Findings Of Fact At all times relevant hereto, Donald C. Munafo was certified by the Department of Education and employed on continuing contract by the Pinellas County School Board as a physical education instructor at the 16th Street Middle School in Clearwater. He has been employed by the Pinellas County School Board for approximately 15 years. Munafo has been involved in photography for a number of years and has done professional photography for ten years as a sideline to his primary occupation as a school teacher. He is a member of Bay Photographic Association located in the Tampa Bay area, which is an affiliate of Florida Professional Photographers. In May 1984 Richard Norgrove, who also taught at 16th Street Middle School, formed Edventure Media, Inc., to provide himself and his wife with a tax shelter and to produce educational and training videos. Knowing Munafo to be a professional photographer, Norgrove consulted with him as to ideas on equipment Norgrove needed. After forming the corporation and making a few training films, Norgrove decided to produce a video of a "cat fight," which involves two females in brawl. He advertised for models to engage in a wrestling match and employed two who responded to his ad. Norgrove prepared a simple script and did the filming at his home. He requested Munafo to take some stills during the video filming to use to advertise copies of the cat fight for sale. To accommodate Norgrove, Munafo took still photographs of the models while Norgrove made the videotape of the girls tearing each others. clothes off and simulating a real fight. By the end of the video each girl was wearing only panties. This video was titled "The Dress." Shortly thereafter, Norgrove decided to make another cat fight video and again advertised for models. One of the girls answering the ad was Lisa Anderson. Norgrove again asked Munafo to take still shots while Norgrove made the videotape. Again Munafo agreed to help in the endeavor, knowing that the still shots would be used to promote the video and/or sold. Munafo received no compensation from Norgrove other than the cost to Munafo for supplies and for developing the pictures. During the taking of this video, which was titled "The Boyfriend," both of the models were reduced to complete nudity. Lisa Anderson was one of the girls involved in the video of "The Boyfriend." Lisa Anderson had answered Norgrove's ad by telephone, and they first met at a bar where Lisa was served alcoholic beverages. She had told Norgrove she was 23 years old and was anxious to make some money modeling and did not object to removing her clothes. Lisa subsequently signed a release stating that she was over 18 years old. As a matter of fact, Lisa was 17 when the video and subsequent photographs of her were taken. Lisa did not testify in these proceedings, but led Norgrove to believe she had been married twice and at the time the video was made was living with two men. One newspaper article (Exhibit 20) stated she was the mother of two children. Norgrove packaged "The Dress" and "The Boyfriend" on one cassette (Exhibit 8) and advertised it for sale in adult magazines under the title "Battling Beauties." He sold between 20 and 50 of these cassettes for approximately $60 each. Munafo took no part in promoting the cassette, mailing the cassettes, nor did he receive any percentage of the money Norgrove received for the sale of the cassettes. Following the filming of "The Boyfriend" Lisa called Norgrove several times to see if he had more jobs for her since she needed to make some money. Finally, Norgrove told her that he might be able to sell some nude photos of her to a publishing house but could not guarantee their sale. He offered to take the pictures and if they sold split the proceeds with her. Lisa agreed and Norgrove decided his sailboat would provide a good background location for the photo sessions. Again he requested Munafo to come along and take the photographs while he, Norgrove, ran the sailboat. At the appointed time they sailed out into open water where Lisa stripped and assumed various poses while Munafo took pictures. These pictures were admitted into evidence as Exhibits. Upon returning to shore, the three of them went to Munafo's house where Norgrove did another video of Lisa in the nude doing exercises. During the making of this video Munafo was downstairs and came up to the studio less than a minute before the video was completed. At this time Lisa was jumping on a small trampoline and Munafo suggested to Norgrove that he take some shots from the floor looking up. For the photos of Lisa taken in the sailboat, Munafo was again reimbursed only for the film and cost of developing the pictures he took. All told Eventure Media, Inc., paid Munafo less than $100.00 for the costs he incurred in shooting the pictures requested by Norgrove. Munafo's testimony