The Issue The issues for determination are whether Petitioner has just cause to terminate the Professional Services Contract of each of the respondents because each respondent allegedly engaged in immorality and misconduct in office in violation of Subsection 1012.33(6)(a), Florida Statutes (2007),1 and the Rules of Professional Conduct in Florida Administrative Code Rules 6B- 4.009(2) and (3), 6B-1.001, and 6B-1.006(3)(a), (4)(b) and (c), and (5)(a) and (h).
Findings Of Fact Petitioner is the agency responsible for the employment and dismissal of instructional staff (teachers) in Brevard County, Florida (the school district). During the 2007-2008 school year, Petitioner employed each of the respondents as teachers and wrestling coaches. Petitioner employed John M. Hackney as a teacher and the varsity wrestling coach at Astronaut High School (Astronaut). Petitioner employed James Michael Murray as a teacher at Space Coast Junior Senior High School (Space Coast) and as the junior varsity wrestling coach at Astronaut.2 Mr. Hackney and Mr. Murray have extensive experience in competitive wrestling. Mr. Hackney has coached high school wrestling for more than 20 years and has been the head coach of the Astronaut varsity wrestling team for approximately 15 years. For the last 15 years, Mr. Hackney has also coached competitive wrestling in the Amateur Athletic Union (AAU). Mr. Hackney has also served as the head of AAU wrestling in Florida. Mr. Murray began wrestling competitively in 1967 for the wrestling team at Cocoa High School (Cocoa), a high school located within the school district. Mr. Murray wrestled for Cocoa for three years, wrestled for Brevard Community College for two years, and was a member of wrestling team at the University of Florida for one year, although he did not compete in any event for the university. Mr. Murray completed law school and practiced law as a licensed attorney in Florida. While in private practice, Mr. Murray was a wrestling referee for the Florida High School Athletic Association (FHSAA). The FHSAA is the officiating body for all high school athletic programs in the state, including wrestling. Mr. Murray authored some parts of the FHSAA officiating exam. He also taught classes to prepare candidates for the FHSAA exam. In 2000, Mr. Murray left his law practice to become a high school teacher and a wrestling coach. Mr. Murray became the head coach of the Space Coast varsity wrestling team in the 2003-2004 school year. When the principal at Space Coast removed Mr. Murray as head coach, Mr. Murray remained as a teacher at Space Coast, but became a junior varsity wrestling coach at Astronaut. Mr. Murray also has extensive experience as a coach in AAU wrestling. On December 1, 2007, the Astronaut varsity wrestling team competed in a multi-team tournament at Poinciana High School (Poinciana). A regular member of the Astronaut team, identified in the record as W.P., was injured and unavailable to compete in the Poinciana tournament. Mr. Hackney substituted a student, identified in the record as T.G., for W.P. T.G. was a seventh-grade middle school student. He was not enrolled in Astronaut and was not eligible to compete for Astronaut in the Poinciana tournament, because the Poinciana tournament was a high school event sanctioned by the FHSAA. T.G. was at the Poinciana tournament because Mr. Hackney and Mr. Murray coached T.G. in AAU wrestling events. T.G. was a very good wrestler for his age group and very interested in wrestling. Mr. Hackney allowed T.G. to ride on the team bus with the Astronaut varsity team and attend the tournament with the Astronaut team.3 Mr. Murray also attended the Poinciana tournament. The Poinciana tournament was a varsity tournament, and Mr. Murray was a junior varsity coach. Mr. Murray was not present at the varsity tournament in any official capacity. Mr. Murray attended the varsity tournament to help Mr. Hackney. While the Astronaut team members were weighing in prior to the Poinciana tournament, the father of T.G., identified in the record as Mr. G., approached Mr. Hackney and asked Mr. Hackney if Mr. Hackney would substitute T.G. for W.P. and allow T.G. to wrestle a high school student from another school who was at the tournament. The student was ranked number one in the nation in the AAU, and Mr. G. wanted T.G. to get experience wrestling at that level of competition. T.G. welcomed the opportunity to wrestle such a highly-ranked opponent. Mr. Hackney agreed to the request by Mr. G. Mr. Hackney discussed the matter with Space Coast coaches Mr. Toni McCormick and Mr. Richard Jones, and the coaches for Space Coast agreed to T.G. wrestling as W.P.4 Mr. Murray was not present during the discussions between Mr. Hackney, Mr. G., and the Space Coast coaches. When Mr. Hackney informed Mr. Murray of the decision to allow T.G. to compete as W.P., Mr. Murray advised Mr. Hackney not to proceed. T.G. competed as W.P. in three matches at the Poinciana tournament. One of the matches was against the number one ranked AAU wrestler. On December 5, 2007, Mr. Hackney allowed T.G. to compete as W.P. for Astronaut in a dual meet with the Eau Gallie High School (Eau Gallie) wrestling team. Mr. G. approved the entry of his son as W.P. Mr. Murray was not present at the Eau Gallie dual meet. Petitioner knew, or should have known, that Mr. Hackney allowed T.G. to compete as W.P. in the Poinciana tournament and dual meet at Eau Gallie. Mr. Hackney informed the coaches of the opposing teams of his intent to allow T.G. to compete as W.P. Mr. Jones also discussed the situation with Ms. Sharon Travis, the athletic director at Space Coast. Within days of the Eau Gallie match, the area newspaper published a picture of T.G. wrestling with a caption identifying T.G. as W.P. Parents and spectators at both the Poinciana tournament and the Eau Gallie dual meet knew that T.G. was competing as W.P. The principal at Space Coast, Mr. Bob Spinner, knew that T.G. had competed as W.P. in the Poinciana tournament and the Eau Gallie dual meet. In preparation for an arbitration hearing in April of 2008 concerning Mr. Murray’s grievance against the principal for removing Mr. Murray as head wrestling coach at Space Coast, Mr. Spinner learned that Mr. Hackney had allowed T.G. to compete as W.P. in the Poinciana tournament and Eau Gallie dual meet. The principal called a student, identified in the record as W.C., to his office approximately four times to interview the student concerning the involvement of Mr. Hackney, Mr. Murray, and T.G. in the Poinciana tournament and Eau Gallie dual meet. Other employees and agents of Petitioner also knew of the competition of T.G. in the Poinciana tournament and the Eau Gallie dual meet. Prior to the arbitration, Mr. Terry Humphrey, the principal at Astronaut, and Ms. Joy Salamone, the director of Human Resource Services and Labor Relations, learned of the actions of Mr. Hackney and Mr. Murray involving T.G. The actions of the respondents did not impair their service in the community as teachers or their effectiveness as teachers in the classroom. Each of the respondents continued to teach in the classroom and receive favorable evaluations as classroom teachers after the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney and Mr. Murray received the highest marks available on all of their evaluations, including the evaluations completed after the Poinciana tournament and Eau Gallie dual meet. Petitioner selected Mr. Hackney as the Teacher of the Year for the 2006-2007 school year. After Mr. Murray prevailed in the arbitration proceeding, he was scheduled to be reinstated as head coach for the Space Coast varsity wrestling team. Mr. Jones, a community coach at Space Coast, met with several parents, and they decided to raise the ineligible competition by T.G. as a ground to prevent the reinstatement of Mr. Murray at Space Coast. One of the parents reported the ineligible competition by T.G. to the FHSAA. The FHSAA imposed a fine of $2,500.00 against Astronaut. Sometime in July 2008, the school district superintendent asked Ms. Salamone to conduct an investigation. On or about August 4, 2008, the investigation concluded that Mr. Hackney and Mr. Murray should be removed as wrestling coaches, but retained as classroom teachers. The superintendent convened a meeting to reconsider the recommendation. The recommendation was changed, and the superintendent recommended that Petitioner terminate the respondents as classroom teachers.5 Mr. Hackney and Mr. Murray cooperated fully in the investigation. Neither of the respondents ever attempted to conceal their actions. Mr. Hackney was motivated solely by his desire and the desire of Mr. G. for T.G. to gain experience T.G. would not otherwise enjoy. Neither of the respondents sought personal gain, either direct monetary gain or indirect gain through a winning season. Astronaut would have gained nothing in season standings by winning the Poinciana tournament and Eau Gallie dual meet. There is no evidence that T.G. was successful in the matches with older competitors, and the number one ranked AAU wrestler pinned T.G. in their match. The competition of T.G. in the Poinciana tournament and Eau Gallie dual meet did not expose the school district to increased liability. Mr. G. paid an additional premium for AAU insurance that covered his son in any competition, including the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney knew that T.G. was insured for both events. The entry of T.G. in the Poinciana tournament and Eau Gallie dual meet did not cause harm to T.G. The FHSAA suspended T.G. from varsity competition for one year, but T.G. was ineligible for varsity competition before the suspension. The competition by T.G. in each event was not a violation of AAU rules and regulations. T.G. did not suffer any physical harm from his competition with older, more experienced wrestlers. There is no evidence that T.G. suffered any academic or personal harm. The testimony of T.G. at the hearing demonstrated his appreciation for the experience he gained in the Poinciana tournament and Eau Gallie dual meet.6 The termination of the respondents from their classroom teaching positions deviates from Petitioner’s progressive discipline policy. Petitioner has never terminated a coach from his or her teaching position for any reason other than an improper relationship with a student. Petitioner has refused to terminate other teachers for conduct more egregious than that of Mr. Hackney and Mr. Murray. For example, a teacher who provided alcohol to a student and allowed her to drink until she became incapacitated was suspended for 30 days from June 12 through July 12, 2008; was reprimanded; and was subjected to a salary freeze for one year. In another incident, three assistant principals conspired over a two-year period to move 52 special education students into different grades so they would not have to take the Florida Comprehensive Assessment Test (FCAT). The goal was to raise the school’s overall performance and receive higher funding from the state. Both administrators and teachers may receive financial benefits from increased FCAT scores. Petitioner did not terminate any of the employees. One assistant principal was demoted to teacher, and another was subjected to a salary freeze for one year. The assistant principal, who knew of the plan and failed to report it, was promoted to the position of elementary school principal. In 2005, two coaches punished two players, who missed practice, by subjecting the two players to tackling by fellow players during practice. The coaches instructed the other players to hurt the two players who missed practice and allowed tackling after blowing the whistle to end the session. The incidents received publicity in the local media after the investigation. Petitioner issued letters of reprimand to each of the coaches.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order and reinstating each of the respondents to their positions as classroom teachers with back pay and benefits. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 17th day of June, 2009.
