The Issue Whether Respondent violated section 1012.795(1)(d) or (1)(f), Florida Statutes (2019), and, if so, what penalty should be imposed.1 1 Unless otherwise noted, all references to the Florida Statutes herein are to the 2019 version, which was in effect when the actions alleged in the Administrative Complaint took place.
Findings Of Fact Petitioner is the chief educational officer of the state, who recommends members for appointment to the Education Practices Commission—the statewide commission with the authority to discipline Florida educators. See §§ 1001.10(1), 1012.79(1), and 1012.795(1), Fla. Stat. (2021). Respondent, Calvin Chin, holds State of Florida Educator’s Certificate 737639, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2026. Respondent has served as an educator for 27 years, primarily with the Marion County School District (“District”). He was first employed by the District as a math teacher at Dunnellon High School (“Dunnellon”) in 1994, where he continued for 12 years. Respondent was promoted to dean of students at Dunnellon in 2002 and served in that capacity through 2012. During that time-frame, Respondent was also a part-time math instructor at a local community college. Respondent served as dean of students for College Park Elementary School from 2012 through 2016, when he returned to Dunnellon to continue teaching math for college readiness and dual enrollment math for students enrolled for college-level credit math instruction. Respondent also had a 19-year career with the U.S. Marine Corps. He originally enlisted in 1978 after graduating from high school, then joined the Marine Reserves while he pursued his college education. Respondent graduated from the University of Florida in 1983 and became a commissioned officer through the Reserve Officer Training Corps (“ROTC”) program in December of that year. Respondent served in the Marine Corps through 1994. In 1996, Respondent established the Young Marines at Dunnellon, a program similar to ROTC that teaches discipline and military structure to youth. Respondent is passionate about teaching and shaping the lives of young people. Respondent has never had any disciplinary action taken against his license or against him by either the District or any school at which he has taught. Relationship with Joanne Mandic Respondent and Joanne Mandic are not married, but have been in a relationship for 19 years. Respondent and Ms. Mandic have lived together as a couple for over 18 years. The couple has one child together, C.C., who lives with her parents. C.C. was 13 years old and home-schooled by Ms. Mandic at all times relevant hereto. Ms. Mandic has another child, Nyasha Mandic-Mandaza, from a prior relationship. Ms. Mandic-Mandaza was 22 years old at all times relevant hereto. She does not live with her mother and Respondent; however, on the date of the incident, Ms. Mandic-Mandaza was staying at their home. October 25, 2019, Incident On Friday, October 25, 2019, Respondent came home from Dunnellon and prepared himself an alcoholic drink. At some point during the evening, he asked Ms. Mandic what she was preparing for dinner and she responded that she was too tired to cook. Respondent became upset that Ms. Mandic was not preparing dinner. By this time, Respondent had consumed several alcoholic drinks, and he and Ms. Mandic got into a verbal altercation about dinner. During the verbal altercation, Respondent came out of his bedroom holding his handgun. He said to Ms. Mandic, “Don’t piss me off. I am a Marine and I know how to shoot,” or similar words. Respondent “racked” the gun, which made a distinctive sound audible to Ms. Mandic. Afterward, Respondent returned to his bedroom. Ms. Mandic is familiar with the gun and familiar with Respondent’s habit of storing the gun and ammunition separately. According to Ms. Mandic, the gun was unloaded when Respondent brought it out of the bedroom. Ms. Mandic testified that she knew the gun was unloaded and that she was not in fear of Respondent. Ms. Mandic testified that this incident was not indicative of her relationship with Respondent and that he has never been violent toward either her or the children. She further testified that there has been no similar incident since that date. C.C. was home in her bedroom and heard, but did not see, the altercation between her parents. No evidence was introduced regarding C.C.’s reaction to the incident or its effect on her. Ms. Mandic-Mandaza both heard and saw the altercation between Respondent and her mother. Ms. Mandic-Mandaza had come to the house after work and was preparing to leave for the evening, when she stepped into the hallway in response to the verbal altercation. She saw Respondent walking down the hallway with his handgun. Ms. Mandic-Mandaza was in fear as Respondent appeared to be approaching her in the hallway; however, Respondent passed by her and moved towards her mother, who was in the kitchen. Ms. Mandic-Mandaza retreated to a bedroom where she called the police to report the incident, then left the house shortly thereafter. Respondent’s Arrest In response to the 911 call, Marion County Deputy Sheriffs Joseph Diaz and Christopher White, as well as Sergeant Moore, were dispatched to the Chin home. Both Respondent and Ms. Mandic were interviewed by the officers. During his interview with the officers, Respondent was forthcoming about his actions. He demonstrated to the officers how he held and racked the gun, and repeated the statements he made as he held the gun. Ms. Mandic downplayed the incident when she was interviewed, describing Respondent’s actions as simply “showing us his handgun.” Deputy White also contacted Ms. Mandic-Mandaza via telephone and interviewed her, as well as meeting with her to take her statement. She was reticent to discuss the incident with Deputy White and expressed that she did not want to get Respondent in trouble. Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the Commission of a Felony, and was incarcerated from October 25 to November 2, 2019. On November 21, 2019, the State Attorney for the Fifth Judicial Circuit filed an “Announcement of No Information” on the allegation of Use of a Firearm During the Commission of a Felony and charged Respondent solely with Aggravated Assault with a Deadly Weapon (without Intent to Kill). On March 11, 2020, Respondent plead nolo contendere to the lesser charge of Improper Exhibition of a Firearm, which is a misdemeanor defined in section 790.10, Florida Statutes, and adjudication was withheld. Respondent received credit for eight days served, was placed on a year of probation, assessed court and prosecution costs of $350, and was required to submit to random alcohol screens at least two times per month during probation. Subsequent Events Following his incarceration, Respondent voluntarily participated in mental health counseling and alcohol evaluation. Respondent testified that he “talked about drinking” with the counselor. Respondent further testified that, since the incident, he has “not been drunk like that.” The District placed Respondent on administrative leave with pay through December 2020. Respondent was placed on administrative leave without pay in December 2020, but returned to teach at Dunnellon in March 2021 just before spring break. Following spring break, due to the COVID-19 pandemic, the school moved classes to an online format and Respondent continued teaching in that format throughout the remainder of the 2020-2021 school year. Respondent remains employed by the District and is currently teaching at Dunnellon. Neither Dunnellon nor the District imposed any disciplinary action against Respondent due to the incident and his subsequent arrest. Respondent testified that neither any student nor any fellow teacher has questioned him or made any remark about the incident or his arrest. Petitioner introduced no evidence of any press coverage or community concern regarding the incident. Character Witnesses Stephen Ayers is the director of student assignment and school choice for the District. Mr. Ayers has worked in various educational capacities with the District for 27 years, including as a math teacher, dean, assistant principal, principal, and coordinator for the District. Mr. Ayers met Respondent in 1994 when they were both pursuing their graduate degrees. Mr. Ayers later worked at Dunnellon as assistant principal, then principal, while Respondent served as dean of students. In those capacities, Mr. Ayers was Respondent’s supervisor at Dunnellon. Mr. Ayers described Respondent as “an exemplary dean” and “a mentor with … youngsters.” Mr. Ayers was aware of Respondent’s October 25, 2019 arrest and “the basis and reason for that arrest.” Mr. Ayers testified that he has no doubt Respondent can continue to perform his duties effectively and does not consider Respondent’s effectiveness in the community to be diminished by that arrest. Bobby James retired from the District in 2018 after serving the District for 47 years as a teacher, coach, principal, school board member, and school board chairman for three terms. Mr. James was the principal at Dunnellon in 1994 and hired Respondent as a math teacher. Mr. James remained principal for 12 years and moved Respondent into the dean of student’s position. Mr. James initiated the Young Marines program at Dunnellon and chose Respondent as the first instructor in the program. After leaving Dunnellon for a position with the school board, Dunnellon remained a school in which Mr. James, as a school board member, exercised oversight authority. Mr. James frequently visited Dunnellon and met Respondent and administrative leaders there. Mr. James described Respondent’s performance as an educator and leader of young people as “exceptional,” especially in working with youth who have difficult life challenges. Mr. James was familiar with Respondent’s arrest and “had heard” that a firearm was involved in the October 25, 2019 incident. He was not aware of the specific statements alleged to have been made by Respondent to Ms. Mandic. During cross-examination, Mr. James admitted that, if Respondent had said, “Don’t piss me off, I have a gun and I know how to use it,” that would not be appropriate conduct for an educator, or for that matter, “for any person.” However, Mr. James testified that, given his 25 years of experience with Respondent in service to the District, even knowing the specifics of the incident, he believes Respondent can remain an effective educator. Mr. James testified that Respondent’s character with students and District employees is proven, and indicated that, if he were in a position to do so, Mr. James would rehire Respondent. Ryan Malloy met Respondent through the Young Marines program in middle school when Respondent was the commanding officer of the program (for both high school and middle school). Mr. Malloy left the Young Marines program before high school but has maintained a mentoring relationship with Respondent through his recent graduation from the University of Florida. Respondent taught Mr. Malloy the game of golf and the two play golf regularly. Mr. Malloy testified that Respondent has served as a constant mentor in his life; that when he is really struggling with something, he talks to Respondent. He related that Respondent encourages him to consider both sides of a situation and avoid quick judgments. Mr. Malloy was generally familiar with Respondent’s arrest and the circumstances surrounding the arrest. Mr. Malloy testified that Respondent’s effectiveness as a mentor has not been diminished by the incident. He testified that Respondent has helped him acknowledge his own mistakes and learn from them. Mr. Malloy stated that Respondent taught Mr. Malloy that true character is built by taking ownership of one’s mistakes and using them for self-improvement. Mr. Malloy believes that is an important trait for all teachers to be effective role models. Linda Malloy, Mr. Malloy’s mother, retired from the District in May 2019, was a fellow teacher with Respondent at Dunnellon for 24 years, and second in command of the Young Marines with Respondent for 10 years. She described Respondent as strict, honest, and fair. She admired his ability to reach students through Young Marines and help them turn their lives around when they were headed “down the wrong path.” Ms. Malloy was familiar with Respondent’s arrest and the fact that a gun was involved in the October 25, 2019 incident. Ms. Malloy