was uncontradicted and corroborated by Norgrove that all Munafo expected to receive from his participation were his expenses and the expectation that he would meet a model he could later employ to pose for a figure study. Munafo is a serious photographer who participates in many of the competitions sponsored by photography groups, both local and statewide. Exhibit 16 was admitted as a copy of a figure study Munafo entered in a photo contest and took second place. In the interim the local police received information that Norgrove had been making pornographic videotapes and they alerted the United States Postal Inspectors. Their investigation revealed that Lisa Anderson was 17 years old at the time the videos and photographs were taken. 18 USC §2251, et seq., makes it a federal crime to use anyone under the age of 18 as a participant in a sexually explicit film or to transmit such film through the United States mail. After obtaining copies of the video cassettes and still photographs, the federal authorities obtained an indictment against Norgrove and Munafo and arrested them on March 4, 1985. The time of their arrest was the first inkling either had that Lisa Anderson was under the age of 18. News of the arrest of three Pinellas County school teachers (Norgrove's wife was also arrested) charged with distributing sexually explicit films involving minors received wide dissemination from the local press and, by reason of the implications of "kiddie-porn," the events leading to the trial in federal court and the results of that trial were closely followed and reported by the press. Prior to the commencement of the trial, the Norgroves negotiated a plea of guilty of conspiracy and received a lenient sentence. Munafo went to trial and was acquitted of all charges by the jury (Exhibit 17). Following the arrest of Munafo and the Norgroves, they were suspended by the School Board and hearings were requested. The Department of Education preferred charges to discipline their certificates based on the same allegations made by the School Board in their suspensions, and all cases were consolidated for hearing. Continuances were granted to await the outcome of the federal proceedings before conducting these administrative proceedings. Following the Norgroves negotiating a plea in the federal court trial, they withdrew their request for a Section 120.57(1), Florida Statutes, hearing and were dropped from these proceedings. No evidence was presented that Respondent showed explicit sexual films or pictures to other teachers as is alleged in the charging document by the Superintendent. Nor was any testimony presented to show that Respondent's effectiveness in the school system was seriously reduced by the publicity associated with his arrest, trial and subsequent acquittal. The primary, if not sole, basis for the disciplinary action proposed by the School Board and the Department of Education is whether the actions of Munafo in taking sexually explicit photographs of Lisa Anderson and another woman constitute immorality, misconduct in office, gross immorality or moral turpitude, or conduct which seriously reduces his effectiveness in the Pinellas County school system. The photographs which form the basis of these charges are similar to those published in adult magazines such as Penthouse, Hustler, Playboy, Cavalier, etc., which are transmitted through the United States mail and are displayed on the magazine racks of vendors of newspapers and magazines in drugstores, airports, bookstores, and newsstands open to the general public. Petitioner produced two witnesses to testify to the immorality of one who would take explicit sexual photographs. Neither of these witnesses is a professional photographer although one teaches photography in a Pinellas County school. He did not believe a teacher should be held to a higher moral standard respecting activities totally unassociated with the school than is a member of the general public, but his personal moral convictions would preclude him from taking such pictures. Petitioner's other witness, John F. Joyce, Ed.D., opined that it was immoral for a school teacher to take such photographs as were taken by Respondent. Dr. Joyce, however, did not think it immoral for a teacher to look at pornographic photographs in Hustler magazine with prurient interests or even to be editor of such a magazine. How the work of an editor, in deciding which I pornographic photographs will sell the most magazines and still be within the letter of the law so as to avoid prosecution or a ban of the sales in a magazine, can be all right while the mechanic (or artist), who opens the shutter of the camera to expose the film and record the pornographic pose is immoral, completely eludes me. Accordingly, little weight is accorded this opinion. Nor is the age of Lisa Anderson at the time these photographs were taken