The Issue The issue in this case is whether just cause exists to impose sanctions against Respondent, Winston Northern (“Northern” or the “Teacher”), up to and including revocation of his Educator’s Certificate.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to Florida Educator Certificates, as provided in sections 1012.795 and 1012.796(6), Florida Statutes (2016). The Commissioner of Education is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida Educator Certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016) At all times relevant hereto, Northern held a Florida Educator Certificate and was employed as a teacher in the Duval County School System, teaching at A. Philip Randolph Academy of Technology, a charter school within the Duval County school system (and referred to herein as the “School”). On October 30, 2013, L.E. was a ninth-grade male student in the Teacher’s fourth period class, Introduction to Information Technology. L.E., who had a history of misbehaving in class, was one of 25 students in class on that day. The facts of this case read like A Tale of Two Cities; “It was the best of times, it was the worst of times.” Although the duration of the incident in question was very short, and the location where it occurred was limited in size, the disparity in the testimony of eye witnesses could not be greater. For some, there was clearly an egregious event precipitated by the Teacher’s actions. For others, there was only a minor disruption of class with little significance. Few of the witnesses seemed to have a clear memory of the events that transpired that day, as evidenced by the contradictory and imprecise testimony evoked at final hearing. The Commissioner’s View Mrs. Byrd (formerly Ms. King) was the School’s “computer technology coordinator.” She would often come into Mr. Northern’s classroom because most of the School’s computer- related supplies were kept in a closet in that classroom. Mrs. Byrd came into Mr. Northern’s room on October 30, 2013, to get some IT supplies out of the closet. As she exited the classroom, Mrs. Byrd saw a woman walking quickly towards the classroom door; the woman appeared to be very agitated. Mrs. Byrd asked the woman (later identified as T.E., L.E.’s mother, and also referred to herein as the “Mom”) if she needed assistance. Mrs. Byrd noticed that the woman was not wearing a Visitor’s badge, as required by school rules. The woman said she did not need any help and that Mr. Northern had called her to come and deal with her son’s behavior issues. At that point, Mr. Northern opened the door and ushered T.E. into the classroom, indicating to Mrs. Byrd that it was “okay.” Mrs. Byrd followed them back into the classroom. T.E. immediately made a beeline to where her son, L.E., was sitting. Mrs. Byrd remembered T.E. physically attacking her son as she yelled profanities at him. The beating, with fists and open hands to L.E.’s face, lasted “a long time.” Mrs. Byrd initially estimated it to be about a minute and a half in length, but later agreed that it was probably about 15 seconds in duration. During the time that L.E. was being physically attacked by his mother, Mr. Northern did not intervene. Mrs. Byrd was in shock at what she was witnessing. At some point, Mrs. Byrd recovered from her shock and began to shout Mr. Northern’s name over and over to get his attention. Mr. Northern then directed the Mom and L.E. out into the open area outside the classroom. A student told Mrs. Byrd she “needed to do something” after L.E., his mom and Mr. Northern left the room. She obtained L.E.’s name from a student so that she could report the incident. Once outside the classroom, T.E. continued to berate both L.E. and Mr. Northern. At that point, Mrs. Byrd (who had walked out of the classroom sometime after the others) walked towards the elevator which was located just across from the classroom. As she neared the elevator, she met Mr. Lewis, the principal at the school. She indicated to Principal Lewis that she needed to talk to him about something important, i.e., the incident she witnessed in Mr. Northern’s classroom. However, Principal Lewis heard the Mom cursing loudly at T.E. and instead of talking to Mrs. Byrd, he went to speak to the Mom. Mrs. Byrd entered the stairwell next to the elevator and went downstairs. Principal Lewis explained to the Mom that the language she was using was not allowed on campus and that she needed to calm down. She did so. T.E. then took her son downstairs and presumably signed him out of school for the remainder of the day. Mr. Northern did not indicate to Principal Lewis that there had been a problem of any kind in the classroom. Principal Lewis’ testimony overall was not persuasive. He seemed very unclear as to how the events unfolded and seemed to contradict other, more believable witness testimony. Mrs. Byrd was upset by the incident and immediately called the abuse hotline at the Department of Children and Families (“DCF”) to report the incident. DCF advised Mrs. Byrd to notify administration at the School about the incident. Mrs. Byrd contacted the assistant principal, Mrs. Peeples, but not until the next day. Mrs. Peeples asked Mrs. Byrd to provide a written statement about the incident and Mrs. Byrd prepared the statement. At about 4:15 p.m. on the day of the incident, Mrs. Peeples allegedly received a telephone call from the parent of one of the other students in Mr. Northern’s class. The student had purportedly told his/her parent a fellow student, L.E., had been severely beaten by his mother in the presence of the entire classroom. Based on that call, Mrs. Peeples contacted Principal Lewis to tell him what she had heard from the parent. Principal Lewis remembered that he, not Mrs. Peeples, received the parent’s phone call on that day. He also remembered talking with Mrs. Peeples about the incident and that she recounted her conversation with Mrs. Byrd. Mrs. Byrd, however, said she did not talk to Mrs. Peeples about the incident until the following day. Therefore, who talked to whom and when the conversations occurred are not completely clear from the testimony provided. Principal Lewis contacted Mr. Northern and told him they needed to talk, so Mr. Northern later stopped by Mr. Lewis’ office. A short conversation was held, but Mr. Northern did not say that the Mom had physically attacked her son in the classroom. Mr. Northern did not remember being summoned to Principal Lewis’ office, but remembered talking briefly to him in the breezeway on the first floor of the School. The School gathered statements from six of the 25 children in Mr. Northern’s classroom that day. Three of the statements were not signed and did not clearly indicate who had written them. Mrs. Peeples, who decided which students to ask for statements and was present as each child wrote his or her statement, could not--on the day of final hearing--identify the authors of the unsigned statements. Mrs. Peeples’s testimony was credible, but not substantively helpful. Some of the students’ hearsay statements seem to confirm what Mrs. Byrd reported; some do not. From the affirming statements came these remarks: “His mom came up there and kept punching [L.E.] in the face.” (K.B.) “His mom had just started beating on him.” (W.W.) “[His] mother just started hitting him in the face.” (J.W.) “A mom . . . came in and was very angry, very verbal about her anger and started hitting her son and yelling.” (Unsigned) “[L.E.’s] mom started hitting him.” (Unsigned) None of the hearsay statements were particularly credible as they are all unverified and without information as to the author. The Teacher’s View On October 30, 2016, L.E. was engaged in playing a very violent video game on a classroom computer in Mr. Northern’s classroom. L.E. had accessed the game by way of a “modified” thumb drive which made his actions undetectable by school administration, which may have been monitoring the computer. Mr. Northern told L.E. to put the game away, because it was prohibited by school policy. Further, a school assembly had been held recently wherein the consequences for playing such video games were announced, i.e., five days suspension from school and 45 days restriction from use of school computers--at least that was Mr. Northern’s description of the events at final hearing. In his deposition (taken on July 18, 2016), Mr. Northern said the issue with L.E. was that L.E. was “playing video games” instead of logging on to the appropriate website. He made no mention of the nature of the video games or that they were violent or prohibited by school policy, only that L.E. was told three times to stop playing videos and log on to the website as directed. After the third warning, Mr. Northern decided to call in reinforcements, to