Findings Of Fact Respondent holds Florida Teacher's Certificate No. 450387, covering the area of music education. At all times material hereto, Respondent was employed as the band director at Sebring High School in the Highlands County school district. In October or November 1981, Respondent was in possession of a quantity of marijuana in his classroom at Sebring High School. While cleaning Respondent's classroom, James Nelson, one of the School's custodians, observed a small brown case or kit on Respondent's desk. Upon opening the case, Nelson observed a quantity of marijuana in an unlabeled pill bottle, another unlabeled pill bottle containing a quantity of pills, and a tube of glue in the bottom of the case. After examining the contents, Nelson replaced the case on Respondent's desk. As Nelson was leaving the room, Respondent and two students entered. When Nelson returned 15 minutes later to turn off the lights and lock the room, the case was gone. No one except Respondent and the two students who accompanied him had entered the classroom during that 15-minute interval. In April 1981, William Miles McGee, a six-year member of the Sebring Police Department, drove a bus for a trip which the Sebring High School band made to the Cherry Blossom Festival in Washington, D.C. Numerous chaperones told McGee that Respondent, a passenger on the bus, had drugs with him on the trip. McGee saw Respondent in possession of a small shaving-type kit or bag. While Respondent and the band members were away from the bus, McGee looked in the bag, which Respondent had left on a seat in the bus. He observed a small, brown unlabeled bottle similar in appearance to a prescription pill bottle containing a very small amount of a white powdery substance and a small silver spoon, three to four inches in length. Based upon his experience with drugs and drug paraphernalia, McGee noted that the powdery substance had the same appearance as cocaine and the silver spoon was the type used for cocaine and heroin. McGee did not perform any chemical test or cause any chemical test to be performed on the substance, and he did not immediately report his discovery. After his return, he continued to hear talk through chaperones, adults, and students that Respondent was a drug user. For that reason, he reported his Washington, D.C., observations to Lieutenant Hopton of the Highlands County Sheriff's Department approximately four months after the band trip. In October 1982, Lieutenant Hopton requested of McGee a written statement concerning his observations on the band trip in April 1981. Tracy Lehman attended Sebring High School and graduated in 1981. During her junior and senior years, she was a member of the Sebring High School band under Respondent's direction. Approximately a month after her graduation, Respondent asked Lehman out. She was 17 years old at the time. While they were out together, Respondent smoked a marijuana cigarette and offered her marijuana, which she refused. On the second occasion that Respondent offered Lehman marijuana, she again refused, and he then proceeded to smoke the marijuana in her presence. Although Respondent ceased offering her marijuana again, there were other times that he smoked marijuana in Lehman's presence, most of which times occurred in Respondent's home. At the formal hearing, Lehman demonstrated Respondent's technique of smoking marijuana by holding the cigarette with fingertips close to his lips, inhaling deeply, and holding the inhalation before exhaling. Although Lehman only admitted to dating Respondent for three to four months after her graduation, there was a lot of talk among the girls who were members of the "Highsteppers" drill team that Respondent was seeing quite a bit of Lehman while she was a member of the band before she graduated from high school. Karie Gibbs attended Sebring High School and also graduated in 1981. During her senior year, she was a member of Respondent's band. In March 1981, Respondent instructed her to drive his vehicle to town in order to pick up some music and a set of keys from the assistant principal. While in the vehicle, Gibbs observed a small shaving-kit type of bag, which she opened. Inside the bag she found rolling papers, a bag of marijuana, an unmarked prescription bottle with pills in it, Campho-Phenique, a tube of Blistex, aspirin, and a gold "roach clip" shaped like a guitar. Later in the same week, Respondent asked Gibbs to go to his vehicle, remove the bag, and bring it to him in the band room. While carrying the bag or shaving kit to Respondent, Gibbs noticed that it was partially unzipped. She looked in the bag and observed the same contents, but a smaller quantity than she had observed earlier in the week. Respondent placed the bag in the top drawer of the file cabinet in the band room. Gibbs and other students were at Respondent's home on her graduation night in June 1981. At that time, she observed rolling papers, a bag of marijuana, and a quantity of ground marijuana inside Respondent's toaster oven in his kitchen. In July 1981, Lehman attended a bachelorette party held at Respondent's home and observed a marijuana plant growing on Respondent's back porch in a pot. Avon Park High School band director, Joe Keating, observed Respondent smoking marijuana approximately 15 to 20 times in Respondent's home, garage, and truck. Respondent showed Keating some small plants growing in a potted plant on the back porch of Respondent's home and advised Keating that Respondent's "pot plants" were doing nicely. In addition, Keating observed Respondent "clean" marijuana, roll marijuana, and dry marijuana in Respondent's toaster oven. Keating observed Respondent's small shaving kit on a number of occasions. In that kit Respondent usually kept the following items: a few joints, some unrolled marijuana in a glass or plastic pill bottle with a plastic cap, a white powdery substance in a clear bottle, and some Blistex. At the formal hearing, Keating demonstrated the manner in which Respondent smoked the marijuana and described how an "alligator" clip was used to hold the cigarette when it became very small. On one occasion, when Keating visited Respondent at Respondent's home, some of Respondent's friends from out of town were also visiting. Keating observed Respondent divide lines of cocaine on a mirror and snort, or inhale, the cocaine up one of his nostrils, using a rolled-up dollar bill. On yet another occasion, Respondent showed Keating a very small quantity of a white powdery substance, which Respondent identified as "coke," and told Keating how expensive it was. Keating did not participate in the use of marijuana or cocaine with Respondent. Student Richard White observed Respondent kissing ninth-grade student Jackie Caporino on the lips in the band room at Sebring High School near the conclusion of the school day toward the end of the 1981-82 school year. There were other students in the band room at the time. The talk among the "Highsteppers" was that Respondent was "too friendly" with band member Caporino. Janet Snook was a 1983 graduate of Sebring High School. During her junior and senior years, while Respondent was her band director, she visited Respondent in his home approximately 50 times. In addition, Respondent called her at her home on numerous occasions and asked her out about five times. In December 1982, she went out with him to dinner at a local Pizza Hut. Although Snook was not certain whether Respondent hugged and kissed her upon their return from the Pizza Hut, he had kissed her before that night. In December 1982, Janet Snook was a senior at Sebring High School and was 17 years old. Her father was concerned about her becoming infatuated with Respondent. He knew that Respondent called his daughter on her bedroom telephone several times. Therefore, on one occasion when Janet's mother answered the telephone when Respondent called, Mr. Snook got on the telephone and advised Respondent that it was not right for Respondent to be going out with one of his students and told Respondent that he did not want Respondent to see Janet again. Linda Heiring, now a student in her senior year at Avon Park High School, was a member of Respondent's band in her seventh and eighth grade years at Avon Park Middle School. Respondent has been involved in a romantic relationship with her since at least her ninth grade year, when she was 15 years old. On several occasions, Respondent discussed with Keating Respondent's feelings for this student and stated that he "loved" her. Keating saw Linda Heiring at Respondent's home approximately 10 to 15 times. On several of those occasions, he observed the student sitting on Respondent's couch with Respondent lying in a prone position with his head in her lap and the student's arm over his chest. On another occasion, Keating inadvertently observed the Respondent and Heiring embracing with arms around each other in Respondent's kitchen as Heiring was about to leave. Keating took a group of 30 to 40 band students to the Winter Haven Marching Band Contest in November 1982. Keating