relevant to the charge of immorality. Respondent certainly thought he was taking a photograph of a woman over the age of 18; and such opinion was justified by the physical appearance of Lisa, by the model release form she signed (Exhibit 10) stating she was over 18, by her marital history, and by her reported living arrangements (with two men). The photographs taken on the sailboat (Exhibits 1-5) clearly fit the category of sexually explicit and are more pornographic than are the stills Munafo took during the videotaping of he cat fights. Accordingly, the outcome of these proceedings can be said to stand or fall on whether the taking of these photographs (Exhibits 1-5) constitutes immorality or gross immorality by a school teacher. In making this ultimate finding of fact it is significant that such photographs are protected by the First Amendment provided the model is over 18 that such photographs can be sent through the United States mail system without any violation of the law (again if the model is over 18) that the sole basis for the criminal charges preferred against this Respondent was the age of the model used that it would not be considered an offense involving moral turpitude or jeopardize any license they have if a lawyer, doctor, banker, or broker took such photographs that Munafo was acquitted of these criminal charges that in these criminal charges specific intent is not an element of the offense and that Munafo reasonably believed that Lisa Anderson was over 18 at the time these photographs were taken. Lisa Anderson had no apparent connection to the Pinellas County school system and none of the filming had any connection to a school or school system or in any way indicated the model was a minor. From these findings comes the ultimate finding of fact that taking these photographs of Lisa Anderson does not constitute immorality, gross immorality, or misconduct in office.
The Issue The issue to be determined is whether Respondent, Alexander Roy, is guilty of violating section 1012.795(1)(d), (f), (g) and (n), Florida Statutes (2011). If violations are found, the appropriate penalty must be determined.
Findings Of Fact Respondent holds Florida Educator Certificate 1035877, covering the areas of mathematics, middle grades integrated curriculum, and social studies, which is valid through June 2015. At all times material to the allegations in the Administrative Complaint, Respondent was employed by the St. Lucie County School Board (SLCSB) as a mathematics teacher at Manatee Elementary School, also known as Manatee K-8 School. On or about January 13, 2012, Respondent was arrested in Osceola County, Florida, as the result of allegations that Respondent used an internet provider and “knowingly persuaded, induced, enticed and coerced an individual who had not attained the age of eighteen years, to engage in sexual activity.” The allegations were based on the probable cause affidavit of Kevin Kulp, Special Agent for the Florida Department of Law Enforcement, who worked on the undercover operation giving rise to Respondent’s arrest, which stated that Respondent contacted a person on-line that he believed to be the mother of a 13-year-old girl in order to have sex with both the mother and the daughter. The “mother” and the “daughter” were undercover police officers. As a result of Respondent’s arrest, a search warrant was executed to search Respondent’s residence in St. Lucie County, Florida. According to Detective Longson, the search revealed that Respondent possessed approximately 75-100 images of minors engaged in explicit sexual conduct. The analysis of the information seized at Respondent’s home also included photos and videos of a teenage girl, approximately 16 years old, engaged in explicit sexual acts with Respondent. On January 17, 2012, as a result of his arrest, Respondent was placed on temporary duty assignment at his home. On or about March 5, 2012, Respondent was charged by indictment with one count of Enticing and Attempting to Entice a Minor to Engage in Sexual Activity in violation of 18 U.S.C. § 2422(b), and four counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A Superseding Indictment containing the same charges was filed May 31, 2012. On March 27, 2012, he was suspended without pay by the SLCSB because of the federal criminal charges against him. On April 10, 2012, Respondent was terminated from his employment by the SLCSB, based upon his inability to report for work because of his imprisonment. On or about June 15, 2012, Respondent was tried in federal court before a jury. He was found guilty of all five counts. On September 12, 2012, United States District Court Judge K. Michael Moore adjudicated Respondent guilty on all five counts, and sentenced him to life in prison as to Count 1, and 120 months of incarceration as to each of Counts 2 through 5, with the penalty for all