wit: L.E.’s mom. It was customary for Mr. Northern to call L.E.’s mom or Dean Lapkin, a school administrator, when L.E. would act out in class or fail to stay focused on his work. Mr. Northern said L.E. was a bright student, very versed in computer skills. He had a lot of potential, but was very often off-track and off-task. When L.E. refused to comply with instructions, Mr. Northern would call T.E. and have her talk with her son. That was usually enough to get L.E. back on track. Principal Lewis confirmed that calling a student’s parent was an acceptable method for dealing with recalcitrant students. On the day in question, Mr. Northern finally pulled L.E. off the computer (whether for playing video games despite being warned three times or for playing forbidden violent video games) and telephoned L.E.’s mother. Mr. Northern said at final hearing that he had first contacted Dean Lapkin to see if L.E. might be released from the prescribed discipline for watching violent video games on campus. Dean Lapkin said the discipline was to be imposed, that Mr. Northern should write a referral and he, Lapkin, would make the call to L.E.’s mom. But somehow Mr. Northern determined that the dean was too busy to call T.E., so Mr. Northern called the Mom himself. Mr. Northern said he received the Mom’s telephone number from Dean Lapkin that very day, but that statement flies in the face of his prior testimony that he had called the Mom several times in the past about L.E.’s behavior. (This sort of discrepant testimony severely clouds the facts in this case.) As Mr. Northern was talking to the Mom, she put him on hold to take another call, reputedly from Dean Lapkin. When she returned to the phone call with Mr. Northern, the Mom said she was already at the School. In his deposition, Mr. Northern said that he called T.E. immediately, i.e., there was no mention of calling the dean first, and that she arrived at the School as they talked. Mr. Northern anticipated receiving a call from downstairs for him to send L.E. down to the Guidance Office to check out, or, possibly, that the Mom would be escorted to his classroom to get L.E. Instead, a few minutes after Mr. Northern completed his call to T.E., she appeared in his classroom. Mrs. Byrd had just left the room, so Mr. Northern assumed she had let T.E. into the room (as the door is generally locked). However she gained entrance, Mr. Northern heard L.E. say to someone, “Bitch, what you gonna do now?” and turned around to see T.E. racing toward L.E., cursing loudly. Mr. Northern testified that he “tried to rush over” to intercept the Mom before she got to L.E. He stated that he was able to get between the two and fend off the Mom’s attempts to hit her son. As far as he knew, the Mom never landed any blows on L.E. Mr. Northern did not remember anyone in the classroom saying anything to him during the confrontation. After some unspecified amount of time, Mr. Northern escorted T.E. and L.E. outside the classroom into the hallway area. The Mom continued haranguing her son in that area until Principal Lewis intervened. One student’s statement seems to confirm Mr. Northern’s comments: The student wrote, “Mr. Northern call [L.E.] to his desk then his mom came and took him out of the classroom.” At final hearing, Ms. Williams, a former student who was present on the day in question, remembered the Mom slapping at L.E. but could not remember if the Mom ever made contact. Hearsay evidence at final hearing presented by Mrs. Byrd, uncorroborated but not objected to, indicates that during the DCF investigation L.E. had reported that his mom never hit him, but neither L.E. nor T.E. testified at final hearing to verify what actually happened. According to Mr. Northern and at least two of the students, Mrs. Byrd was not in the classroom during the confrontation between L.E. and his Mom. Mr. Northern did speak to Principal Lewis at some point after the incident. According to Mr. Northern, they met in the breezeway on the first floor for a few moments. Principal Lewis maintained that he called Mr. Northern to his office to talk about the incident later on the day it happened. Mr. Northern’s testimony was not persuasive as to the specifics of his meeting with Principal Lewis. Other Factors in the Dispute The Mom’s physical size was discussed by three witnesses. Mrs. Byrd described her as being “bigger than me.” (Mrs. Byrd is approximately five feet, two inches tall and stout in stature.) Ms. Williams said the Mom was about five feet, four inches tall and “not that big.” Mr. Northern said she was about five feet, one inch tall and weighed about 102 pounds. L.E. was a ninth-grade student and was sort of slight in stature. Mrs. Byrd said the Mom did not have a Visitor’s badge on her person. She could not remember what the Mom was wearing on that day, but did not see a badge. Mr. Northern said the Mom was wearing a halter top and tight jeans that day, totally inappropriate clothing under the student dress code (as he initially thought T.E. was a student). She did have a Visitor’s badge but, with no place to put it on her clothes, she had it in her purse. Neither party presented the Visitor’s log for that day to substantiate whether T.E. had registered or not, so we shall never know. It is interesting that Principal Lewis never asked T.E. about a Visitor’s badge. There were allegedly three investigations done concerning the alleged incident: One by the school; one by DCF; and one by law enforcement. None of the investigative reports (or their ultimate findings) was introduced into evidence in order to substantiate either party’s position. It was not mentioned whether photographs were taken of L.E. to ascertain bruising or other injuries from the alleged beating. So, again, we shall never know. After the investigations were concluded, Principal Lewis did not “trespass” the Mom from coming on campus in the future, even though he had authority to do so if warranted.1/ Neither the Mom nor L.E. was called to testify or bring some clarity to the matter at hand. Presumably they would have confirmed the position of one side or another in this matter, but again we shall never know. Nor was Dean Lapkin called to verify his involvement in the situation. Mr. Northern served as a teachers’ union representative at the School. He has brought complaints to Principal Lewis on numerous occasions as part of his duties in that role. Mr. Northern has also brought direct complaints to Principal Lewis regarding computer equipment issues in his own classroom. The two men have a “history” outside the present dispute. In fact, just about two weeks prior to the alleged incident, Mrs. Byrd wrongfully removed ten computers from Mr. Northern’s classroom, forcing him to have Principal Lewis intervene to have the equipment returned. The Amended Administrative Complaint in this matter contains four counts: Count I is a general count alleging that Mr. Northern violated the Principles of Professional Conduct for the Education Profession; Count II alleges Mr. Northern’s failure to protect a student from conditions harmful to learning or to the student’s mental health and/or physical health and safety; Count III alleges intentional distortion of facts concerning an event; and Count IV alleges failure to maintain honesty. What the unrefuted evidence at final hearing proved is this: Mr. Northern was teaching his class on October 30, 2013. L.E. was a student in that class. L.E.’s mother came to the classroom cursing loudly and took L.E. away. Mrs. Byrd had been in the classroom in close proximity to L.E. as he was being removed from the classroom by his mom and/or Mr. Northern. Mrs. Byrd reported an incident to DCF and to the School administration. Mr. Northern discussed the matter with Principal Lewis. “Tis a far harder decision I make in this case than I have ever made . . .,” at least as to what actually transpired that fateful day in Mr. Northern’s classroom. The conflicting and unclear stories delivered by the key players in this incident (minus the two primary protagonists), does little to explain what actually happened on that day. Based on the totality of the conflicting testimony, it is likely that T.E. came into the classroom and accosted her son. The finer details of what she did, however, seem to be forever lost.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint against Respondent, Winston Northern. DONE AND ENTERED this 15th day of November, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 15th day of November, 2016.
The Issue Should the State of Florida, Education Practices Commission (EPC), impose discipline against Respondent, who holds Florida Educator's Certificate No. 292611, for the alleged violations set forth in EPC Case No. 001-0121-A?
