought was the best seating arrangement to do.” S.C. seemed to agree when asked if Mr. Alden ever announced that he was dividing a class “between dumb students and smart students.” However, S.C. testified that no one took any offense and that the seating arrangement never caused him any embarrassment. M.J. did not recall students being seated based on test scores, but she did remember that students who needed more help were placed closer to the front of the classroom so that they could get Mr. Alden’s attention. She denied ever hearing Mr. Alden state that he was dividing a class into smart and dumb sections. Mr. Alden readily acknowledged that he placed students in different sections of his classroom based on test scores during the time in question and had used this method during seven school years: After the first unit test, they were grouped by their test score. So the highest performing students were in the back of the room. They were – my independent learners were in the back of the class. And the lowest scoring kids in the group were my dependent learners and they needed more support from me and I put them in – not necessarily in the first group because the very first group was closer to the door to the classroom. The second and third – the second, third – no, wait. One, two, three. The second, fifth and fourth groups were the ones closest to my desk. And that’s where I arranged the students that needed more help with the content. And sometimes it was a bad test taker or sometimes they were having trouble with the read – with reading comprehension. Sometimes it was an issue with communication with their peers. And having them closer to me allowed me to observe their interactions and, where necessary, step in and provide one-on-one support and determine if I had to address a learning deficiency or if it was a struggle – they were struggling with a particular piece of content. Mr. Adlen denied referring to students as being in “a dumb section or stupid section”: Whenever the students would make comments to that – to that end, I was vehement and immediate in my correction of it. I made – on numerous occasions I would say that the kids in the back of the room might have gotten a hundred percent on the test and the kids in the front of the room might have gotten a 90. That I only have limited amount of space and I can’t put every A in the back of the room. I don’t have enough room to put everybody in the back of the room. So everybody’s got to go somewhere and it -- ending up in the front of the room does not mean you’re low performing. It doesn’t mean you have a poor performance. There’s no such thing as good enough grades. * * * The folks in the front are the folks that need support. The folks in the back are – I’m able to leave to their own devices. Findings as to Whether Mr. Alden Used Profanity in the Classroom S.H. testified that Mr. Alden uses the words “bitch” and “shit” in class. S.C. read from a prior written statement in which he stated that Mr. Alden is “very blunt, uses uncalled for words. He speaks about other students, but doesn’t use specific names, like mistakes they have done. He cusses, such as words as damn, shit and hell. He’s used the n-word before. Does not think before he speaks.” S.B. testified that Mr. Alden “would curse a lot” and used the words “bitch,” “shit,” and “ass.” That made S.B. uncomfortable because she thinks that teachers should not be using such language around students. J.S. testified that Mr. Alden used the words “bitch,” “shit,” and “hell” in class. J.S. added that Ms. Alden expressed his preference for Milton Friedman’s economic theories by stating that John Maynard Keynes “didn’t know shit.” O.L. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. She testified that Mr. Alden told a joke5 to a student in which the set-up was “what is the difference between a bitch and a ho?”6 K.S. remembered Mr. Alden using the term “shit” at least a couple of times. He also remembered the joke described by O.L. R.C. testified that Mr. Alden occasionally used profanity in the classroom. However, according to R.C., Mr. Alden did not use profanity in a derogatory manner and did not direct any profanity toward any students. C.S. denied hearing Mr. Alden ever say anything inappropriate. Mr. Alden7 conceded during his testimony that he had a relaxed attitude toward profanity: Q: The Amended Administrative Complaint in 3-C states, specifically, Respondent used profanity in the classroom, including the words bitch, shit and hell. Could you respond to that accusation? A: Incidental profanity was not a thing that I made a big deal about. It was more that the students engaged in it than that I participated in it. I did participate in it, but very infrequently. 5 The Amended Administrative Complaint did not mention the joke at issue, but Mr. Alden did not assert that he was not on notice that testimony regarding the joke would be used to substantiate the allegation that he used profanity in the presence of students. 6 I.G. did not testify at the final hearing but a written statement from her was accepted into evidence as part of Petitioner’s Exhibit 6. I.G. wrote that “Alden said ‘this is a joke’ and asked the class not to tell, because I believe some other students were making jokes about being called a whore, then he said ‘What’s the difference between a whore and a bitch? A whore gets with everyone and a bitch gets with everyone but you.’” Even if I.G.’s statement was offered to prove that Mr. Alden made the statement at issue, I.G.’s statement supplements and corroborates O.L.’s testimony. Accordingly, I.G.’s statement is admissible. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). 7 As noted in the Preliminary Statement, Mr. Alden is deemed to have admitted using profanity in the classroom. It originated with students in the class using that language without sign of disquiet. They – I remember distinctly one student saying to me, Mr. Alden, I really like your class because you talk to us about real shit. And I was, like, whoa. But he showed no signs that he was aware that he had said something inappropriate and nobody in the class showed signs that it was an inappropriate thing to say. At that point I noticed that it was – it was not an infrequent thing among the students. So rather than make it – I mean, I worked at an alternative school where I dealt with juvenile felons. I worked in a school where we – our number one problem was kids getting into gang fights. So in my career there had just been bigger fish to fry and more important issues to address. So, at Lecanto, when the students informed me, through their behavior, that incidental profanity was not a thing that they were going to get bent out of shape about, I tried to manage it in what I thought was the best way possible. I made very strict rules. Nothing over – nothing more than PG-13. Nothing that you would not hear on commercial television in prime time. And the f-word – never in anger, never towards another person, never used to aggress against another student, never used to disparage or insult another student. And the f-word was forbidden. Mr. Alden denied ever using the n-word. With regard to the testimony that he told a joke with the words “bitch” and “ho,” Mr. Alden offered the following context: I had a senior girl that was in crisis. She was being accused of being a whore by the ex-girlfriend of her current boyfriend. The agitator was a junior. My girl was a senior and she was about to graduate. She was within just a few short weeks of graduating. She came into class [visibly] upset, surrounded by a group of girls who were egging her on and she kept saying she was going to beat her. I tried to intervene to calm her down, kind of talk her off the ledge. * * * So, I did the last thing I could think to do. I just said, hey, do you know what the difference is between a b_ _ and a ho? Because that was the topic that she was upset about. Being called a whore. That got her attention. * * * And I said, so what is the difference. Tell me what the difference is. And it took a little while to kind of talk her through it, but she got the point that it wasn’t about the behavior, it was about the perception of the behavior. That it wasn’t about the person who was acting, it was about the outside observer and their judgment of the person’s behavior. Karen Harper is a teacher at Lecanto High and explained why teachers using profanity in the classroom could be harmful to learning: Q: Now, in your career, do you use those kinds of words in your classroom? A: No. Q: Do you believe – is there any particular reason why you don’t use those words in your classroom? A: It’s not professional. I know that during -- whenever you’re hired, you have to go to – the beginning of school or when you get hired by a county, you have to go through an orientation and they talk about code of ethics and things that they, you know, as a teacher, this is what’s expected of you. And that was just something that was – I know that it’s a code of ethic[s] you shouldn’t be doing that. Q: Well what about just in terms of how – based on what you know about students, how using those kinds – that kind of language impacts students? A: Some students are – you never know. Just like in [the] general population. You don’t know who you’re going to offend, who you’re not going to offend. So it’s best just to avoid it and not say them. * * * Q: Okay. So, but if the teacher wants to characterize a person in a history book as a bitch or something that they did in the context of history as . . . If the teacher, then, wants to say that something that the queen or the king did was shitty, in your professional view, is that an appropriate context to use those kinds of words? A: No. Teachers and students at Lecanto High are prohibited from using profanity. Findings as to Whether Mr. Alden Embarrassed J.S. by Engaging in a Religious Debate and Stating That a Belief of J.S.’s Was “Demonstrably Fallacious” M.M. was a senior at Lecanto High School during the 2018-19 school year, and Mr. Alden was his economics teacher. On a day in early May of 2019, M.M. disclosed to classmates sitting at his table during economics class that he was transgender, and that led to his classmates asking several questions about M.M.’s family life and religious views. When M.M. expressed a favorable view about Jehovah’s Witnesses, J.S. approached the table where M.M. was seated, stood over him, and inserted himself into the conversation. M.M. described the ensuing events as follows: I can’t remember exactly what brought up J.S. joining this conversation. I do remember that I started with saying my own opinion on Jehovah’s Witnesses, stating that it was a truer religion than most that I have viewed. And I remember him walking up to my desk, standing less than a foot over me while I was seated. And I am a very, very short, small man. Very, very scared of many people, especially in high school. He stood over me and he told me right off the bat that I was wrong. And I said, it’s okay, man, no problem. Conversation over. We’re done. And I just acted as if I was going back to my assignment. He was like, no, no, no, you are wrong. And I want to tell you that you are wrong and that Jesus and God are one and the same. And I was, like, okay, that’s your belief, my belief is different. Just, that’s it. He was, like, no, no, man. And I was, like, I don’t want to – I don’t want to deal with someone pushing someone’s beliefs on me right now. You know, I’m in school, I just want to finish my assignment. And he was like, I’m not pushing my beliefs, I’m enlightening you. And as he’s talking to me he is in a way towering over me, is how I viewed it. I’m assuming that Mr. Alden saw that I was getting very uncomfortable and Mr. Alden came to the other side of me, looked at Mr. J.S. and said, you are wrong for doing this to him, you need to back off. And at that point, the conversation diverted, while it was over me, still to J.S. going after Mr. Alden with the same phrases and repeating the exact same argument that he was doing to me. Mr. Alden kindly enough diverted the argument away from my desk and got sort of to the other side of the classroom at that point. J.S. described the events in question as follows: So they were talking about that topic and they were talking – kept talking about, you know, mainstream Christianity. So I walked over there and I wanted to share my belief, since they were already on that topic, to inform them of that in case they were not aware of a different way of thinking, a different way of believing. So I walked over there and I made the comment, I said, did you know that Jesus is God. And after I said that comment, Mr. Alden walked over to me and he said, don’t say that Jesus is God. That’s demonstrably fallacious. And Jesus is God is one of the core beliefs of my faith. The fact that [he] believes that Jesus is God and that God is the Holy Ghost and that all of them are one person is one of the founding principles of what I believe. So in essence, he was saying, don’t say what you believe is true, because it’s clearly and evidently based on something that is false. * * * And after that, he engaged me in a whole debate, trying to prove what I believe to be wrong in front of all of [my] peers. Q: Okay. So his demeanor towards you while he was telling you that what you believe was demonstrably fallacious, what was his demeanor like? A: It was cocky, it was arrogant, it was – it seemed like he thought no one could ever prove him wrong. And even when you tried to use the sources that you draw your faith from, such as the Bible, I was – when we were talking, I was trying to use scriptures that I believe to be doctoral scriptures from the Bible. And he said – he told me that I could