The Issue Did Respondent engage in a personal relationship with the student A. H. which involved sexual intercourse and kissing? Did the Respondent also send several notes and cards to A. H. about this alleged relationship? Was the student A. H. a minor at the time that Respondent is alleged to have engaged in these activities? If the facts are true, has Respondent violated various provisions of Section 231.28(1), Florida Statutes, and Rule 6B-1.006, Florida Administrative Code?
Findings Of Fact Respondent holds Florida Teaching Certificate 437177, covering the area of elementary education. The certificate is valid through June 30, 1998. Respondent was not employed as a teacher at times relevant to the inquiry. Respondent did have affiliation with Keystone Heights High School, Keystone Heights, Florida, in the capacity of volunteer trainer for the boys' basketball team in the school year commencing Fall 1990 through Spring 1991. In the calendar years 1990 and 1991 Respondent's primary occupation was as proprietor of a dance studio unaffiliated with public education. A. H. was a student at Respondent's dance studio. He had attended Respondent's dance school since he was in the 4th or 5th grade. A. H. was a freshman at Keystone Heights High School in the 1989-1990 school year, which commenced in the Fall of 1989 and concluded in the Spring of 1990. A. H. was born on April 25, 1975. In addition to A. H.'s association with Respondent's dance school, A. H. was part of the Keystone Heights boys' basketball team during the time that Respondent served as a volunteer trainer for that team, the school year 1990- 1991. In May 1990, Respondent, then 33 years old, and A. H. attended a dance competition. In that competition, Respondent and A. H. were partners. Respondent, A. H., A. H.'s mother, grandmother and two sisters were staying in a hotel in Orlando, Florida while attending the dance competition. The individuals in the party were staying in adjoining rooms. A. H. and Respondent went to one of the rooms to get dressed for the dance competition and to put on makeup. At this time A. H. and Respondent were alone. A. H. was sitting on the bed watching television having already dressed and prepared himself for the competition. Respondent approached A. H. and sat on his lap and they kissed. A. H. describes this activity as a mutual encounter. After the competition in Orlando, A. H. and the Respondent rode home together in the same car. When A. H. and Respondent got back from Orlando, they parked the Respondent's car behind the dance studio which was in a community known as Midway that is halfway between Melrose, Florida and Keystone Heights, Florida. Having parked the car, Respondent and A. H. engaged in what A. H. referred to as "heavy petting." In particular, A. H. fondled Respondent's breasts, and they kissed. Respondent kissed A. H.'s chest and neck. Before A. H. and Respondent stopped and engaged in this activity behind the studio, Respondent had commented on the trip back from Orlando to this effect, "at least you can't get me pregnant." When A. H. and Respondent engaged in their activities behind the studio after the trip back from Orlando, his shirt was off as was the Respondent's top garments. This encounter lasted approximately one hour and a half. During the summer of 1990, Respondent and A. H. made another trip to Orlando for a dance competition. On two separate nights during that trip, Respondent and A. H. engaged in sexual activity other than intercourse. On the morning of Memorial Day 1990 Respondent came to A. H.'s home in Keystone Heights. This rendezvous was arranged through a telephone conversation between A. H. and Respondent. When Respondent arrived at A. H.'s home he was alone. A. H. and Respondent went to A. H.'s room and engaged in sexual intercourse while in a state of undress. They then showered together and had sexual intercourse a second time. A. H. had never engaged in sexual intercourse before this date. Between Memorial Day 1990 and February 1991, Respondent and A. H. engaged in sexual intercourse approximately 30 times. In addition to having sex in A. H.'s home; they had sex at a duplex apartment in Keystone Heights that was owned by A. H.'s father; they had sex in a car that belonged to Respondent's mother-in-law; they had sex at Respondent's home; they had sex in a guest house on the same property as Respondent's home; and, they had sex at the dance studio. The rendezvous between A. H. and Respondent for purposes of the sexual encounters were clandestine. A. H. was unaware if he and the Respondent were seen or suspected of engaging in their activities. During the course of their relationship, Respondent mentioned marriage to A. H., but A. H. would not discuss marriage with the Respondent. Respondent told A. H. that when he reached the age of 18 that the Respondent and A. H. would run away together and she would work and put A. H. through school. A. H. stated that his reaction to that comment was "I was scared." He remarked about his response to her comments, "just for the time, you know, I'd agree with her, 'Yeah, sure. That's nice.' and try to blow it off and get to the next subject." During their relationship A. H. voluntarily and willingly participated in those pursuits. During the relationship, Respondent wrote notes to A. H. about her feelings for A. H., the details of which were not established at hearing through competent evidence so that facts might be found concerning the contents of those notes. During the relationship between A. H. and the Respondent, Respondent told A. H. that she loved him. Eventually the relationship was concluded by A. H., who states "I broke it off, I just--I couldn't take that much pressure. So I just told her I didn't want to continue the relationship." That decision to conclude the relationship was made in February 1991. At that time A. H. was a sophomore in high school. By virtue of comments made to his friends and acquaintances, it may be inferred that A. H.'s parents found out about his relationship with Respondent. That discovery was made on April 16, 1991. The circumstances involving A. H.'s decision to conclude the relationship in February 1991, the consequences of his parent's discovery in April 1991 and the overall relationship between A. H. and the Respondent were not shown to have left A. H. in a condition that was harmful to his mental or physical health or such that the events constituted harm to his ability to learn as a student, or found to cause A. H. unnecessary embarrassment or disparagement or were they matters which affected his safety.
Recommendation Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Counts I, III and VI; that dismisses Counts II, IV and V; and that revokes Respondent's teaching certificate for a period of 5 years. DONE and ENTERED this 20th day of February, 1995, in Tallahassee, Florida. CHARLES C. ADAMS 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 20th day of February, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact of the parties. Petitioner's Facts: Paragraphs 1 through 8 are subordinate to the facts found. Paragraph 9 is rejected in that it does not completely describe the reaction by A. H. Moreover, a finding concerning his reaction is not necessary to the resolution of the dispute. Paragraphs 10 through 12 are subordinate to the facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraphs 14 through 16 are subordinate to the facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 and 19 are subordinate to the facts found. Paragraph 20 is contrary to the facts found. Paragraph 21 is not necessary to the resolution of the dispute. Paragraph 22 is subordinate to the facts found. Paragraph 23 is not necessary to the resolution of the dispute. Paragraph 24 is subordinate to the facts found. Paragraphs 25 through 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to the facts found. Respondent's Facts: Paragraphs 1 through 6 are subordinate to the facts found. Paragraphs 7 and 8 are not necessary to the resolution of the dispute. Paragraph 9 is subordinate to the facts found. Paragraphs 10 and 11 are not necessary to the resolution of the dispute. Paragraphs 12 through 82 constitute recitation of testimony, legal argument and some suggested fact finding which is intended to exonerate Respondent. These paragraphs are rejected as contrary to the facts found. Paragraphs 83 through 86 are subordinate to the facts found. Respondent's proposed fact discussion concerning the alibi for Memorial Day 1990 is rejected in that it has been determined that the sexual encounter between the Respondent and A. H. occurred before her trip to Jacksonville, Florida on that date. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way, Suite G Tallahassee, Florida 32308 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 244 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times relevant to these proceedings, respondent was the holder of a Florida Teacher Certificate Number 517639. This certificate was issued on October 21, 1982 and had a validity period of July 1, 1982 through June 30, 1983. The Respondent by "Answer to Administrative Complaint" dated August 9, 1983, admitted be holds teaching certificate 517639. During the 1982-83 school year, the respondent was employed by the Washington County School District as a teacher at the Dozier School for Boys. Dozier School is a correctional school. On May 6, 1983, respondent's youngest son, Allen Trout, a fifth grade student, had a birthday slumber party at his home. Ricky Clarke, age eleven, Tim Knowles, age nine, Henry Knowles, age eleven, Hugh Knowles, age eight, Jonathan Griggs, age eleven, and Allen Shipes, age ten, attended the slumber party. That same evening respondent's oldest son had several boys his age over for a campout. Most of the boys attending the slumber party arrived at the Trout home in the late afternoon after school. While at the slumber party the boys played chase, had a bubble fight, watched movies on television and ate hamburgers and ice cream and cake. At some point during the evening, the specific time being unknown, the younger boys accompanied by Allen Trout and the respondent went into a shed located adjacent to the Trout home. Once inside the shed, the respondent obtained two German nudist colony magazines and gave it to the boys to look at. These two magazines contained nude pictures of men, women, boys and girls. One picture showed nude people on a beach. While in the shed the boys also obtained a Hustler magazine and began looking at the pictures it contained. The Hustler contained pictures of nude women kissing and touching other women and nude men kissing and touching other nude men. The Hustler also contained pictures of nude men and women engaging in sexual acts. Although the evidence was unclear as to who specifically gave the boys the Hustler magazine, the respondent was aware that the boys were looking at all three magazines. The older boys also observed the young boys looking at the magazines. One of the boys, Tim Knowles, had prior to this occasion been permitted by his father to look at Playboy magazines at home. These magazines contained pictures of nude women. The following day several of the boys told their parents about the magazines. Some of these parents filed complaints with the Washington County Sheriff and on Wednesday, May 11, 1983, Sheriff Fred Peel served a search warrant upon the respondent. Sheriff Peel searched the shed at respondent's home and found no magazines as described above. Respondent testified at the final hearing that he had burned the magazines on May 7, 1983, the day after the slumber party. Respondent was subsequently arrested and charged with a violation of Section 847.011, Florida Statutes. On December 21, 1983, respondent was convicted of this charge by a jury and on January 20, 1984, was adjudicated guilty. Respondent was placed on probation for six months and fined $391.50. Violation of Section 847.011 constitutes a third degree felony. The conviction of respondent as well as the events giving rise to the conviction have received a great deal of notoriety in the local community. Respondent's conduct and his conviction have substantially reduced his effectiveness and ability to perform as a teacher in Washington County. Upon being informed of the complaints against the respondent, the Superintendent of Schools for Washington County suspended respondent without pay and recommended his dismissal from employment with the Washington County School Board.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That a final order be entered by the School Board of Washington County finding the respondent guilty of the violations as stated above and dismissing him from his employment with the School Board of Washington County and denying any claim he may have for back pay. That a final order be entered by the Education Practices Commission finding respondent guilty of the violations as stated above and revoking his teaching certificate No. 517639 for a period of one (1) year. DONE and ORDERED this 6th day of July, 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1984. COPIES FURNISHED: J. David Holder, Esquire Berg and Holder Post Office Box 1694 Tallahassee, Florida 32301 Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 W. Paul Thompson, Esquire Post Office Drawer 608 DeFuniak Springs, Florida 32433 Donald L. Griesheimer, Director Education Practices Commission Knott Building Tallahassee, Florida 32301 Charles Adams, Superintendent Washington County School Board 206 North 3rd Street Chipley, Florida 32428 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent, Michael John Mancuso, (the licensee), holds license number 62-0337, Series 4-COP, authorizing him to sell alcoholic beverages by the drink for consumption on the premises of The Gaslight Lounge, located at 2070 U.S. 19 South, Clearwater, Florida. The Gaslight Lounge is a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay tips for a "table dance." 3/ The dancers are physically attractive females dressed in underwear or "T-back" 4/ bathing suit bottoms and bathing suit or tank tops. They are engaged by the management of The Gaslight Lounge to perform at the lounge. As they dance on stage, the disc jockey on duty introduces them by their stage names to the patrons present and encourages the patrons to ask the dancers to perform "table dances" for them personally. The dancers also directly solicit "table dances" from the customers. At the end of each shift, each dancer generally "tips out" i.e., pays out of tips collected, $15 to the manager, disk jockey and bartender. Ever since the Respondent acquired The Gaslight Lounge in about 1982, he has been concerned about illegal activities on the premises that could jeopardize his license. He has conferred with law enforcement to ascertain his responsibilities as to both drug use and lewd activities on the premises. As a result, he made and enforced a policy that dancers at The Gaslight Lounge are not permitted to touch patrons at all with the dancer's vaginal or anal area and are not permitted to touch the groin area of the patron with any part of the dancer's body; the patron is not permitted to touch the dancer's breasts, buttocks or vaginal area. Patrons are not permitted to touch the dancers in the breast, buttocks or vaginal area. The Respondent instructed his employees that patrons who violated the policy should be warned to stop and, if necessary, be required to leave the premises. The Respondent understood that violations of his policy would result in unlawful lewd acts. During his ownership of The Gaslight Lounge, the Respondent has instructed his managers and all employees about the policy against lewdness (as well as other policies). The employees--bartenders, waitresses, disk jockeys and dancers--were instructed to notify the manager on duty if they witnessed violations of the Respondent's policy. The Respondent also made it a practice to visit the establishment, during the hours it was open, but not on a regular schedule, to most effectively monitor for compliance with his policies. If he or one of his managers saw, or were told of, a violation of the Respondent's policy against lewdness, the offending dancer would be cautioned to observe the policy, sometimes after being called off the floor and into a back office. If the dancer repeated the offense, the dancer would be subject to being fired. Over the years, dancers have been fired for lewd dancing in violation of the Respondent's policy. Enforcement of the Respondent's policy against lewdness is not easy. Since the patron typically is seated with his back to the wall, the dancer's body is between the patron and almost anyone viewing the dance and partially obstructs the view. In addition, the lighting inside the establishment is dim, making it difficult to see exactly what the dancer and patron are doing, especially if seen from a distance. There are columns and half-walls in the building. In addition, patrons and employees circulate within the establishment, and dancing takes place on a stage in the middle of the establishment, all of which also can obstruct one's view of a "table dance," depending on the location of the viewer and the dance being observed. A "table dance" typically lasts for one song played by the disk jockey. The dancer escorts the patron to one of the booths lining the perimeter walls of the bar area, sits the patron down near the edge of the booth bench and begins "dancing." Even if it remains within the bounds of the Respondent's policy against lewdness, the dance is intended to be sexually suggestive and provocative, sometimes appearing to simulate sex acts. Depending on how the dance is performed, it can give the illusion that the dancer is rubbing various parts of her body, including the genital area, buttocks and breasts, against various parts of the body of the customer, including his genital area and face. Regardless how the dance is performed, the customer remains fully