The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d) and (f), Florida Statutes (2008), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a licensed teacher in the State of Florida, having been issued Florida Educator's Certificate 1021431. His certificate covers the area of social science, and expires on June 30, 2011. During the 2008-2009 school year, Respondent was a teacher and coach at Florida State University School in Tallahassee, Florida. While attending college, Respondent played football for the University of Florida. During his football career, Respondent suffered several injuries, including five concussions and injuries to his shoulder, hand, knee and ankle. Several of these injuries required surgery, and as a result, Respondent was prescribed a series of pain medications and developed a tolerance for them. Respondent continues to have surgeries related to his football injuries and continues to take pain medication. On January 17, 2009, Respondent went on a lunch date. During the date, he consumed some alcoholic drinks. At the time of the lunch date, Respondent was also taking pain killers and did not think that these medications impaired his ability to function. However, as a result of the drinks at lunch and/or drinks consumed the night before, coupled with the use of painkillers, Respondent was impaired. Respondent does not remember the incident described below, before waking up in the Leon County Jail medical ward. As acknowledged by Respondent, the ultimate facts of the incident giving rise to his arrest are not in dispute. Respondent was intoxicated or otherwise impaired when he became involved in a verbal confrontation with his neighbor, Jordan Thompson, while the neighbor and his uncle, Gene Thompson, were attempting to secure a cable to the side of the neighbor's residence. Respondent was upset about the amount of noise he perceived the neighbor to be making. Respondent knew most of his neighbors and felt he had a good relationship with them, but did not know this particular neighbor. Respondent threatened his neighbor, shouting profanities at him, and the threats by Respondent caused Thompson and his uncle to go inside his home. Respondent returned to his own home, came back outside with a shotgun, approached the neighbor's house and continued to threaten Jordan and his uncle with shotgun in hand. Jordan Thompson's aunt, Kathleen, was inside the home and called 911. Respondent was arrested and charged with one count of aggravated assault with deadly weapon without intent to kill, a felony. All three of the Thompsons were very frightened by the incident. After his arrest, at some time over the weekend, Respondent notified administrative authorities at the school where he worked of the incident, and he was placed on administrative leave. At the end of the school semester, he was notified that, along with 47 other teachers, his contract would not be renewed. The incident was reported in the local newspaper and the website of a local television station. At least one witness who testified at hearing read about the arrest in the newspaper. Respondent acknowledged that his call to the school was motivated in part so that the school could "distance" itself from the event. On or about April 2, 2009, the charges against Respondent were amended to misdemeanor charges for trespass; improper exhibition of a dangerous weapon; and using a firearm while under the influence. On or about June 10, 2009, Respondent pled nolo contendere to the charges and the court adjudicated him guilty on all counts. Respondent was sentenced to 30 days in jail, 12 months of probation, substance abuse counseling and any recommended counseling or aftercare, random drug and alcohol screenings, 60 days in jail work camp and payment of applicable fines and fees. Respondent was also ordered to have no contact with the victims and to change his address by August 2009. By all accounts, Respondent is a gifted teacher. He is currently studying at Florida State University working on his doctorate in education. Respondent is embarrassed by his actions January 17, 2009, and regrets having acted as he did. However, he stopped short of acknowledging that he should not mix drugs and alcohol, especially at the doses to which he had become accustomed, and seems to think that he could tolerate mixing the two. Colleagues with whom Respondent worked testified at hearing on his behalf. Of particular interest was the testimony of Eula Walker, a support assistant at Florida High whose daughter had been one of Respondent's students. She, along with other staff members who testified, believed that Respondent could continue to be an effective teacher. She also had no hesitation regarding his continuing to teach her daughter following the January 17, 2009, incident.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent is found guilty of section 1012.795(1)(d) and (f) as charged in Counts One and Two of the Administrative Complaint; that his license be suspended for a period of two years; that he be required to submit to an evaluation by a qualified provider approved by the Florida Recovery Network Program within 60 days of the entry of the Commission's final order, and follow any recommended course of treatment or counseling; that he be placed on probation for a period of two employment years; and that he pay a fine of $500 to the Commission. DONE AND ENTERED this 10th day of June, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2011. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Brent McNeal, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In September of 1979, John Williamson, an undercover police agent with the Department of Law Enforcement, was involved in narcotic investigations in the Pensacola area. Mike Abbott, who is the brother of respondent Thomas Abbott, and Williamson negotiated for the purchase of one kilo of cocaine in October of 1979. The transaction was to occur in West Palm Beach. On or about October 15 or 16, 1979, Mike Abbott and Robert Covington came from Pensacola to West Palm Beach and stayed at the home of respondent Thomas Abbott. Mike Abbott came to West Palm Beach for the purpose of introducing "one person to another person for the sale" of the cocaine. Apparently, the two people who were to be introduced were Robert Covington and Duane Hutchins. For this degree of involvement in the transaction, Mike Abbott was to receive $7,000.00. On October 16, 1979, Duane Hutchins came to the respondent's West Palm Beach residence for the purpose of meeting Mike Abbott and Robert Covington. The meeting lasted approximately thirty to forty minutes, during most of which time respondent Thomas Abbott was sleeping on the living room floor. Respondent did awaken several minutes before Hutchins left and was introduced to him. At some point after this meeting at respondent's home, Mike Abbott returned to Pensacola with the understanding that his $7,000.00 fee would be delivered to him after the sale of cocaine was consummated. Covington remained at respondent's home, and he and respondent went out for drinks that evening. According to Hutchins, Mike Abbott told him that he had to return to Pensacola and that respondent Thomas Abbott, Mike's brother, would be the person to contact in absence. It was arranged that Hutchins would call respondent's house the following day and speak to either respondent or Mr. Covington to determine the details of the meeting with the purchasers. Undercover agent John Williamson arrived in West Palm Beach on October 17, 1979, and met with Jack Maxwell, a vice officer with the Palm Beach County Sheriff's Department. Williamson placed a telephone call to the respondent's residence, but he did not know to whom he spoke. Arrangements were made to meet at Victoria Station, a local restaurant and lounge in West Palm Beach, at approximately 4:30 that afternoon. When respondent returned to his residence after school at about 3:00 p.m. on October 17, 1979, Covington and Hutchins were there. They invited respondent to go to Victoria Station with them. Respondent drove back to school to ask a student to fill in for him on a part-time job that evening, and Covington and Hutchins followed respondent in another car. Respondent then left his car at school and rode to Victoria Station with Covington and Hutchins. Covington, Hutchins and respondent arrived at Victoria Station at about 4:00 or 4:30 p.m. on October 17, 1979. Shortly thereafter, agents John Williamson and Jack Maxwell arrived. The five men sat at one table, conversed and ordered several rounds of alcoholic beverages which were made of double strength. It was Hutchins plan to view the money to be used for the cocaine purchase and then place a telephone call to a Mr. Cunningham who was to join them for the purpose of finalizing the location of the transaction. After spending approximately forty-five minutes at the table, agents Maxwell and Williamson took Hutchins across the street to their Sheraton Motel room in order to show him the cash money. Hutchins was shown a briefcase containing some $100,000.00 in cash. He then returned to Victoria Station and placed a phone call to Cunningham. Hutchins left to pick up Cunningham in his car and then returned to Victoria Station with Cunningham. The six men then had discussions as to the location of the transaction. During these conversations, respondent Thomas Abbott offered the use of his house as the location for the exchange of the money for the cocaine. At approximately 8:00 p.m., Hutchins left Victoria Station for another engagement. Agents Maxwell and Williamson returned to their motel room for the purpose of waiting for information as to the location of the final transaction. Respondent Abbott and Covington left Victoria Station with Cunningham and went to Cunningham's apartment. While there, Cunningham made several phone calls. Thereafter, Cunningham drove Covington and respondent to respondent's house and dropped them off. Cunningham then went over to the Sheraton Motel room where final plans were made with agents Maxwell and Williamson for the purchase to occur in Miami. Thereafter several persons, not including the respondent, drove to Miami and completed the purchase and sale of cocaine. Those participants were arrested, and nearly one kilo of 43 percent to 52 percent pure cocaine was confiscated. Agent Williamson returned to the Palm Beach Sheriff's Department during the early morning hours of October 18, 1979. At approximately 4:30 a.m. he placed a telephone call to Mike Abbott in Pensacola for the purpose of obtaining instructions as to how he was to be paid for his part of the transaction. The telephone conversation was recorded on tape. After determining that Mike Abbott expected $7,000.00 for his part of the transaction, Williamson asked Mike Abbott "Do you want me to bring the $7,000.00 to you or do you want me to give it to your brother." "Give it to my brother," was Mike Abbott's response. Later in the same conversation, Williamson told Mike that what he was going to do was "see your brother now, and then I'll lay the seven on him." Mike responded, "Okay, that'll be excellent." After that taped telephone conversation between Williamson and Mike Abbott, law enforcement officers went to the respondent's residence and arrested respondent Thomas Abbott and Robert Covington. Mike Abbott testified that his brother knew nothing about the purchase and sale of cocaine until he was arrested on October 18, 1979. Respondent testified that he knew nothing about the drug deal and that he was too intoxicated to realize what the conversation