testified that Respondent can remain an effective educator because she “believe[s] in his core values.” She trusted him with her own child and still would to this day. Ms. Malloy has not heard anyone in the education community suggest that Respondent should not continue to teach. Sharon Lambert has taught at Dunnellon for 22 years and currently teaches business technology and serves as the teachers’ union representative. Respondent was in charge of the Young Marines when Ms. Lambert began teaching at Dunnellon. Her impressions of Respondent as an educator are that he cares about his students, wants to help them succeed, and “would do anything to help them learn what he’s supposed to teach.” Ms. Lambert was familiar with Respondent’s arrest. She testified that the incident has not had any negative affect on his ability to teach his students. To her knowledge, since Respondent returned to the classroom, there has been “no talk amongst the students or the teachers” concerning the incident or Respondent’s ability to teach. Respondent also introduced a letter from Jay Easom, who served as president of the Dunnellon School Advisory Council (“SAC”) from 2007-2010 and is familiar with Respondent in that capacity, as well personal conversations with him. The letter relates as follows: I am writing on behalf of “Captain Chin.” I am acquainted with him for more than ten (10) years. I’ve had the opportunity to know him in his capacity of leadership at our local high school as well as our personal conversations detailing his desire to be responsible to his family. He always plans well and stands firmly in his commitment to reach his personal goals for the benefit of his family. I can’t tell you how surprised I was when [Respondent] shared with me the events of October 25, 2019 that resulted in him being charged. I instantly detected his regret and disappointment. The idea of [Respondent] bringing harm to anyone escapes my consideration especially in the handling of a firearm. My children attended and graduated from [Dunnellon]. I know [Respondent] in this period during my participation as president of the [SAC] from 2007-10. I learned more about [Respondent] when as a part of our meetings, he introduced proud young men and women to share their outlook for the future that had joined Young Marines. He provided a path of personal development for them and I am sure that his peers will tell you that his hard work, dedication, and friends in the community supported the program because of his commitment. I expect that [Respondent] has a plan to be sure that there will never again be such an event in his life as this. I hope that you may have the opportunity to give him further consideration as his employer, students, peers, and friends have over a very difficult year and a half. Thank you. Respondent also introduced the following letter from Jeffery Daniel Ratliff: To whom it may concern, Captain Calvin Chin has been, and still is, one of my largest influences throughout my life. I still remember the very first time I met him, and that was over 20 years ago. It was my first day in a new school, an entirely new state, at [Dunnellon]. While waiting with my parents in the front office to get registered for classes, in walks this Marine wearing freshly starched cammies with flickering silver and gold on his uniform, and it was at that moment that I decided to become a Marine. Over my high school career Captain Chin shaped and guided me in a way that only a true leader can. When my temper or overzealousness got the best of me, he did not hesitate to punish me but always ensured that a lesson was learned. When I was unable to understand the mathematic teachings of Mr. Gaitanis’ overeducated ramblings, Captain Chin would break it down simply for me and insist that I already knew how to do it. And he was right! When I left for Marine Corps bootcamp, he gave me some last-minute advice, but insisted that I would do fine … as long as I didn’t ask too many questions. He was right about that too. When I got back from Iraq and needed another Marine to vent to about what I saw, he was there for me. He wasn’t judgmental at all. After the Young Marines program was removed from the high school, he chose to keep it active and open it up for all ages from 8 to eighteen. He even encouraged me to come volunteer after I had gotten out of the Marines. I did not have the patience or understanding to deal with such young children at the time, but Captain Chin did. Even though I have two loving parents who are still together, and love me very much, I still refer to Captain Chin as my Adopted Asian Dad. I have seen this man motivate, influence and inspire so many young minds over the years that I lose count. As Dean at the high school, the kids who he had to punish still respected him and find him years later to tell him that they are doing so much better now, because he showed them respect first. It is impossible to fit everything that Captain Chin has done to help me, influence me on one page. Just know that this is one of the most selfless human beings I have ever met, that has committed his entire life to serving and helping others, and will continue to do so until he is no longer physically able. Respondent also introduced his final evaluation from the District for the 2020-2021 school year on which he received the rating of “Effective” on all four instructional practice domains in which he was assessed. Respondent became emotional during his testimony at the final hearing. Petitioner introduced, and played for the undersigned, body-camera footage from the responding officers on October 25, 2019. Respondent was ashamed and remorseful of his behavior on the night of the incident. Respondent was dismayed by his own behavior and it obviously pained him to watch the video footage.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526
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)(f), but, based on the Findings of Fact herein, including substantial factors in mitigation, take no action against Respondent’s certificate. DONE AND ENTERED this 29th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK 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 29th day of September, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 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