dressed, and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit). The Respondent concedes that dancers have violated the Respondent's policy against lewdness. The evidence is that the Respondent tries to police and prohibit these violations, not always successfully. Sometimes, the Respondent or his manager, bartender, disk jockey or other employee think they see lewd dancing taking place, only to see from close proximity when they approach the dancer to reprimand her that no physical contact actually was occurring during the dance. Clearly, there is tension between the Respondent's policy and the economics of an establishment such as The Gaslight Lounge. Although less than a majority of the patrons of the establishment ask for table dances (the testimony included estimates of 15 to 20 percent), table dancing undeniably is a prominent part of the spectrum of entertainment offered at The Gaslight Lounge. For many patrons who ask for table dances, the more suggestive and provocative the better. The evidence suggested that the patrons receiving table dances never have complained that dancers violated the Respondent's policy. Although it was disputed that the amount of the dancers' tips are exclusively related to how suggestively and provocatively they dance, it is clear that this is a big factor. Walking the line drawn by the Respondent (and the authorities) to prohibit lewd dancing at The Gaslight Lounge is somewhat akin to trying to keep a pot of water from boiling over with the heat on high. At the same time, the tension between the Respondent's policy and the economic facts of life also can serve to aid in the monitoring and enforcement of the policy. A dancer who observes the policy feels at an unfair disadvantage when another dancer is violating the policy, and it is likely that the "legal" dancer will attempt to enforce the policy, by either threatening to report the "lewd" dancer or, if necessary, by reporting her to the manager or to the Respondent. In August, 1989, an undercover investigation was conducted at Sweethearts, an "exotic dance" lounge in which the Respondent was part owner. It resulted in the arrest of several dancers. The Respondent happened to be driving past the lounge when the arrests were being made and pulled in to see what was going on. When the Respondent told the law enforcement officers who he was, he was arrested for keeping a house of ill fame. Although the Respondent's efforts to understand exactly what was being enforced, i.e., exactly what was considered to be illegal lewd dancing, was somewhat frustrated by the various answers he received to his questions, the answers confirmed that the policies he had in effect against lewdness were adequate to prohibit the type of dancing that was considered by law enforcement to be lewd and illegal. This confirmed to him that if he continued to enforce his policies, he would be able to continue to operate his exotic dance lounges within the limits of the law. On October 12, 1989, two DABT investigators conducted an undercover operation at The Gaslight Lounge. The purpose of the operation was to see if violations of the criminal laws against lewdness were taking place in the lounge. During the time the investigators were in the lounge, they believed that they observed lewd acts by several dancers. The investigators believed that the dancers rubbed various parts of their bodies, including the genital area, buttocks and breasts, against various parts of the body of patrons, including the genital area and face, and that some of the patrons rubbed the breast area of the dancer or grabbed their buttocks in the area of the anal cleft, behavior which the dancers did little to stop or deter. These observations were made from a table in the lounge; the conduct being observed took place at the booths along the wall between approximately ten to twenty-five or more feet away. In all cases, at least some part of the dancer's body was between the patron and the investigator. In some cases, there was a column in the general vicinity of the investigator's line of vision; sometimes, there were other hindrances to the vision of the investigators, such as half-walls, other patrons or other employees. The lighting was dim; it would have been difficult to read a newspaper at the table where the investigators were sitting. Instead of exclusively relying on their powers of observation, each investigator asked a dancer to perform one table dance for him personally. During the dances actually performed for the investigator, no lewd activity was observed. The dancers did not actually touch either investigator with any part of the dancer's body. Neither investigator touched either dancer in the vaginal or breast area. The Respondent, who was in the lounge for part of the evening, and all of the employees working in the lounge that night who testified, testified that they observed no violations of the Respondent's policies against lewdness on October 12, 1989. At the end of the evening, uniformed sheriff's deputies entered The Gaslight Lounge and arrested all of the dancers, except the two that actually performed table dances for the DABT investigators, for illegal lewd acts. The next day, the Respondent and his manager spent hours on the phone trying to find dancers to replace those that had been arrested and to persuade the others to work that evening, notwithstanding the arrests of the night before. The Respondent, his manager and all the employees who worked that evening, especially the dancers, were very aware of the arrests of the night before. The dancers and all the employees were cautioned not to violate the Respondent's policy against lewdness. Some of the dancers were afraid to do any table dances at all for fear of arrest in light of the events of the previous evening, and some restricted their dancing on October 13 to the stage in the middle of the lounge. On the evening of October 13th, unaware of the events of the previous evening, three sheriff's deputies investigated The Gaslight Lounge for lewd activity. These deputies described essentially the same observations of the table dances as the DABT investigators had made the evening before, from vantage points that were no better. In addition, the observations of two of the deputies included rather bizarre alleged behavior consisting the dancer rubbing the patron's groin and chest area with the top of her head. None of the Respondent's employees observed any such behavior. The Respondent, who was in Orlando on the evening of the thirteenth, testified that he never observed dancers behave in such a manner in all the years he owned and operated The Gaslight Lounge. The Respondent was rightly skeptical of these so-called observations. At the end of the evening, the sheriff's office arrested all of the dancers, even the ones who had refrained from performing any table dances that night. The employees working at The Gaslight Lounge on October 13, 1989, who testified at the hearing testified that they observed no violations of the Respondent's policy against lewdness that evening. After the arrests on October 13, 1989, the Respondent was so convinced that the dancers were innocent that he paid to bail them out of jail and paid their lawyers to defend them on the criminal charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the Notice to Show Cause against the Respondent, Michael John Mancuso, d/b/a The Gaslight Lounge, located at 2070 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 13th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of February, 1991.
The Issue The issue is whether Respondent's Teaching Certificate should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint. The Petitioner presented the testimony of Linda Rondone, Jane E. Vowell, Susan C. Vassilev, Kyril P. Vassilev, III and Johnny B. McKenzie. Petitioner's Exhibits 1-5 were admitted in evidence. Official recognition, pursuant to Section 90.202, Florida Statutes, was taken of the statutes and violations charged in the case of State of Florida v. Jeffrey Siegfried, 85-1568 MMA02, and the Code of Ethics of the Education Profession in Florida, Section 6B--1.01, Florida Administrative Code. The Respondent, Jeffrey W. Siegfried, failed to appear for the formal hearing despite notice to him personally and to his former counsel who was granted leave to withdraw. Petitioner submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 440229, issued by the Department of Education for the State of Florida. The Respondent's Teaching Certificate covers the areas of English and Reading. On or about June 13, 1978, the Respondent applied for a teaching certificate for the State of Florida. The Respondent filled out the application and answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application in front of a notary on June 13, 1978, certifying that all information pertaining to the application was true and correct. Petitioner presented charging documents from the Court of Common Pleas of Montgomery County, Pennsylvania, in which the Respondent