Findings Of Fact Stipulated Facts: Respondent holds a Florida Educators Certificate (FEC), number 292611, in the areas of General Science, Physical Education, and Middle Grades. Respondent's FEC is valid through June 30, 2005. At all times relevant to this proceeding, Respondent was employed as Physical Education Teacher at Sante Fe High School (Sante Fe) in the Alachua County School District. Additional Facts: During his career Respondent has been employed by the Alachua County School Board as part of the instructional staff. His career spans 33 years. Respondent taught physical education at Sante Fe from 1974 through 2001. In the last two years he has taught at Bucholz High School in drivers education. The physical education curriculum at Sante Fe, to include the spring of 2000, emphasized physical activity for the students three days a week. Two days a week were devoted to classroom instruction. The physical fitness instruction emphasized cardio vascular conditioning and building endurance in the participants' muscles. The physical activity took place both inside the gymnasium and outside on the school grounds. The physical activity involved stretching before engaging in the prescribed activity. A typical physical fitness class taught by Respondent would have had 35 to 48 students. In the spring of 2000 two of the students taught physical education by the Respondent were E.C. and L.B., who were ninth graders. On the whole, the proof is not clear and convincing that Respondent inappropriately stared at the students E.C. and L.B. when they were doing their exercises in the physical education class in the spring of 2000, as they claim. During the spring of 2000 E.C. and L.B. went to Respondent's office to exchange a basketball which was flat for one that was not. After the students asked for a new basketball Respondent replied "well that's not the only thing that's flat" while looking in the direction of the students. The students took this remark to be intended as sexual innuendo concerning the chest of the student E.C. but their impression was gained outside the context of another remark made at that time directed to those students referring to them as a "bunch'a airheads." When the set of remarks are considered together they do not constitute remarks that are perceived as sexual harassment or sexual innuendo as alleged in the Administrative Complaint. To refer to students as "airheads" is not appropriate, however that remark is not the subject of the Administrative Complaint. The comments made by Respondent directed to E.C. and L.B. were overheard by a male student, F.T.B. M.H., whom one can infer was a student at Sante Fe, showed Respondent her midriff where she had been sunburned. Respondent commented "M., you need to put sunscreen on. You're going to get burnt up." No other facts were established concerning Respondent and the student M.H. Contrary to the material allegations in the Administrative Complaint, no proof was presented concerning the allegation that Respondent told female students in his class that the shorter their shorts were, the higher their grades would be.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint in all its counts. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 23rd day of April, 2003.
The Issue The issue is whether Respondent is entitled to an athletic coaching certificate, as described in section 1012.55(2), Florida Statutes, and Florida Administrative Code Rule 6A-4.004(4).
Findings Of Fact Early Life: 1960-1978 Petitioner was born on December 22, 1960. Petitioner is the youngest of five sons born to a Bahamian mother, who worked as a beautician, and a Jamaican father, who worked as a custodian. Petitioner's four older brothers have all earned college degrees. Petitioner's oldest brother served as an Army psychiatrist. Two other brothers also served in the military: one as a comptroller and the other as a Navy pilot. Petitioner's youngest brother is the executive director of a well-known hotel on Miami Beach. Petitioner grew up in the Liberty City section of Miami and graduated from Miami Beach Senior High School in 1978. Liberty City was a dangerous area in which to live with gunfire a familiar sound to residents. Two years after Petitioner graduated, Liberty City and other parts of Miami were torn by race riots. Unlike all of his siblings, Petitioner has never attended college. After high school, Petitioner worked as a washer and cook at a local hospital, but continued to pursue his real interest, which was performing as a disc jockey (DJ). Interning nights at a local radio station, Petitioner acquired enough experience to start a mobile DJ business in Liberty City and Miami Beach, where he worked on weekends. Criminal History: Essentially 1979-1986 Respondent's characterizations of Petitioner's criminal history as "extensive," in the Amended Notice of Reasons, or, worse, "storied," in his proposed recommended order at page 7, are unsupported by the record. As explained in the Conclusions of Law, only two criminal incidents are relevant, and they are misdemeanors that occurred over 25 years ago. The rest of Petitioner's criminal history consists entirely of arrests for which the charges were later dropped, except for a 1986 case in which the court withheld adjudication on a felony weapon charge to which Petitioner's plea is not in the record and a 2009 arrest for unpaid child support for which the purge amount was about $10,000. On August 28, 1979, Petitioner, then 18 years old, was arrested in Dade County for reckless display of a firearm and possession of over five grams of marijuana, both felonies. The marijuana charge--Petitioner's only arrest for drugs or alcohol--was dismissed, but Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and fined $25. This incident will be referred to as the "1979 Misdemeanor." In a letter dated May 7, 2009, to the Miami-Dade School Board Executive Director of Fingerprinting, Petitioner stated that he was in the backyard of his parents' home with one of his brothers and in possession of a bb gun. The small fine corroborates Petitioner's explanation. It is therefore found that a "bb gun" was the weapon in question, although Petitioner's letter misstated that all charges were dropped. On February 12, 1985, Petitioner was arrested in Dade County for loitering and prowling and carrying a concealed weapon, the former a misdemeanor and the latter a felony. By operation of a deemed admission to Respondent's Requests for Admission, Petitioner, while a passenger in a vehicle, was found in possession of a semi-automatic weapon concealed in a ski mask. The misdemeanor charge was dismissed, but the court withheld adjudication of guilt on the felony charge and imposed a fine of an unspecified amount. The record does not disclose Petitioner's plea to this charge. In his May 7, 2009, letter, Petitioner explained that, while he was DJing in a park without a permit, he had a concealed weapon without a permit, but misstated that both charges were dropped. On November 18, 1985, Petitioner was arrested in Dade County for inciting rioting, a felony. This charge was dismissed. In his May 7, 2009, letter, Petitioner explained that he was DJing in a park and was arrested because the music was too loud. On October 4, 1986, Petitioner was arrested in Hillsborough County and charged with grand larceny with a firearm, a felony. Based on a guilty plea, Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and sentenced to time served. This incident will be referred to as the "1986 Misdemeanor." In his May 7, 2009, letter, Petitioner stated that he was DJing a party in Tampa when a group of men started to beat a young woman in the parking lot. When security refused to intervene, Petitioner displayed a firearm to break up the crowd. Petitioner's letter misstates that the charge was dismissed. His explanation fails to account for the portion of the charge involving grand larceny, but makes sense when applied to the charge of which Petitioner was convicted. On December 13, 1987, Petitioner was arrested in Dade County for two or three counts of aggravated assault with a weapon and possession of a weapon to commit a felony, all felonies. These charges were dismissed. In his May 7, 2009, letter, Petitioner explained that a large fight broke out at a skating rink, but surveillance video revealed that he had not been involved in the fight, nor had he possessed a weapon. On or about June 15, 1993, Petitioner was arrested in Cook County, Illinois, and charged with disorderly conduct. This charge was dismissed. In his May 7, 2009, letter, Petitioner stated that he was staying at the Ritz in Chicago. While shopping along the riverfront, a law enforcement officer asked him if he could afford to shop there. A confrontation ensued, and the officer arrested Petitioner, but the charge was later dropped. On May 17, 1994, Petitioner was arrested in Dade County and charged with aggravated assault with a weapon, a felony. The charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight had broken out at a house party, and the police arrested everyone in attendance. There is no record of a 1997 arrest for battery. There is an arrest in July or October 1996 for battery in Louisiana, but Petitioner pleaded not guilty, and the charge was dismissed. In his May 7, 2009, letter, Petitioner mentioned a 1997 case involving a nightclub fight with which he had not been involved. A week later, a complainant claimed that Petitioner had hit him, but the charge was dismissed. On July 5, 1999, Petitioner was arrested in Dade County and charged with battery, a misdemeanor, which may have been raised to aggravated battery, a felony, by the prosecutor. Either way, the charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight broke out at a nightclub, but witnesses verified that Petitioner had not hit the complainant, who originally said that another person had hit him. On October 6, 2002, Petitioner was arrested in Dorchester County, South Carolina, and charged with aiding or procuring a person to expose private parts in a lewd and lascivious manner--namely, the insertion of a soda bottle by two strippers into the vagina of a member of the audience who climbed onstage during a performance, as well as several acts of unspecified obscenities by two male members of the audience with the aforesaid strippers. The charge was that these unlawful acts were in the presence of and with the encouragement of Petitioner. The South Carolina documentation is contradictory as to disposition. The most plausible rendering of the disposition comes from the general sessions docket, which reports that, on October 13, 2003, this