and the band were seated in the bleachers watching the contest, when Respondent and Heiring arrived holding hands. They continued to hold hands as they walked in front of the bleachers and then up the bleachers toward the group of students to take their seats. Karen Tifft, the sponsor for the flag and rifle corps of the Avon Park High School band, has seen Respondent and Linda Heiring kiss on possibly five or six occasions. On one occasion, she observed them kissing behind the bleachers during a high school football game. Tifft also observed the two of them at the Winter Haven Marching Band Contest holding hands as they walked up to their seats, holding hands later at dinner after the A contest, and observed them kiss. She has seen them kiss when Respondent has dropped off Linda Heiring at Avon Park High School in the morning. Each of these kisses were on the lips. When Tifft has seen Linda Heiring riding with Respondent in his vehicle, Heiring has been seated over next to the Respondent instead of sitting in the passenger seat. Sometime during 1982, Linda Heiring approached Janet Snook at the skating rink in Sebring to talk to her about Respondent. Heiring was afraid that Snook was going to take Respondent away from her and warned Snook to stay away from Respondent. Snook has seen Respondent and Heiring standing on the track encircling the football field with their arms around each other at a band contest during 1982. On another occasion, she saw the two of them together at an arts festival in Sebring, again with their arms around each other. On January 6, 1983, the Avon Park High School band traveled to Jacksonville, Florida, to play for the music educators' convention. Linda Heiring was present on the trip as a member of the Avon Park High School band. The band members originally checked into a Quality Inn motel in Jacksonville but moved to a Days Inn the following day due to the poor condition of the Quality Inn motel. After arriving in Jacksonville, Heiring commented to Karen Tifft, who had accompanied the band on the trip as a chaperone, that "Chuck's up here" and that he was going to call her. As the buses were unloading at the Days Inn, Heiring pointed to the motel across the street, a Ramada Inn, and told Keating that was the motel where "Chuck" was staying, referring to Respondent. Heiring also advised Tifft upon their arrival at the Days Inn that "Chuck's staying across the street from us." On January 7, 1983, the Avon Park High School band made a field trip to St. Augustine, Florida. Upon their return to Jacksonville, the band members were to change clothes, eat supper, and gather to attend the performance of another band that evening. Around 5:00 or 5:30 P.M., Respondent called Keating and asked if Respondent could take Linda Heiring to the concert. Keating told Respondent that it would not be a good idea and reminded Respondent of the school rule prohibiting students from riding in private transportation while on hand trips. The school policy required that students ride in transportation provided by the school. Respondent then asked Keating if Respondent could take Heiring to dinner. Keating again advised him that that was against school policy. Keating then told Respondent that, if Respondent had dinner with Heiring, he should be sure the chaperones did not see them. Keating assumed that Respondent would take Heiring to an eating establishment within walking distance, due to the prohibition against transporting students in private vehicles. Tifft and other chaperones standing on the second floor of the Days Inn observed Respondent walk across the street from the Ramada Inn and approach a group of students standing below which included Linda Heiring. Respondent walked up to Heiring, put his arm around her, and squeezed her. They talked for a few moments and then walked away from the group. Respondent called up to the chaperones to ask Keating's room number. Tifft responded with Keating's room number, and Respondent and Heiring proceeded to walk away as though they were going to walk around the motel to Keating's room. Just as they were about out of sight, however, Respondent grabbed Heiring's hand, and they dashed across the motel parking lot, jumped a ditch, ran to a vehicle, and drove away. This occurred at approximately 5:45 or 6:00 P.M. The chaperones reported this to Keating, who then made an unsuccessful effort to determine the whereabouts of Respondent. Tifft requested Juan Sanchez, the band's drum major, to watch for Respondent and Heiring while Tifft and the other chaperones went to the restaurant in the Days Inn to eat dinner. At approximately 6:30 or 6:45 P.M., Sanchez came to the restaurant and told Tifft that Respondent and Heiring were back but that Respondent had driven around the Days Inn, driven across the street, parked at the Ramada Inn, and Respondent and Heiring had entered Respondent's room. Tifft and Mrs. Tondee, another chaperone, left the restaurant, walked across the street to the front desk of the Ramada Inn, obtained Respondent's room number, and walked down to his room. It took them approximately five to ten minutes to get to Respondent's room. When they first knocked on the door, they saw someone lift the curtain at the window. They knocked again and asked Respondent to open the door. Tifft, Tondee, and Respondent conversed back and forth through the closed door for three to five minutes before Respondent finally opened it. When he did open the door, he was fastening the top of his pants and was not wearing a shirt, shoes, or socks. When the chaperones entered the room, there was only a dim light in the room. No one else was present in Respondent's room or in the adjoining room. Heiring was in the bathroom when the chaperones entered Respondent's room. As they were waiting for her to come out, Respondent put on his shirt and called out to her, "Come on, Hon, it's my turn in there now. Hurry up, Hon, it's my turn now." Approximately ten minutes after the chaperones entered Respondent's room, Heiring came out of the bathroom adjusting her collar and her sweater. She then sat down on the end of the bed and put on her shoes, which had been located at the foot of the bed. She then walked out of the room, followed by the chaperones. During the ten minutes that Tifft was present in Respondent's motel room, she neither saw nor heard anyone in the motel room adjoining Respondent's room. After accompanying Heiring back to her room at the Days Inn, Tifft observed Respondent drive across the street to the Days Inn parking lot and pick up student Brad Ward. She later observed Respondent and student Brad Ward at the concert that evening. Due to Heiring's violating a school rule governing band trips (that band members were not to be in the motel rooms of members of the opposite sex), she was sent home from the trip. She was later suspended by the principal of Avon Park High School for three days. Respondent was suspended from employment on January 10, 1983, by Dr. Billy Cason, superintendent of schools for Highlands County, for his actions in Jacksonville in having a minor female student in his motel room. Based upon Superintendent Cason's 25 years of experience in the education profession (all of which has been in Highlands County), Cason believes that Respondent's effectiveness as an employee of the school board has been seriously reduced. His opinion is based upon Respondent's conduct, the notoriety which it has received in Highlands County, general community knowledge of the incidents in question, the standards of professional conduct expected by his school district, and the Code of Ethics for teachers in Florida. Calvin Smith, principal of Avon Park High School, would not hire Respondent as band director at his high school. Parents of Avon Park High School band members have told Smith that they would pull their children out of the band if Respondent were employed at that school. The January 7 incident and Heiring's relationship with Respondent have adversely affected Heiring's relationship with other members of the Avon Park High School band, many of whom have refused to have anything to do with her since the January 7 incident. Heiring's mother had given her permission to "see' Respondent only since October 1982, when Linda Heiring became 16 years old. Between that date and the January 7 incident, Heiring's mother was only aware of Respondent being alone with her daughter on two or three occasions: one occasion was when Respondent took Heiring to the arts festival in Sebring, and the other one or two occasions were to take her to dinner. Mrs. Heiring was not aware that her daughter's relationship with Respondent included kissing, embracing, holding hands, and resting Respondent's head in her lap. Mrs. Heiring's impression of the relationship was that Respondent and Linda Heiring were just friends. She did not give her daughter permission to date Respondent, only for her to have dinner with Respondent on the specific occasions above described. As early as January 1982, Captain Austin Hasler, Sebring Police Department, conducted an unofficial investigation of Respondent, his son's band director, due to the number of rumors he heard from other band parents regarding Respondent being a ladies' man with the female students and about Respondent's alleged use of narcotics. Hasler asked some of his "street people" to check around, so that he could either confirm or disprove some of the rumors that he had been hearing about Respondent. Hasler was unable to obtain sufficient information from this source "to form an opinion;" however, he resolved to keep a closer eye on Respondent thereafter. The rumors about Respondent's dating and drug habits continued to be spread throughout the community and among both the students at Sebring High School and the students at Avon Park High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and permanently revoking his Florida Teacher's Certificate No. 450387. DONE and RECOMMENDED this 19th day of March, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 19th day of March, 1984. COPIES FURNISHED: J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32302 John J. Chamblee, Jr., Esquire Robert A. Miles, Esquire 202 Cardy Tampa, Florida 33606 Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