five counts to be served concurrently. Upon release, Respondent is to be placed on probation for life, a condition of which is to comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901. et seq.), as directed by the probation officer, the Bureau of Prisons, or any state sex offender agency in a state in which he resides, works, is a student, or was convicted of a qualifying offense. Also included in the Special Conditions of Supervision are that Respondent may not possess or use any computer, with the exception of pre-approved use in connection with authorized employment; that Respondent shall not have personal, mail, telephone, or computer contact with children under the age of 18; that Respondent shall not be involved in any children’s or youth organization; and that Respondent shall participate in a sex offender program. Respondent’s arrest, prosecution, and conviction were covered by the media, in the newspaper and on the radio, television, and internet. Respondent’s conviction significantly impairs Respondent’s effectiveness as a teacher in the community. Respondent’s certification is for middle school grades. The prohibition from having contact with children under the age of 18 makes it impossible for him to hold employment as a teacher in the public school system. As stated by Maurice Bonner, the Director of Personnel for St. Lucie County Schools, “[t]here is absolutely no way that the students and the parents and the community would have any faith in him being alone in a classroom with kids even for one minute. And he would not be able to effectively be in a classroom. Or be on campus, period, where there are children present.” His testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of all four Counts in the Amended Administrative Complaint and permanently revoking his certification. DONE AND ENTERED this 2nd day of August, 2013, 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 2nd day of August, 2013. COPIES FURNISHED: David Holder, Esquire J. David Holder, P.A. 387 Lakeside Drive Defuniak Springs, Florida 32435 Alexander Roy, Register # 99238-004 United States Penitentiary Post Office Box 24550 Tucson, Arizona 85734 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, 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
Findings Of Fact Richard L. Wahl submitted an application for an instructional position in the Pinellas County school system on December 5, 1973 (Exhibit 10), and was subsequently hired in 1974 to teach middle grade science. In Section IX of his application (Exhibit 10) Question 8 asking if he had ever been convicted of a misdemeanor, felony, or offense involving moral turpitude was left blank. By application dated January 3, 1984 (Exhibit 1), for certification by the State Department of Education as a general science teacher, in Section V inquiring if the applicant had ever been arrested or involved in a criminal offense, Wahl checked the "yes," gave the date and place of arrest for the offense of larceny-misdemeanor, and showed the disposition as "convicted conviction set aside" with notation "(see enclosures)." No enclosures were attached to Exhibit 1. By order of the U.S. District Court for the Southern District of Indiana dated October 25, 1973 (Exhibit 3), Wahl's conviction entered December 15, 1972, was set aside and he was unconditionally discharged from probation. The conviction was for larceny of coins from coin changing machines at a bank where Wahl worked as supervisor, night maintenance (Exhibit 9). Wahl started teaching in Pinellas County schools in 1974 and continued until he was suspended in 1984. During this period he had no evaluation less than satisfactory. He was liked and respected by his peers who considered him to be a very good science teacher. Respondent and his first wife, Shirley Jones, were divorced in 1975 and have one daughter. Respondent, shortly after his divorce from Shirley, married his present wife who had a nine or ten year old daughter by a previous marriage. The daughter, Lisa Beck, lived with her mother. In 1978 Respondent began "tucking in" Lisa when she went to bed. On occasion he rubbed her back. This led to rubbing her buttocks and subsequently her vaginal area. On occasion Respondent placed his genitals in contact with Lisa's genitals, but no intercourse was attempted or contemplated by Respondent. This went on for several weeks on an irregular basis in late 1978. At this time Lisa was 10 or 11 years old. Respondent initially thought Lisa enjoyed the incidents or at least did not object until Lisa finally told him she wished he wouldn't do that. From that time forward no further abuse by Respondent of Lisa occurred. Some five years later Lisa told her mother that Respondent had fondled her, the mother told the Bishop of her church, and the Bishop accosted Respondent with the charge. Respondent readily admitted the incident