not use the Bible because it was inaccurate and false, due to the Council of Nicaea. So he not only was disparag[ing] my faith, but he disparaged the spiritual book that I draw my faith from. Q: Okay. Emotionally how did that make you feel? A: Emotionally, I was embarrassed. I was upset. I was angry. But I was just going to let it -- I was just going to let it go. I was just going to let it roll off – roll off like water on a duck’s back. The undersigned does not credit J.S.’s assertion that he was embarrassed. During his testimony, J.S. presented as a very outgoing and opinionated young man who has no inhibitions about expressing his views and engaging in debates. In fact, J.S. testified that “I am a, you know, I hate to say it, but I am an opinionated person and that tends to get me into discussions based on different topics, such as, you know, politics, opinions, the whole nine yards.” Mr. Alden’s description of this incident corroborates M.M.’s testimony, and his description of J.S. matches the opinion formed by the undersigned: [J.S.] was aggressively opinionated. And I had to remove him from two groups at the request of the members of his groups because he would not acquiesce ever. A big part of the class was they would take quizzes as a collaborative group and they would discuss and debate what was the best evidence for their answers on the quiz. And J.S. would not keep – J.S. would get his opinion on what was the best evidence and he would not hear anyone nay-saying it. So, two different groups of kids said, could you please remove him because we can’t have a debate with this guy. He was also very aggressive about his religious beliefs. And I, on more than one occasion, reminded him that belief is individualized. You cannot require anybody else to agree with your beliefs. If it’s just a matter of a difference of opinion on beliefs, on faith, then you have to agree to disagree. It’s unjust. Otherwise it’s unjust. The particular incident involving M.M. – M.M.’s characterization of the interaction is a lot more intimidating than I thought it was. I just – I just saw J.S. in the back of the room with a group that had asked him to be removed from them. And I stepped up to just sort of reestablish that boundary. That, you know, this is -- this is a group of kids that really doesn’t – they got a problem with you, there’s a personality conflict or something going on here. I had no – I didn’t know that M.M. was feeling bullied at the time. And I – when I stepped to M.M. or when I stepped to J.S., I heard him – all I – I heard him say that Jesus and God are literally the same thing. And I heard M.M. very gently disagreeing, but clearly not wanting to get into a debate – a debate with J.S. I certainly did not want to get into a debate about religious beliefs, so I employed the Socratic method and I just asked J.S., what do you base that on. And J.S. said, I base it on the Bible. And I said, okay. Let me just ask you questions based on your source material and let’s see if we can figure out if that’s an accurate claim. Like, can you make that claim using your own sources. And I just asked him a few simple questions about the biblical nature of God as defined by the Bible and the nature of Jesus as outlined in the Bible and showed the contrast between God of the Bible and the Jesus of the Bible to show him that, okay, that claim, you can’t defend. You can’t make that claim based on the source material. Findings Regarding the Allegation that Mr. Alden Grabbed a Student’s Hair Mr. Alden taught world history at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. K.R.H. was a student at Liberty Middle School that year and had Mr. Alden for eighth-grade history. On approximately October 8, 2019, K.R.H. was walking into Mr. Alden’s classroom and Mr. Alden was positioned near the entrance. K.R.H. had long hair and was wearing it in a ponytail. She testified that Mr. Alden “pulled my hair pretty roughly and it made my head go back a little.” K.R.H. did not say anything to Mr. Alden. However, when she looked back at him, she testified that he was laughing and did not offer an apology. K.R.H. called her parents about the incident, and her father then called the school. Melissa Forsyth, the principal of Liberty Middle School, fielded the call and began an investigation. In addition to interviewing K.R.H., Ms. Forsyth interviewed two other students who witnessed the incident and corroborated K.R.H.’s assertion that Mr. Alden pulled K.R.H.’s hair.8 Ms. Forsyth and her assistant principal viewed security camera footage of the incident9, and Ms. Forsyth discussed the incident with Mr. Alden: And we saw Mr. Alden’s hand go around her ponytail and kind of -- it went up and then her head tilted back as she was walking into the room. Q: Okay. Did you talk to Mr. Alden about that? A: We did. Q: What did he tell you? A: So at first he said that he oftentimes greeted students at the door. High fives, fist bumps, elbows. And he never pulled anyone’s hair. I did take that opportunity and reminded him that there were security cameras in the hallway. And then he said, he swatted at K.R.H.’s ponytail jokingly to flip it and a finger got caught in a tangle. Q: So is it your testimony that when you first talked [to] Mr. Alden about it, he denied ever pulling the student’s hair? A: Yes, sir. Q: And then when you informed him that you had video and you had seen him grab the student’s hair 8 Neither of the alleged witnesses testified at the final hearing. 9 The security camera footage was not offered into evidence during the final hearing. and pull her head back, did he – that’s when he told you what he did was swat at her head? A: Right. I didn’t tell him I saw anything. I just reminded him that there were video cameras in the hallway. Q: Okay. And then that’s when he changed his story about what happened? A: He swatted at her ponytail jokingly to flip it and a finger got caught in a tangle. Q: Okay. Now, is that what you saw when you observed it yourself? A: It did not appear that way. Q: Okay. It appears as you’ve described, that he grabbed her ponytail and pulled her head back; is that correct? A: That it was – that it was around the hand – the hair and then her head tilted back after it went up. While denying that he grabbed and pulled K.R.H.’s ponytail, Mr. Alden testified that his hand accidentally got entangled in K.R.H.’s hair: I was standing at – I was standing in the doorway on the hallway side, greeting students as they came in. The doorway was inset about three feet from the wall. So, if I’m standing in the doorway observing the hallway, I couldn’t clearly see into the classroom. As K.R.H. came in I said, hi, she said hi. And as she – I put my fist out to bump her and as she walked by I – I assume she didn’t see me with my hand out or she was distracted. As she walked by, I swatted at her ponytail, just like, oh, you’re going to ignore me. Okay. Swatted at her ponytail. I wear a ring on my little finger and it got caught – my finger or the ring or some combination got caught in her hair and that’s – that’s why on the camera it appeared to flip up and then get pulled back down because that’s how gravity works. You hit a thing, it’s going to fall back down. Got my finger caught and her head came back and I got my finger out. She kind of jerked. I said, my bad. I couldn’t really say a lot to her because there was another student right in front of me that was in the moment trying to get my attention. So, just – it was just an incidental movement that got taken wildly out of proportion. Findings Regarding the Allegation that Mr. Alden Embarrassed a Student by Touching His Forehead and Saying “Think.” Kayla Palacios was an assistant principal at Liberty Middle School during the 2019-20 school year, and she was conducting a formal observation of one of Mr. Alden’s classes on February 25, 2020. She testified that Mr. Alden was standing at the front of the classroom and directing questions to specific students. When A.C. was unable to answer the question posed to him, Ms. Palacios testified that “Mr. Alden poke[d] A.C. in the forehead with two fingers and A.C.’s head went back.” Ms. Palacios discussed the incident with Mr. Alden later that afternoon and relayed that it is inappropriate for teachers to touch students. According to Ms. Palacios, Mr. Alden “acknowledged it and we moved forward from that conversation.” Because she considered the incident sufficiently significant, Ms. Palacios informed Ms. Forsyth about it the next morning. Mr. Alden described the incident as follows: On this particular day I was being observed, so I wanted to make a good impression on Ms. Palacios. So, I went to A.C. on a difficult question that I was sure he would have the right answer to. And he didn’t. He kind of flubbed the answer a little bit. And when I didn’t give him that immediate, you’re right, he got flustered. And because he was, you know, the teacher’s pet and because he was the guy that always had the right answer, his peers were starting to kind of snicker. There was a little bit of tension between him and the rest of the class that didn’t really bother him, usually. But on this day, when his friends were snickering and he felt like he had it and then realized he hadn’t, he got a little flustered. To try to focus his attention on me and ignore the rest of the class, I very delicately placed two fingers on his forehead, while he was looking up at me. He did not have his head down. He was looking me in the face, trying to figure it out. And I just – and I just – to focus him, stop, think, think about what you’re doing, you know this, you’ve got this. And he did. He came up with the correct answer. And he beamed when he got it right. A.C. did not testify at the final hearing, and there was no evidence as to whether Mr. Alden’s action embarrassed him. Ultimate Findings Regarding Petitioner’s Allegations Petitioner’s first two allegations are closely related. The first alleges that Mr. Alden referred to students as “dumb,” “stupid,” or words to that effect. The second alleges that Mr. Alden told his students that his class was divided into one section for “smart kids” and another for “dumb kids.” Petitioner presented testimony from S.H. and S.D. that clearly supported the first two allegations. Because the other witnesses who testified about these allegations contradicted the testimony given by S.H. and S.D., the undersigned is not left with a firm conviction regarding these two allegations. Thus, Petitioner did not prove the first two allegations by clear and convincing evidence. In contrast, Mr. Alden’s own admission and the witness testimony clearly and convincingly established that Mr. Alden used profanity in the classroom. Moreover, Ms. Harper, a teacher at Lecanto High, persuasively testified why teachers using profanity in the classroom is harmful to learning and would reduce a teacher’s effectiveness. However, there was no persuasive evidence that any students were seriously harmed by Petitioner’s use of profanity. Petitioner also alleged that Mr. Alden embarrassed J.S. by engaging J.S. in a religious debate and telling J.S. that one of his religious beliefs was “demonstrably fallacious.” Even if Petitioner could prove that Mr. Alden characterized one of J.S.’s religious beliefs as “demonstrably fallacious,” Petitioner has not proven that the debate between Mr. Alden and J.S. embarrassed the latter. After having the opportunity to observe J.S.’s demeanor, the undersigned does not credit J.S.’s assertion that he was embarrassed. As for the allegation that Mr. Alden grabbed K.R.H.’s hair and caused her head to be pulled backwards, there is no doubt that one of Mr. Alden’s hands made contact with K.R.H.’s ponytail and caused her head to be pulled backwards. The only question pertaining to this allegation is whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled with it. Other than Mr. Alden and K.R.H, Ms. Forsyth was the only witness to testify about the incident. However, her testimony was based on her observation of security camera footage, and Petitioner did not attempt to move that footage into evidence. As a result, there is no way to ascertain whether the footage was detailed enough for Ms. Forsyth to accurately distinguish whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled within it. In other words, the absence of that footage and the absence of testimony from other witnesses at the scene of the incident precludes the undersigned from finding that Petitioner proved this allegation by clear and convincing evidence.10 10 This finding should not be construed as the undersigned accepting Mr. Alden’s version of events. Even if Mr. Alden simply swatted at K.R.H.’s ponytail, he exhibited poor judgment by doing so. He also exhibited poor judgment by using profanity in the classroom. Petitioner also alleges that Mr. Alden embarrassed A.C. by touching A.C.’s forehead and saying “think” when A.C. was initially unable to answer a question. While the evidence clearly and convincingly established that Mr. Alden touched A.C.’s forehead, there was no evidence as to whether A.C. was embarrassed thereby because A.C. did not testify. Accordingly, this allegation was not proven by clear and convincing evidence.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and 14 Rule 6B-11.007 was last amended on December 10, 2019. None of the provisions relevant to the instant case changed. section 1012.795(1)(j) through rule 6A-10.081(2)(a)1., and that Respondent’s educator’s certificate be placed in probationary status for one year. DONE AND ENTERED this 2nd day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2021. Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner demonstrated entitlement to a Florida educator’s certificate.