Findings Of Fact The Respondents, Sandra Hoskins and Michael Mancuso, (the licensees), hold license number 62-957, Series 4 beverages by the drink for consumption on the premises of Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. Sweethearts is known as a bar where, in addition to buying alcoholic beverages, the mostly male patrons can watch "exotic dancing" on stage and pay $5 plus tip for a "lap dance." The dancers are physically attractive females dressed in underwear or "T-back" bathing suits. 1/ They are engaged by the management of Sweethearts to perform at Sweethearts. 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 "lap dances" for them personally. The dancers also directly solicit "lap dances" from the customers. At the end of each shift, each dancer "tips out" $10 to the "house," i.e., pays the licensees $10, and "tips out" $5 to the disk jockey. As evidenced by what took place at Sweethearts on April 13 and August 25, 1989, a "lap 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." During the "dance," which is performed to the rhythm of the music, the dancer rubs 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. Although the customer remains fully dressed during the "dance," and the dancer does not remove any clothing (i.e., she remains dressed either in underwear or in her "T-back" bathing suit), the "dance" is intended to simulate various sex acts, and purpose of the "dance" to arouse the customer sexually. Sometimes, the "dancer" fondles herself and acts as if she herself is becoming sexually aroused by the "dance." Sometimes, the customer rubs the breast area of the "dancer" or grabs her buttocks in the area of the anal cleft, and the "dancers" typically do little to stop or deter this behavior. Although the "lap dancing" occurs in a part of the bar where the lighting is red and subdued, it is highly implausible that the licensees, if on the premises, or the licensees' representative(s) on the premises would not know that the "lap dancing" described above was taking place on the premises. It is open and notorious. There was some evidence that there might be a nominal official policy at Sweethearts prohibiting patrons from touching the dancers. But the evidence is clear that management "winks at" violations of this official policy, if there indeed is one, and management policies in place at Sweethearts encourage the dancers to allow the patrons to touch them. (Allowing it to continue increases the chances of getting tips from customers such as these.)
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 revoking license number 62-957, Series 4-COP, issued to the Respondents, Sandra Hoskins and Michael Mancuso, d/b/a Sweethearts, located at 408 U.S. 19 South, Clearwater, Florida. RECOMMENDED this 25th day of October, 1990, 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 25th day of October, 1990.
Findings Of Fact Respondent, Ronald H. Youmans (Youmans), was born July 28, 1948. Educated in Tennessee with a Bachelors degree in Music Education, he moved to Titusville, Brevard County, Florida in 1972 with his wife, Frances (Fran) and his then two-year-old daughter, Lisa. He assumed the position of music teacher/band director at Jackson Middle School in Titusville, for the Brevard County School District, for the 1972-73 school year. Youmans continued as a music teacher/band director under a continuing contract in the Brevard County School District for twenty-three years, until his suspension or reassignment in 1995. He moved from Jackson Middle School to Titusville High School in 1981, and then to Cocoa High School in 1987. Throughout his twenty-three year career Youmans received excellent performance ratings from his superiors. He participated actively in band- related programs: taught summer recreation band and jazz band, served as judge in state-wide band competitions, led the Bicentennial Band in 1976, and taught private music lessons along with his wife, Fran, at Jack's Music Store in Titusville. His bands and his students excelled; they marched in parades, participated in band contests and won awards and high praise from parents and peers. From witnesses for both parties in this proceeding there was an outpouring of appreciation of Youmans' talent as a band director. The Youmans family expanded to include a second daughter, Karen, born in 1976 and a son, Mark, born in 1977. The family was well-known and well-liked in the community. A simple visit to the mall would become a social event as former and existing students or their parents would greet and chat with the Youmans. The position at Jackson Middle School was Youmans' first teaching job. While band director there, Youmans was in his 20's and early 30's and "related" to his students. A coterie of adoring and particularly talented students, mostly girls, gravitated to his band room to "hang out" before and after school. Some helped out by filing music or performing similar clerical tasks; they were called "band-aides." Early on in his term at Jackson Middle School, Youmans became known as "Yogi" to his students. He did not view the nickname as a sign of disrespect and he enjoyed his obvious popularity, which popularity plainly contributed to the success of his music program. To the students, "Yogi" made band fun; he also made them work hard and they were successful. Band was like a big family; parents became loyal supporters and provided valuable volunteer services. The inner circle of students was known as the pet group. At some point Youmans got upset about the notoriety of the "pet situation" and he made up a pet application form and told students if they wanted to apply they would be instantly admitted into the "Pet Club." Fran also interacted with the students. She and the Youmans children attended band events; Lisa, starting around four years of age, marched in parades and practiced marching with the band. Fran taught private lessons to some students and was a youth leader at church. Some students, therefore, gravitated to the Youmans' home as well as to the band room; they dropped in to visit the family, sometimes baby-sat, ate dinner or spent the night. They visited Fran and gave her a baby shower when she was undergoing a difficult pregnancy with daughter, Karen, in 1976. Some of the interaction between the students and their band director was overtly physical: they gave him back rubs and back scratches and sat on his lap, gestures which Youmans avowed were directed to an avuncular or "Santa" figure and nothing more. Youmans was then, and still is, short and heavy-set. Some verbal interaction, or banter, between Youmans and his students was sexual in nature. A heavy-bosomed girl was called "Boom-Boom." "Twanging" was coined as the term for a girl going bra-less. To a girl named Jeannie, Youmans said, "I dream of Jeannie in a cellophane bikini." To another girl who had said that her glands were swollen, Youmans responded, "It's about time." Other interaction with the students was simply jejune. Youmans signed some yearbooks with his nickname, "Yogi", with a small valentine in lieu of the dot over the "i." One comment by Youmans in a girl's yearbook was "We're still going steady." The students bought him a pair of red socks with the word "sex" in small white letters which enlarged when the socks were worn. He wore the socks at the students' urging and the band was awarded "superiors" at the band festival. Thereafter, he wore them every year for the contest. Shelley Michelle Kerr (now, Michelle Kerr Stallings, or Shelley) was born March 3, 1963. At the end of her sixth grade in Titusville, she was in Youmans' summer recreation band. As a seventh grader at Jackson Middle School she enrolled in Youmans' band class. She was a quiet and attentive student, a very good clarinet player and one of the inner circle of students who hung around Youmans before and