concerned while in Victoria Station. Agent Maxwell testified that while they all were drinking alcoholic beverages at Victoria Station, respondent appeared to be cognizant of occurring events and conversation. Some three to four weeks after respondent was arrested, he went to the residence of Deputy Sheriff Robert C. Anderson whom he had known since 1969. When Anderson asked him why he had gotten involved in drugs, respondent replied that he thought it was exciting, very professional and that he wanted to be in big money. Respondent went on to describe the excitement of talking of $50,000.00, throwing money around and everybody buying drinks for each other. Anderson and respondent discussed the morality of dealing with drugs and respondent stated that he did not feel it was morally wrong since drugs had been accepted by society. During the same conversation, respondent later told Anderson that the reason be became involved was for his brother. Two administrative officials of the Palm Beach County School Board testified that, in their opinion, respondent's effectiveness as a teacher would be diminished if the charges of conspiracy to sell or traffic cocaine were sustained.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: That portion of the "Petition for the Revocation of the Teacher's Certificate" charging that respondent conspired to traffic cocaine in his home on or about October 16, 1979, be DISMISSED; Respondent be found guilty of conspiracy to sell cocaine while drinking in the Victoria Station in West Palm Beach on or about October 17, 1979; The conduct described in paragraph (2) above constitutes gross immorality or an act involving moral turpitude and seriously reduces respondent's effectiveness as an employee of the school board; and Respondent's teaching certificate be revoked for a period of three (3) years. Respectfully submitted and entered this 6th day of March, 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 Hearing this 6th day of March, 1981. COPIES FURNISHED: Craig R. Wilson Ruffolo and Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Thomas Abbott, Jr. and Thomas Abbott, Sr. Route 9, Box 514D Jasper, Alabama 33501 Robert C. Apgar Peeples, Earl, Smith, Moore and Blank 300 East Park Avenue Post Office Box 1169 Tallahassee, Florida 32302 Juhan Mixon Professional Practices Commission 319 West Madison Street Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Educational Practices Commission 319 West Madison Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA EDUCATION PRACTICES COMMISSION RALPH D. TURLINGTON COMMISSIONER OF EDUCATION, Petitioner, vs. CASE NO. 81-002-RT DOAH CASE NO. 80-1515 THOMAS H. ABBOTT, Respondent. /
The Issue The issue in this case is whether Respondent, Carl D'Agostino, committed the offense alleged in an Administrative Complaint issued by Petitioner, and dated February 13, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact The Department of Education, which the Commissioner was the head of at the times material to this case, is the state agency charged with the responsibility to investigate and prosecute complaints of violations of Section 1012.795, Florida Statutes (2003), against teachers holding Florida Educator's Certificates. §§ 20.15 and 1012.796(1), Fla. Stat. The Education Practices Commission (hereinafter referred to as the "EPC") is charged with the responsibility of imposing discipline for any violation proscribed in Section 1012.795, Florida Statutes. § 1012.795(1), Fla. Stat. Carl D'Agostino holds Florida Educator's Certificate No. 311777, valid through June 30, 2006, covering the area of history. At the times material to this proceeding, Mr. D'Agostino was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools"). Mr. D'Agostino's most recent position with M-D Public Schools was at North Miami Senior High School. Mr. D'Agostino has been employed as a teacher for 32 years and, since 1973, has been employed by M-D Public Schools. Throughout his teaching career, Mr. D'Agostino has received satisfactory performance evaluations. The Commissioner did not present evidence of prior disciplinary action against Mr. D'Agostino. The Commissioner issued an Administrative Complaint against Mr. D'Agostino on February 13, 2002, alleging three incidents, which Mr. D'Agostino has admitted occurred. The following describes the first incident, which is hereby found to have occurred: On or about August 8, 1992, the Respondent was detained by a law enforcement officer in Dade County for trespassing on posted private property. Although he was twice ordered to stop by the officer, the Respondent continued walking. The Respondent made threatening gestures with his arms and told the officer to "go fuck himself." Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the August 8, 1992, incident: Aug [sic] 8, 1992 [sic] Walking home from corner store across RR track abutting my apartment building a man started running toward me and screaming at me. In effort to avoid confrontation I attempted to flee. He tackled me, banged my head against the tracks repeatedly and made arrest. Turns out he was a federal railroad marshall and I unwittingly trespassed by crossing track instead of at street half block away. As the officer wears no uniform, from my view I was being attacked by a wild man. Hundreds of people from adjacent apts. Transverse this route daily to corner store. PTI anger control class 10 wks. Adj w/h. The following describes the second incident, which is hereby found to have occurred: On or about February 23, 1996, the Respondent became enraged because another vehicle was parked in the Respondent's parking space. The respondent tore the windshield wipers off the vehicle and threw one at the owner of the vehicle, striking him in the head. Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the February 23, 1996, incident: Feb [sic] 23, 1996 [sic] After month's [sic] of contention over neighbor's guests using my parking space leaving me nowhere to park, after months of complaining to condo board, and after months of notes to neighbor and on parked cars, I did tear of [sic] windsheild [sic] wipers and flipped them over my shoulder into bushes. I did not aim at anyone or anything nor was I aware of anyone in the vicinity. The person agreed this was an accident, not an assault, did not press charges. Restitution for damages ADJ/WH The following describes the third incident, which is hereby found to have occurred: On or about August 22, 1998, the Respondent became involved in an argument with a neighbor over the volume of the neighbor's music. After the neighbor refused to turn his music down, the Respondent left and returned to the neighbor's home with a rifle. The Respondent cocked the weapon and stated "I will kick your ass." The Respondent told a law enforcement officer who arrived on the scene that "If he does it again, I'm going to kill him." Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to have been accurate, concerning the August 22, 1998, incident: August 22, 1998 [sic] I did threaten individual with a high school drill team marching rifle which does not have the capacity to chamber or fire a bullet. The object had the appearance of the ability to inflict harm but technically it was neither a weapon or [sic] rifle. I had to be arrested because instead of closure for 1996 incident they issued bench warrant in error. My condo president wrote a letter to judge applauding my actions and the alleged victim was evicted by the condo board for loud music, drugs, and other violations. Judge refused to hear case I have never owned or fired a gun in my life. While the incidents described may evidence an anger management problem, probably exacerbated by 35 years of alcohol abuse,3 they do not constitute gross immorality or acts of moral turpitude. Mr. D'Agostino's conduct was not "sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." The evidence failed to prove that any of the incidents were publicized. None the acts committed by Mr. D'Agostino constituted an "act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 28th day of June, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2004.
Findings Of Fact Taken together, the evidence is clear that, if the Respondent did what he is accused of doing, his conduct: (1) would have been inconsistent with the standards of public conscience and good morals; (2) would have been sufficiently notorious to bring the Respondent and the education profession into public disgrace or disrespect; (3) would impair the Respondent's service in the community; and (4) would have been so serious as to impair the Respondent's effectiveness in the school system. But it is found that the School Board's evidence did not prove the allegations. The ultimate finding of fact is based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officer. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew the Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn whether the Respondent engaged in, or had a reputation for engaging in, the kind of conduct he was accused of doing. In this case, although the testimony of the arresting police officer is not accepted, it is not found that his testimony was pure fabrication. Rather, it is found that, due to his mindset and expectations, the arresting police officer misinterpreted much of the conduct he observed involving the Respondent on January 24, 1995. On that day, the police officer was patrolling Lake Seminole Park in Pinellas County, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual), activities for which the park had become notorious to the police department and to many others who frequented the park. The police officer on duty at the park that day expected users of the park to know its reputation, and he expected to find homosexual men using the park for these notorious purposes. As a result, knowing nothing about the Respondent, he misinterpretated innocent or ambiguous behavior of the Respondent as evidence of criminal conduct. He also attributed little or no importance to behavior of the Respondent that was evidence of his innocence of criminal charges. In addition, as a result of the manner in which he conducted his operation, he initiated the situations from which the misinterpreted behaviors flowed. After the officer announced that he was placing the Respondent under arrest, the Respondent may have made statements in an effort to avoid any further adverse repercussions; the officer interpreted them as admissions of guilt. Finally, the officer may have exaggerated or embellished some of his testimony to support the validity of the arrest he ultimately made. When the officer first saw the Respondent, the Respondent was driving his car on roads in the park in excess of the speed limit. The officer decided to follow in his vehicle because the Respondent was speeding but overlooked the possibility that driving at a high speed generally was inconsistent with "cruising" the park, a more normal behavior for one looking for opportunities to engage in the criminal conduct the officer was investigating. When the Respondent pulled into the parking lot of a rest room pavillion in the park, the officer continued to suspect that the Respondent's purpose was criminal. The officer attributed no significance to the Respondent's turning into the first available driveway into the parking lot and driving the wrong way on a one-way drive to enter the parking area. What the officer did not know was that the Respondent is on diuretic medication for high blood pressure and that, partly as a result, he has to urinate frequently and has difficulty