Findings Of Fact Respondent, Pam Stewart, as Commissioner of Education, is authorized to issue Florida educator’s certificates to persons seeking certification to become school teachers in the state of Florida. Petitioner, Robert Grimsley, is a high school teacher who teaches liberal arts and algebra. He is in his first year of teaching and currently teaches at Washington High School in Pensacola, Florida. He seeks to obtain an educator’s certificate to continue teaching. On June 6, 2016, Petitioner submitted an on-line application for a Florida Educator’s Certificate in mathematics (grades 6-12). The application included a section for “Criminal offense record(s) (Report any record other than sealed or expunged in this section.)” Under that section, was the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?” In his application, Petitioner answered affirmatively that he had entered into a pretrial diversion program related to a criminal offense. Based on the fields provided in the application, he disclosed the following criminal offense as indicated below: City Where Arrested State Date of Arrest Charge(s) Disposition Tallahassee FL 1/2015 Less Than 20 Grams Community Service Petitioner did not disclose any other offenses in the application. There was no definition of “arrest date” provided in the application. Mr. Kossec, program director of Professional Practices Services, testified that Petitioner could have included the dates for his Notice to Appear. However, the application did not indicate that such an option was available to applicants. On August 3, 2016, Professional Practices Services sent Petitioner a letter requesting additional information regarding his criminal offenses so it could conduct an investigation of his criminal history. He submitted documents reflecting two offenses for which he completed a pretrial diversion program. The submissions included the “No Information” for each offense, which disclosed the following: Case No. 14-000004MMA (related to January 31, 2013 offense); Disposition: No Information due to completed Misdemeanor Diversion Program (filed on February 24, 2014). Case No. 15MM00158 (related to January 20, 2015 offense); Disposition: No Information due to completed Diversion Program (filed on March 6, 2015). The parties stipulated to the following facts regarding Petitioner’s criminal history and application: On or about December 31, 2013, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, the Applicant was issued a Notice to Appear by law enforcement for a criminal violation. Applicant was charged with Possession of Marijuana and entered into a pre-trial [sic] diversionary program. On or about January 20, 2015, Applicant illegally possessed marijuana, as a result of the aforementioned conduct, law enforcement arrested Applicant for possessing marijuana. Applicant was charged with Possession of Marijuana and entered into a pre-trial [sic] diversionary program. On or about June 6, 2016, Applicant submitted an application for an educator’s certificate. In said application, Applicant was asked the following question: “Have you ever entered into a pretrial diversion program or deferred prosecution program related to a criminal offense?” Applicant failed to disclose the fact that he entered into a pre-trial [sic] diversionary program for the December 31, 2013--Marijuana Possession arrest. There is no dispute that Petitioner had two criminal offenses for which he participated in a pretrial diversion program. At hearing, Petitioner testified that he did not list the December 2013 offense on the application because he received a Notice to Appear for that offense. Petitioner testified that he did not understand that being released with a Notice to Appear1/ was an arrest because he was not physically arrested. The two officers involved in the respective arrests testified at hearing and described their detainment of Petitioner. On December 31, 2013, Lt. King stopped Petitioner’s vehicle for driving in excess of the posted speed limit. He ultimately found marijuana in the vehicle. Lt. King read Petitioner his rights, issued him a Notice to Appear, and released him. Lt. King did not handcuff Petitioner at any point during the traffic stop. Lt. King testified that he explained to Petitioner that although he was not being physically handcuffed and transported to the local jail, he was placed under arrest. Petitioner did not recall any explanation that a Notice to Appear is still an arrest. Lt. King’s offense report, completed on the same date as the incident, did not reference any explanation to Petitioner that the Notice to Appear was an actual arrest. Petitioner’s testimony is found to be credible. The detainment for the second incident was different from the first. On January 20, 2015, Officer Andre Buckley, a FSU police officer, responded to a complaint of the smell of burnt marijuana coming from a restroom on the campus of FSU. Officer Buckley arrived at the suspected restroom and confirmed the smell of burnt marijuana. After discovering Petitioner in the restroom and in possession of marijuana, Officer Buckley placed Petitioner in handcuffs. Another officer transported Petitioner to the Leon County jail for booking. Despite Petitioner’s mistaken belief regarding the December 2013 arrest, he was indeed arrested. The facts here demonstrate that Petitioner did not understand that he was arrested for the December 2013 offense and, as a result, was confused regarding whether he should include the offense in the application. There was no effort to conceal his participation in the pretrial diversion program for the December 2013 offense because he submitted documents reflecting the information upon request. The undersigned finds that he simply made an error when completing the application. Both misdemeanor criminal offenses occurred while Petitioner was a college student. Since completing the diversion programs, he has earned his Bachelor of Science degree in Statistics. In his letter to the Professional Practice Services dated July 20, 2016, he indicated that he has discontinued using drugs. Further, he has taught for approximately one year without incident. Petitioner’s actions demonstrate that Petitioner had no intent to conceal his record, engaged in no fraudulent conduct in completing the application, and did not fail to maintain honesty in the submission of the application so as to warrant denial of an educator’s certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner, Robert Eugene Grimsley’s, application for a Florida educator’s certificate. DONE AND ENTERED this 20th day of April, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 20th day of April, 2017.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact Background The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. 1 At the conclusion of the hearing, the parties stipulated that students N.E., C.Z., T.C., and S.M., were unavailable, and that their deposition testimony, included within the School Board’s Exhibit No. 12 and Respondent’s Exhibit Nos. 16 through 18, could be received in evidence in lieu of their live testimony. The School Board hired Respondent in 2010 as a teacher at Campbell Drive K-8 Center ("Campbell Drive"), a public school in Miami-Dade County. During the 2016-2017 and 2017-2018 school years and at all times relevant to this case, Respondent was employed at Campbell Drive as an intensive reading teacher pursuant to a professional services contract. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The alleged conduct giving rise to the School Board’s proposed suspension and termination of Respondent occurred during the 2016-2017 and 2017-2018 school years. Allegations Involving K.S. The School Board alleges in paragraph 10 of the Notice of Specific Charges that during the 2016-2017 school year Respondent made grossly inappropriate physical and verbal sexual contact with K.S. At the time of the alleged conduct, K.S. was a female 12-year-old student in Respondent’s seventh-grade intensive reading class. Specifically, paragraph 10 of the notice alleges: During the course of the school year, beginning sometime after the Winter Recess, he would touch her private area over her clothing. On one day during lunch, the Respondent requested that this student come to his room during lunch to make up a test. When she arrived in the room, the Respondent initiated physical sexual contact with the student. In addition to touching the girl beneath her clothes, the Respondent exposed himself to her and had her touch his private area. After the brief encounter, the girl exited the room. During the course of the school year the Respondent also asked her to engage in sexual acts and made sexual comments to her. The School Board further alleges in paragraph 10 of the notice that during the 2017-2018 school year, when K.S. was a student in Respondent’s eighth grade intensive reading class, "Respondent requested a sexual favor from [K.S] on a small note that he had handed her." At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with K.S. 2 K.S.’s Written Sworn Statement to Detective Webb On March 2, 2018, K.S. was interviewed by Detective Steven Webb, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. That same day, K.S. gave a written sworn statement to Detective Webb, received into evidence as Respondent’s Exhibit No. 11. In this sworn statement, K.S. stated that during the 2016-2017 school year, Respondent "became sexually active with students, he did multiple things." K.S. went on state that Respondent: started off by touching my private area and then he advanced a couple of days later by pulling his pen[n]is (sic) out and grabbing my hand and, placing it there. One day he sent a student to get me from the cafeteria and on the pass it stated that I had to make up a test, but when I entered his class he rubbed my breast, and started to suck them for about 10 to 15 seconds, and then I pushed him away. He was dropping my grade until I did the things he wanted me to do with him which is to have sex, give him head, thing of that nature. Recently, about 2-3 weeks ago he asked me to do things with him and that’s a reason to why I left early recently. 2 K.S. did not complete her seventh-grade school year at Campbell Drive. Before the school year ended, the principal of Campbell Drive asked K.S. to leave the school because of disciplinary problems involving physical altercations with other students and defiant behavior. K.S. subsequently enrolled in Villa Prep Academy, a private school where she completed her seventh-grade year. K.S. did not attend Villa Prep Academy for very long because she was dismissed from that school during the early part of her eighth-grade year. In December 2017, K.S. re-enrolled in Campbell Drive. Upon her return, K.S.’s mother requested that she be put in Respondent’s classroom and K.S. was a student in Respondent’s eighth-grade intensive reading class for the remainder of the 2017-2018 school year. There was nothing mentioned in K.S.’s written sworn statement about Respondent engaging in any inappropriate conduct toward K.S. while she sat at her desk in Respondent’s classroom. K.S.’s Audio Recorded Interview with Detectives Webb and Ochoa In a subsequent audio recording interview of K.S. on March 2, 2018, by Detective Webb and Detective Gil Ochoa, received into evidence as the School Board’s Exhibit No. 5, K.S. initially described the cafeteria pass incident as follows: K.S. stated she left the cafeteria with her food tray in hand and went to Respondent’s classroom. Upon entering Respondent’s classroom, she began telling him things about her family. K.S. stated Respondent then took away her food tray, set the tray down, and pulled her over to another area of the room, at which time he touched her breasts over her shirt, lifted up her shirt and sports bra, exposed her breasts, and sucked on one of her breasts for about 10 to 15 seconds. K.S. stated she got scared and left the classroom, and that is all he did that day. K.S. failed to mention anything about Respondent pulling out his penis on this occasion until asked specifically about it by Detective Ochoa near the conclusion of the interview. School Board’s Ex. 5 at 13:22. K.S. then stated that she saw his penis, but she was scared and looked away. K.S. made no mention of Respondent placing her hand on his penis. During this interview, K.S. went on to describe another occasion in Respondent’s class that occurred after school was dismissed for the day. According to K.S., on this particular occasion, Respondent asked her "to give him head" and "to have sex with him." However, according to K.S., it never happened. K.S. further stated that recently (two to three weeks ago), Respondent asked that she "give him head." There was no mention in this interview of Respondent touching K.S.’s vaginal area or dropping her grades. The entire audio recorded interview lasted approximately 15 minutes. At the conclusion of the interview, K.S. was asked if there was anything else that she remembered that she wanted to add. K.S. declined and she did not state any other alleged inappropriate physical and verbal sexual contact by Respondent. K.S.’s Testimony at Hearing At the final hearing, K.S. testified that toward the beginning of the 2016-2017 school year, Respondent moved her seat next to his because she was easily distracted by the other students and failed the first test. Subsequently, the following exchange occurred between counsel for the School Board and K.S.: Q: Now, during that school year, did Mr. Rizo ever do anything inappropriate to you during class time? A: Yes. Q: All right. Can you explain to the Judge what he would do to you? A: He would, like, walk by, ‘cause since I was sitting so close to him, he would just touch me, like, my private areas or he’ll just, like go down on my arm, like that. Stuff like that. Q: All right. Now, this would occur during class time? A: Yes. Q: When specifically--was there a specific time that it would occur during class time? A: Mainly when we were testing or doing our work. T. Vol. 1, pp. 28-29. Counsel for the School Board went on to question K.S. about the testing process and Respondent’s efforts to curtail students cheating on tests. K.S. testified that students placed raised stapled manila folders on their desks to prevent students from seeing each other’s tests. Counsel for the School Board then asked K.S., in