Findings Of Fact The Respondent holds Florida teaching certificate 227677, covering the areas of Chemistry, Biology, and Middle Grades General Science, which is valid through June 30, 1996. Petitioner has been certified to teach in Florida since 1969. On or about February 5, 1979, Respondent was arrested and charged with Disorderly Conduct, a misdemeanor, in Orange County, Florida. Respondent pled not guilty to the charge, waived a jury trial and was tried before the court and found guilty. The count withheld adjudication and on or about May 2, 1979, the Court sentenced Respondent to pay a $350.00 fine, plus court costs. On or about June 24, 1985, Respondent executed, under oath, an Application for Extension of Certificate. Respondent answered "no" to the following 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? Respondent was negligent in completing his application in that he failed to acknowledge his 1979 arrest for Disorderly Conduct for which the Court withheld adjudication. The renewal application was completed six years after the incident and Respondent simply forgot to list it on the form. On or about December 25, 1992, Respondent was arrested and charged with Battery, a first degree misdemeanor, following a domestic disturbance with his wife in Seminole County, Florida. Respondent pled nolo contendere to the battery charge. On or about February 11, 1993, the count withheld adjudication and sentenced Respondent to serve six months probation. Probation was successfully terminated on August 23, 1993. On or about September 6, 1993, Respondent was arrested and charged with Aggravated Battery, a third degree felony, and Shooting Into or At a Building, a second degree felony. Respondent pled not guilty to the charges and was tried and convicted on both counts following a trial by jury. On or about May 30, 1994, the Court adjudicated the Respondent guilty of Aggravated Battery and withheld adjudication on the charge of Shooting Into or At a Building. Respondent was sentenced to 3 years in prison on the battery charge (Count I). He was placed on one year probation on Count II and required to pay court costs. The conviction and sentence was appealed to the Fifth District Court of Appeal of Florida. The court upheld the conviction and sentence. However, it did certify a question as one of great public importance to the Florida Supreme Court Respondent testified that he has been a school teacher for more than 25 years and has an outstanding record in the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 231.28(1)(c), (e), (f), (i), (j), Florida Statutes and not guilty of violating Section 231.28(1)(a), Florida Statutes and Fla. Admin. Code R. 6B-1.006(5)(a) and (h). It is further RECOMMENDED that the Respondent's teaching certificate be revoked for a period of 5 years, followed by a period of 3 years probation should the Respondent become recertified in Florida and upon such reasonable and necessary conditions as the Commission may require. DONE AND ENTERED this 22nd day of December, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 22nd day of December, 1995. APPENDIX Petitioner's Proposed findings of fact: Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5 (in part), 6 (in part. Rejected as hearsay and irrelevant: paragraphs 4 (in part), 5 (in part), 6 (in part). Respondent did not file proposed findings of fact. COPIES FURNISHED: John A. Knight, Pro Se 1817 Harding Avenue Sanford, Florida 32771 Barbara J. Staros, General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Ronald G. Stowers, Esquire Office of the General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Dr. Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen Richards, Administrator Professional Practices Services 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent should deny Petitioner's application for a teaching certificate.
Findings Of Fact 1. Petitioner submitted her application for a teaching certificate on May 26, 1993. Respondent notified Petitioner of its proposed denial of the application on April 5, 1994. Respondent's proposed agency action is based on events that occurred while Petitioner was teaching in the Florida public school system in 1988 and 1989. Background From August, 1988, until February, 1989, Petitioner taught Spanish as a first-year teacher at Lake Wales Senior High School ("Lake Wales") in Polk County, Florida. In the fall of 1988, Petitioner met Brian Keith Swinney. Mr. Swinney was a junior at Lake Wales but was not one of Petitioner's students. Mr. Swinney attended school in the morning and worked as a professional entertainer at Cypress Gardens in the afternoon. Although Mr. Swinney was not one of Petitioner's students, Mr. Swinney and Petitioner knew each other at school. Mr. Swinney's Spanish teacher shared a classroom with Petitioner. Mr. Swinney was also a varsity cheerleader, and Petitioner was a chaperon for the cheerleaders when they traveled to various games. Petitioner and Mr. Swinney dated and developed a relationship that included sexual relations. Sexual relations began on October 4, 1988. In November or December, 1988, Mr. Swinney began residing with Petitioner. On or about February 1, 1989, Petitioner resigned her position with Lake Wales. On February 12, 1989, Petitioner and Mr. Swinney were married. At the time of their marriage, Petitioner was 22. Mr. Swinney was 17 years old on February 17, 1989. Mr. Swinney's parents consented to the marriage. Mr. Swinney's mother drove Mr. Swinney and Petitioner to South Carolina where he and Petitioner were lawfully married. Petitioner and Mr. Swinney moved to California. A child was born of the marriage, and Petitioner remained married to Mr. Swinney for approximately five years. Following a period of separation, Petitioner and Mr. Swinney were divorced on February 28, 1994. After separating from Mr. Swinney, Petitioner relocated to Lee County, Florida. Petitioner applied for a teaching position with the Lee County School District. The District issued a letter of eligibility, and Petitioner began teaching in May, 1993. Current Qualifications And Good Moral Character