was charged with three crimes alleged to have occurred on June 7, 1975, to wit: Unlawful Possession of a Controlled Substance, Corruption of Minors and Disorderly Conduct. Further, the documents indicated that the Respondent was sentenced on December 4, 1975, to the Program of Accelerated Rehabilitative Disposition on the charges of Possession of Marijuana and Corruption of Minors. The program involved a twenty four (24) month probationary period and payment of $350.00 restitution. The charge of Disorderly Conduct was nolle prossed. On July 20, 1979, the Respondent filled out an Application of Instructional Position for Palm Beach County, Florida. The Respondent in said application again made no mention of his criminal history. He again checked off "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application certifying that all the answers given were true. In the fall of 1980, the Respondent was employed by the Palm Beach County School District. On January 24, 1986, an Information was filed in the County Court of Palm Beach County, Florida, charging the Respondent with Possession of Marijuana on January 15, 1985 and Child Abuse on December 23, 1984. Susan C. Vassilev, mother of Kyril Vassilev, testified that she had been friends with the Respondent for 3 or 4 years preceding December of 1984. Throughout their acquaintance, the Respondent was employed as a full time teacher for the Palm Beach County School Board. Mrs. Vassilev's son, Kyril, occasionally did yard work and odd jobs for the Respondent. On December 23rd of 1984, Mrs. Vassilev reminded her son about a Christmas Eve dinner invitation at the Respondent's house. He answered her, "No, I'm not going there. He's a fag. I don't want anything to do with him." Mrs. Vassilev than testified as to what her son told her which was again reiterated by her son when he testified later in the hearing. In November and December, 1984, Kyril Vassilev was thirteen (13) years old. He had met the Respondent through his mother and knew the Respondent to be a teacher in Palm Beach County. Kyril went to the Respondent's house in late November or early December of 1984 to do some yard work for the Respondent. The Respondent picked Kyril up and while in the Respondent's van, the Respondent suggested that he knew a way for Kyril to earn a lot of money and only work two hours a day, 2 or 3 times a week. After Kyril mowed the Respondent's yard, he came into the Respondent's house for a drink. He asked the Respondent how he could make such easy money. The Respondent told him it was called child pornography and explained that it involved Kyril posing for nude photographs. The Respondent showed Kyril photographs of a nude boy in a magazine and claimed that he had helped the boy earn money by arranging for him to pose nude. Kyril told the Respondent that he wasn't interested and went back outside to continue staining the backyard fence. After a while, Kyril went back inside for another drink. The Respondent at that point told Kyril that the photographers had called and were willing to pay him $200.00 for posing nude. Kyril again told the Respondent that he was not interested. After finishing work, Kyril again came into the house and the Respondent told him the photographers had called again and upped the price to $500.00. Kyril told the Respondent no again. The Respondent sent Kyril to buy camera film at Eckerds. Kyril testified that he was afraid, but he went and got the film and brought it back. Again the Respondent asked Kyril if he would reconsider. Kyril, again, declined. Before Kyril left, the Respondent informed him that he couldn't tell his mother or anyone else. The Respondent told Kyril that he need not worry about his mother finding out, because the Respondent would open a secret bank account for him, where he could keep the money. Before leaving for the day, Kyril testified that, the Respondent told him "they" had called and were now willing to pay up to $1,000. The Respondent took Kyril home and enroute again tried to talk him into posing nude. Kyril again declined. The Respondent indicated that Kyril could make even more money doing things with other boys in front of the camera. Kyril was waiting until after Christmas to tell his mother, but because of the invitation to the Respondent's residence for Christmas Eve dinner, he decided to tell his mother on December 24, 1984. Mrs. Vassilev confronted the Respondent with her son's allegations and he claimed to be working undercover for school security to infiltrate a child pornography ring. Johnny B. McKenzie testified that as Director of Security for Palm Beach School Board that he had no knowledge of the Respondent working for school security. On July 11, 1985, the Respondent pled no contest to Count I, Possession of Marijuana less than 20 grams and Count II, Child Abuse. Judge Karen Martin, County Court Judge in and for Palm Beach County, Florida, withheld adjudication as to Count I and adjudicated the Respondent guilty of Count II. The Respondent was placed on twelve (12) months probation with special conditions that he: (1) make no contact with any child under the age of 18 years without another adult being present; (2) make no contact with the mother of the victim and/or the victim, himself; (3) undergo substance abuse evaluation and treatment if needed; and, (4) undergo psychological evaluation and counseling if needed. Ms. Jane E. Vowell, then acting as Assistant Superintendent, testified that on or about January 17, 1985, the Respondent was called into her office and she informed him of the charges against him, and told him that she would recommend to the Superintendent that he be suspended with pay and given an opportunity to resign. The Respondent resigned on February 4, 1985. Ms. Vowell testified that the Respondent's teaching certificate should be permanently revoked because he lacked the moral character needed to be a teacher responsible for children. On March 6, 1985, the Respondent submitted an Application for Instructional Position to the Broward County School Board. The Respondent again answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" He again signed the application certifying that all the information given on the application was true and correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the teaching certificate of Jeffrey W. Siegfried. RECOMMENDED this 5th day of February 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2020 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed findings of fact 1-33 are adopted in substance in Findings of Fact 1-33. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Jeffrey W. Siegfried Post Office Box 172 Truro, Massachusetts 02666 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue Whether Respondent's teacher's certificate should be revoked or otherwise disciplined.
Findings Of Fact Respondent held Florida Educator's Certificate No. 609670, covering the areas of Physical Education, General Science, and Education Leadership. The certificate expired on June 30, 2000. However, Respondent has the option to ministerially renew his certificate. In 1989, Respondent was a teacher at Pensacola High School. During the summer of 1989, Dona Snyder, then 18 years old, was a student at Pensacola High School. Respondent would often speak with Dona at school and telephone her at home to ask her to go out with him. She turned him down. However, the day before summer school ended Dona and Respondent engaged in romantic hugging and kissing. The last day of school they went to eat at a local restaurant. Later in the year, after Ms. Snyder had graduated, Dona and Respondent engaged in sexual intercourse, which resulted in the birth of a child. From 1994-1998, Respondent was employed as a Physical Education teacher at Pine Forest High School, in Escambia County. In 1994, M.M., aged 14, was a ninth-grade student at Pine Forest High School. She met Respondent during that year. When M.M. was in the tenth grade, Respondent chaperoned M.M's. ROTC class to Seattle, Washington. M.M. and Respondent became more familiar with each other during the trip. They became very comfortable with each other and Respondent began making comments of a sexual nature about M.M's. appearance. M.M. developed a crush on Respondent. When Respondent and M.M. returned from the Seattle trip, they visited each other at various locations at Pine Forest High School. In April 1996, towards the end of M.M.'s tenth grade year, Respondent told M.M. that he would like to see her away from school. Respondent made it clear that he was interested in a sexual relationship with M.M. M.M. was around 16 years old at the time. Respondent encouraged M.M. to either lie to her mother or sneak out of her home at night in order to meet him. At first, M.M. refused Respondent's suggestions. She did not think sneaking out was right. Later in 1996, Respondent and M.M. saw each other at a football jamboree. Respondent gave M.M. his telephone number. M.M. later telephoned Respondent and they decided to