after school. Shelley also took private lessons from Fran at the music store and was in Fran's youth group at church. Shelley "bonded" with the Youmans family and spent time with them at their house, or in the early days - trailer, and on family outings. She baby-sat and sometimes spent the night. In 1976, in the second semester of Shelley's seventh grade, when she was in Youmans' office, usually after school and alone, the back rubs and lap- sitting escalated to kisses. At some point at the end of the seventh grade, Shelley and another band student, Barbara Kaufman, were visiting the Youmans' trailer. They had eaten dinner and the two girls were doing the dishes. Fran was not around. Youmans took turns with the two girls, taking one, then the other around the wall partition and hugged and kissed them. During the summer of 1976, Youmans kissed and fondled Shelley's breast or vagina on several occasions, at school or at the Youmans' home. She felt scared and confused, but trusted and loved him. Shelley knew Barbara Kaufman had a crush on him as well and she believed Youmans was also hugging and fondling Barbara. At the end of the summer when Barbara returned from her vacation, the two girls were at the playground at Coquina Elementary School near where they both lived. Shelley wanted to know how far Youmans had gone with Barbara. She tried to ask Barbara whether he ever lifted up her shirt, but had a hard time saying it and just gestured with her hands until Barbara insisted that she explain what she was asking. Shelley continued in band in the eighth grade. After school started in the fall, on an occasion after school hours, Youmans told Shelley he wanted to show her something. He took her to the band office and removed her pants and underwear and performed oral sex on her. Fondling and oral sex between Youmans and Shelley continued through her eighth grade year. The first act of sexual intercourse between Youmans and Shelley occurred when she was sixteen, in high school and driving a car. They met at a Burger King out by the beach and drove in her station wagon to the beach. She wore a bathing suit with shorts and a shirt over it. They had intercourse after oral sex, with the seats down in the station wagon. Afterwards they returned to the Burger King where Youmans left in his own vehicle. Sexual intercourse between Youmans and Shelley occurred approximately six times over the years until 1984. The occasions included a time when Shelley was spending a week in her parent's recreational vehicle parked out at Jetty Park at the beach. Youmans visited her the first night, and after that night Lisa Youmans came out to spend the week with Shelley. On another occasion around 1982, Youmans suggested that he and Shelley drive to Daytona Beach so he could take her out in public to dinner. They drove to Daytona but the restaurants were crowded so he checked into a Howard Johnson's motel, where they had intercourse. Other occasions included when Youmans was alone in his home and when Shelley was staying out at the beach in a motel. During this period, particularly during the earlier years, Shelley remained close to the Youmans family and was included in family outings, sometimes overnight trips. She loved Youmans and he told her he loved her. She also loved Fran and the kids and felt part of their family. The end of the sexual relationship between Youmans and Shelley occurred in 1984. Karen Youmans was having a birthday party and Shelley brought her a present. The party was winding down and Youmans announced he had to go pick up something at the band room. To Shelley, this was a cue for her to call him or meet him there. She left the party a short while later and found him in the band room. They hugged and kissed and Youmans suggested they leave the band room because a family friend, John Kuntz, was the security guard and lived in the security trailer at the high school. They left the school and drove around. As they returned to the high school parking lot, Fran was parked in the lot. She drove her car really fast toward the couple, then squealed her tires and left. Shelley knew Fran was upset. She got in her car and went to the house of her friend, a co-employee at a bank where Shelley was working. Shelley was distraught and told her friend that Fran Youmans had accused her of having an affair with Mr. Youmans and had tried to run into them. Later that evening Youmans appeared in his car outside the friend's house. Shelley went out to talk to him and he told her Fran had thrown his clothes out and he was going to spend the night at a hotel. She did not go to meet him there. By this time Shelley had started dating, having had, at age eighteen, a several-month sexual relationship with a fifty-year-old man, Fran's boss at a printing company and a friend of the Youmans family, a man Fran described as a "Don Juan." In 1985 Shelley dated Scott Schuler, a person she liked and trusted. After dating him approximately five or six months she confided in him about the relationship with Youmans. Scott Schuler noted that Shelley was very upset when she told him about Youmans. She was shaking and agitated, and hesitated to share the information. He spoke to a priest about her and she also spoke to the priest at Schuler's urging. She did not pursue counselling at this time because she was not ready. After 1985 Shelley had intermittent contact with the Youmans family. Fran was invited to Shelley's wedding shower held by Shelley's mother and sister in 1986. Fran called Shelley and said she wanted to be back in her life, to watch her kids grow up. Fran printed the birth announcement for Shelley's first child at Fran's print shop. The family came to visit Shelley at the hospital when she had her first child in 1989 and sat behind her in church at her second child's baptism in 1992. Barbara Barbara Kaufman was very different from Shelley Kerr, although Barbara, too, was a talented clarinet player in Youmans' band. The same age, or a few months older than Shelley, Barbara was in the same grade as Shelley. Barbara was outgoing, fun-loving and even brash, but a well-focused music student. She was a drum major. Although Barbara and Shelley were both in the close pet circle, they had different best friends. Barbara also took music lessons from Fran and sometimes Youmans at Jack's Music Store. Youmans commenced a sexual relationship with Barbara around the same time as with Shelley, at the end of the girls' seventh grade. Once in the school cafeteria she burned her tongue on hot food and commented on this when the pets were gathered after lunch in the band room. Youmans told her to stick out her tongue and he would kiss it. Barbara's account of the kissing and hugging at the Youmans' trailer after dinner is very similar to Shelley's. Barbara felt Youmans cared very deeply for her and he told her she was special to him and that he loved her. She also loved him. During the summer of 1976 Youmans French-kissed Barbara in his band office when they were alone. This became a regular activity. Before she left for vacation he gave her three five-by-seven photographs of him directing the band or posing with the Jackson Middle School drum. She put them in frames and took them with her to Michigan because Youmans told her to think of him while he was gone. When she returned from vacation at the end of the summer, Barbara saw Shelley at the swings on the playground at Coquina Elementary School. After Barbara learned that Shelley's involvement had gone beyond the kissing and hugging, Barbara was very jealous. She rode her bicycle home and called Youmans at the band room. When she learned he was there she rode her bike to the school to confront him with what she learned from Shelley. Youmans reassured her that Shelley meant nothing to him. He hugged and kissed Barbara and fondled her breasts. He told her he loved her and someday they would get married. As drum major, Barbara was sometimes required to direct the band in parades and at school. She spent time with Youmans, in practice or alone. During Barbara's eighth grade at Jackson Middle School the relationship with Youmans developed into oral sex, in the band room, in the band office and sometimes in the back room of the music store when she was having a lesson. Barbara confided to Kerry, one of her close girlfriends, that she and Youmans were having a relationship, oral sex, but no intercourse. Kerry was a year younger than Barbara and is the sister of Barbara's current fiance. On several occasions Kerry observed Youmans drive by on his motorcycle or other vehicle and visit with Barbara in the back yard. When Barbara confided in Kerry, Kerry felt that Barbara was happy with the relationship and proud of Youmans. Youmans specifically told Barbara not to tell another girlfriend, Brenda Probst, of the relationship. Brenda was Barbara's best friend and Barbara believes Brenda would have immediately told her father. Brenda was aware that Barbara spent a lot of time with Youmans but at the time she assumed it was because Barbara was so involved with the band