leading fashion: "So it was this time, during the testing, when he would touch you? K.S. responded: "Yes." Id., Vol. 1, pp. 29-30. However, K.S. could not describe the number of times "this occurred" during the 2016-2017 school year. Moreover, this alleged inappropriate touching supposedly occurred while 20 to 25 other students were in the classroom. At hearing, K.S. testified at one point that Respondent’s touching of her vaginal area occurred every time they had tests, but she acknowledged that the raised stapled manila folders were not always present on the students’ desks during testing. At hearing, K.S. further acknowledged that had the inappropriate touching occurred as she testified to, any student at any point could have looked and seen Respondent caressing her in her vaginal area. Counsel for the School Board then inquired of K.S. if there was "ever anything more serious that [Respondent] did to [her]" that school year (2016- 2017). In response, K.S. described the alleged cafeteria pass incident as follows: A: I was in lunch--because I was in seventh grade at the time, seventh grade goes to lunch before anybody, and he sent one of his eighth grader students with a pass to go to get me. Because in order to leave the lunchroom, you have to have a pass. Security didn’t let you leave the lunchroom. Security called me and told me that my teacher was calling me to make up a test. When I got in the room, I had my tray in my hand, and he took my tray, put it down, he exposed himself. And then there was a corner and he, like, put me in the corner and he sucked on my breast. T. Vol. 1, pp. 32-33. However, moments later, K.S. described the incident differently: First he pushed me to the corner, and then after he sucked my breast, then he exposed himself. And then I was just scared. And he--when he exposed himself, he grabbed my arm and he made me touch his area, and then I grabbed my tray, I threw it away, and then I left. Id. at p. 33. According to K.S., she was in Respondent’s classroom on this particular occasion between five or ten minutes. The corner of Respondent’s classroom is located right next to the door entering the room. K.S. testified that the incident occurred with just Respondent and K.S. in the classroom, but with the other student who had retrieved K.S. from the cafeteria still waiting outside the door when K.S. left Respondent’s classroom. At hearing, counsel for the School Board also asked K.S., in leading fashion, whether she ever told the police officers that Respondent would "suck on your breasts or try to have sex with you multiple times?" In response, K.S. testified: "I told them--I told them the suck on my breast part, when he exposed him. And then when they asked about my eighth-grade- year, I told them how he wrote on a sticky note that I want to give him head, like oral sex …." Inconsistently, K.S. testified in her deposition that Respondent wrote on the sticky note: "Can I eat her?" According to K.S. in her deposition, Respondent picked up the sticky note, showed it to K.S., and she grabbed it from him and threw the note away. School Board’s Ex. 11, p. 11. At hearing, K.S. testified that Respondent handed her the sticky note and that she then threw it away. K.S. and Respondent never communicated by telephone, text, e-mail, or social media. There are no witnesses to any of the alleged incidents. K.S. never reported any alleged inappropriate conduct by Respondent to her parents, a teacher, or school administrators. However, at hearing, K.S. testified she told V.S.C. about Respondent’s conduct toward her during the 2016-2017 school year when V.S.C. came to her house on a single occasion sometime during K.S.’s eighth grade school year. Allegations Involving V.S.C. The School Board alleges in paragraph 11 of the Notice of Specific Charges that during the 2017-2018 school year, Respondent also made inappropriate comments to V.S.C. during his role as an afterschool care supervisor, and that he would "bump up against" V.S.C., "rubbing himself on her buttocks area." V.S.C. was not a student in Respondent’s classroom. The alleged inappropriate conduct occurred while V.S.C., a female 14-year-old eighth grade student at Campbell Drive, attended the school’s Students with a Goal ("SWAG") afterschool program. SWAG is an outdoor program where students can engage in a variety of recreational activities. Respondent was one of six school staff members that participated in the program. At any given time, there were approximately 100 students in attendance. Students could play soccer, basketball, football, dodge ball, board games, or do homework. Students could freely rotate through the different activities by simply notifying the adult conducting the desired activity. Respondent primarily engaged in soccer, but would occasionally participate in other activities. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with V.S.C. V.S.C.’s Audio Recorded Interview with Detective Bernice Charley On March 6, 2018, V.S.C. was interviewed by Detective Bernice Charley, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. An audio recording of the interview was received into evidence as the School Board’s Exhibit 8.3 During the interview, V.S.C. stated that while she and Respondent were at SWAG during the 2017-2018 school year, Respondent told her he wanted to slap her face with his penis; he asked her if she liked it rough (referring to sex); and he told her his penis was his "third leg." According to V.S.C., she and Respondent would engage in a verbal "back and forth," and he would say these comments in front of other students at SWAG. Additionally, V.S.C. stated she and Respondent would "bump" into each other at SWAG. According to V.S.C., Respondent would bump into her side or back from behind. During the interview, V.S.C. stated she had a bad memory. V.S.C. was reluctant to speak and there were many long pauses by her after questioning by Detective Charley. After much prodding and requests by Detective Charley for V.S.C. to "open-up," V.S.C. actually stated: "There’s nothing to talk about because nothing did happen." School Board’s Ex. 8, at 38:48-38:52. After further pauses, prodding, and requests by Detective Charley for V.S.C. to "open up," V.S.C. stated that Respondent also touched her breasts one time while they were at SWAG. According to V.S.C., this incident occurred with her shirt on. The School Board argues in its proposed recommended order that V.S.C. also described another incident while she and Respondent were at his classroom. According to V.S.C., Respondent was standing at his desk and V.S.C. was standing in the doorway, at which time Respondent stated to V.S.C.: "me and you here and now," followed by Respondent tapping on his desk. V.S.C. interpreted this comment as meaning that Respondent wanted 3 The audio recorded interviews of K.S. and V.S.C. (School Board’s Exhibits 6 and 8) are contained on a thumb-drive accompanying the School Board’s written exhibits received into evidence at the hearing. to have sex with her. According to V.S.C., other students were present when Respondent allegedly made the comment. Notably, this alleged incident is not referred to in the Notice of Specific Charges. The notice was, therefore, insufficient to inform Respondent of the School Board’s contention. The entire recorded interview lasted approximately 52 minutes. Much of the interview involved Detective Charley’s repeated efforts to redirect V.S.C. and her attempts to have V.S.C. "open-up." V.S.C.'s Testimony at Hearing At the final hearing, V.S.C. could not even remember whether she was in seventh or eighth grade during the 2017-2018 school year. In any event, V.S.C. testified that during the 2017-2018 school year, she attended Campbell Drive and the afterschool SWAG program. Respondent and V.S.C. did not have much interaction in the SWAG program. V.S.C. testified that she did not really participate in any of the SWAG activities; rather, she would either just "hang-out with [her] friends or sleep," or watch her friends and Respondent play soccer. However, most of V.S.C.’s time was spent sleeping near a tree, far away from where Respondent spent most of his time with the soccer group. When asked if Respondent ever did anything inappropriate to her during the SWAG program, V.S.C. testified that he talked about his "private part" to her, saying that "it was big," and referring to it once as "his third leg." Counsel for the School Board then asked V.S.C. in leading fashion: "Okay. Did he ever mention anything that he would like to do with his private part," to which V.S.C. responded, "I don’t remember. I just know that he talked about it once." T. Vol. 1, p. 82. V.S.C. described unspecified things that Respondent allegedly said to V.S.C. as "playful, like, in an inappropriate way," and "weird." Counsel for the School Board then asked V.S.C. in leading fashion: "Do you remember telling these things that he would say to you to the police at a given point," to which V.S.C. responded, "I barely remember. It’s, like, such a long time ago now." Id. at p. 83. As with her recorded interview with Detective Charley, V.S.C. was reluctant to testify at hearing and there were many long pauses by her after questioning by the School Board’s counsel. After further prodding and requests by the School Board’s counsel to describe "the things he would say to you, other than his talking about his private part," V.S.C. described the aforementioned verbal incident in Respondent’s classroom. On cross-examination, V.S.C. acknowledged this comment was loud enough so that other students could hear it and that she read a sexual connotation into the comment. Id. at p. 97. Counsel for the School Board again asked V.S.C. if Respondent ever made any other comments to her during SWAG, to which V.S.C. responded, "I can’t remember." Id. at p. 85. Subsequently, the following exchanges occurred between counsel for the School Board and V.S.C.: Q: Did he ever threaten to slap you with anything?" A: Yeah, with his penis. Q: What did he say? A: He said he wants to, like, slap me in the face with his penis. Q: And when did he say that? A: I think in SWAG. Yeah, it was in SWAG. * * * Q: Do you remember Mr. Rizo touching you in any other way other than bumping you with his hip or anything like that? A: When we would play fight, he would, like, put his pelvis, like, on my back area. Q: What would he do with his pelvis? A: He would just, like, be there, like, behind me and play fighting me. Q: Did he ever try to touch you sexually in any way? A: I guess, yeah, if he’s doing that, if he’s behind me like that. Id. at pp. 87 and 92. V.S.C. never reported any alleged inappropriate conduct by Respondent to her parents, teachers, or school administrators. At hearing, V.S.C. acknowledged that she and K.S. were friends. At hearing, V.S.C. admitted that she and Respondent were never alone during the SWAG program and that she was always close to the other students. At hearing, nothing was mentioned about Respondent touching V.S.C.’s breasts. Allegations involving N.E. In paragraph 12 of the Notice of Specific Charges, the School Board alleges that "Respondent also made sexual advances and over the clothing sexual contact with a third female student [N.E.] during the 2017-2018 school year." However, N.E. did not testify live at hearing and the School Board did not present any eyewitness testimony in support of the allegations. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with N.E. Ultimate Findings of Fact At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, K.S., and V.S.C. The testimony of Respondent is credited and is more persuasive than the testimony of K.S. and V.S.C., which is not credited or persuasive. Notably, K.S.’s and V.S.C’s versions of the events as set forth in their statements to the police and testimony at hearing were vague, differed in key respects, and much of their testimony and statements to the police were obtained through patently leading questions. Moreover, V.S.C. admitted that her memory is bad and that "there’s nothing to talk about because nothing did happen." It is also inconceivable that K.S. would have returned to Respondent’s classroom for intensive reading during the 2017-2018 school year had the alleged conduct during the 2016-2017 school year actually occurred. Had the alleged incidents occurred as testified about by K.S. and V.S.C., who were friends, it is also expected that there would have been eyewitnesses. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in inappropriate physical and verbal sexual contact with K.S., V.S.C., or N.E., as alleged in the Notice of Specific Charges, and Respondent did not engage in conduct with K.S., V.S.C., or N.E., which constitutes misconduct in office or immorality.4 4 K.S. and N.E. were also friends. As detailed above, N.E. did not testify at the hearing. However, an audio statement and a written statement purportedly authored by N.E., both of which are hearsay, were received into evidence at the final hearing as the School Board’s Exhibit Nos. 6 and 16, respectively. Although hearsay is admissible in administrative proceedings, this does not necessarily mean that the undersigned must use the hearsay in resolving a factual issue. The statements cannot be used as the sole basis to support a finding of fact, because they do not fall within an exception to the hearsay rule. Furthermore, the statements do not supplement or explain other non-hearsay evidence. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). At hearing, the parties stipulated to the receipt into evidence of N.E.’s deposition testimony in lieu of her live testimony. Even if the audio statement and written statement could be used by the undersigned, however, the audio statement, written statement, and deposition testimony would not be given any weight based on the live testimony Respondent presented at hearing. Unlike N.E., who did not testify live
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension and termination of Respondent, Oscar D. Rizo, and reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 18th day of May, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 18th day of May, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner’s applications for a Florida Educator’s Certificate (teaching certificate) should be denied on the grounds set forth in the Notice of Reasons issued by Respondent on April 20, 2005.