Petitioner applied for a teaching certificate on May 26, 1993. Petitioner satisfies all of the academic and professional requirements for a teaching certificate. She is over the age of 18. She received her bachelor's degree from Florida Southern College, an accredited institution of higher learning. She executed the required loyalty oath for the state and federal constitutions. Her application was properly completed and executed. Petitioner is competent to perform the duties, functions, and responsibilities of a teacher. Petitioner taught school in several localities in California. Petitioner taught for the Lee County School District during the 1993-1994 school year. She taught as a full-time teacher at Paul Lawrence Dunbar Middle School ("Dunbar") during the day. At night, she taught in the District's night school program at Cape Coral High School ("Cape Coral") in Cape Coral, Florida. Petitioner was recommended for re-employment as a teacher with the Lee County School District for the 1994-1995 school year. Petitioner is a "very capable" and "creative" teacher. Both Renee Highbaugh, Assistant Principal at Dunbar and Petitioner's immediate supervisor, and Belle DeKoff, Administrator for the adult education program at Cape Coral, testified to Petitioner's competence and capability. Respondent stipulated that Petitioner is an "excellent" teacher. Petitioner is of good moral character. Ms. Highbaugh testified to Petitioner's good moral character. Her testimony was credible and persuasive. Petitioner's good moral character is further evidenced by her exemplary teaching record in California and Florida since 1989. Alleged Violations In Notice Of Reasons In 1988 and 1989, Petitioner did not fail to make a reasonable effort to protect students from conditions harmful to their learning. Petitioner and Mr. Swinney did not engage in public displays of affection on campus. Nor did either of them create any condition that was otherwise harmful to students' learning. Petitioner did not fail to protect Mr. Swinney from conditions harmful to his learning. Mr. Swinney's grades did not decline during his relationship and subsequent marriage to Petitioner. Mr. Swinney voluntarily chose to marry Petitioner and obtain his G.E.D. He did so with his parents' permission. Mr. Swinney joined the United States Air Force and was honorably discharged. He is a licensed helicopter pilot. He attends helicopter flight school in California for certification as a commercial instrument instructor. He has a job waiting for him in his desired field when he graduates in February or March, 1995. Mr. Swinney is remarried and resides with his wife in California. Petitioner did not intentionally expose Mr. Swinney to unnecessary embarrassment or disparagement in 1988 and 1989. Petitioner passed notes to Mr. Swinney on occasions. Once, the two kissed in an empty classroom. The notes and kiss were not observed by students or faculty. In January, 1989, Mr. Swinney transferred to Winter Haven High School ("Winter Haven"). He transferred so that he and Petitioner could continue seeing each other without jeopardizing Petitioner's job. By January, rumors about Petitioner's relationship with Mr. Swinney had begun at Lake Wales, and Mr. Swinney wished to avoid further rumors. Mr. Swinney used a false address to enroll at Winter Haven. School officials discovered the false address but permitted Mr. Swinney to attend Winter Haven anyway. At Winter Haven, a male teacher told Mr. Swinney in front of the class, "I know what happened with you in Lake Wales, and that crap's not going to work over here." Mr. Swinney was embarrassed, but his embarrassment was intended by the teacher at Winter Haven and not by Petitioner. Petitioner did not exploit her relationship with Mr. Swinney for personal gain or advantage. Petitioner did not pressure him into their relationship. Mr. Swinney testified that he entered the relationship by his own volition. Petitioner did not commit an act of gross immorality or moral turpitude in 1988 and 1989. Mr. Swinney was a professional entertainer. He periodically lived outside his parents' home with their permission. He frequented adult nightclubs where alcohol was served. He was sexually active and engaged in sexual intercourse with approximately four other partners before meeting Petitioner. Mr. Swinney's parents consented to his marriage to Petitioner and assisted the couple in getting married. Assuming arguendo that, in 1988 or 1989, Petitioner either lacked good moral character, committed an act of gross immorality or moral turpitude, or otherwise violated the provisions of law or rules of the State Board of Education, the prior incidents, standing alone, do not support a conclusion that Petitioner currently lacks the good moral character required for a teaching certificate. Since 1989, Petitioner has demonstrated her good moral character through an exemplary teaching record in California and Florida. Petitioner is a valuable asset to the Lee County School District. The District observed Petitioner in the classroom, recommended Petitioner for re- employment, and is satisfied that Petitioner is of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Petitioner not guilty of the allegations in the Notice Of Reasons and authorizing the issuance of Petitioner's teaching certificate, forthwith. RECOMMENDED this 13th day of January, 1995, in Tallahassee, Florida. DANIEL MANRY 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 January, 1995.