and was the drum major. Barbara told Brenda that Barbara would go back to the band room in the late evening or that Youmans stopped by her house on the way home sometimes, but Brenda did not see this herself. The relationship between Barbara and Youmans ended shortly after she entered high school and the opportunity for getting together diminished. Unlike Shelley, Barbara did not visit the Youmans family and was at their home on only a few occasions. In 1992, after high school, and after Barbara left and returned to Brevard County and was working with a church choir, she went to Cocoa High School to visit Youmans and to try to get some trumpet players for her choir's Memorial Day celebration. They discussed their lives generally; Barbara showed him pictures of her new house; they compared cars and she bragged about her cellular phone; he talked about his daughter, Lisa. Barbara got to the point of discussing her mother's death in an automobile accident and she started to cry. Youmans also cried and told her he was sorry if he ever caused her any emotional problems. This, Barbara believed, was a reference to their prior relationship, which she still considered a love situation, a special thing and a bond between them. Youmans' apology upset her and confused her. She left the band room and called her friend, Brenda, on her car phone, very upset and crying hysterically. Barbara told her friend about the encounter with Youmans and about the sexual relationship that she had believed was a love relationship. Brenda tried to calm her, but commented, "He molested you." In a subsequent conversation Brenda urged Barbara to go to a counselor. The "Hidden Camera" Jamie Lee Robinson was born March 16, 1979. In January 1994 she was a band student in Youmans' Cocoa High School band. She was a talented clarinet player and attended the all-state band festival in Tampa, Florida with Youmans and other band students. Jamie shared a hotel room with Jessica Sweeney, a band student from Cocoa Beach High School. On the morning of the first day, Youmans rang Jaime's room to make sure she was awake and getting ready. Jessica answered the phone and handed it to Jaime. Youmans told her that he had a camera in the room to find out whether the kids were behaving and he could see everything she did and wore. This troubled her but she was still half-asleep. She told her roommate about the call and Jessica tried to reassure her that there could be no such camera in the room. Later, Youmans called again as Jaime was getting dressed and buttoning her blouse. He told her to button her blouse because he could see everything. This completely unnerved her and she began looking for the camera. At some point she and Jessica discussed whether the fire or smoke alarm apparatus with a blinking light was really a camera. Still later, Youmans called the room again. This time Jaime was fully dressed, and when Youmans told her that he could still see everything and she needed to get dressed, she realized she had been duped. The episode embarrassed Jaime and for the rest of the trip she dressed in the bathroom or under the covers. She did not consider the calls a joke and was terrified that she would be ridiculed by the other band students. Weighing the Evidence Youmans vehemently denies having had a sexual relationship with Shelley or Barbara. He also denies that the phone calls to Jaime were any more than a big joke, enjoyed enormously by all of the students, including Jaime and her roommate. Youmans and his wife, Fran, admit there was a cataclysmic domestic dispute the night Fran found him with Shelley in the high school parking lot. Youmans admits accepting and wearing the "sex" socks; he admits the back rubs and lap-sitting (although he insists the students only sat on his knees); he admits having signed yearbooks on occasion with a valentine over the "i;" and he admits at least tolerating an atmosphere where off-color jokes, slang and nicknames were exchanged. It was also a fun and exciting atmosphere for his students, particularly those in his inner circle, the "pets" or "pet club." He was young, creative and very popular; the students sought his attention and affection. He was "teacher of the year" in 1975-76. Based on the overwhelming evidence in this proceeding, none sought his attention and affection more relentlessly than Shelley and Barbara, two very different adolescent girls. The overwhelming evidence in this proceeding establishes that he took advantage of their devotion and committed the alleged sexual acts. Their devotion and loyalty insured that they would not "tell" or otherwise jeopardize their privileged status. In making the ultimate finding of guilt the hearing officer has considered the credible testimony of the myriad witnesses who saw no sign of any impropriety in Youmans' twenty-three years of teaching in Brevard County. Many of these witnesses and even some who were called to testify on behalf of the school board failed to see some of the practices admitted by Youmans. The fact that the sexual misconduct allegations took approximately twenty years to reach the school board has also been considered. Evidence that both Barbara and Shelley disclosed their experiences to several confidants, male and female, at times over the twenty years has been credited. There is no evidence that this is a situation in which two girls individually fabricated or conspired in a vicious lie about a beloved teacher. Finally, Youmans has admitted that his "hidden camera" call or calls to Jaime were bad judgment. His version of the incident as a well-appreciated joke was not substantiated by any credible testimony.
Recommendation Based on the foregoing, it is recommended that the School Board of Brevard County enter its final order granting the Petition for Dismissal and terminating the continuing contract of Ronald H. Youmans. DONE and ENTERED this 13th day of June, 1996, in Tallahassee, Florida. MARY CLARK, 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 June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4242 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. The findings of fact proposed by Petitioner are adopted in substance, with the exception of certain numbered paragraphs which constitute more argument or discussion of the evidence than findings of fact. These paragraphs are excluded as being largely argumentative: 5.h, 15.F., 21-23. Respondent's Proposed Findings of Fact. The findings of fact by Respondent are all argument and discussion of the testimony. They have been considered, but the theories advanced in the argument, the proposed interpretations of the testimony, are rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Benjamin B. Garagozlo, Esquire ANDERSON and GARAGOZLO, P.A. 33 Parkhill Boulevard West Melbourne, Florida 32904 Virginia B. Townes, Esquire Peter L. Pollock, Jr., Esquire AKERMAN, SENTERFITT and EIDSON Post Office Box 231 Orlando, Florida 32802 Dr. David Sawyer, Superintendent Brevard County Schools 2700 St. Johns Street Melbourne, Florida 32940-6699 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue posed for decision herein is whether or not the Respondent, Harry Hoffman, based on conduct which will be set forth hereinafter in detail, is guilty of immorality within the meaning of Florida Statutes Section 231.36(6).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. During times material to the allegations as set forth in the Notice of Charges filed herein on March 16, 1979, the Respondent, Harry W. Hoffman, was employed by the School Board of Dade County as a Band Director for Carol City Senior High School. By letter dated February 9, 1979, the School Board of Dade County, Florida (Petitioner), advised the Respondent that he was being dismissed from his position of employment of immorality. The alleged facts which form the basis for the charges are that the Respondent, on December 15, 1978, while a teacher at Carol City Senior High School, committed an act of immorality upon a student, Tosha Binns, to-wit, allowing Tosha Binns to sit upon his (Respondent's) desk with her slacks and panties down with her vaginal area exposed. It is alleged that Respondent, while Miss Binns was exposed from her waist down, had his trousers unzipped with his hand in his trousers. To substantiate this allegation, it is alleged that this act of immorality was observed by another student, one Michael Holmes, and that when Respondent noticed that student Holmes witnessed this act, summoned student Holmes outside the classroom and gave him five dollars with instructions to "keep this incident between the two." 1/ The alleged act of immorality took place on December 15, 1978, the last day of school before the Christmas break. Michael D. Holmes, a sixteen (16) year old student enrolled at Carol City Senior High School, was a drum major during the 1978-79 school year. According to student Holmes, members of the band gave a party which began around noon on December 15, 1978. Holmes testified that Respondent was aware of the party which started around noon and lasted until