charge was dismissed with leave to restore, if Petitioner violated an agreement not to appear in South Carolina for five years at a revenue-producing event. Another document completed by the court clerk states that Petitioner was sentenced to six months in the state Department of Corrections, based on a plea not otherwise described, but the sentence was suspended for five years, pursuant to the agreement identified above. A partial transcript of the October 13, 2003, court proceeding quotes the judge as saying that the state was nolle prossing two charges, and the court was sentencing Petitioner to six months on apparently a third offense, even though nothing in the other documents describes three charges, but the judge suspended the sentence for five years, subject to the above-identified agreement. As noted in the Conclusions of Law, the burden of establishing what took place in South Carolina falls on Respondent. Nothing in the record supports the judge's reference to three charges, which renders the judge's description of events unreliable. The most that can be said of the South Carolina incident is that a lone charge was dropped, subject to reinstatement, if Petitioner made a revenue-producing appearance in South Carolina for five years. The evidence fails to establish any finding of guilt by the court, plea of guilty by Petitioner, or subsequent reinstatement of the charge. In his May 7, 2009, letter, Petitioner stated that the club owner had performers on stage, but Petitioner had nothing to do with their performance. Petitioner testified that he had been paid merely to appear at the club and sign autographs. On February 17, 2009, Petitioner was arrested on a writ of bodily attachment in connection with a finding of contempt of court for failing to pay child support. The purge amount was $10,223.36. The disposition of this matter is unclear, although it is obvious that Petitioner was arrested for an unpaid child-support obligation and was released, presumably after paying the purge amount or such lower amount as the court deemed fit. Luke Records and 2 Live Crew: 1987-1992 After graduating from high school, Petitioner grew his DJ business to the point that, by 1987 or 1988, he had started Luke Records, Inc., a record company devoted to the production and sale of hip-hop music. Using funds provided by his brothers, Petitioner eventually employed over 40 persons in Miami and elsewhere around the United States. The growth of Luke Records was largely the result of its association with 2 Live Crew (2LC), a hip-hop group known for its sexually explicit songs. Not yet under contract with a record company, 2LC visited Petitioner in Miami, where the parties agreed to a recording contract. Petitioner appears to have quickly assumed substantial business and performance roles with 2LC and wrote some of the songs that the group performed. Serving as the frontman for 2LC, Petitioner was prominent in the group's performances, which, according to Petitioner, featured dance music informed by the twin themes of sex and comedy. Clearly, 2LC's songs were dance music that featured sex. Regardless of the role of comedy in 2LC's music, Petitioner himself acknowledges that its sexual themes rendered the music inappropriate for minors. The evidentiary record does not include the lyrics to 2LC's songs, but the more offensive titles include vulgar references to male and female genitalia and a reference to women as "hoes," meaning "whores, as well as at least one album cover featuring Petitioner surrounded by scantily clad women. Given the explicit sexual content of the titles and lyrics, Petitioner helped promote the use of parental advisory stickers to be applied to albums, tapes, and CDs, including those of 2LC, that contained lyrics inappropriate for minors and thus constituted a form of adult entertainment. On the other hand, two unimpeachable sources--the United States Supreme Court and the Eleventh Circuit Court of Appeals--found serious elements in at least certain of the 2LC songs of this era. In a copyright infringement case that arose after Luke Records had sold over 250,000 copies of 2LC's adaptation of Roy Orbison's, "Oh, Pretty Woman," the Supreme Court held, in a case of first impression, that commercial parody could be protected under the fair-use exception to copyright law. Describing the song itself, the Supreme Court opinion states: While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works. Campbell v. Acuff-Rose Music, 510 U.S. 569, 583 (1994). In Luke Records v. Navarro, 960 F.2d 134 (11th Cir.) (per curiam), cert. denied, 506 U.S. 1022 (1992), Petitioner and others won a reversal of a district court declaratory judgment that the 2LC musical recording, "As Nasty As They Wanna Be," was obscene under state and federal law. In another case of first impression--this time applying the obscenity test in Miller v. California, 413 U.S. 15 (1973), to a musical composition containing instrumental music and lyrics--the appellate court relied on the testimony of two newspaper music critics that the subject music possessed serious musical or artistic value. More interestingly, the court relied on the testimony of a Rhodes scholar who was soon to undertake employment as an assistant professor of political science at Columbia University. This testimony, which focused on the lyrics, traced "As Nasty As They Wanna Be" to three oral traditions of African-American music: the "call and response," "doing the dozens," and "boasting." Noting that the lyrics of "As Nasty As They Wanna Be" reflected many aspects of poor, inner-city blacks, this witness added that some of the lyrics contained statements of political significance or used literary devices, such as alliteration, allusion, metaphor, rhyme, and personification. Assuming without deciding that the trial judge had correctly determined that "As Nasty As They Wanna Be" met the first two prongs of the Miller test--i.e., the work as a whole appeals to prurient interest based on contemporary community standards and the work depicts in a patently offensive way sexual conduct specifically defined by state law--the appellate court rejected the trial court's determination that "As Nasty As They Wanna Be" fails the third prong of the Miller test--i.e., that it "lacks serious artistic, scientific, literary or political value." 960 F.2d at 138 (citing Miller, 413 U.S. at 24). After 2LC: 1992-2008 Petitioner and 2LC parted ways in 1992. Three years later, Petitioner and Luke Records, Inc. filed for bankruptcy, which resulted in the assignment of all masters and copyrights owned by Petitioner or Luke Records, Inc., to a company formed by a former in-house counsel of Luke Records. Thompkins v. Lil' Joe Records, Inc., 476 F.3d 1294, 1299-1301, and 1314n.22 (11th Cir. 2007). To some extent, perhaps due to the bankruptcy, Petitioner lost exclusive use of names associated with him, such as "Uncle Luke." As an asset of Petitioner, the Luther Campbell brand suffered a loss in value. The evidentiary record provides an incomplete picture of what Petitioner did during the ten years following his departure from 2LC. The arrests and Petitioner's explanations suggest that he DJed at house parties, made paid appearances at autograph-signing events, and attended nightclubs, although whether as a performer, audience member, or promoter is not clear. Petitioner released four hip-hop albums from 1992-2006. As always, Petitioner remained in Miami. In 1991 or 1992, Petitioner was among the persons who started the Liberty City Optimist youth football program. Competing with the local John Doe gang, Petitioner and other founders of the Optimist youth football program got kids off the dangerous streets and onto the football field. During the early years of his involvement with the youth football program, Petitioner invested considerable time and money, contributing at least $80,000. Petitioner helped lobby the Miami-Dade County Commission for what was eventually an expenditure of an estimated $14 million in facilities to serve organized football at local parks. Now, the Liberty City Optimist youth programs serve 6000 boys and girls, from 4-16 years of age, through a variety of sports and academic programs. Petitioner's wife, a local attorney and former FSU cheerleader, chairs the Liberty City Optimist youth cheerleading program. Although there have been some football-famous graduates of the program, such as Chad Johnson, the program's larger success is that 90 percent of the first group of youth to complete the program started college. Until 2005, Petitioner was not directly involved with the children in the Optimist youth programs. In 2005, realizing that his entertaining career had "taken a turn," Petitioner began coaching an Optimist youth football team. As he dialed up his involvement with youth, Petitioner tapered off his performances and appearances. Petitioner's two most recent albums are Somethin' Nasty, which was released in 2001, and My Life and Freaky Times, which was released in 2006. In contrast to the earlier cover art of 2LC, the cover art for the last album depicted Petitioner surrounded by fully clothed women. But some of Petitioner's titles would fit easily among the oeuvre of 2LC in its heyday. Somethin' Nasty includes "Suck This Dick," "We Want Big Dick," and "Hoes," and My Life and Freaky Times includes "Pop That Pussy" and "South Beach Bitches." In 2008, Petitioner made his last appearance, to date, with 2LC, at what was limited to an autograph-signing event. At the beginning of this period of Petitioner's life, in 1993, he became acquainted with James Harbor, Jr. Mr. Harbor was working for a state representative and met Petitioner through Congressman Alcee Hastings. Mr. Harbor later did an internship with Petitioner. Still later, Mr. Harbor was elected as a state representative from Palm Beach County and enlisted Petitioner in get-out-the-vote campaigns throughout Florida. Interestingly, Mr. Harbor testified that, as part of a voter-recruitment campaign, Petitioner appeared "in character." Mr. Harbor stressed repeatedly the distinction between the public persona of Petitioner and his private personality. Not a party person, during the time that Mr. Harbor has known him, Petitioner has always been "structured," hard-working and responsible, respectful toward women, and a firm disciplinarian when it came to his children. Mr. Harbor's testimony about the distinction between Petitioner's public persona and private personality finds support throughout the record, including a careful examination of the timelines. The 1979 Misdemeanor and 1986 Misdemeanor both involved weapons, not sex, and 2LC's main