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified teacher authorized to teach mathematics. She holds Florida Educator's Certificate No. 801286, which covers the five-year period ending June 30, 2003. Respondent was a teacher for more than a decade in Michigan before moving to Florida. She began teaching in Florida in or around September of 1998, when she was hired to teach mathematics at Deerfield Beach High School (DBHS). Respondent taught at DBHS only into the early part of the second semester of the 1998-1999 school year, when she was removed from the classroom following her arrest, during the early morning hours on January 17, 2002, for lewd and lascivious conduct. The arrest occurred at Athena's Forum, a club that Respondent and her then fiancée, William Markowitz, had read about in a magazine article about "swing clubs." The article "peaked [their] interest to go in[to one of these clubs] and see what it was all about." Respondent and Mr. Markowitz entered Athena's Forum at approximately 9:30 p.m. on Saturday, January 16, 1999. Neither she nor Mr. Markowitz had been to the club before. They were stopped in the vestibule and asked to fill out and sign a membership application and to pay a membership fee of $75.00, which they did. They were then allowed to go into the interior of the building. There were signs posted in the vestibule and elsewhere in the club cautioning that those who might be offended by "sexual activity or nudity" should not enter the club. Upon entering the interior of the building, Respondent and Mr. Markowitz went to the bar and ordered drinks. They later went to the buffet area where food was being served to get dinner. They brought their dinner to a table "at the stage level," where they sat down and ate. It was "very dark" there. They spent the rest of the evening sitting at their table (next to each other) listening to music and watching "people coming and going throughout the club." On occasion, they got up to dance. There were at least 50 people in the club that evening, some of whom were in various states of undress, being "fondl[ed]" and "touch[ed]" by others. Respondent and Mr. Markowitz, however, both remained clothed throughout their stay at the club. Among the other people in the club that evening was Deputy John Duncan of the Broward County Sheriff's Office (BCSO). Deputy Duncan was there, along with eight to 12 other law enforcement officers, as part of a BCSO undercover operation. Deputy Duncan had been to the club on a prior occasion to conduct "surveillance." He had gone there at the direction of his supervisor, Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy Duncan and the other participants in the undercover operation that a "tip" had been received that "lewd activity was supposedly going on inside the club" and that they "were going in there to look for" such activity and to see if "any narcotics [were] being sold." During that first visit, the club was "dead." The bartender, however, told Deputy Duncan that there were other times, including "certain nights [designated as] couples nights, that things [did] go on" at the club. Among these "things," according to the bartender, was "sexual activity." Deputy Duncan returned to the club at approximately 10:00 p.m. on January 16, 1999. He gained entry to the interior of the building after showing his "membership number" to a woman "at the front desk," giving the woman a "bottle of liquor" he had brought with him, and having his "cover charge" paid (by a fellow undercover officer). Deputy Duncan, along with Sergeant Stewart, who was part of the BCSO undercover operation at the club that evening, proceeded to the "northwest section of the bar," where they sat down. Next to the bar was a "dance floor." There were tables and chairs surrounding the "dance floor." Approximately 30 feet from where he was seated at the bar, in the area of the "dance floor," Deputy Duncan observed a "white female," 3/ standing up, straddling the right leg of a "gentleman" sitting on a chair. The "white female" was wearing a tight-fitting, black spandex dress. Deputy Duncan saw the "gentleman" "lift her dress up" above her vaginal area. It appeared to Deputy Duncan that the "white female" did not "have any underwear on." The "gentleman" then proceeded to fondle the "white female's" vaginal area. This went on for two to five minutes. At no time did the "white female" attempt to pull down her dress or otherwise cover her vaginal area. Neither she, nor the "gentleman," made any effort to hide what they were doing. Although Deputy Duncan considered the "white female's" and the "gentleman's" conduct to be lewd and lascivious, he did not immediately place them under arrest inasmuch as the undercover operation had not concluded. Before the club was "raided" later that evening and arrests were made, Deputy Duncan observed other instances of people in plain view engaging in activities of a sexual nature. He saw, among other things, "women with other women where they were fondling the breast," "women with men doing dirty dancing," and "men and women in corners." In the "back area" of the club, he saw "hot tubs with several naked individuals inside" and rooms where people were "engaging in open intercourse." There were approximately 38 people arrested as a result of the BCSO undercover operation at Athena's Forum that evening. Respondent and Mr. Markowitz were among those arrested. Respondent's and Markowitz's arrests were for lewd and lascivious conduct. The arrests occurred at 1:30 a.m. on January 17, 1999 (after the club had been "raided"). Deputy Duncan was the arresting officer. He believed that Respondent and Mr. Markowitz were the "white female" and "gentleman," respectively (referred to above) whom he had observed earlier that evening in the area of the "dance floor" engaging in conduct that he considered to be lewd and lascivious. Deputy Duncan, however, was mistaken. Respondent was not the "white female" 4/ and Mr. Markowitz was not the "gentleman" 5/ Deputy Duncan had seen. At no time that evening at the club had Mr. Markowitz pulled Respondent's dress up or fondled Respondent's vaginal area. Respondent's and Mr. Markowitz's arrests were two of the "many" arrests Deputy Duncan made at "swing clubs" in the county. Respondent's arrest was reported in the media. It was common knowledge at DBHS that she had been arrested for lewd and lascivious conduct at a "swing club." The Broward County School Board initiated disciplinary proceedings against Respondent. It removed her from the classroom and reassigned her to a "security guard" position pending the outcome of the disciplinary proceedings. Respondent thereafter submitted a letter of resignation, dated January 24, 2000, to the Broward County School Board. In her letter, she stated, among other things, the following: Broward County showed me a warm welcome by taking away my civil rights to privacy and making my entire ordeal a Nationwide joke. No one, except