shortly after 2:00 p.m. Holmes' testimony is that after the party was over, Respondent asked him to lock the band room and to be certain that all the doors in the immediate vicinity were secured. Holmes noted that the Respondent's front office door, which is situated in the back of the band room, was open. Holmes walked into the room not knowing what he would see. When Holmes entered the room, he noted Tosha Binns' pants and underwear down while the Respondent had his hand in his pants. He testified that they were all stunned and that Respondent asked him to stand outside the office and wait. Respondent later came outside and gave him five dollars to keep the matter to himself. Holmes kept the matter to himself until after the Christmas vacation because of his respect for Mr. Hoffman. Holmes was asked by a Philip Farley (phonetic) if it was true that Respondent had sexual acts with Tosha. Holmes replied, "Yes," whereupon Farley allegedly responded that, "Yes, it was true." Shortly thereafter, the rumor spread around campus. Thereafter during late January, certain band members' parents became involved and the matter was ultimately brought to the attention of the Principal, Anthony Pariso. The matter was reported to school security and an investigation ensued. A recommendation was made to the School Board that the Respondent be dismissed, which recommendation become effective on February 9, 1979. Holmes testified that he was reprimanded by the Respondent because of a behavioral problem which occurred during the blackout in January of 1979. The net result of the reprimand was that the Respondent admonished Holmes that he was amazed at his conduct during the blackout and that inasmuch as he was a drum major, he was not setting a proper example for other band members. When it appeared to Respondent that Holmes was not responding to his oral reprimand, he was stripped of his drum major duties. Geniene "Tosha" Binns, a sixteen (16) year old student at Carol City Senior High School was a student of Respondent's while she was a majorette and tuba player in the band. Miss Binns recalled being at school on the date in question, i.e., December 15, 1978, and recalled that the band "threw a party." Miss Binns testified that she left earlier with a student, Cynthia Octine (phonetic), at approximately two o'clock. Miss Binns testified that she got home early enough to watch the stories, particularly "One Life to Live" which starts at 2:00 p.m. She testified that she saw the entire story. Miss Binns denied that any improper conduct occurred between Respondent and herself or that she was at school any time after approximately 1:50 p.m. on December 15th. Betty Fabregas approached the Respondent one evening during late January, 1979, while she was serving as a volunteer worker at Carol City Senior High School. Ms. Fabregas has two daughters who were students of Respondent's and were band members during the 1978-79 school year. Ms. Fabregas was approached by a Mr. Phelps, a security officer, who inquired of her "about Respondent paying off two guys to keep the Binns immorality incident quiet." Ms. Fabregas, being stunned and also having respect for the Respondent, pondered the manner in which she should bring the incident to Respondent's attention to determine whether there was substance to the allegations. Ms. Fabregas testified that she had chaperoned with Respondent on band trips and that she never observed any questionable conduct by Respondent during his relationships with students and other band members. Respondent first gained knowledge that a rumor was being circulated around the school campus about him and student Binns on January 31, 1979, although Trudy Sobel had spoken to Respondent about the incident the preceding day, January 30th. With this knowledge, Respondent attempted to talk to the Principal, Anthony Pariso; however, the Principal refused, stating that the matter was turned over to administrative officials downtown and that the matter was out of his hands. Respondent's recollection of the manner in which he spent his time on December 15, 1978, is as follows. At approximately 10:30 a.m., Respondent approached his assistant, Ben Carrioccio, and inquired if he could cover his classes for him for the remainder of the day. Mr. Carrioccio agreed and the Respondent signed out to leave the campus at 11:00 a.m., to go to Garmon Motors to pick up an exhaust and tailpipe for his Jeep vehicle. Respondent indeed left the campus and went to Garmon Motors. He later stopped by to see "Allen," the owner of the King Midas Flea Market in Fort Lauderdale to pick up a bracelet which he had acid-tested for gold content. Respondent had purchased the bracelet from Peggy Yankowitz the preceding day for a Christmas gift for his wife. Respondent decided against keeping the gold bracelet and instead purchased a ring for his wife from King Midas Flea Market. He returned to the school to pick up some music arrangements at approximately 1:30 p.m. so that he could work on them during the Christmas break. Upon arrival at the campus at approximately 1:30 p.m., Respondent had a conversation with John Brian, a security officer, who advised him that he had experienced some problems with students who attempted to bring beer in the band hall. Respondent, having no knowledge that the students had planned a band party, became angry and immediately went to the band hall to evict the students that officer Brian told him that he had experienced problems with. Faced with those problems, Respondent made an announcement that at two o'clock the band room would be cleaned and that the party would be over. At approximately 2:15 p.m., the party was over and Respondent and Ben Carrioccio checked the area completely to see that the area was secure. Respondent advised Carrioccio that he had two phone calls to make and that inasmuch as they had secured the area, he could leave and he would see him after the Christmas holidays. Respondent stayed at the school and made phone calls to his wife and Peggy Yankowitz to return the bracelet that he had purchased. Respondent left school shortly after 3:00 p.m. and visited several friends and relatives, leaving Christmas gifts, attending pre-Christmas parties and, in general, taking care of pre-Christmas matters. Although Respondent and his wife were scheduled to leave for their vacation to the North Carolina mountains at approximately 12:00 Noon on Friday, December 15, 1978, they did not leave until the next morning since they retired for the evening at approximately 2:30 a.m. on Saturday morning. Respondent did not recall seeing Tosha Binns on the day of December 15, 1978. Respondent was suspended on February 9, 1979, based on the subject incident. During mid-February, 1979, Respondent had photos taken of the band area in order that he could reconstruct the events on December 15, 1978. Additionally, Respondent denied any improper conduct between Miss Binns and himself, and denied attempting to bribe Michael Holmes. Respondent also denied that he authorized Holmes to lock up the band area on the day in question. Peggy Yankowitz appeared and testified that the Respondent returned the bracelet which he had purchased the preceding day at approximately 3:00 p.m. on December 15, 1978. Ms. Yankowitz testified that the Respondent stayed at her residence until dark on the afternoon of December 15, 1978. Ben J. Carrioccio, a music teacher and Respondent's then assistant at Carol City Senior High School, appeared and testified that Respondent had no part in setting up a Christmas party for band students. Mr. Carrioccio testified that he and Respondent secured the band room at approximately 2:15 p.m., at which time he left the area. He testified that all the students had left when he left. Additionally, he added that the Respondent had a reputation for being, and is in fact, a strong disciplinarian. Patricia Allessio appeared and testified that she was an instructor at Carol City Senior High School for approximately sixteen years preceding the 1977-78 school year. She testified that she assisted Respondent in chaperoning band trips inasmuch as she was the Director of student activities. Ms. Allessio voiced her opinion that the Respondent was "too strict a disciplinarian." Carl L. Hanna, former Assistant Principal at Carol City Senior High School from 1975 through the 1978-79 school year, expressed his familiarity with the Respondent and offered that he had never observed the Respondent doing anything questionable during his tenure at Carol City and that Respondent often disciplined problem students. Nicholas Borota, a former Principal at Carol City Senior High School for the previous tan years, testified that the band instructors are always hired to continue their employment throughout the summer months inasmuch as continuity is essential to maintain a good music program in a high school. Principal Borota testified that the Respondent had no prior questionable involvements with students and that he (Respondent) always kept the band area and equipment under double lock and key.