theme appears to have been sex, not violence or weapons. Whatever image of garish defiance that Petitioner may have cultivated during his 2LC-era, by the start of that era, he was never arrested again on charges that resulted in an admission of guilt, a no-contest plea, or a finding of guilt, except for the child-support arrest. Although the certification of Petitioner must take into consideration his public persona, to the extent that it still derives from his short-lived career with 2LC, there is no indication over the past 20 years that, outside of his performances and appearances, Petitioner has resembled the sex- song impresario, whom he portrayed with 2LC and in his later albums. High School Football: 2009-Present Starting in the 2009-10 school year, Petitioner turned from coaching Optimist youth football to coaching local high school football. During the 2009-10 and 2010-11 school years, Petitioner served as an assistant football coach at Miami Central Senior High School, where his wife teaches a law class. For the 2011-12 school year, Petitioner served as an assistant football coach at Miami Northwestern Senior High School. Although he would be willing to work as an unpaid volunteer, Petitioner has been required, due to insurance requirements in the school district, to accept the pay of a part-time contract football coach, which is $1000-$1200 per year. No longer living in Liberty City, Petitioner lives closer to another Miami-Dade County high school whose students are less exposed to violence and less at-risk than the students attending Miami Central or Miami Northwestern. Nearby Broward County public high schools do not require an athletic coaching certificate because school district policy allows a volunteer to coach. But Petitioner has decided to help the most vulnerable, most at-risk students from the inner-city neighborhood where he grew up. Petitioner has served these students in ways that other persons would find difficult, if not impossible, to replicate. Trying to combat the sense of hopelessness that sometimes afflicts at-risk youth, Petitioner has worked at both schools to install a sense of school pride in football and academics. When he arrived at Miami Central, the school was an F school, but Petitioner joined a school-wide effort to improve learning conditions, and, when he left two years later, the school was a B school. Similarly, when Petitioner arrived at Miami Northwestern, it was a D school, but it earned a B during the most recent school year. Miami Northwestern is located directly across the street from housing projects, and its students are regularly the targets of violence, often involving weapons. About one-quarter of its students are required to attend gun programs. The football team includes many homeless children and children with children. In the month preceding the hearing, two Miami Northwestern students had been killed. On a positive note, about 70 percent of the 95 students on the Miami Northwestern football team are graduates of the Optimist youth football program. Also, as many as 90 percent of the students who played on the high school football teams that Petitioner has coached are attending college. The students with whom Petitioner works appreciate his dedication and hard work. They know that Petitioner has spent his entire life in Miami and has known some hard times. Generally, they know that, before they were born, Petitioner had been a celebrity as a member and promoter of a hip-hop group, itself known for its frank defiance of convention, at least in terms of graphic sexual language. As Petitioner testified, his students' mothers know Petitioner from when he was a DJ on a streetcorner, through his association with 2LC and discovery of new talent, such as the hip-hop artist Pitbull, and now from his work with youth. This familiarity presents unique mentoring opportunities to Petitioner. For instance, Petitioner knew one student's father, who later went to prison where he was murdered. One day, the student's mother approached Petitioner and asked him to tell her child about the good things that his father had done before he went to prison and died. Reflecting Petitioner's dedication to at-risk youth, for at least the past four years, Petitioner has rented one or two 15-passenger vans and, at his expense, transported interested players to schools in the southeast where they might be able to attend college. Petitioner does not reserve his attention to potential stars; instead, he tries to find colleges and junior colleges at every level that might be interested in admitting an individual student. Steven Field, the head coach of the Miami Northwestern football team, testified on Petitioner's behalf. Coach Field, who has most recently coached at University of Miami and Hampton University in Virginia, also coached at Miami Central from 2000- 2004. Coach Field testified that Petitioner is an "essential" member of his coaching staff, not for his name or past career, but for his way with the students. Petitioner leads by example and always fulfills any promises that he makes to the students--things that may otherwise be lacking in the lives of some of these inner-city youth. According to Coach Field, Petitioner's "no-nonsense, professional" style of dealing with the students commands their attention and respect. For example, as the coach in charge of the weight room, Petitioner does not allow swearing. When one student became disrespectful to another coach, Petitioner ordered the student to leave the premises. Neither Petitioner nor Coach Field would allow 2LC music to be played in the weight room due to its inappropriate adult content. Petitioner testified that, in trying to save students, he will "talk 'till I'm blue in the face," revealing not only the necessary dedication, but, more importantly, the insight that that there are no shortcuts or quick fixes in trying to communicate with at-risk children. Reinforcing the realism evident in Petitioner's testimony, Coach Stevens described his and Petitioner's efforts with the students as not much more than reinforcing the notions of living right at home and "getting your books at school." Coach Stevens stressed that he and Petitioner do not concentrate exclusively on the students who are talented enough to play football in college. At least a half dozen students are in felony programs. With these students, Coach Stevens testified that he and Petitioner do not speak about "getting into Georgia Tech"; they speak about finishing high school and getting a job. Coach Stevens has never heard Petitioner speak to the students about mistakes that he has made, nor does he wish Petitioner to do so. Coach Stevens, Petitioner, and the other coaches try to set a positive tone, so they talk to the students about what they need to do, not about mistakes that the students--or coaches--may have made in the past. However, if the school resource officer tells Petitioner about problems that an individual student is having, Petitioner will talk to the student one-on-one. In such conversations, Petitioner does not shy away from relating personally to what the student is going through. The Application Received on April 27, 2010, the Application answers "yes" to the following questions: Have you ever been found guilty of a criminal offense? Have you ever had adjudication withheld on a criminal offense? Have you ever pled guilty to a criminal offense? The Application answers "no" to the following questions: Have you ever been convicted of a criminal offense? Have you ever pled nolo contendere to a criminal offense? The Application lists the following arrests and states that the disposition of all charges was dismissal, except for the South Carolina charge, which is reported as "guilty/adjudication withheld": Miami--8/79--reckless display of firearm Miami--2/85--loitering/prowling Miami--11/85--inciting riot Miami--12/87--aggravated assault Hillsborough--12/87--aggravated assault Miami--5/94--aggravated assault Miami--7/99--battery Dorchester County--10/22--"dissem promote" The Application is flawed in its disclosure of Petitioner's criminal history. As alleged in the Amended Notice of Reasons, the disclosure of the "loitering/prowling" arrest fails to mention the felony weapons charge, which was part of the same incident, and thus fails to note that the court withheld adjudication on this charge. Also, as alleged in the Amended Notice of Hearing, the Application fails to disclose the 1986 Misdemeanor, which occurred in Hillsborough County. Although the Application discloses a Hillsborough County arrest, it seems to confuse the incident with a later arrest in Dade County, but, more importantly, omits mention of the finding of guilt on this misdemeanor weapon charge. However, these flaws do not prove that Petitioner intentionally concealed information or was less than honest in completing the Application. Obviously, he has had many arrests, so the potential for confusion or even omission exists, and there are comparatively few inaccuracies. On these facts, it is found only that Petitioner filed an inaccurate application, but not that he filed an application with fraudulent or dishonest intent. Petitioner: At Present Petitioner does not pose a risk to the safety of the students entrusted to him. For the past seven years, Petitioner has had significant direct contact with vulnerable youth without any reported problems. In light of this critical fact, the 1979 Misdemeanor, 1986 Misdemeanor, and Petitioner's former involvement with 2LC and the adult entertainment industry lose whatever contrary predictive value that they might otherwise have. Simply put, Petitioner does not resemble the youth who committed the 1979 Misdemeanor or 1986 Misdemeanor or the man who performed with and promoted 2LC 20 years ago. Petitioner resembles the middle-aged man who released sexually explicit songs in 2001 and 2006, but this is addressed below. As noted in the Conclusions of Law, good moral character requires consideration of a person's honesty, fairness, and respect for the rights of others and the law, so consideration of student safety, although important, is not sufficient. But the 1979 Misdemeanor and 1986 Misdemeanor, as old misdemeanors, provide insufficient support for a finding that, today, Petitioner lacks honesty, fairness, or respect for the rights of others and the law. Nor do these criminal offenses support findings that Petitioner has been guilty of gross immorality or moral turpitude, as those terms are defined in the Conclusions of Law. Likewise, Petitioner's 2LC career 20 years ago and even his more recent releases of 2LC-like albums in 2001 and 2006 do not support