my attorney and my future husband knew of my arrest on January 17, 1999, until the School Board . . . gave information to the local and national media. . . . . The Broward County School Board showed an excellent, motivated and experienced educator that they are more interested in what teachers do after hours than the students' well-being. I was wrongfully arrested on January 17, 1999 in a private club where no children were present. It was not near or on any school grounds and it did not impair my ability to teach. As of this letter, it seems that the criminal charges against me will be dismissed. On February 17, 1999, I was handed a letter that will forever change my life, when I was pulled and submitted to complete ridicule in front of my 4th Period class with only forty minutes to the end of the day. I successfully taught for four weeks and would have continued to successfully teach if the Board had not release[d] my name to the media. After a national debate on the right to privacy my career was destroyed, as well as my life. . . . In August 1999 I was placed on administrative reassignment with pay. I was informed that I would receive a "meaningful" job that would justify my paycheck while we awaited the Administrative Hearing. Once assigned a position, displayed for the world to see, as a security guard for the main School Board Building, I reported my health issues and repeated harassment from the media, school board employees, teachers, and parents. I was informed by Carmen Rodriguez, attorney for the School Board, that the position I was assigned would involve "little or no participation." I asked for a different position but the request was denied. . . . At this point I am unable to return to work due to illness . . . . Therefore, due to the cost to my personal health, lack of financial resources, lack of union support, the fact that I am only an annual contract teacher, being refused a position change, and being denied a Leave of Absence, and the pride to not submit myself to the degrading way you treated my fellow educator, I must with great hesitation resign as an educator in Broward County. I am giving up the battle in the administrative courts to win the war of public opinion. The criminal charges that had been filed against Respondent following her arrest were "dropped by the court" on or about July 18, 2000. Respondent married Mr. Markowitz, but they were later divorced. They still keep in touch with one another, however. Mr. Markowitz tried to help Respondent make the necessary arrangements to attend the final hearing in the instant case, but due to the expense involved and the fact that Respondent had an examination to take, she was unable to be at either of the hearing sites. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 14th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of October, 2002.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 390381, covering the area of biology, valid through June 30, 1985. At all times material, Respondent was an employee of the School Board of Dade County at Centennial Junior High School. On or about December 9, 1981, while a teacher at Centennial Junior High School, Respondent touched a student, Jessica Delatorre, in an obscene manner, by pushing her against the wall, placing his arm around her shoulder, feeling her on her buttocks and attempting to feel her breast before being pushed away by Miss Delatorre. At the time of this incident, Miss Delatorre was fourteen years old. During May 1981, Respondent, while a teacher at Centennial Junior High School, unlawfully fondled the breast of a student, Jackie Rodriguez, and further made overt sexual advances toward her by putting his hand inside of her gym attire and feeling her thigh. At the time this occurred, Miss Rodriguez was fourteen years old. Respondent told Miss Rodriguez that she was "so fine" and that she had "a good body." During the 1980-1981 school year, Respondent made improper sexual advances toward the student, Teresa Webb, by asking her to go to bed with him. Further, Respondent grabbed Teresa Webb and touched her buttocks, put his arm around her and started feeling her breast. Respondent asked Miss Webb when she was going to come over to his house. At the time of this incident, Miss Webb was fourteen years old. On or about December 15, 1981, Respondent threatened a student, Gerald Evans, with bodily harm by drawing back his leg to kick the student and further threatened to beat the student so that he could not walk if the student reported anything involving this confrontation.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order permanently revoking Respondent's Florida Teacher's Certificate. DONE AND ENTERED this 28th day of September 1983 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 1983. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 James E. Staton 212 Southwest 20th Street Apartment 4 Fort Lauderdale, Florida 33315 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 83-1257 JAMES E. STATON, Respondent. /
Findings Of Fact On April 23, 1980, Petitioner applied for a teaching certificate in the areas of biology, chemistry, and general science. Petitioner had been certified by the State of Florida from August 20, 1974, through 1979 in these subjects. Petitioner allowed his prior certificate to lapse in 1979 as he was not sure he wanted to continue to be a teacher. At the time he allowed his certificate to lapse, he was involved in a drug problem, which drug problem resulted in the three arrests at issue herein. Petitioner was arrested in 1977, in 1978, and in 1979 for possession of controlled substances. Each of the arrests resulted in the withholding of adjudication. None of the arrests involved the sale of drugs, and Petitioner has never sold drugs. Petitioner has not used drugs since January of 1979, the date of his last arrest, and the drug used that date was a drug prescribed for him by a doctor. Prior to this application, Petitioner had reapplied for his teaching certificate. That application was denied since Petitioner was on probation from his arrests. Petitioner has completed all of his probationary periods. During the last year and a half, Petitioner has been teaching at the Miami