Conclusions Based on the denials of student Tosha Binns, the Respondent and the corroborative testimony of Ben Carrioccio, Peggy Yankowitz and others indicating or otherwise supporting the conclusion that Respondent did not engage in any improper conduct with Tosha Binns as alleged, the ultimate conclusion is inevitable that insufficient evidence was offered to establish the allegations that the Respondent had engaged in acts of immorality in violation of Florida statutes section 231.26(6). Accordingly, I shall recommend that the Administrative Complaint filed herein be dismissed in its entirety. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Notice of charges filed herein be dismissed and that the Respondent be reinstated to his former or substantially equivalent position with back pay suffered as a result of his dismissal. The back pay award should be reduced by Respondent's interim earnings during the period in question. Additionally, it is recommended that the Respondent's personnel file by expunged of all materials respecting this subject incident. RECOMMENDED this 20th day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1979.
Findings Of Fact In the 1984-1985 regular school year. Eduardo Hernandez was in the 7th grade at Nautilus Junior High School. On December 4, 1984 Eduardo disrupted science teacher Ralph William Schmidt's science class by speaking loudly in Spanish and called the teacher a pejorative name in Spanish before the entire class. He was assigned classroom detention by Mr. Schmidt which he did not serve. On December 6, 1985 Mr. Schmidt tried to send him to the principal, Mr. Walker, with a note of detention but Eduardo ran out of the room. On that date, Eduardo wrote some obscene notes to Mr. Walker containing curse words in Spanish and passed the notes in class. On February 6, 1985 Eduardo wrote with blue magic marker on a science lab table. Thereafter, the same markings (fancy signature marks and cartoons) were discovered in bathroom stalls, on desks, and other parts of the school and Eduardo and another boy were discovered in the vicinity with blue magic markers in their possession. Dr. Paul Smith, assistant principal of Nautilus Jr. High School confirmed that Eduardo was referred for discipline as a result of this incident. In this year, Eduardo's science grades were mostly failures with many absences. He frequently disrupted the concentration of other students in the class. Some days he was cooperative and other days he was not. In most cases he was disruptive and discourteous to the teacher and students. In response to many referrals by Mr. Schmidt, Dr. Paul Smith, spoke to Eduardo on a number of occasions. Very frequently Dr. Smith was required to speak with him about tardiness and cutting classes. In the first nine weeks grading period alone Eduardo was absent without proper excuse two times from one class, two times from another class and three times from another. On December 11, 1984 Dr. Smith counselled with Eduardo due to a disruptive behavior referral from another teacher, Mr. Lawless. On January 18, 1985, Dr. Smith personally received Eduardo when he was brought to school by the police as a truant. On another occasion, Dr. Smith caught Eduardo "skipping" or truant after lunch period. On March 19, 1985 Dr. Smith counselled with Eduardo on a referral for disruptive behavior in the classroom of another teacher, Mr. Burger. On April 1, 1985, Eduardo was brought to the office for refusing to work in class and he thereafter left the office without permission from Dr. Smith. Throughout the 1984-1985 school year, Eduardo's unexcused absences increased and his grades decreased. Eventually he was absent 20 days out of 45 in a grading period. His highest grade was a "D" and the others were failing or - unsatisfactory, designated as "F3F." In Dr. Smith's opinion, Eduardo cannot successfully complete a regular school program and although the Opportunity School may not be the only acceptable program, it was selected as the best solution under present circumstances. Jorge A. Hernandez opposed the alternative school assignment on the basis of danger from other students behavior to his son. He did not challenge the existence of his son's prior disruptive behavior but submitted that a telecommunication program would be a better alternative if Eduardo cannot be returned to a regular school program. He offered that Eduardo's behavior will change since Eduardo is now living with his father and certain family stresses contributing to his disruptive behavior have been resolved.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order continuing the alternative placement of Eduardo Harnandez at Jan Mann Opportunity School-North until such time as an annual or other evaluation indicates other appropriate assignment. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools, Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building Suite 100, 2780 Galloway Road Miami, Florida 33165 Mr. Jorge Hernandez 461 Southwest 10th Street, Apt 2 Miami Beach, Florida 33130 Mrs. Maeva Hipps School-Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Mrs. Maeva Hipps School Board Clerk 1450 Northeast 2nd Avenue, Room 401 Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact The Respondent was employed as an instructional employee of the School Board of Dade County at Mays Junior High School on or about October 13, 1982. The Respondent was serving as the Band Director for Mays Junior High School at that time. On October 13, 1982, a group of boys (apparently students) at Mays Junior High School, were engaged in a fight or some such altercation outside the band room where the Respondent engaged in his duties as Band Director. The Respondent went outside to attempt to quell the disturbance and engaged in a discussion of some nature with the students in the group he was trying to disperse. The students would not cooperate and the discussion became heated. The Respondent walked over to his car, parked a short distance away, got in the car and drove it back to the band room. The Respondent got out of his car, which he had parked in the immediate vicinity of the group of boys, and once more asked them to leave the area, or, if they were going to leave. They refused to comply with his direction and so the Respondent went to the trunk of his car, opened the trunk and removed a rifle and, with the rifle in his hand, walked over and began talking to the boys once again. A teacher, Mrs. Patricia Holland, and a student, Sonia Everett, observed this entire incident, beginning with the point in time when the Respondent first attempted to quell the disturbance before he went to get his car. The Respondent held the gun in his hand as he walked over once more to talk to the group of boys. At all times he held the gun pointed in a downward direction and pointed it at no person. It was not established that the gun was loaded. Although other witnesses testified they observed the Respondent pointing the gun at student Darryl Ward, witnesses Holland and Everett observed the entire episode and I find their testimony more credible and worthy of belief and accept it over that of the other witnesses after having observed the candor and demeanor of all the witnesses upon direct and cross-examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the charges against the Respondent, Norman White, be DISMISSED and that any and all back-pay be restored to him. DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 20th day of May, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building 2050 Biscayne Boulevard Miami, Florida 33137 William Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131-1370 Dr. Leonard Britton, Superintendent Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
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