to the Bishop and he and his wife were referred to a Family Services program run by the Department of Health and Rehabilitative Services with this problem as well as with other marital problems they were having. Respondent, his wife, and Lisa voluntarily participated in family counseling to improve the family relationship. After family counseling had begun Respondent was contacted by a detective in the St. Petersburg Police Department to ask him about his earlier fondling of Lisa. Again, Respondent readily admitted his transgressions. Word that a teacher was being investigated filtered back to the school system and the investigation leading to the charges here involved began. Two short articles appeared in the inside pages of the St. Petersburg Times on January 30, 1984, and July 20, 1984, reporting the allegations of child molestation made against Wahl and of his suspension without pay from his position as a teacher. Respondent was subsequently brought to trial on a charge of handling and fondling a child under the age of 14, to which he pleaded nolo contendere, adjudication of guilt was withheld and Respondent was placed on five years probation (Exhibit 7). Subsequent to his divorce from Shirley Jones, which was an acrimonious one, Respondent has been sued by Jones when late on child support payments and has had difficulty in visitation rights with his daughter by that marriage. Jones, who apparently has also remarried, has attempted to induce Respondent to allow his daughter to be adopted which, so far, Respondent has refused. Following publication of the allegations involving Respondent's stepdaughter, Shirley Jones advised Petitioner that Wahl had in 1972 molested Jones' then 14 year old sister and that he had been convicted of larceny in Indiana in 1972. Shirley Jones' sister, Leslie Miskove, now 26 years old and married, testified that while she was visiting her sister, then married to Respondent, Wahl, on two occasions, touched her genital area. According to Miskove the first incident occurred while she and Wahl were lying on a couch watching television and Wahl touched her vaginal area with his hand. At this time her sister was in the bedroom. Miskove did not say anything to Wahl nor did she tell her sister. The second incident occurred while enroute to Florida. While Shirley and her baby were asleep on the back seat, Wahl was driving, and Miskove was lying on the front seat with her head on Wahl's leg. According to Miskove, Wahl put his hand inside her pants and inserted a finger in her vagina. Again she did not say anything and his hand remained inside her pants until she sat up a short time later. After Shirley Jones told Miskove about the child molestation charge against Wahl, which was filed in 1984, Miskove first revealed the 1972 incidents to her sister. Respondent denies either of those incidents occurred. No evidence was presented of any improper conduct involving Respondent with any of his students; and his principal did not consider Respondent a threat to any of the girls at his school even after he became aware of the charges against Respondent then being investigated. Exhibit 11, the deposition of Dr. Machler, was admitted as a late- filed exhibit. Several days after the transcript arrived but Exhibit 11 had not, a telephone call to the attorney revealed that he thought the original had been sent but that a second copy would be forwarded. Accordingly, all of the above findings were made without the benefit of the expert testimony contained in Exhibit 11. Dr. Machler's opinion of Respondent, based upon his psychiatric evaluation and counseling involving eight sessions for a total of five or six hours, is that Respondent is not now, and never has been, a pedophile; that Respondent is an honest, sincere individual who truly enjoys and strives to excel at, his role as a teacher; that Respondent is a passive aggressive person who has been intimidated by his two wives; that his current wife's rejection coupled with the proximity of Lisa as an extension of his wife, led to the fondling of Lisa; that this was an isolated situation and is unlikely to ever recur; that Respondent has never been a threat to female pupils in his classes and is not likely ever to be such a threat; and that the embarrassment and indignities brought on by these charges will make Respondent more circumspect than ever in the classroom because now he will feel like he is living in a fishbowl. Dr. Machler's deposition further confirms the Hearing Officer's conclusion that someone in the HRS Department of Family Services reported to the police the transgressions involving Respondent and Lisa when the family went to them for counseling after Lisa had disclosed the incidents to her mother and Respondent admitted they occurred. The conclusions of law were also prepared before Exhibit 11 was read by this Hearing Officer.