meet at the University Mall. It was agreed that M.M. would concoct a pretextual reason to go to the mall which she would tell her mother. After they met at the mall, Respondent took M.M. to his home. They went to his bedroom and had sex. After this first sexual encounter, Respondent and M.M. started meeting each other and having sex almost every weekend for more than a year. M.M., with Respondent's encouragement and complicity, would sneak out of her mother's home from her bedroom window at approximately 2:00 a.m. Respondent would pick her up several blocks away from her house. They would go to Respondent's house and have sex. Afterwards, Respondent would take M.M. back to the place where he picked her up. M.M. would then walk back to her house and enter through her bedroom window. Clearly, Respondent placed M.M. in a dangerous situation by encouraging and facilitating these late-night excursions. Respondent and M.M. had sex in various places, such as Respondent's home, Respondent's car, Belleview ball park, the school baseball field, and the baseball locker room. On one occasion, Respondent took M.M. and another female high school student to a local hotel for group sex. Respondent provided alcohol to the girls. He directed the girls to have sex with each other. While the girls had sex with each other, Respondent watched. Respondent had sex with the other student and then had sex with M.M. During their relationship, Respondent told M.M. not to tell anyone about their affair because he could lose his job and go to prison. Respondent also talked M.M. into foregoing her desire to pursue college and ROTC. Through this relationship, he directly contributed to M.M.'s grades deteriorating and a loss of self-esteem. The good relationship she had with her mother deteriorated. M.M. was known as Coach Bragg's girlfriend. He encouraged her to lie to her mother. None of these behaviors should be encouraged or promoted by a teacher. The relationship between Respondent and M.M. came to light when M.M's. mother woke one night and discovered her daughter missing. She confronted M.M. when M.M. was attempting to get back into her bedroom through the window. M.M's. mother telephoned the police. Later, Respondent lost his effectiveness as a teacher when he was removed from his teaching position. Respondent was arrested and charged with unlawful sexual activity with a minor. On or about July 7, 1998, the case against Respondent was nolle prosequi by the court because Respondent had instructed M.M. to lie about their relationship. During the time of the prosecution, Respondent also caused M.M. to ignore her subpoena to testify at Respondent's trial and go into hiding until the prosecution was dismissed. However, a bench warrant was issued for M.M. Once it became clear that the prosecution would be pursued, M.M. returned to Escambia County and was arrested and jailed on a bench warrant which had been issued for her failure to appear at trial. Respondent concocted a story for M.M. to tell to the prosecution. He talked her into marrying a best friend of Respondent's so that she could say she was seeing this friend instead of seeing Respondent. Respondent's lack of moral character is apparent. As a teacher, Respondent held a position of trust towards M.M. and Dona Snyder. Clearly by engaging in a sexual relationship with them he breached that trust and violated both the Florida Statutes and Florida Administrative Code. Respondent has repeated this predatory behavior over the course of his teaching career and cannot be trusted to protect female students from his amorous intentions. Clearly, Respondent does not have the moral character to be a teacher and should not be permitted to hold or renew his teaching certificate.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 609670. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 15th day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire 528 East Park Avenue Tallahassee, Florida 32301 Michael D. Tidwell, Esquire 811 North Spring Street Pensacola, Florida 32501 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Education Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 570975 issued by the State of Florida, Department of Education, covering the area of physical education. At all times material hereto, Respondent was employed by the Palm Beach County School Board and assigned to Santaluces Community High School. Incident to his teaching position at that school, Respondent also was one of the coaches for the male wrestling team and was a weight instructor. During the 1987-88 school year, Gina Marie Finnan attended the Respondent's third period personal fitness class at Santaluces Community High School. During the month of November, 1987, Finnan, then a sophomore born August 30, 1971, became a statistician for the school's wrestling team. As a statistician for the wrestling team, Finnan worked under Respondent and began to accept rides home from him following practice sessions and/or wrestling matches which were conducted either at the high school or at other sites within the community. The first physical encounter between Finnan and Respondent occurred at the conclusion of the Thanksgiving Sock Hop held at the school. Initially, Finnan had obtained possession of the Respondent's keys while they were in the school gym. The Respondent, in an attempt to obtain the return of his keys, made physical contact with her and ultimately ended up seated on the gym floor with his back resting against the bleachers and Finnan seated on his lap. With Finnan sitting on his lap, Respondent then placed his arms around her and kissed her. The only other person then present in the gym was Finnan's friend and classmate, Katherine Coffin. Coffin had been with Finnan for the sock hop and was prepared to proceed to lunch when she observed Respondent and Finnan "playing around" while fighting over Respondent's keys. During this time, several students attempted to enter the gym but were told to leave by Respondent. Respondent then went over and shut the doors to the gym, which caused the doors to automatically lock, thereby preventing anyone from entering the gym. Following this, Respondent and Finnan became silent, so Coffin walked around the bleachers and observed Respondent sitting on the floor with Finnan in front of him with her back to him. Respondent had his arms around Finnan. At that time, Coffin left the gym. Katherine Coffin did not feel that Respondent's conduct at the time was "right" for a teacher. The next time Respondent made physical contact with Finnan was near the end of November following a wrestling match on school grounds. At the time, all the equipment had been secured and the two of them were in the locker room Respondent kissed the student and touched her breasts and buttocks. This was followed by Respondent's offer to drive the student home. The student then called her mother to advise her that she need not come to school to pick her up in that Finnan had found another ride home. In route to the student's residence, Respondent parked his vehicle off the side of the road, and the two began kissing, with the Respondent "feeling" the student's breasts. This incident was followed by five or six other incidents when Finnan would accept rides home from the Respondent, and Respondent would kiss her and feel her breasts and buttocks. Shortly before the Christmas holidays, Finnan was approached by Respondent and advised that his wife would be away for the holidays and the student "should try to maybe stop by and see him and spend more time with him." Finnan solicited the help of another classmate, Robin Freedman, in hopes that she would help provide her with an alibi should the opportunity present itself for her to spend time with Respondent. This help consisted of Robin Freedman providing a "cover" for Finnan by telling Finnan's mother, should she call, that Finnan was there but unavailable to speak with the mother at the time. When Gina Finnan asked her to "cover" for her while she was visiting Respondent, Robin Freedman "didn't know what to say" in response to Gina's request so she went to her own mother for advice. During this time period, Gina Finnan received two letters from Respondent. Both of these letters were destroyed by Finnan, but, before their destruction, at least one of the two letters was shown to Katherine Coffin and to Robin Freedman. The one letter was described as a "fantasy letter" which talked about wanting to have sexual intercourse. Although the letters were not signed except for initials that did not correspond with those of the Respondent or Gina Finnan, Respondent, when questioned by Finnan, related to her that "it was in case anybody found them," and that Finnan was to throw them away.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the teaching certificate of Mark Miele be permanently revoked. DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-2841 Petitioner's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 16-18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. The statements contained within the five unnumbered paragraphs of Respondent's proposed recommended order have been rejected as being contrary to the weight of the credible evidence in this cause. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Mark Miele 5350 Rosemarie Avenue North Boynton Beach, Florida 33437 Martin B Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1997), to terminate Respondent's employment as a classroom teacher. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner employed Respondent as a member of the instructional staff at Beaumont Middle School, now known as Kissimmee Middle School ("Kissimmee"), pursuant to a written annual contract as required in Section 231.36(1). Respondent first taught at Kissimmee in the 1995-96 school year. Prior to that, Respondent taught school in Virginia. On November 29, 1996, Respondent was in his second year at Kissimmee. However, he had not yet signed his annual contract for the 1996-97 school year. On November 29, 1996, Respondent was arrested in the Florida Mall in Orange County, Florida. He was charged with indecent exposure of sexual organs. The charging affidavit alleges that Respondent masturbated while standing at a urinal in the men's room of a Sears department store in the Florida Mall. The affidavit also alleges that a male at an adjacent urinal also masturbated. Petitioner proceeded with disciplinary action against Respondent in accordance with the procedure prescribed in the contract between Petitioner and the Osceola Classroom Teachers Association. In a letter dated December 3, 1996, from Dr. Thomas McCraley, Superintendent, Osceola County School District, Petitioner suspended Respondent with pay. By letter dated December 16, 1996, Respondent requested an administrative hearing. On December 17, 1996, the Board voted unanimously to suspend Respondent without pay ". . . because the employee is requesting an administrative hearing." The Board referred the matter to DOAH to conduct an administrative hearing. The ultimate issue is whether Petitioner has just cause to terminate Respondent's employment. Just cause is defined in Section 231.36(1) to include misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. In the letter from Dr. McCraley, Petitioner expands the statutory definition of just cause to include immorality and misconduct other than misconduct in office. Dr. McCraley's letter is the only charging document in this case. The charging document is the instrument by which the Board provides Respondent with notice of the charges against him. The charging document states that there is just cause to terminate Respondent's employment based solely on: the alleged sexual acts, including masturbation; and the subsequent arrest. In relevant part, the charging document provides Respondent with notice of the following charges against him: This letter will serve to formally advise you that you are hereby suspended with pay from your position . . . effective immediately. Also, please be advised that I will recommend to the . . . . Board at the December 17, 1996 Board meeting that your contract with the School District be terminated. Please be advised that in the event you timely request a hearing, I will be recommending to the . . . Board that you be suspended without pay until this matter is fully adjudicated. Your recommended termination is based on the following information: On or about November 29, 1996 while you were on or about the Sears restroom in the Florida Mall . . . you were observed and did perform inappropriate and improper sexual acts in the presence of a minor person. These acts include . . . masturbation. You were thereafter arrested by law enforcement for those acts. The above-described acts and subsequent arrest constitute grounds under Section 231.36 . . . for your termination, including . . . misconduct in office, immorality, misconduct, and, if convicted of this offense, conviction of a crime involving moral turpitude. . . . The charging document does not charge that Respondent's teaching ability is impaired. However, Petitioner did disclose in its responses to interrogatories that it intended to present evidence relevant to this additional charge. Petitioner provided Respondent with adequate notice of the additional charge of impaired teaching ability. Evidence relevant to this additional charge did not exist when Petitioner issued the charging document. When Petitioner discovered such evidence, Petitioner properly disclosed the additional charge to Respondent during discovery. This proceeding is not penal in nature. It does not propose disciplinary action against Respondent's license. The original charges in the charging document are based solely on the alleged sexual acts in the men's room. The charges disclosed in the responses to discovery are based on alleged adverse publicity and its effect on the school environment. Petitioner failed to show by a preponderance of the evidence that Respondent committed any sexual acts in the men's room. Without proof of the underlying facts, Petitioner lacks just cause to terminate Respondent's employment on the grounds stated in the charging document. Just cause is statutorily defined to include the conviction of a crime of moral turpitude. Respondent was not convicted in criminal court of a crime involving moral turpitude within the meaning of Section 231.36(1). On August 4, 1997, the judge in the criminal case granted a motion for judgment of acquittal and excused the jury. The charge that Respondent engaged in sexual acts in the men's room is based solely on the observations of Deputy Steven Franklin of the Orange County Sheriff's Office. Deputy Franklin and Deputy Tina Durden were at the Florida Mall on November 29, 1996, to investigate complaints of homosexual acts committed in bathrooms at the mall. Deputy Franklin went into a men's room to urinate. He used a urinal adjacent to the urinal used by Respondent at the same time. Another male was adjacent to Respondent but on the opposite side of Respondent from Deputy Franklin. Deputy Franklin observed Respondent and the other male for less than two seconds. While he was waiting for a urinal, Deputy Franklin also observed Respondent from behind for a few minutes. However, Deputy Franklin could not observe Respondent's hands before he stood beside Respondent at the urinal. The observations by Deputy Franklin for less than two seconds are insufficient to determine whether Respondent was masturbating or voiding Respondent's urinary tract. Respondent has a medical history that makes it difficult for Respondent to determine whether his urinary tract is empty after he urinates. On November 29, 1996, Respondent went to the Florida Mall to obtain a fresh supply of a cleaning solution he used to avoid scratching reflective lenses in eyeglasses that Respondent purchased from Sears Optical in August 1996. The Sears Optical at the Florida Mall was the store location closest to Respondent's residence. However, it was approximately a 45- minute drive from Respondent's house. During the drive, Respondent drank a large bottle of water. He drank the water as part of the treatment for a kidney infection that developed after Respondent passed a kidney stone approximately two days prior to November 29, 1996. Respondent had a long medical history of kidney stones. Since 1972, Respondent had passed numerous kidney stones. After locating a parking place at the Florida Mall, Respondent needed to urinate. He went to the men's room adjacent to Sears Optical. Respondent had to wait for a urinal to become available. November 29, 1996, was the day after Thanksgiving, and the men's room was crowded. Respondent went to the first urinal that became available. He was at the urinal for no more than two minutes. When Respondent first attempted to urinate, he felt some pain in the kidney area. Respondent leaned forward to reduce the pain. He placed his left hand against the wall to avoid touching the urinal. Respondent was not sure he had voided all of the urine from his urinary tract. Respondent has no feeling in his penis due to an automobile accident that occurred in 1988. The automobile accident caused nerve damage. The loss of feeling makes it difficult for Respondent to determine whether or not he has emptied all of the urine from his urinary tract. To be sure all of the urine was eliminated from his urinary tract on November 29, 1996, Respondent shook and stroked his penis several times. Respondent's penis was not erect. Respondent can not have an erection without injection of a specific medication. Respondent has not had an injection since 1991 because the injections are painful and last for only a brief period. Deputy Franklin observed Respondent's hands and penis for less than two seconds and incorrectly concluded that Respondent was masturbating. In fact, Respondent was making sure there was no urine remaining in his urinary tract. While Respondent was at the urinal, he neither spoke to anyone nor touched