Findings Of Fact At times relevant to this proceeding, Petitioner was employed as a behavioral specialist by Tri-County, an entity that provided certain employees to the School Board. Pursuant to his employment with Tri-County during the 2003-04 school year, Petitioner worked at Port St. Lucie High School (PSLHS) in a classroom for students who had been identified by the School Board’s Exceptional Student Education (ESE) Program as being severely emotionally disturbed (SED). Petitioner has never been employed directly by the School Board. Petitioner’s position with Tri-County did not require that he have a teaching certificate. Likewise, the work Petitioner did in the SED class pursuant to the contract between Tri-County and the School Board did not require that he have a teaching certificate. For reasons that were not revealed at the formal hearing, the SED teacher with whom Petitioner worked left his or her employment during the school year. As a result of the teacher’s absence, Petitioner took over the SED for a short period of time. There was no evidence that Petitioner’s continued employment was dependent on his having a teaching certificate. The school administration of PSLHS was required to annually check the certification of each teacher at the school and to submit to the School Board a report listing any educator who was teaching outside of his or her certified field. This report is called an “out of field” report. For the school year 2003–04, Ms. Brooks, the assistant principal of PSLHS, was required to prepare the out-of-field report for the school. Ms. Brooks initially listed Petitioner as teaching out of field. However, while preparing the out of field report, Ms. Brooks discovered what appeared to be a temporary teaching certificate bearing Petitioner’s name (the subject certificate). The subject certificate reflected that Petitioner was certified in ESE for grades K-12 for the period July 1, 2002, through June 30, 2005. Ms. Brooks located the subject certificate in a binder that contained photocopies of teaching certificates for all of the PSLHS instructional personnel. The subject certificate looked suspicious to Ms. Brooks because it had no certification number on it and because Petitioner’s name was written in a different font than the font that is typically used on teacher’s certificates. Ms. Brooks promptly reported the suspicious certificate to Ms. Thompson at the School Board office. Ms. Thompson immediately called Ms. White at the Florida Department of Education (FDOE) offices in Tallahassee. Upon investigation with the FDOE, it was discovered that the subject certificate was fraudulent. The FDOE has never issued a teaching certificate to Petitioner of any kind. Ms. Brooks testified that photocopies of teaching certificates are provided to the school by teachers and that as far as she knew, no one other than the teacher would have a copy of the teacher’s teaching certificate. It is clear from her testimony that Ms. Brooks was referring to certified teachers with properly-issued teaching certificates. It is also clear from her testimony that Ms. Brooks had no first-hand knowledge as to how or when the subject certificate was placed in the binder. Petitioner testified that he did not provide the school the subject certificate. Petitioner testified that he did not know who would have provided the subject fraudulent teaching certificate to the PSLHS and offered no other explanation as to its existence. The undersigned concludes that the evidence presented by Respondent is insufficient to establish that Petitioner furnished the subject certificate to the administration of PSLHS.3 Petitioner applied to FDOE for a teaching certificate on two occasions. Neither application has been processed to completion. On December 19, 2001, Petitioner applied for a teaching certificate in the field of athletic coaching. On December 22, 2003, Petitioner applied for a teaching certificate in the field of physical education. Those teaching certificates were never issued because Petitioner’s prior criminal history caused Professional Practices Services (PPS) to place a hold on his applications4 and because Petitioner has not provided an official transcript documenting his college degree.5 Those reasons were in addition to the reasons set forth in the Notice of Reasons dated April 20, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein. It is further RECOMMENDED that the final order deny Petitioner’s applications for teaching certificates. DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of June, 2006.
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. For the 1988-89 school year, Respondent was assigned to teach algebra and general math at Miami Agricultural School, one of the schools in the Dade County public school system. During a part of the 1988-89 school year, Respondent lived with Sandra Wilkenson and with the child they had parented. The child was two years old at the time of the hearing. On November 21, 1988, Respondent and Ms. Wilkenson met at her place of employment at the Aventura Mall in Miami, Florida. Respondent was in a hurry because he had several errands to run in preparation for his planned trip to St. Croix, Virgin Islands, to visit his family and to attend to a family business matter. Respondent and Ms. Wilkenson planned for Respondent to return to the mall so that he could drive her to the apartment they shared after she had completed heir work day. Later in the day of November 21, 1988, Respondent returned to the Aventura Mall to take Ms. Wilkenson to their apartment. Ms. Wilkenson met Respondent in the public parking area of the Mall where he had parked. For reasons unknown to Respondent, Ms. Wilkenson refused to ride to their home with him. This refusal made Respondent very angry and started a loud argument between them that lasted between five and ten minutes. Respondent tried to lead Ms. Wilkenson to the car by pulling her hand, but there was no evidence that he injured her in any way or that he committed any criminal act during the course of the incident. When she continued to refuse to accompany him, Respondent got in his car and left the parking area. A man in a uniform observed the dispute, but he did not speak to Respondent or attempt to intervene in the dispute. After the incident at the Aventura Mall, Respondent travelled to St. Croix as he had planned. While in St. Croix, Respondent spoke to Ms. Wilkenson by telephone, but she did not indicate that she considered anything to be wrong. While Respondent was in St. Croix, criminal charges stemming from the incident at the Aventura Mall were brought against him by Ms. Wilkenson. Respondent was charged with aggravated assault with a firearm, using a firearm during the commission of a felony, and battery on the person of Sandra Wilkenson. While Respondent was still in St. Croix, three police officers visited the campus of Miami Agricultural School searching for Respondent. Two of the police officers were in plainclothes and one was in uniform. The police officers spoke to the Principal, Mr. Lewis and to the Secretary, Ms. Scott, in private. While the visit of the police officers aroused the curiosity of a one or two faculty members and a few students, the visit did not cause a disturbance or disrupt the educational process. When Respondent returned to Miami from St. Croix, he found a note on his automobile asking that he contact the police detective who had left the note. Upon calling the police detective, Respondent learned that he was to be arrested. Respondent voluntarily surrendered himself to the police. Respondent spent four days in jail before he was arraigned. At arraignment, he entered a plea of not guilty. Respondent was released from jail after Ms. Wilkenson posted his bond. Respondent informed the principal of Miami Agricultural School of his whereabouts while he was in jail. After his release from jail, Respondent was transferred from his classroom to an administrative assignment away from the campus of Miami Agricultural School. Several students and faculty members at Miami Agricultural School became curious because of Respondent's absence. Although one student indicated to the principal that he knew that Respondent had been in jail and the administration at the school had information as to what had happened, the incident and subsequent arrest did not become common knowledge at Miami Agricultural School or in the community. Respondent's conduct was not sufficiently notorious to bring either Respondent or the education profession into public disgrace or disrespect. His conduct did not impair his service to the community. On March 22, 1989, Petitioner suspended Respondent without pay and instituted proceedings to terminate his annual contract. Respondent timely demanded a formal hearing of the matter On April 25, 1989, all of the criminal charges that had been filed against Respondent were nolle prossed and the criminal case against him was closed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Respondent, Michael Durrant, not guilty of immorality, and which reinstates his annual contract for the 1988-89 school year with back pay. DONE AND ENTERED this 30th day of January, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 f Administrative Hearings this 30th day of January, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-1725 The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 of the Recommended Order. Those proposed findings of fact not adopted are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraph 4 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 4 of the Recommended Order. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by paragraphs 5 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 9 are adopted in part by paragraph 5 of the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by paragraph 14 of the Recommended Order, are rejected in part as being subordinate to the findings made, and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in part by paragraph 10 of the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 15 are adopted in material part by paragraphs 11 and 14 of the Recommended Order. 16.-18. The proposed findings of fact in paragraphs 16, 17, and 18 are rejected as being subordinate to the findings made. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Mr. Tee Greer Acting Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?
Findings Of Fact Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking Respondent's correctional certificate. DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of August, 2003. COPIES FURNISHED: Kevin Dannunzio 1718 Spring Street Lake City, Florida 32025 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed any of the violations alleged in the Amended Administrative Complaint dated March 24, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact The Parties Petitioner, as Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals who hold a Florida Educational Certificate when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat. Respondent, Shadrick Fields, a male and, at the time of the events pertinent to this case, a middle school teacher employed by the Broward County School District (the District), holds Florida Educator’s Certificate 977090. Valid through June 30, 2017, the certificate covers the areas of English for Speakers of Other Languages (ESOL), Social Science, and Exceptional Student Education. Respondent was employed as a coach and Social Science teacher at Pompano Beach Middle School during the school years 2007-2010. In the 2009-2010 school year, Respondent was also employed as an assistant coach (but not as a teacher) at Coconut Creek High School. Pompano Beach Middle School and Coconut Creek High School are within and part of the District. On or about April 26, 2010, Respondent resigned his teaching position in lieu of termination of his position. The District accepted the resignation and placed Respondent’s identification in its records under “non-hire” status. The personnel action was taken because of allegations of an inappropriate relationship between Respondent and a female student. An Inappropriate Relationship Develops J.D. is a female. Born in 1992, she attended Pompano Beach Middle School in sixth, seventh, and eighth grades. She met Respondent at Pompano Beach Middle School although he was not her teacher or her coach. The events that led to Respondent’s resignation occurred principally in the 2009-2010 school year when J.D. was 17 years of age (her 18th birthday was in March 2010) and a student at Coconut Creek High School. The events had their origin, however, in 2006 when J.D. was a middle school child. J.D. met Respondent as a seventh grader when Respondent was “doing security [for the school] at the time.” Hr’g Tr. 81. Later, J.D. had contact with Respondent in Respondent’s capacity as coach of the middle school football team. On the last day of J.D.’s eighth grade school year (in 2006), Respondent gave J.D. a letter written from him to her. The letter was not produced at the hearing. Respondent asked for it back, and J.D. returned it to him. When asked about the letter at the hearing, the following colloquy took place between and counsel for Petitioner: I have to go in detail about the letter? Q. Well . . . just tell us in general, what was the nature of the letter? A. He liked me. I liked him. Hr’g Tr. 83. J.D. did not see or communicate with Respondent over the summer between her eighth and ninth grade. J.D. resumed contact with Respondent during her freshman year at Coconut Creek High School where she was a student and he was one of the coaches for the wrestling team. Respondent was not J.D.’s coach nor was he one of her teachers; he continued to teach at Pompano Beach Middle School. Nonetheless, they talked on the phone. On Valentine’s Day, Respondent gave J.D. a card. The card opens with the statement, “Falling in love with you was something I hadn’t expected but being in love with you is something I wouldn’t stop, even if I tried.” Pet’r’s Ex. 6. It closes with the statements, “I already have my Valentine’s Day Gift and it’s you! I love you.” Id. J.D. claimed at the hearing that she and Respondent engaged in sexual relations once during her freshman year at Coconut Creek. She