controlling his need to urinate. As he was driving down the street, the Respondent began to feel the urge to urinate and decided to enter the park as a likely place to find a convenient rest room. The officer followed the Respondent into the parking lot and parked in a space to the left of the Respondent's space, between the Respondent's space and the rest room pavillion. When the Respondent did not immediately get out of his car, the officer suspected that the Respondent was waiting for him. What he did not know was that the Respondent was driving shoeless and was putting his shoes on. When the Respondent got out of his car, he had an unlit cigarette in his hand. He did not think he had any matches on him and, as he was walking past the officer's parked car, he tapped the cigarette he was holding with his other hand in a gesture to ask the officer for a light and approached the driver side of the officer's car. When the Respondent got to the driver side of the car, the officer rolled down the window, and the Respondent asked for a light. He could see through the officer's open driver side window that the officer did not have matches or a portable lighter but had pushed in his car cigarette lighter. As a result, the Respondent had to wait for the lighter to heat up. No words were spoken while the Respondent waited. However, by the time the Respondent got his light and was ready to leave, he felt the need to touch and hold his crotch area to delay urination. (The officer inaccurately called this "massaging" the groin area.) The Respondent apparently also made some noises as a result of his distress, which the officer interpreted as "low moaning." The officer saw a "bulge" in the Respondent's pants in the area of the crotch and misinterpreted it as being an erection. As soon as the Respondent got his light, he said thanks and walked directly to the rest room pavillion. The officer testified that, when the Respondent got far enough away so that the officer could see the Respondent's face and head, the Respondent nodded to him. If so, it may have been in thanks or acknowledgement for lighting the cigarette. But the officer, still interpreting the Respondent's behavior as the prelude to criminal activity, misinterpretated the nod as an invitation to follow the Respondent into the rest room. Unbeknownst to the Respondent, the officer followed him to the men's room. The officer acknowledges that, as he approached the men's room, he could hear the Respondent urinating. As the officer entered the men's room (unobserved by the Respondent), he saw the Respondent leaving the urinal next to the toilet stall at the far end of the rest room and entering the toilet stall. There was no one else in the men's room. The Respondent intended to use the toilet stall, but it was soiled so he flushed it and, with his pants still down and his penis exposed, switched back to one of the urinals, where he finished urinating. The officer again failed to be impressed with the possible consistency of the Respondent's behavior with that of a man who needed to find a toilet and urinate in a hurry. Instead, the officer focused on the Respondent's moving from the toilet stall to the urinal with his penis exposed and misinterpreted it as being part of a course of criminal conduct. While the Respondent was in the toilet stall, a car could be heard driving through the parking lot. As the Respondent left the toilet stall and switched to the urinal, the officer asked him if he knew where the car had gone, and the Respondent answered that he thought it left. The officer interpreted the Respondent's answer as incriminating; meanwhile, the Respondent was beginning to get suspicious about the officer's intentions. Nothing else happened for the officer to misinterpret while the Respondent finished urinating. No words were exchanged. Then, while standing behind and to the right of the Respondent as he finished urinating, the officer initiated conversation by asking the Respondent, "well, what do you want to do?" (The Respondent also recalls the officer commenting that the Respondent was "hard" earlier but couldn't "get it up" any more; the officer does not recall those comments.) By this time suspicious of the officer's intentions, the Respondent half turned in the direction of the officer while continuing to shake his penis to stop it from dripping urine, and testily asked back, "what do you want to do?" (The Respondent may also have been exaggerating the motion of shaking urine off his penis as a way of establishing the intruder's intentions, as in "is this what you want?") The officer did not see the Respondent's penis long enough to be able to say whether the Respondent had been circumcised; he only could say that it was not erect and generally describe its size and color. Yet, misinterpreted and erroneously described the gesture as "masturbating." Intending to shake up the intruder, the Respondent also asked him, "do you live around here?" In the officer's exaggerated and embellished retelling to buttress the validity of the arrest, this question became a conversation in which the officer expressed discomfort "doing it" in the men's room and the two discussed where they could go to have sex in private. The very next thing that happened was the officer's announcement that he was a police officer and that the Respondent was under arrest. The Respondent asked incredulously, "arrested for what?" Then, afraid of the obvious repercussions of an arrest for lewd conduct on his teaching position and certification, the Respondent said things for the purpose of trying to avoid those repercussions that served instead to confirm the officer's view that the Respondent was guilty. At one point, the Respondent told the officer that, if the officer let him go, the Respondent would promise