anyone else. He was not aware of those around him other than a man standing behind him at the electric hand dryer who later identified himself as Deputy Franklin. After Respondent finished urinating, he washed his hands and left the men's room. He was arrested outside the men's room. Deputies Franklin and Durden also arrested the male who had used the urinal next to Respondent. The deputies escorted Respondent to a hearing aid store across from the waiting room of Sears Optical and told him to sit down. The deputies brought the other man to the area where Respondent was sitting. They asked Respondent and the other man if they knew each other. Both men stated that they did not know each other. The deputies searched and hand cuffed both men. The deputies detained both men for approximately 15 minutes. During that time, Respondent asked why he had been arrested but received no answer. The deputies then took both men in handcuffs through the mall to a security office near the hotel in the mall. Respondent remained at the security office for approximately three to four hours. While Respondent was in the security office, the deputies informed Respondent of the charges against him. Respondent repeatedly denied the charges. Respondent was taken to the 33rd Street jail at about 4:00 p.m. He was booked, photographed, finger printed, and placed in a holding cell. He was allowed to make a telephone call at about 5:00 p.m. Respondent telephoned one of his two sons and asked his son to provide bail. Respondent was allowed to leave the jail at about 8:00 p.m. As soon as Respondent reached his son's house, Respondent attempted to report the incident to Principal John Beall. Principal Beall was not available. Respondent telephoned Assistant Principal Karen Turner, who subsequently reported the incident to the principal. The decision to suspend Respondent with pay was made by Petitioner after a meeting on December 3, 1996, between Respondent, his representatives, and representatives for Petitioner. Petitioner did not undertake an independent investigation of the matter but relied solely on the police report, the arrest, statements by Petitioner's director of human resources, and the attorney for the Board. At the meeting, Respondent disclosed his medical condition and offered to provide documentation. He subsequently signed a medical authorization to release those records. At a meeting of the Board on December 17, 1996, Petitioner suspended Respondent without pay. Respondent did not have an opportunity to discuss his case with the Board. The Board relied on the advice of its counsel who in turn relied solely on the criminal arrest and underlying documents. Two local newspapers covered the arrest and suspension of Respondent. The articles were first published after the Board voted to suspend Respondent without pay on December 17, 1996. Respondent's effectiveness as a teacher is not impaired. A copy of a newspaper article was gratuitously distributed at Kissimmee in early January 1997. The publicity has not impaired Respondent's effectiveness with students, faculty, or parents. Approximately a dozen students, out of a student body of approximately 400, referred to the incident in class. The discussions were brief and dissipated after four or five days. Many of the students who discussed the matter in class have moved on to high school and are no longer at Kissimmee. Respondent has a very good rapport with students, even though he is strict and does not play or horse around with them. Teachers have not observed inappropriate behavior between Respondent and his students. Fellow teachers would like for Respondent to return to Kissimmee. Parents have not expressed any concern to Respondent's fellow teachers. One parent did complain to Assistant Principal Turner about Respondent. Respondent is a very competent and very dynamic teacher who exceeds the minimum requirements as a teacher at Kissimmee. He goes to great lengths to help students learn and communicate effectively. He assists parents and fellow teachers. Prior to Respondent's arrest, Respondent received excellent job evaluations. Principal Beall considered Respondent to be an excellent teacher who was creative, effective with students, a good manager of the classroom, and demonstrated independent initiative. Principal Beall chose Respondent to serve as a temporary dean and encouraged Respondent to attend a program designed to qualify Respondent as an assistant principal. Principal Beall and several other witnesses for Petitioner would not hesitate to reinstate Respondent at Kissimmee if the charges against him are not proven. Respondent has obtained an education that significantly exceeds the minimum educational qualifications prescribed in Section 231.17(1)(c) for an elementary or secondary teacher. Respondent earned a bachelor's degree and master's degree in education and geography, respectively, and also earned a PhD. degree in Christian counseling. Respondent has over 20 years of teaching experience in Virginia and Florida. Prior to this case, Respondent has never been disciplined by a school district in which he taught. Respondent has never been arrested prior to this case. Respondent is certified to teach in Virginia. He has met all of the requirements for renewal of his teaching certificate in Florida. He is awaiting the outcome of this proceeding before submitting the necessary paperwork for the renewal of his Florida teaching certificate. At the hearing, Petitioner charged for the first time that Respondent violated school regulations and policies contained in the faculty handbook. Petitioner argued that Respondent violated regulations and policies that prohibit faculty contact with students outside of the school by providing care and instruction to students after school. Respondent objected to the admission of evidence relevant to this charge on several grounds, including the ground that such evidence was not relevant to any charges in the charging document or in the responses to discovery and the ground that allowing such a charge to be made for the first time during the hearing violated essential due process requirements. The undersigned reserved ruling on the objection and heard evidence from both parties. Petitioner did not provide prior notice of the charge that Respondent violated regulations and policies in the faculty handbook. The failure to comply with essential requirements of due process precludes Petitioner from submitting evidence to support such charges. Even if Petitioner had complied with due process requirements, the evidence would not affect the outcome of this proceeding. Petitioner either failed to show by a preponderance of the evidence that Respondent violated relevant regulations and policies in the faculty handbook, or Petitioner condoned the violations committed by Respondent. Respondent had previously been selected by his team of teachers to visit a student named Josh Harweger and Josh's mother in their home to address learning and behavioral problems experienced by Josh. Respondent conferred with Josh's mother at her home, on the telephone, and at school in conjunction with other members of the teaching team. One evening at about 11:00 p.m., Josh's mother came to Respondent's residence without notice and asked Respondent to care for her son overnight while she took care of a family emergency. Respondent agreed to allow Josh to spend the night in his home, which Respondent shared with his son and daughter-in- law and Respondent's other son. The next morning, Respondent informed three members of the Kissimmee staff, including Assistant Principal Turner, of the situation. Josh's mother did not return the next day as promised. In fact, she did not return until approximately five days had passed. Each day, Respondent informed Assistant Principal Turner of the situation. Petitioner condoned each stay. No other student ever spent the night at Respondent's house. Augustine Rivera is the other student for whom Petitioner asserts a violation of regulations and policies in the faculty handbook. Respondent's relationship with Augustine was strictly professional and conducted with the knowledge and consent of Augustine's mother. Augustine has a learning disability and was a student in Respondent's classes for three years. Respondent tutored Augustine after class, even after Augustine's mother was informed of the arrest on November 29, 1996. Augustine's mother drove Augustine to Respondent's house after school for tutoring. Augustine is now in high school. Respondent continues to tutor Augustine once or twice a week after school in Respondent's house with the approval of Augustine's mother. Respondent's tutoring after school has significantly improved Augustine's academic performance and ameliorated Augustine's behavioral problems. Out of gratitude for Respondent's assistance, Augustine has performed various home maintenance tasks for Respondent, including mowing the yard. Respondent and other members of his teaching team created a study jam-session after school for students who wanted academic assistance. The study jam-program had the prior approval of the principal. The study jam-sessions were in addition to Respondent's regular duties and did not relieve Respondent of this regular teaching responsibilities. Approximately eight to ten students went to Respondent's home for a cookout as a reward for exceeding their goals in the study jams. The students came with their parents or had parental permission. Petitioner condoned the cookouts. Respondent obtained the prior approval of the principal for the cookouts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the underlying factual allegations, finding that there is not just cause to terminate Respondent's employment, and reinstating Respondent with back pay from December 17, 1996. DONE AND ENTERED this 20th day of February, 1998, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1998. COPIES FURNISHED: Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, Plaza 08 Tallahassee, Florida 32399-0400 Dr. Thomas L. McCraley, Superintendent Osceola County School Board 817 Bill Beck Boulevard Kissimmee, Florida 34744-4495 G. Russell Petersen, Esquire 3339 Cardinal Drive, Suite 200 Vero Beach, Florida 32963 Joseph Egan, Jr., Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802