said they took place in Respondent’s truck, an arrangement they agreed to both by speaking about it and writing about it. The letters related to their rendezvous in the truck were not produced at the hearing because J.D. disposed of them in a trash receptacle. J.D. claimed that she engaged in sexual intercourse with Respondent only one other time: during her senior year, again in Respondent’s truck. The time that elapsed between the two sexual events, according to J.D., was due to an agreement between Respondent and J.D.: they agreed to cease further sexual involvement until she graduated from high school (albeit, as J.D. testified, the agreement failed in February of her senior year). During the time between the two incidents of sexual relations to which J.D. testified, J.D. and Respondent frequently communicated through writings, cards, and letters. When Respondent wrote to J.D. he delivered the communications through one of two methods: he handed them to her directly or he placed them in an open tube affixed to the wall of a hallway outside the wrestling locker room. When the latter method was followed, Respondent would send a text to J.D. to alert her to the presence of a letter in the tube. The purpose of using the tube was to prevent suspicion by others should Respondent be observed handing written communication to J.D. The letters produced at the hearing that J.D. received are emotionally intimate. The third of the four letters that make up Petitioner’s Exhibit 7 is highly charged and sexually graphic. It refers, for example, in detail to love-making in which Respondent and J.D. had engaged. Respondent’s letters refer to himself as “King” and are signed “M.N.U.A.I.A.,” which stands for “Me and You Against It All.” See Pet’r’s Ex. 7. During J.D.’s senior year in high school, J.D. and Respondent had increased opportunities to interact on school days. J.D. played on a school flag football team and became the assistant manager of the wrestling team for which Respondent was the coach. Family members picked J.D. up after flag football practice or when she stayed after school in her capacity as the wrestling team assistant manager. But Respondent also provided her transportation home in his truck. He gave J.D. a ride home after these extra-curricular events whenever she asked. The question was asked at the hearing, “Generally, who gave you a ride home?” J.D. testified, “Mr. Fields.” Hr’g Tr. 98. Respondent also gave J.D. cards and gifts, including a Teddy Bear that was delivered with a card. The card ends with “I’m your Teddy Bear baby, M.N.U.A.I.A. I Love You.” The card makes reference to the silence of Teddy Bears and that “they will never breath [sic] a word of secrets you may tell.” Pet’r’s Ex. 8. In December and January of the 2009-2010 school year (J.D.’s senior year), Respondent had significant contact with J.D. by cell phone. Pet’r’s Ex. 9. For the month of December 2009, phone calls between J.D.’s cell phone and Respondent’s cell phone averaged more than one per day. Following more than 40 phone calls in January of 2010, the phone contact continued into February. In the middle of the month of February 2010, Respondent handed a Valentine card to J.D. (He did not place it in the tube because “[i]t wouldn’t fit in there.”). Hr’g Tr. 96. The card states, “You know that I would give anything to be in your arms, touching your face, staring into your eyes and tasting your lips. I can’t but I can depend on our love to see me through.” The card addresses J.D. as “Lil Solja” and is signed: Happy Valentine’s Day #1 M.N.U.A.I.A. Love & “Sincerely Yours”, Solja Pet’r’s Ex. 9. Over the late 2009 and early 2010 time period, some of the many phone calls between J.D. and Respondent were for extended periods of time or were at odd hours. One set of calls was both. On February 19, 2010, a call was placed from Respondent’s cell phone to J.D.’s cell phone that is shown by phone records to have lasted for 186 minutes (until 2:50 in the morning of February 20, 2010). The same records show that one minute later, at 2:51 a.m., February 20, 2010, a phone call was placed from J.D.’s cell phone to Respondent’s cell phone. This second “middle of the night” phone call lasted another 76 minutes. The two calls total more than four hours. The lengthy “middle of the night” phone calls in mid-February of 2010 occurred roughly one week before events that precipitated the discovery of J.D.’s relationship with Respondent. The events took place on February 26 and 27, 2010, the weekend before J.D.’s 18th birthday. Discovered February 26, 2010, was a Friday. J.D. worked that evening at Steinmart as a merchandiser. She had worked at Steinmart her entire senior year with a schedule of roughly 20 hours per week. The following are questions and answers from the transcript of the hearing about what occurred the evening of February 26, 2010, when J.D. was at work: Q. Did Mr. Fields come to your work that day? A. Yes. Q. Tell us what happened. A. I went to work, took a break right before the store closed, around eight-something. I had been talking to him throughout the day. He came to my job. We had sex. I got off work and went home. * * * Q. . . . Mr. Fields came to your work, correct? A. Came to my job on my break. Q. And how long of a break did you have? A. Thirty minutes. Q. Thirty minutes. And what did you do on that break? A. I got in the truck with him, we talked, we had sex and I went back to work. Q. When you say you had sex, you had sexual intercourse? A. Yes. Q. And this occurred in Mr. Fields’ truck? A. Yes. Q. Where at in the truck? A. In the back seat. Hr’g Tr. 101. When asked by counsel for Petitioner how she felt about having sex with Respondent in his truck, she testified as if it were nothing unusual: “I really didn’t feel no way.” Hr’g Tr. 102. When asked immediately after, “You felt what?” J.D. reiterated her testimony, “I really didn’t feel any type of way, you know.” Id. During the interlude in the truck, J.D. and Respondent developed plans for the next night, Saturday, February 27. J.D. did not have to work that Saturday, but she “planned to lie to [her] mom” and tell her she did so she could, in her words, “spend the time with him before my birthday.” Hr’g Tr. 103. Hewing to the plan, J.D. told her mother that she was needed at Steinmart on Saturday to help her manager with inventory. J.D.’s mother, accordingly, drove her to work and dropped her off in the middle of the day. Later in the day, J.D.’s mother returned to Steinmart to purchase a shirt for her husband using a family discount by virtue of J.D.’s employment. She asked for J.D. in the store because J.D. had to sign a form to make the discount effective. When it turned out that J.D. was not at work and had not been at work, J.D.’s mother became extremely concerned. She called J.D. and texted her. When the calls and texts to J.D. went unanswered she enlisted other family members to assist in contacting and locating J.D. She lodged a missing person’s report with local law enforcement, and she began her own investigation. J.D.’s cell phone was under her mother’s account. When her mother checked the phone log she saw a number “that had been calling back and forth.” Hr’g Tr. 40. The phone number was Respondent’s: 954-691-6468. J.D.’s mother did not recognize the phone number, but discovered later that it belonged to Respondent. When asked about a voice message she left on Respondent’s phone, J.D.’s mother testified, “I don’t want to say under oath what I said but I was upset once I realized whose phone it was.” Hr’g Tr. 41. After testifying that the pattern and consistency of the phone calls between her daughter and an older male made her distraught, she was asked to explain by counsel. She answered, “Because I just felt like that communication shouldn’t have been going on, as many times as I’d seen it in the call log.” Id. Between being transported to her work place and the frantic activity of her mother, J.D. had talked to Respondent on the phone. He picked her up at Steinmart and drove her across the county to a movie theater in the western part of the county about 35 minutes away by car. After watching a movie, “The Crazies,” the two had something to eat at “TGI Friday’s,” hearing transcript 105, a restaurant in the same plaza as the movie theater. J.D. noticed that she had received phone calls from her mother, but she was “scared,” id., to call her back. While the two were still inside the restaurant, Respondent noticed that he had received telephone calls from J.D.’s mother as well. J.D. told Respondent not to return the call, and he did not. Respondent drove J.D. back to Steinmart and dropped her off at roughly 9 p.m., the time J.D. should have been getting off work had she worked that day. Respondent did not return J.D.’s mother’s call before he left J.D. at Steinmart. J.D.’s brother picked her up at Steinmart and drove J.D. home where she was met by Deputy Matthews, who had responded on behalf of local law enforcement to the missing person’s report. Deputy Matthews’ report indicated that J.D. was questioned about sexual activity with Respondent and that she denied sexual activity. Text Messages On Sunday (February 28, 2010), Respondent texted J.D.: Does she still want to talk to me? I’ll take da day off in effort to make things right by sitting down with her. A million more apologizes from da heart. Pet’r’s Ex. 5, at P010/011 [marked in hand-writing as “83”]. On March 1, 2010, the next Monday, Respondent sent text messages to J.D. At 3:17 in the morning, his text reads, I hope I haven’t tarnished or messed your life first and everyone else that looks up to me. I’ve let so many down . . . mainly you. I pray for ur fams forgiveness. Pet’r’s Ex. 5, P0087/011 [marked in hand-writing as “81”]. Another text follows at 3:45 in the morning: I never lied to you. Everything I said I meant from the heart but I should have never told you. Every day forward free is a blessing & will be cherished. Id. Later in the day, at 3:36 in the afternoon, Respondent texted “I’m going to turn myself in. Its all in your hands, my life.” Pet’r’s Ex. 5, P0097/011 [marked in hand-writing as “82”]. Over several days, J.D. and her mother engaged in a number of emotion-laden conversations. J.D.’s mother reached the point of “yelling” and “crying.” Hr’g Tr. 56. At some point in the midst of the emotional interchanges between J.D. and her mother, J.D.’s mother told her that she intended to take J.D. to a gynecologist for an examination for sexual activity. J.D. did not want her mother to know that she was not a virgin. But she was not concerned for herself alone. She did not want to tell anyone that she had engaged in sexual activity with Respondent because she wanted to protect him. The gynecological examination of J.D. revealed that she had been sexually active. Despite misgivings both for herself and because of the potential impact to Respondent, J.D. told her mother she had engaged in sex with Respondent. J.D.’s mother’s impression was that J.D. had not been sexually active even though she had a boyfriend (who was not Respondent). When J.D. revealed the sexual nature of her relationship with Respondent after the examination, J.D.’s mother called local law enforcement to report it. As a result of the call, a case was opened, and it was assigned to Deputy Julie Bower of the Broward County’s Sheriff’s Office of Sex Crimes. Deputy Bower questioned J.D. and reviewed the phone records, as well as the cards and letters that have been admitted into evidence in this proceeding. Deputy Bower confirmed that J.D. was 17 years’ old, a minor, when Respondent took her to the movies and that Respondent was over the age of 24 at the time. Their ages led Deputy Bower to conduct an investigation into whether Respondent had committed the crime of “Unlawful Sex with Certain Minors.” March 5 Statement to the Sex Crimes Unit On March 5, 2010, Officer Bower took a statement from J.D. In the statement J.D. admitted that she and Respondent had engaged in sexual activity on February 26, 2010. As the interview for the statement progressed, Deputy Bower took J.D. through the history of the relationship. J.D. stated that Respondent seemed to take an interest in her more than the other girls at school (Pet’r’s Ex. 2, p. 4 of 24). She also related that she received the first letter from him at the end of the eighth grade, but that she was not interested in him until her senior year in high school when Respondent started writing her and giving her gifts: “clothes, shoes, . . . cards, letters” id., page 7 of 24, and a bracelet of white gold. In the meantime, during her ninth, tenth, and eleventh grades, J.D. claimed in the statement that their relationship was “nothing . . . just a hi and bye.” Pet’r’s Ex. 2, p. 6 of 24. She related that in December of 2009, however, her relationship with Respondent started changing after “he made the move” (Id., p. 8 of 24), at which time she decided she wanted to start dating. They discussed having sex, and Respondent told J.D. that he loved her. J.D. stated to Deputy Bower that she was a virgin until the encounter with Respondent in his truck on her break from work on Friday, February 26, 2010, at which time she claimed they engaged in sexual intercourse. Deputy Bower was unable to verify J.D.’s claim of sexual intercourse with Respondent through any source other than J.D.’s statement. Nonetheless, Respondent was prosecuted criminally. Acquittal Respondent was charged with the crime of Unlawful Sexual Activity. He was tried by jury in the circuit court in and for Broward County and was found not guilty. See Respondent’s Ex. 1, Circuit Court Disposition Order in and for Broward County, Florida, rendered October 31, 2011, and an attached “Felony Order of Acquittal.” The Administrative Complaint and the Amended Administrative Complaint An Administrative Complaint seeking appropriate disciplinary sanction of Respondent’s educator’s certificate was issued by Dr. Tony Bennett, as Commissioner of Education, on July 8, 2013, 20 months or so after the acquittal. The complaint contains three counts of statutory violations and two of rule violations all based on facts alleged in a section entitled “Material Allegations.” The gist of the material allegations are contained in the section’s first