never to return to Lake Seminole Park. The officer took the promise as an admission that the Respondent frequented the park when in fact the Respondent was telling the truth when he earlier denied ever having been to the park before. When the Respondent told the officer that he was coming from work, the officer asked where he worked, and the Respondent identified his job at ETC Molex but at first omitted to say that he also worked at Osceola Middle School, which he just had left. The officer never had heard of ETC Molex and somehow understood the Respondent to be saying that he worked at Bay Pines Hospital. After the Respondent retrieved identification from the glove compartment of his car, he lit another cigarette with matches he found in the glove compartment. The officer thought the Respondent got the cigarette (along with his driver's license) from his coat pocket. This misunderstanding served to confirm the officer's misconception that the Respondent's initial request for a light for his cigarette was just an excuse to make contact with the officer for purposes of planned criminal activity. The officer also thought the Respondent was lying when the Respondent told the officer earlier that his identification was in his car. When the officer saw on the Respondent's driver license that he lived in south St. Petersburg, he asked the Respondent why he drove to Lake Seminole Park if he was on his way home from "work" (i.e., from Bay Pines Hospital, which also is south of Lake Seminole Park). At that point, the Respondent corrected the officer's misunderstanding as to his place of employment and told the officer that he also was a PE teacher at Osceola Middle School. He also corrected the officer's misunderstanding as to his destination--he told the officer that he was going to a meeting at the Pinellas County Classroom Teachers Association, which is north of Lake Seminole Park, not directly home. In the officer's mind, the Respondent had been dissembling, and he interpreted the dissembling as evidence of guilt. After the Respondent's arrest, and during the pendency of criminal proceedings, the School Board did not interview the Respondent in deference to his constitutional right not to say anything that might incriminate him; nonetheless, the School Board went forward with its proceeding to dismiss the Respondent. After the criminal proceedings were dismissed, and this case was scheduled for final hearing, the School Board did not seek to interview the Respondent due to the Respondent's representation by counsel; nonetheless, the School Board continue to prosecute the dismissal proceeding. At no time before the taking of the Respondent's deposition in this proceeding did the School Board ask to interview the Respondent to hear his side of the story of what happened on January 24, 1995; on the other hand, there is no evidence that either the Respondent or his attorney requested such an interview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges against the Respondent and reinstating him with full back pay. RECOMMENDED this 30th day of October, 1995, 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 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0898 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected as not supported by any evidence. Also, the position taken by the School Board has been that the Respondent was not on continuing contract. See also proposed finding 33. 3.-4. Accepted but subordinate and unnecessary. 5.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Accepted but unnecessary without proof that the Respondent knew he was passing rest rooms on his way to the rest room he used. 8.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the gesture was to roll down the window. Accepted and incorporated. The officer's misinterpretation of what he saw and heard is rejected as not proven. Accepted and incorporated. Rejected as not proven that the Respondent gestured for the officer to follow. 16.-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19.-20. Rejected as not proven that the Respondent urinated into the toilet. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent turned towards the officer until after the officer started talking to him. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Rejected as not proven that the Respondent was masturbating. Otherwise, accepted and incorporated. Rejected as not proven. 25.-26. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rejected as not proven that the wallet was in his coat pocket the whole time. Accepted; in part incorporated and in part subordinate to facts contrary to those found. Rejected as not proven that the matches were in his coat pocket the whole time. First sentence, rejected as not proven that he said "to read." (That was either a misunderstanding or part of the officer's embellishment of his story.) Otherwise, accepted and incorporated. 32.-34. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. (The Respondent's proposed findings of fact appear to be in the "Argument" section of the Respondent's Proposed Recommended Order. For purposes of these rulings, the unnumbered paragraphs of the "Argument" section are assigned consecutive numbers.) Accepted and incorporated. The Respondent initiated conversation at the officer's car outside the rest room pavillion; the officer initiated conversation inside the rest room. Also, there were conflicts in the testimony at earlier points in time, too. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. The rest is rejected as argument, as subordinate and as unnecessary. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640 Howard Hinesley Superintendent of Schools School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649-2942 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