a finding that he lacks honesty, fairness, or respect for the rights of others and the law or that he is guilty of gross immorality or moral turpitude. For the reasons noted above, the redeeming value to be found in the releases means that they do not violate the law, provided they also conform to any laws restricting their dissemination, such as not to minors or not on television during certain hours of family viewing. Absent an attempt to market the offensive material in some broadly accessible fashion, such as on billboards or the sides of public buses, such non-obscene works similarly do not violate the rights of others. As noted above, the flaws of the Application do not support a finding of dishonesty or fraud. But, in his proposed recommended order, Respondent fairly questions Petitioner's initial refusal to identify his Application at the hearing. This failing of Petitioner, as well as the two others discussed in the succeeding paragraphs, cannot serve as standalone grounds for denial because: 1) they arose at the hearing and thus were not available as grounds in the Amended Notice of Reasons and even if alleged, they do not rise to the level of a lack of good moral character, as in a lack of honesty or fairness. But they do provide part of the justification for adding conditions to any certificate issued to Petitioner. Petitioner's failure at the hearing initially to identify his Application was not due to any confusion. There were not multiple versions of applications from which to choose. There was one Application on the table, and Petitioner initially testified, more than once, that he could not identify it. The temptation appeared palpable for Petitioner to off-load the responsibility for an obviously flawed application onto someone else who may have completed it for Petitioner, who nonetheless signed it. Cannily, Respondent's counsel moved for a summary order. The Administrative Law Judge warned Petitioner that the Division of Administrative Hearings lacked jurisdiction in the absence of an application. Petitioner and his attorney made good use of a short recess to confer. After the recess, Petitioner identified Respondent Exhibit 1 as the Application that he had filed for an athletic coaching certificate. Petitioner's second failing of this type, also noted in Respondent's proposed recommended order, consists of his unwillingness to own up to his role or roles in any of the salacious songs that he has performed or produced. While it is possible that Petitioner might not have been responsible for the more salacious songs performed by 2LC, he clearly was responsible for the five sexually graphic titles on the two most recent, post-2LC albums, which, as discussed above, were released in 2001 and 2006. Petitioner's third failing of this type occurred when he testified about his bad period from 1979 to 1986. Petitioner admitted only to not living a "perfect" life and associating with bad persons. This seems a little lean for two misdemeanor weapons convictions and a withholding of adjudication of guilt on a felony weapon charge--all in the span of seven years. As Respondent points out, Petitioner has displayed minimal contrition for the bad choices that he made during this period. At minimum, he missed an opportunity to describe how he has changed when he "admitted" only that he was not perfect or implied that his legal problems were caused by bad associations. In these three instances, Petitioner sought to escape personal responsibility by claiming or implying that other persons prepared the flawed Application that he was somehow compelled to sign, other persons forced him to perform songs with five salacious titles in 2001 and 2006, and other persons got him into trouble during the bad period over 25 years ago. Although not evidence of a lack of honesty, Petitioner's failure to affirmatively own up to these acts suggest a lack of self- insight and perhaps even a misapprehension of the extent to which he must subject himself to the regulatory oversight that is imposed on applicants for certificates and, later, certificateholders. The other justification for adding conditions to any certificate issued to Petitioner is the prospect of his return to adult entertainment. In addition to part-time coaching at Miami Northwestern, Petitioner also owns a company, Luke Holdings, which deals in movie scripts and produces elements of television commercials, among other pursuits in the entertainment industry. In recent years, extreme examples of adult entertainment, such as pornography, have emerged bearing the Luther Campbell brand, but Petitioner denied that he has been involved in the production of such material. His denial is credited, although it would have been more persuasive, absent Petitioner's failings described in the preceding paragraphs. As noted above, Petitioner lost exclusive control of his brand after the bankruptcy in 1996, and, presumably, given the shadowy nature of the pornography industry, illegal use of his name is not out of the question. The distinction between past and present involvement in adult entertainment is an important one. In a recent case, EPC did not treat past involvement in the adult entertainment industry the same as involvement while a certificateholder. See In re: The Denial of the Application for Teacher's Certificate of Shawn J. Loftis, EPC Case No. 11-0464D (April 5, 2012) available at http://www.myfloridateacher.com/discipline/icmsorders/101-2590- FO-040512155402.pdf). In Loftis, Respondent denied Mr. Loftis's application for a Florida Educator's Certificate on the grounds of a lack of good moral character, gross immorality, and moral turpitude, as well as personal conduct that seriously reduces one's effectiveness as a school board employee, which violates section 1012.795(1)(g). The factual bases for the denial was that, between 2006 and 2008, Mr. Loftis had appeared in over 20 pornographic films featuring him engaged in explicit sexual activity, and the films were still available for viewing, including on the internet, although this employment had ended prior to Mr. Loftis's temporary employment as an instructor in Miami-Dade County public schools. After an informal hearing, EPC ordered that Mr. Loftis be allowed to continue to pursue certification. EPC stated that, if "found qualified," Mr. Loftis would be issued a Florida Educator's Certificate, subject to the conditions that he obtain from an approved, Florida-licensed provider written verification that he poses no risk to children and is capable of assuming the responsibilities of an educator and that, upon employment that requires possession of a Florida Educator's Certificate, Mr. Loftis be placed on probation, subject to the following conditions: 1) he immediately notify the DOE investigative office upon employment or termination of employment requiring a Florida Educator's Certificate; 2) his immediate supervisor send annual performance reports to the DOE investigative office; he pay EPC $150 for the costs of monitoring his probation; and 4) he violate no law or rules, satisfactorily perform all assigned duties in a professional manner, and bear all costs of compliance with the final order. The Loftis final order illustrates EPC's ability to issue a conditional certificate, even without a finding that the applicant had failed to meet the qualifications for certification. In considering the requirement stated in section 1012.795(1)(g) concerning personal conduct that seriously reduces the effectiveness of the certificateholder as a school board employee, the Notice of Reasons in Loftis, when compared to the Amended Notice of Reasons in the subject case, more closely approaches the most elastic requirement of Florida Administrative Code Rule 6B-1.006(3)(a) that a certificateholder (or applicant) "[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety." Juxtapose this broader, objective requirement of protecting the student from conditions harmful to learning or harmful to the student's mental health with: 1) Petitioner and Coach Field's efforts to inculcate in their at-risk students such values as strength of character, perseverance, dedication, and hard work in the pursuit of ambitious goals and 2) the future release of more artistic or entertainment efforts along the lines of "Suck This Dick," "We Want Big Dick," "Hoes," "Pop That Pussy," and "South Beach Bitches." Consider the bewildering effect on students if, one afternoon, in the weight room and on the field, Coach Campbell were to promote rectitude and grit and, that night, the same man were to don the garb of the sex-song impresario and promote the escapist pursuit of sexual gratification. The addition of music or elements of African boasting and literary allusion in, say, "Pop That Pussy" or "Suck This Dick," which would rightfully spare these works from successful prosecution as obscenity, would not have any bearing on the extent to which the superficial appeal of this form of adult entertainment could undermine the hard, patient work of these students' coaches, teachers, and parents in trying to shape them into responsible young men. Impressionable inner- city youth might be easily confused by these competing messages, as they compared the paltry sums paid their contract coaches and modest sums paid their regular coaches and teachers with the riches lavished upon the producers of adult entertainment. Although the Loftis final order emphasizes that the applicant no longer is engaged in the making of pornographic films, neither that authority nor the record in this case provides a sufficient basis for attaching a condition to Petitioner's certificate prohibiting his engaging in the adult entertainment industry. Such litigation awaits another day and, one hopes, another certificateholder than Petitioner or Mr. Loftis. However, conditions attached to Petitioner's certificate could focus his attention on the ethical obligations that he has assumed as a certificateholder and the very real possibility that that his return to the performance or production of adult entertainment, while a certificateholder, would be at crosspurposes with the broad mission of education and expose his certificate to suspension or revocation. Petitioner should receive an athletic coaching certificate because he generally meets the substantive certification requirements that call for consideration of such broad criteria as good moral character and the absence of gross immorality and moral turpitude, he possesses unique attributes for reaching at-risk, inner-city youth, and he has demonstrated his commitment to, and effectiveness with, working with these children for at least seven years.