sentence, “During the 2009/2010 school year, Respondent engaged in an inappropriate relationship with J.D., a 17-year-old, female student.” Administrative Complaint. The statutory violations are of section 1012.795(1)(d), Florida Statutes, for “gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education;” section 1012.795(1)(g), Florida Statutes, for “personal conduct which seriously reduced his effectiveness as employee of the school board;” and, of section 1012.795(1)(j), Florida Statutes, for violation of “the Principles of Conduct for the Education Profession prescribed by the State Board of Education rules.” Administrative Complaint, p. 2 of 3. The rule violations are of Florida Administrative Code Rule 6A-10.081(3)(a), “in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety,” and of Florida Administrative Code Rule 6A-10.081(3)(e), “in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.” On March 24, 2014, Petitioner executed an Amended Administrative Complaint deemed filed as of that date by an Order Granting Leave to Amend. The amended complaint adds two new paragraphs to the material allegations. The new paragraphs expand the time frame for the basis of the statutory and rule violations outside the 2009-2010 school year to prior years back to 2006. The second of the two paragraphs of material allegations alleges: In subsequent years [post-2006], including 2010, Respondent wrote type [sic] letters . . . to J.D., along with cards and music CD’s. Some of the letters contained sexually graphic language . . . Amended Administrative Complaint, para. 3 and 4. The amended complaints also add two new rule violations, one of Florida Administrative Code Rule 6A- 10.081(3)(f) that Respondent intentionally violated or denied a student’s legal rights; and, the second of Florida Administrative Code Rule 6A-10.081(3)(h) that Respondent exploited a relationship with a student for personal gain or advantage. Amended Administrative Complaint, Counts 6 and 7. Respondent’s Defense to the Factual Allegations The following statement appears in the Joint Prehearing Stipulation filed by the parties: “Respondent admitted his text messages and phone calls to J.D. but denied any sexual activity or involvement with the notes and letters.” In addition to Respondent’s testimony under oath that he did not engage in sexual activity with J.D., he points to a number of facts that support his argument for why J.D.’s testimony that it occurred should not be credited: a. her denials to law enforcement the night of February 27, 2014; b. her denials to her mother at first; c. her claim to her mother that she had sex with Respondent only after the pressure of emotional conversations and the gynecological examination that showed her to have been sexually active; d. the inconsistency between her statement under oath to Deputy Bower that the first sexual encounter with Respondent was in her senior year and the statement under oath that her first sexual encounter with Respondent was when she was in the ninth grade; and e. the testimony of Dwanaill Sutton. Mr. Sutton was a year behind J.D. in high school and a member of the wrestling team. He met J.D. when he was in the ninth grade through his best friend at the time, another male member of the wrestling team. The coaches of the wrestling team were “Coach Carradine and Shadrick Fields [Respondent].” Hr’g Tr. 279. Respondent also coached Mr. Sutton on the football team, again as an assistant coach. Eventually, Mr. Sutton and J.D. became “best friends.” Id. They remained so into Mr. Sutton’s junior year (J.D.’s senior year). They do not see each other much anymore but they communicate “[v]ia social media.” Hr’g Tr. 280. Mr. Sutton has no ill feeling about J.D.’s allegations against Respondent. While J.D. and Mr. Sutton were still under the status “best friends,” Mr. Sutton was interviewed at school one day before lunch by a detective who asked him questions about J.D. and Respondent. At lunch, Mr. Sutton asked J.D. what she knew about the detective. J.D. replied that she had given Mr. Sutton’s name to the detective. Mr. Sutton followed up by asking J.D. “what was going on with her and Coach Fields because those were the only two names that the detective mentioned.” Hr’g Tr. 284. J.D. replied “‘nothing happened.’” Id. When asked by counsel if Mr. Sutton asked J.D. “did you guys do something?” id., Mr. Sutton replied that J.D. said “‘We didn’t do anything.’” Hr’g Tr. 285. With regard to the written communication J.D. claims to have received from Respondent, he argues J.D.’s testimony should not be credited because: Respondent denies sending any such items [and did so under oath]. [citation omitted] Respondent testified that he does not write in the fashion the card and letters were written and that it seems as if someone with less than a college education prepared them. [citation omitted] He denies giving J.D. any cards, stuffed bear or bracelet. [citation omitted] Petitioner failed to produce any evidence to support the conclusion that the handwriting on the various cards and letters was that of Respondent. No handwriting expert testimony was adduced and no lay testimony was presented that the writings were that of Respondent. Respondent’s Proposed Recommended Order, p. 6 of 11, para. 16. Respondent claims that the purpose of his relationship with J.D., and the many phone calls and communications with her, was to lift her spirits in the face of personal problems at home, particularly with her step-father and not being able to live with her biological father, and ensuing academic problems and problems at school. But he admits the relationship was inappropriate: [A]s far as lifting her spirits . . . [w]hat I should have did is had a female teacher or mentor be that person for her. I shouldn’t have been there like that. That was inappropriate for me to be there. Hr’g Tr. 228.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be permanently revoked and that he be barred from re-application. DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 5th day of December, 2014. COPIES FURNISHED: Johnny L. McCray, Jr., Esquire Law Office of Johnny L. McCray, Jr., P.A. 400 East Atlantic Boulevard Pompano Beach, Florida 33060 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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 (eServed)
The Issue Whether or not Charles D. Reynolds, on January 7th, 1976, was arrested and charged with DWI, Aggravated Assault, and Resisting Arrest without Violence; the charge of DWI was reduced to driving with an unauthorized blood alcohol level; Charles D. Reynolds plead guilty, was adjudicated guilty and paid a fine of $200 plus court costs; the aggravated assault charge was nol prossed; he plead guilty and was adjudicated guilty of Resisting Arrest without Violence and paid a fine of $250 plus court costs, his license was revoked, and he was sentenced to DWI School; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Charles D. Reynolds, on December 25th, 1976, was arrested and charged with DWI, and resisting arrest with violence; he plead guilty to the lesser including Offense of Assault on a Law Officer, was put on one year's probation, sentenced to spend weekends in Jail for a period of three months beginning June 11th, 1977; he was allowed to vacate the guilty plea and plead nolo contendere to the charge of Assault on a Law Enforcement Officer with the same conditions as the guilty plea; and due to the above misconduct has failed to perform his duties as an educator as described in Section 231.09, Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.
Findings Of Fact The Respondent, Charles D. Reynolds, is presently the holder of Florida Teacher's Certificate Number 316529, Graduate Rank III and is employed in the public schools of Duval County, Florida. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated May 17th, 1977. Upon examination of the recommendation, the Commissioner of Education found probable cause for filing a petition for the suspension of the Respondent's Florida Teacher's Certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, F.A.C. This determination was made on May 17th, 1977. On May 23rd, 1977, a petition for the suspension of the Respondent's Florida Teacher's Certificate was filed. The Respondent has filed his answer to the petition and has opposed the entry of an order of suspension. The case has been forwarded to the Division of Administrative Hearings for consideration by correspondence from the Petitioner dated July 14th, 1977. On January 7th, 1976, Respondent, Charles D. Reynolds a/k/a Chuck Daniel Reynolds was involved in an automobile accident in the parking lot of his residence at the Arrowhead Apartments located in Jacksonville, Florida. Officers of the Jacksonville Sheriff's Office investigated the case and in the course of the investigation asked to enter Respondent's apartment to obtain his driver's license. Reynolds was opposed to them entering his apartment, but they did go in. Reynolds went to the bedroom and obtained the license and came back into the living room area. At that point he became angry with the officers and took a swing in the general direction of a Sergeant Branch. The other officers subdued Reynolds and handcuffed him. He was subsequently taken to the hospital for treatment of wounds received in the scuffle. In addition to the events described, Reynolds also made verbal threats against the witnesses to the accident, to the effect that he would get even with them. During the course of this entire exchange, Reynolds appeared intoxicated as evidenced in slurred speech, erratic actions, excitability and a strong odor of the substance alcohol. He continued to be belligerent and kicked the side of the police car while being transported. It should be indicated that the Respondent did not carry out any of the verbal threats that he made. As a result of the incident, the Respondent was charged with DWI, aggravated assault, and resisting arrest without violence. The charge of DWI was reduced to driving with an unauthorized blood alcohol level and a guilty plea was entered for which he was fined in the amount of $200.00. The aggravated assault charge was nol prossed. The further provision of his sentence was that he attend the DWI school. The particulars of this case may be found in the Petitioner's composite exhibit 1 admitted into evidence, which describes the pleas and the judgment and sentence. The Respondent was fined in the amount of $250.00 for his plea of guilty to resisting arrest without violence. The second incident for which Respondent is charged in the Petition for Suspension, pertains to events on December 25th, 1976. On that date officers of the Jacksonville Sheriff's Office were traveling east on 103rd Street, in Jacksonville, Florida. Reynolds was going west, driving with his bright lights on and straying into the oncoming lane in which the officers were driving. The time was approximately 1:30-2:00 a.m. The officers turned around and pursued Reynolds, who at one point in the pursuit pulled off the road to avoid the officers. The officers finally caught Reynolds on Interstate 295 in Duval County, Florida. After making the stop, they removed Reynolds from the car and noted that he had a strong odor of alcohol about his person, and was staggering around. One officer administered so-called field sobriety tests , specifically the finger to nose and balance test. In the finger to nose test the individual tries to place an index finger on his nose while standing in a certain posture. Reynolds was unable to do this and was also unable to stand on one foot in attempting the balance test. The officers felt that Reynolds was driving while under the influence of alcohol; however, being Christmas Day they intended to give Reynolds the opportunity to have someone come and pick him up and drive his car home, and waive charges. When this was explained to Reynolds, Reynolds replied that he wanted to get back in his car, for purposes of driving away. The officers prohibited him from getting in the car, at which point a struggle ensued between the officers and Reynolds for a period of minutes. Most of the struggle was in the traffic lanes of Interstate 295. In the end, Reynolds was charged with DWI, a couple of traffic violations and resisting arrest with violence. After the struggle Reynolds indicated that the officers were going to be sorry for, "screwing with me." He was taken to the Duval County, Florida Jail and booked for the offenses and given a breathalizer examination which showed his reading to be .27 percent blood alcohol level. This reading nay be found in Petitioner's Exhibit 3 admitted into evidence. He entered a plea of guilty to the lesser included offense under resisting arrest with violence, to wit assault on a law enforcement officer. The Court withheld the adjudication of guilt and placed the Respondent on probation for a period of one year on the condition that he spend weekends in jail for a period of three (3) months, beginning on June 11th, 1977, and pay $10.00 per month for cost of supervision. This plea was subsequently withdrawn and the Court allowed a plea of nolo contendere to be entered in lieu of the guilty plea. The Court also allowed a motion to mitigate the sentence, which motion was filed prior to the imposition of the petition for suspension made by the Petitioner in this cause. The Court's Order Granting the Motion to Mitigate was entered subsequent to the Petition for Suspension made by the Petitioner. The probation terms were modified by memorandum of June 9th, 1977, from the Court, deleting the provision to spend weekends in jail. Subsequently, the Respondent was required to spend time working in a program known as the Jacksonville Probation and Restitution Center, working with young offenders. (The Director of that program testified in the hearing and indicated that Mr. Reynolds did an admirable job of assisting in the program.) For the violations alleged on January 6th, 1976 and December 25th, 1976, the Petitioner has charged Respondent with violations of Section 231.09 and .28, F.S. The two incidents will be discussed chronologically in considering whether the Petitioner has proven the violations or not. The first factual incident discussed pertains to the events of January 7th, 1976. In reviewing the events that led to the arrest and charges previously discussed and the subsequent disposition of those charges in terms of a possible substitute violation of Section 231.09, F.S., the only provision of that section which would seen to have any application would be Section 231.09(2) F.S. No other sub-paragraphs of Section 231.09, F.S. seem to have application under the evidential facts established. The subsection that does have application, i.e., Section 231.09(2), F.S. reads as follows: "EXAMPLES FOR PUPILS -- Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and pat- riotism and the practice of every Christian virtue." This provision of the chapter has been considered in the case of Meltzer vs. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), in that opinion the Court held Section 231.09(2), F.S., to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc, reported at 553 F.2d 1008, The United States Fifth Circuit Court of Appeals, granted rehearing with the right for oral agreement and the opportunity to submit supplemental briefs, with the date of the oral agreement to be announced in the future. The rehearing has not been held at the time of this recommended order, to the knowledge of the undersigned. Consequently, the undersigned will report whether the evidential facts as demonstrated established a violation under the language of Section 231.09(2), F.S., with a caveat that this section may not withstand the final order of the Court in Meltzer, supra. Should Section 231.09(2), F.S. be upheld, the acts of being arrested and pleading guilty to driving with an unlawful blood alcohol level and resisting or opposing a police officer without violence constitute violations of Section 231.09(2), F.S., both in terms of the entry of the plea in those two counts and in terms of the underlying evidential facts which led to the plea of guilty. These facts establish that the Respondent failed to labor faithfully and honestly for the advancement of the pupils in their department and morals, in accordance with Section 231.09(2), F.S., assuming this latter section of the law to be constitutional. Again, the evidential facts spoken of are those established in the events reported in the hearing pertaining to the incident of January 7th, 1976, in which Respondent was driving with an unlawful blood alcohol level and resisted the police without violence. In connection with the events of January 7th, 1976, there is a further allegation of a violation of Section 231.28, F.S. In pertinent part, Section 231.28(1), F.S., states that the license can be suspended in accordance with the following language: * * * "(1) It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a mis- demeanor, felony, or any other criminal charge, other than a minor traffic vio- lation , or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of the law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the re- gulations of the State Board of Education or the school board in the district in which he is employed." In reviewing the language of that section in comparison to the facts established in the events of January 7th, 1976, it is established that Respondent is guilty of a violation of that section because he has plead guilty to driving with an unauthorized blood alcohol level and resisting arrest without violence, which are misdemeanors or other criminal charges, other than minor traffic violations. This activity was also an act involving moral turpitude. No other violations of this section were shown as a result of the matters of January 7th, 1976. Turning to a consideration of the factual matters established in this hearing as it pertains to December 25th, 1976, and in view of the discussion of Section 231.09(2), F.S., pertaining to January 7th, 1976, a violation has been shown. The events of December 25th, 1976, are likewise subject to the caveat pertaining to the case of Meltzer, supra. The events of the arrest and subsequent pleas in Court after the factual events of December 25th, 1976, have shown the Respondent has failed to labor faithfully and honestly to the advancement of pupils and their deportment and morals, by his condition while driving and by his resistance to the authorities who were trying to enforce the laws of the State of Florida. No other violations of Section 231.09, F.S., were shown for the December 25th, 1976 incident. The events of December 25th, 1976, show a violation of Section 231.28(1), F.S., in that the act of the Respondent's driving and resistance to the authorities who were enforcing the laws of the State of Florida were acts involving moral turpitude. Also by the entry of the plea of nolo contendere which the Court accepted in lieu of the guilty plea, the Respondent has been convicted of a misdemeanor other than a minor traffic violation. No other violations of Section 231.28, F.S. were shown for the events of December 25th, 1976. By the guilty plea entered to the offenses of driving with an unlawful blood alcohol level and resistance without violence in the charges of January 7th, 1976, and the nolo contendere plea to the offense of assault on a law enforcement for the events of December 25th, 1976, the Petitioner has made a prima facie proof of grounds for revocation of the Respondent's teaching certificate, as set forth in Section 231.28(3), F.S. These prima facie grounds have not been refuted by the Respondent.
Recommendation In the course of the hearing, certain witnesses testified as to the Respondent's good character and teaching proficiency. These witnesses were various members of the community and members of the staff of the school in which the Respondent teaches and pupils of the Respondent. Although these witnesses were not aware of the events involved in the incidents of January 7th, 1976, and December 25th, 1976, they were nonetheless impressed with Respondent's abilities as a teacher. In considering their testimony and the testimony offered which established the alleged violations, it is
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, and gross insubordination.
Findings Of Fact At all times material to this proceeding, the Respondent, Chico J. Arenas, was employed as a teacher by the Dade County Public Schools pursuant to a professional services contract. At the time of the hearing in this case, K. F. was a fifteen-year-old student in the 10th grade. She is a former student of the Respondent. At the time of the hearing, E. W. was a fifteen-year-old student in the 10th grade. She is also a former student of the Respondent. Both K. F. and E. W. are females. Shortly after Halloween in 1990, one day when the Respondent and K. F. were alone in a classroom, the Respondent asked K. F. whether a male student named M. was "getting action." At that time M. was a close friend of K. F. The term "getting action" was a reference to sexual intercourse. When K. F. answered the question in the negative, the Respondent repeated the question and also made statements to the effect of, "M. is lucky," that he had "heard Jamaicans are wicked in bed," and that "older guys will show you more." The Respondent also told K. F. that she made him "excited." K. F. construed these statements as being sexual in nature. As a result of these statements by the Respondent, K. F. lost the trust she had in her teacher and never went back to his class. The incident involving K. F. resulted in the Respondent being made formally aware of the School Board's policies with regard to inappropriate statements to female students containing expressed or implied sexual references and the Respondent was specifically directed to avoid sexual harassment of female students. Beginning in February of 1992, on three separate Saturdays, at approximately 11:00 a.m. on each of those days, the Respondent telephoned E. W. at her home. At that time E. W. was one of the Respondent's students. On each of those occasions the Respondent's statements to E. W. were of a personal nature and had nothing to do with the fulfillment of Respondent's duties as a teacher. On the first of the three telephone calls to E. W., the Respondent identified himself, but there was very little other conversation. Shortly after the Respondent identified himself to her, E. W. told him that she was doing something and asked if he could call back later. During the course of the second telephone call, the Respondent made statements to E. W. to the effect that he "liked" her and that he had "feelings" for her. The Respondent also told E. W. that she was "a beautiful young lady" and that she "had a nice shape." After just a few such statements, E. W. told the Respondent to call back later and she hung up. The Respondent's statements during the second telephone conversation led E. W. to believe that the Respondent had a romantic or sexual interest in her. During the course of his third Saturday telephone call to E. W., the Respondent repeated statements to the effect that he liked her, that she had a beautiful shape, and that she was a beautiful young lady. He went on to also tell her such things as that "he wanted to wrap his hands around [her] and hold [her] tight," that "he wanted to give [her] things," that her boyfriend "didn't have to know what was going on," and he also told her "not to tell her mamma [she] was talking to him on the phone." The Respondent also asked E. W. to meet him in the library near her home and to otherwise skip school so that she could be with him. The Respondent also made comments to the effect that he could do more for E. W. than her boyfriend could and that she was "a beautiful young lady, and [she] deserved beautiful things." As a result of the statements during the third Saturday telephone call, E. W. became convinced that the Respondent wanted to have a sexual relationship with her and she began taking steps to avoid the Respondent. As a student, E. W. was doing well in the Respondent's class. If she had had any personal problems that came to the attention of the Respondent, it would have been his responsibility to have referred her to one of the school counsellors. The Respondent is not certified as a counselor or as a psychologist. At the time of the telephone calls to E. W. described above, the Respondent did not have any school related business which required him to call E. W. at home, nor was he trying to reach E. W.'s mother. When the events described above were reported to school officials, the Respondent was removed from a school based employment site and reassigned to work elsewhere. The reassignment and the reasons for it became known to a number of administrators, teachers, parents, and students. The disclosure of information about the matter resulted in part from statements the Respondent made to others. The Respondent's effectiveness as a teacher has been impaired as a result of his conduct with E. W. and his prior principal would be reluctant to rehire him as a teacher. The Respondent's conduct with E. W. also constitutes misconduct in office and is a breach of his professional relationship of trust with students because it exposed a student to embarrassment and disparagement. The Respondent's conduct with E. W. also constitutes immorality.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Respondent is guilty of immorality, misconduct in office, and gross insubordination as charged in the Notice of Specific Charges and, on the basis of those conclusions, terminating the Respondent's employment. DONE AND ENTERED this 10th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 10th day of January 1994. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties: Findings of Fact submitted by Petitioner: Paragraphs 1, 2, and 3: Accepted in substance with some details modified in the interest of clarity. Paragraph 4: Rejected as irrelevant because the conduct described here was not charged in the Notice of Specific Charges. Paragraphs 5, 6, 7, the unnumbered paragraphs following 7, 8, and 9: Accepted in substance with some details modified in he interest of clarity and accuracy. Paragraphs 10 and 11: The essence of these paragraphs has been accepted, but most details have been omitted as unnecessary. Findings of Fact submitted by Respondent: By way of clarification, it is noted that the Respondent submitted two post-hearing documents in support of his positions on the issues: one titled RESPONDENT'S MEMORANDUM IN SUPPORT OF HIS PROPOSED ORDER RECOMMENDING REINSTATEMENT, and the other titled RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. The first of these two documents includes an extensive summary of the testimony, which summary has been carefully reviewed by the Hearing Officer. However, because those summaries do not constitute proposed findings of fact, they are not specifically addressed below. Here, as in the usual course of events, it would serve no useful purpose to recite at length the extent to which the summaries are or are not accurate and to do so would add to this Recommended Order voluminous subordinate and unnecessary details; details which have been carefully considered during the fact-finding in this case. Specifically addressed below are the paragraphs contained in the "Findings of Fact" portion of the RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. Paragraphs 1, 2 and 3: Rejected as contrary to the greater weight of the evidence. (This disposition of the proposed findings is, in any event, irrelevant in view of the Hearing Officer's disposition of the immorality charge). Paragraph 4: Rejected as contrary to the greater weight of the evidence. The evidence is sufficient to prove the acts alleged by a preponderance of the evidence. Paragraph 5: Rejected as contrary to the greater weight of the evidence and as constituting a proposed conclusion of law, rather than proposed findings of fact. (On the basis of Johnson v. School Board of Dade County, 578 So.2d 387 (Fla. 3d DCA 1991), the Hearing Officer has reached a conclusion different from the one proposed here.) COPIES FURNISHED: David Rothman, Esquire Thornton, Rothman and Emas, P.A. 200 South Biscayne Boulevard Miami, Florida 33131 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Dr. Joyce Annunziata, Director Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33122 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