Findings Of Fact Judith Ann Rodriguez is the sole shareholder of Cowgirls Inc. which she purchased some four years ago as a topless bar. Cowgirls, Inc., d/b/a Show Girls holds a series 2-COP license issued by the Division of Alcoholic Beverages and Tobacco. Prior to the purchase of Cowgirls, Inc., Ms. Rodriguez had operated two topless bars in conjunction with her former husband. Cowgirls, Inc. owns and operates a bar located at 12061 66th Street North Pinellas Park, Florida, known as Show Girls which is a topless bar featuring dancing girls. Cowgirls, Inc. leases the premises from the owner of a strip shopping center known as Pine Lakes Center. David Milchan is chief of Police of Pinellas Park and since 1983 Pinellas Park Police have received more than 100 requests for public intervention due to disturbances emanating from the premises or parking lot in the vicinity of Show Girls. Exhibits 2 through 6 were admitted as Police reports of this nature but the hearsay objection thereto was sustained as to the truth of the matter contained in the reports which was not additionally corroborated by admissible evidence. It is noted that the majority of those Police reports originated with a call from Show Girls requesting assistance with an unruly patron. Chief Milchan has been in the bar at Show Girls and observed the activities conducted therein with scantily clad dancers performing on a small stage. Chief Milchan has been approached while in Show Girls and offered a "lap dance" which was described as a female dancer sitting on the lap of a male patron and gyrating in a manner intended to arouse lust in said patron. On December 15, 1987, one Mikiko Hunsberger, a dancer in the licensed premises, approached Detective Allen Strope, then a plain clothes detective in the Pinellas Park police department and asked if he wanted a table dance for $5.00 or if he wanted to touch her "pussy" for $10.00. She then offered Detective Strope a "blow job" for some cocaine. Strope obtained a motel room and some ersatz cocaine and Hunsberger and another dancer from the license premises later joined him at the motel. Hunsberger tasted the ersatz cocaine, declared it of insufficient quality and offered to give the "blow job" for $100. She was then arrested. On April 6, 1986, Regina Black, a dancer at the licensed premises performed a lap dance for Pinellas County Detective Thurman at the licensed premises and said that she would go "all the way" for $100.00. Thurman understood "all the way" as being an offer of sexual intercourse. Detective Michael Sanderling of the Pinellas County Sheriffs Office entered the licensed premises on April 6, 1986 with Detective Thurman. Sanderling observed one dancer uncover her breast while dancing and put a cocoa cola bottle between her breasts on which she simulated fellatio. Later dancer Judy Rea Fentress performed a lap dance for Detective Sanderling and offered a quick "blow job" for $30-35. On April 7, 1986 dancer Blanca Hernandez performed two lap dances on law enforcement Investigator Gordon Myers and requested that Myers purchase an alcoholic beverage for her. During 1984, Sonja Bramley operated a beauty parlor adjacent to the premises occupied by Respondent. Occasionally she was offended by Show Girls' patrons outside of her establishment. On one occasion four patrons from Show Girls pushed her door open and asked if she cut pubic hair. Bramley stayed open in the evening until 8:00 p.m. or later, but finally closed her business because of her concerns for her safety and the safety of her customers in the evening from the patrons of Respondent. On one occasion, drunken patrons from Show Girls started a fight in Sonny's, a restaurant across the street from Show Girls. Others testified to the beer cans and debris in the parking lot outside the licensed premises, to the fights and gun shots outside the premises and that unsavory characters frequented Show Girls. The licensee testified that no canned beer was sold at her establishment and that her employees frequently called the Police to control patrons who became unruly and refused to leave the premises quietly. Victor Rodriguez owns Pine Lake Center and Respondent is one of his tenants, he has tried unsuccessfully to get Respondent to relocate the bar somewhere else and contends that rowdiness, fights, drunken behavior, gun shots and litter emanating from Respondent's location has caused his occupancy rate to fall to the point he has only four of thirteen units in the center rented. Judith Ann Rodriguez, sole owner of Respondent, presented as Exhibit 7 a copy of a contract similar to those signed by all dancers at Show Girls. This contract purports to make all dancers at Show Girls independent contractors and not employees or agents of Respondent. While one section of Exhibit 7 states the manner and means of performing such professional dances are under the sole control of the Professional Dancer, another section of this contract provides the dancing routines shall meet the approval of the Cocktail Lounge. From her long experience in operating topless bars, it is inferred that Respondent was or should have been aware that lap dancing, table dancing and prostitution are not uncommon at topless bars.
Findings Of Fact On May 11, 1977, at an establishment advertised as Mr. Big Stuff's Bedroom, female topless dancers were observed either straddling customers legs or dancing between customers legs while either placing their breasts close to or touching the customers' faces. No evidence was introduced purporting to establish that any of the performers were agents, servants or employees of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the performers were not agents, servants or employees of Central Florida Clubs. No evidence was introduced purporting to demonstrate whether, to the average person applying contemporary community standards, the dominant theme of the dance, taken as a whole, appealed to prurient interests. Accordingly, it is found, as a matter of fact, that to the average person, applying contemporary community standards, the dominant theme of the dance presented at Mr. Big Stuff's Bedroom, taken as a whole, did not appeal to prurient interests. No evidence was introduced purporting to demonstrate whether Mr. Big Stuff's Bedroom was operated under the auspices of the licensee, Central Florida Clubs. Accordingly, it is found, as a matter of fact, that Mr. Big Stuff's Bedroom was not operating under the auspices of the licensee, Central Florida Clubs. On May 11, 1977, an unidentified person declared that if one drink were purchased, then a second drink, at a reduced price, would be provided for a waitress. No evidence was introduced as to the identity of the person nor purporting to establish that such person was an agent, servant or employee or entertainer of Central Florida Clubs. Accordingly, it is found, as a matter of fact, that the unidentified person was not an agent, servant, employee or entertainer of Central Florida Clubs. No evidence was introduced purporting to establish that Harold Ernest Squires, Jr., was an agent, servant or employee of Central Florida Clubs, or that Harold Ernest Squires, Jr., did knowingly permit one Joyce Marie Polakowski to loiter in or about the licensed premises for the purpose of begging or soliciting a person, customer or visitor, to purchase a beverage. Accordingly, it is found, as a matter of fact, that Harold Ernest Squires, Jr., was not an agent, servant or employee of Central Florida Clubs and that Harold Ernest Squires, Jr., did not knowingly permit Joyce Marie Polakowski or any other person to loiter in or about the license premises for the purpose of begging or soliciting a customer to purchase a beverage.