Findings Of Fact Raymond J. Black is registered to fit and sell hearing aids in Florida and at all times here relevant he was so registered. He has been a registrant for several years, has been a dealer since 1976 and operates two offices, one in Tampa, Florida, and the second in Zephyrhills, Florida. Mr. Black spends most of his time in the Tampa office. Arvena Hines is the office manager in the Zephyrhills office and has managed that office for Respondent since about 1973. She has qualified for, taken and failed the examination for registration as a hearing aid specialist in Florida three times. Following her second failure her application for a third examination was initially disapproved, but after judicial proceedings were instituted she was authorized to retake the examination after again completing the trainee program. As office manager Ms. Hines was the supervisor of all other employees at the Zephyrhills office including hearing aid specialists and trainees. She received thirty-five percent of the profits on all hearing aids and hearing aid supplies sold in the Zephyrhills office. Other employees authorized to sell hearing aids received approximately fifteen to twenty-five percent commission on the sale of hearing aids depending on where the sale was made. In 1977 Arvena Hines pleaded nolo contendere in the County Court in and for Pasco County to the charge of fitting and selling a hearing aid without being licensed or registered to do so. Adjudication of guilt was withheld and she was placed on probation for six months. (Exhibit 16) In 1977 Respondent Black pleaded nolo contendere in the County Court in and for Pasco County to a charge of employing Arvena lines, an unregistered person, for the purpose of fitting and selling hearing aids. Adjudication of guilt was withheld and Respondent was placed on probation for six months. (Exhibit 14) In 1977 Respondent's registration was suspended for ninety days by Petitioner upon a stipulation of settlement in the revocation proceedings that had been referred to the Division of Administrative Hearings. In August 1979 Edward J. Greenough went into Respondent's Zephyrhills office accompanied by his wife for the purpose of having his hearing checked. He was waited on by Frances Wilkes who at the time was a trainee, Class III. Ms. Wilkes tested Greenough's hearing and then said Ms. Hines had to check the results because "she (Wilkes) didn't have her license. Although Ms. Wilkes testified that Ms. Hines conducted no tests or performed any services connected with selling or fitting a hearing aid on Greenough, the testimony of Mrs. Greenough that Ms. Hines repeated the testing procedure that had been done lay Ms. Wilkes, prepared the ear molds and subsequently fitted the hearing aid on Mr. Greenough, is the more credible. In October 1978 Margaret Lamb, an octogenarian, visited the Zephyrhills hearing aid office to see why her hearing aid was not "giving me success." Ms. Hines took an ear mold for her but a man conducted the audio test. Although Ms. Lamb exhibited some of the frailties of age her recollection of events was clear including the "terrific noise" that almost took her head off during the hearing test. That error left her somewhat confused and anxious to get out of the office. Robert Ayer visited the Zephyrhills hearing aid office of Respondent in December 1978 to have checked a hearing aid he had dropped. Ms. Hines waited on him, suggested he get a new "all in the ear" hearing aid, gave him a hearing test, and made an ear mold. When asked for a down payment on the hearing aid Ms. Hines said he needed, Ayer stated he had not expected to purchase a hearing aid that day and was unprepared to make a deposit. When Ayer returned to Zephyrhills after the new year he went to the hearing aid office, was told his hearing aid was in, and paid Ms. Hines $250. Exhibit 10 is the receipt for this payment. Jim Spear, a licensed hearing aid specialist who was working for Respondent at this time signed the audiogram (Exhibit 19) and testified that he conducted the hearing aid test done on Ayer December 11, 1978. Spear also denied ever seeing Hines sell or fit hearing aids or do any work in connection therewith. For several reasons Mr. Ayer's testimony is more credible than the conflicting testimony. Apart from the demeanor of the witnesses and personal reasons of the registrants for denying unlawful acts were committed by Ms. Hines in their presence and to their knowledge, Mr. Ayer is the precise and meticulous type of individual who keeps a diary of his daily activities, even in retirement. These diaries were in his possession at the hearing, and were shown to and perused by Respondent's attorney at the latter's request. No conflicts or omissions between the diary entries and Ayer's testimony were presented. Mrs. Maidee Carr's deposition was admitted as Exhibit 15. Mrs. Carr is a nonagenarian who was sold a hearing aid by Ms. Hines around December 1978 or January 1979. The audiogram was taken by a man (Jim Spear signed Exhibit 17, the audiogram taken on Mrs. Carr January 22, 1979), but Ms. Hines took the ear mold and Mrs. Carr gave Ms. Hines a check in full payment when the hearing aid was delivered to Mrs. Carr's home by Ms. Hines who then put the hearing aid in Mrs. Carr's ear. In January 1980 Douglas Yacinich, who had worked as a hearing aid salesman in Iowa for several years, visited Respondent with the view of employment when he moved to Florida. Respondent sponsored Yacinich's application for Trainee Temporary Certificate of Registration which was submitted January 28, 1980. Yacinich then returned to Iowa to settle his affairs. This application to enter the trainee program was approved in a letter dated March 26, 1980 (Exhibit 6). The application was approved effective March 24, 1980 (Exhibit 5), and Yacinich was issued a Certificate of Registration (Exhibit 23). At this time Yacinich was in Iowa and, according to his testimony, he moved to Florida around May 1980. Respondent submitted Exhibit 7 notifying Petitioner that Yacinich entered into the training program March 24, 1980, completed Stage I on April 24, 1980, and completed Stage II on June 24, 1980. Yacinich left Respondent's employ "around June or July" 1980 and has made no further effort to become registered as a hearing aid specialist. Yacinich set up an appointment with Mr. Chastain, a hearing aid user, and on May 9, 1980, did an audiogram on him (Exhibit 21). He also sold Chastain a used hearing aid the same day but it was not delivered until later. Mrs. Chastain gave Yacinich a check for part payment of the hearing aid on May 9, 1980, when the invoice for the hearing aid was prepared (Exhibit 12). This invoice does not contain the serial number of the hearing aid subsequently delivered to Chastain. When the final fitting of his hearing aid was made on June 2, 1980, Respondent accompanied Yacinich to Chastain's home and was present when the hearing aid was fitted by Yacinich. The testimony is conflicting whether Respondent was in the yard or in the room with Yacinich when the hearing aid was placed in Chastain's ear; However, it is clear that when Yacinich delivered the hearing aid to Chastain, Respondent was present. Respondent attributed the preferring of the charges against him, which are contained in the Administrative Complaint and Amended Administrative Complaint, to the animosity of Ralph Gray, the Administrator of the Hearing Aid Licensing Program in HRS, and to his belief that Gray has a vendetta against him. No evidence to support these beliefs was submitted other than Respondent's opinion. Respondent denied that he was aware that Ms. Hines ever took ear impressions in the Zephyrhills office on any of the complaining witnesses or that she ever performed any of those functions in dispensing hearing aids which require certification. Respondent acknowledged that Ms. Hines is manager of the Zephyrhills office and that she receives thirty-five percent of the funds coming into the office, and that salesmen are paid a commission of about twenty-five percent on the hearing aids they sell depending upon where the hearing aid is sold. Ms. Wilkes who does little work outside the office received a commission of around fifteen percent for those hearing aids she sold. Respondent testified that his belief that no audiograms were taken nor hearing aids sold by Ms. Hines was based upon the fact that the audiograms were signed by someone other than Ms. Hines and the word of these people that they conducted the tests. No evidence was presented to show the commissions paid to the various salesmen for the hearing aids dispensed to those witnesses who testified in these proceedings. Respondent allowed Yacinich to work unsupervised in the selling and dispensing of hearing aids before he had actually worked fur Respondent for thirty days. This determination is reached from the evidence that Yacinich was probably well qualified by his previous experience in Iowa, by Respondent's testimony that he considered Yacinich to have been in his employ since January 28, 1980, when Yacinich's application was submitted, and by Yacinich's testimony that he did not actually relocate to Florida until May or June.