Shores Preparatory School. He was hired to start a science department and has been teaching seventh and eighth grade life science, ninth and tenth grade biology, eleventh and twelfth grade honors biology, and eleventh and twelfth grade honors chemistry. He is also the swimming coach and serves as a counselor for seventh and eighth graders. Since he has been teaching at Miami Shores Preparatory School, a student has written an essay about him in describing the characteristics of an ideal teacher for a literary contest. The students at Miami Shores have dedicated the school yearbook to him. He has started a program at that school for students with drug problems by enlisting the aid of persons in the drug program which he himself successfully completed. Petitioner has had no difficulty in his present teaching position. However, in order for him to continue teaching at Miami Shores Preparatory School, a Florida teaching certificate is required. He is supported in his application for a teaching certificate by the principal of that school as well as by some of the other teachers, students, and parents of students at that school. Petitioner meets all requirements for issuance of a Florida teaching certificate, and the only basis for Respondent's denial of his application involves his three arrests.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered approving Petitioner's application for a Florida Teacher's Certificate, providing that Petitioner be issued a Teacher's Certificate on a probationary basis for a period of five years, and further providing that such certificate be automatically revoked if Petitioner be arrested for possession of any controlled substance during his five-year probationary period. RECOMMENDED this 24th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of September, 1981. COPIES FURNISHED: Ronald C. LaFace, Esquire Roberts, Miller, Baggett, LaFace, Richard & Wiser Post Office Drawer 1838 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to' be determined deals with the propriety of the denial of certification based upon the belief on the part of the Respondent that Petitioner does not have the requisite good moral character necessary for certification. See Subsection 943.13(7), Florida Statutes.
Findings Of Fact The Sheriff's Office of Jacksonville, Duval County, Florida, had submitted an Affidavit of Certification for Petitioner Harold B. Walbey, Jr. In response to that affidavit, the Criminal Justice Standards and Training Commission issued a Statement of Denial, a copy of which may be found as Respondent's Exhibit No. 1, admitted into evidence. The basis of denial was related to the belief that Petitioner did not evidence the requisite good moral character required for certification. See Subsection 943.13(7), Florida Statutes. In particular, the denial related to a series of events leading to the revocation of Petitioner's Florida Teaching Certificate by order of the State Board of Education entered on October 12, 1979. Respondent's Exhibit No. 2 is a copy of that order of revocation together with the Recommended Order of the Hearing Officer, Division of Administrative Hearings. The revocation of the teacher's license was premised upon a conclusion of law that Petitioner had committed acts of gross immorality and moral turpitude in his relationship with junior high school female students in the school in which he taught. Those acts had sexual connotations. It was also determined in law that Respondent had lost his effectiveness as a teacher in view of the underlying circumstances. Petitioner took issue with the denial of his law enforcement certificate and requested a formal Subsection 120.57(1), Florida Statutes, hearing. The matter was then referred to the Division of Administrative Hearings and a hearing was held on October 8, 1982, in Jacksonville, Florida. On November 2, 1981, Petitioner was employed as a temporary or probationary employee of the Sheriff's Office, in Jacksonville, Duval County, Florida, in the position of Correctional Officer at the County Prison Farm and remains in that employment at this time. Duties of the Petitioner would include floor assignment, medication, food, preparation for commitment, booking, releasing and other functions. Among those other functions Petitioner transports female inmates, by motor vehicle, with no other law enforcement official or other person in attendance. These trips in which Petitioner has custody and control over female inmates are infrequent. Officials within the Duval County Sheriff's Office who presented Petitioner's Affidavit of Certification maintain a neutral posture on the question of his certification and have vouched for Petitioner to the extent necessary to elicit a final decision from Respondent on the question of certification. The chief personnel officer for the Duval County Sheriff's Office feels that the Petitioner would make a good employee if he has become sufficiently rehabilitated following the incidents which led to the revocation of his Florida Teaching Certificate. Petitioner is well accepted by his superiors in his capacity as Correctional Officer and has received acceptable performance evaluations. Petitioner has been married three (3) times and is the father of twelve (12) children, none of which reside with him. He is responsible for furnishing support to his children. Petitioner holds a BS degree from Edward Waters College and a Masters degree from Florida A & M University. He has served in the military, both in the Air Force and the Army National Guard. Walbey is now forty-five (45) years of age. Testimony from community leaders and neighbors and acquaintances of Petitioner show him to be a person deemed to be reputable and hard working and a fine neighbor. No testimony was offered related to efforts which Petitioner had made in trying to effect his rehabilitation through professional assistance on the topic of those matters which caused him to lose his teaching certificate or opportunities in which Petitioner had conducted himself with proper decorum when in the presence of young women following that disciplinary action. Petitioner did not concede the facts of those incidents leading to the revocation as a part of his presentation.