Recommendation It is RECOMMENDED that EPC issue an athletic coaching certificate to Petitioner, subject to the following conditions: The certificateholder shall be placed on probation for five years, immediately upon issuance or, if later, employment that requires a certificate. Upon issuance of the certificate and on each anniversary of issuance, during the term of probation, EPC or its agent shall contact the Department of Revenue and inquire if Petitioner owes any child support arrearages. Upon receipt of written notice of such arrearages from the Department of Revenue or a circuit court, EPC shall immediately suspend the certificate until the arrearages are paid in full. The payment of a purge amount that leaves an arrearage owing does not satisfy this condition. Within six months of issuance of the certificate and within six months of each anniversary of issuance, during the term of probation, Petitioner shall complete 10 hours in coursework in the area of ethics with emphasis on the Principles of Professional Conduct, Florida Administrative Code Rule 6B-1.006 and shall deliver to the DOE investigative office written proof of such coursework. At the start of every school year, during the term of probation, Petitioner and his immediate supervisor will sign a statement certifying that each has read the Principles of Professional Conduct and deliver the signed statement to the DOE investigative office within 20 days of the first day of school. The supervisor's statement shall confirm that he or she understands that his or her professional obligations include the obligation of Rule 6B-1.006(5)(l) that he or she "shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules." Petitioner's statement shall confirm that he understands that his professional obligations include the obligation of Rule 6B-1.006(3)(a) that he "shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety." If Petitioner's immediate supervisor changes during the school year, the new supervisor shall sign a supervisor's statement within 30 days of his or her assumption of supervisory duties over Petitioner and deliver the signed statement to the DOE investigative office within 60 days of his or her assumption of supervisory duties over Petitioner. Within 30 days of the preparation and delivery of an evaluation to Petitioner, during the term of probation, he shall submit a copy to the DOE investigative office. During the term of probation, if Petitioner becomes actively involved in the adult entertainment industry, in any manner, he shall notify the DOE investigative office, in writing, within 30 days of first involvement. For the purpose of this paragraph, the performance or production of a sexually explicit song that would be inappropriate for the football team weight room or the appearance at an autograph- signing event promoted on the basis of Petitioner's former involvement with 2LC is active involvement in the adult entertainment industry. During the term of probation, the certificateholder shall reimburse EPC or its agent its reasonable costs of monitoring. If any of these conditions, except for the condition stated in paragraph 2, are not timely performed by Petitioner or, if applicable, his supervisor, EPC may suspend the certificate until Petitioner demonstrates compliance (or the term of the certificate expires) or, at its discretion, revoke the certificate. DONE AND ENTERED this 15th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 15th day of May, 2012. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, 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 Michael John Carney, Esquire Kubicki Draper, P.A. Wachovia Bank Building, Suite 1600 One East Broward Boulevard Fort Lauderdale, Florida 33301 mjc@kubickidraper.com Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com
The Issue The issues are whether Petitioner is entitled to attorney fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 00-1600RX on one of two challenged rule provisions. In that case, the challenge to Rule 61K1-1.0011(3)(c), Florida Administrative Code, which required all contracts between a manager and a boxer to be filed with Respondent within seven days of execution, was dismissed on its merits. Rule 61K1- 1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, were found to be invalid exercises of delegated legislative authority to the following extent: (a) that Rule 61K1-1.0011(3)(c), Florida Administrative Code, deemed contacts between managers and boxers to contain all provisions set forth in Form BPR-0009451; and (b) that Form BRP- 0009451 deemed contracts between managers and boxers to be void if the managers were unlicensed on the date their contracts were executed or if the managers failed to file the contracts with Respondent within seven days of execution. Respondent presented no evidence, testimonial or documentary, in DOAH Case No. 00-1600RX or the instant case, showing that it had a reasonable basis in fact to promulgate Rule 61K1-1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, in 1985 or thereafter to amend, enforce, or defend said rule and form. Respondent admits that it has not maintained the pertinent rulemaking record required by Section 120.54(8), Florida Statutes. There is no competent evidence that Respondent in fact conducted the mandatory rule reviews required by Section 9 of Chapter 96-159, Laws of Florida, or Section 3 of Chapter 99-379, Laws of Florida. Respondent did not file post-hearing depositions showing that it ever conducted these rule reviews. Respondent admitted during the hearing of the instant case that it had no written documentation confirming that the rule reviews took place. There is no factual evidence showing the existence of special conditions that would make an award of attorney's fees and costs unjust in this case. There is no evidence showing how to allocate Petitioner's requested attorney's fees and costs between the two challenged rule provisions. The record in DOAH Case No. 00-1600RX does not indicate that the Intervenor Danny Santiago created duplicitous and unnecessary work for Petitioner and Respondent. Two of the depositions taken on December 5, 2000, at the instance of Intervenor Danny Santiago and over Respondent's objections, were filed in DOAH Case No. 00-1600RX, becoming part of the record in that case. Moreover, there is no evidence showing how to allocate a portion of Petitioner's requested attorney's fees and costs to work created exclusively by Intervenor Danny Santiago. Petitioner filed an Affidavit of Attorney Fees and Costs on March 19, 2001. Petitioner seeks to recover $13,235 in fees and costs. Petitioner presented competent evidence that the requested attorney's fees were reasonable based on the number of hours expended (66.175) and the rate charged per hour ($200). Petitioner also presented competent evidence that an expert witness fee in the amount of $1,000 is reasonable in this case. Respondent objected to Petitioner's requested attorney's fees as they relate to the following specific charges: (a) charges pertaining to an unrelated case in which Respondent sought to discipline Petitioner for violating Respondent's rules; (b) charges relating to Petitioner's Motion to Compel Discovery after Petitioner improperly served the original discovery requests and was required to serve the discovery requests a second time; and (c) charges relating to the preparation of the instant motion for fees and costs. Petitioner agreed to reduce his claim for fees and costs by the amount of the disputed charges if Respondent could provide the total amount. After much discussion, the parties agreed to file a post-hearing stipulation as to the amount to be deducted from Petitioner's claim. The parties never filed that stipulation. The undersigned has compared the record in DOAH Case No. 00-1600RX with the list of charges for fees and costs attached to Petitioner's Affidavit of Attorney Fees and Costs. The undersigned has also taken into consideration Respondent's objections to certain charges and Petitioner's acquiescence to those objections. The record reveals that Petitioner is not entitled to recover the following: (a) charges on April 13 and 27, 2000, in the amount of $100 that pertain to a request for and granting of oral argument that did not occur in the underlying case; (b) charges on July 6, 2000, and July 31, 2000, in the amount of $100, relating to review of an unidentified motion to compel and review of an order granting that motion, which did not occur in the underlying case; (c) charges on July 17 and 27, 2000, and August 14, 2000, in the total amount of $320, relating to Petitioner's improper motion to compel discovery after Petitioner incorrectly served the original discovery requests on the Attorney General and was required to serve the discovery requests a second time; (d) a charge on August 24, 2000, in the amount of $200 for attendance at court, which did not occur in the underlying case; (e) a charge on September 11, 2000, in the amount of $50 for review of an order dismissing with prejudice, which did not occur in the underlying case; (f) charges on February 23, 2001, in the amount of $80, relating to the preparation of the instant motion for fees and costs; and (g) charges on October 26, 2000, in the amount of $500 for travel to a deposition. The reduction amount for attorney's fee charges totals $1,350. There are no other identifiable disputes over amounts claimed by Petitioner as recoverable expenses or costs. Therefore, Petitioner is entitled to recover $11,885 in attorney's fees and costs incurred in DOAH Case No. 00-1600RX and an additional $1,000 for expert witness fees in the instant case, for a total recovery in the amount of $12,885. This amount is reasonable under the facts of this case. The record in DOAH Case No. 00-1600RX clearly reflects that Respondent had sufficient and timely notice of Petitioner's intent to seek attorney's fees and costs prior to the entry of the Final Order. In Respondent's meeting on December 6, 2000, Respondent's counsel advised Respondent several times that it would be liable for attorney's fees and costs if the challenged rules or portions thereof were found to lack statutory authority. Counsel for Petitioner and Intervenor Danny Santiago made appearances on behalf of their respective clients at that meeting. Petitioner made his first formal demand for attorney's fees and costs in his Proposed Final Order, which was filed in DOAH Case No. 00-1600RX on January 22, 2001. Respondent filed its Statement of Defenses to Petition for Attorney Fees in the instant case on March 19, 2001. Respondent raised the issue that Petitioner's demand for attorney's fees and cost was untimely for the first time in Respondent's Proposed Final Order filed in the instant case on May 11, 2001.
The Issue Is Respondent's Florida Educator's Certificate No. 476423 subject to discipline by the State of Florida, Education Practices Commission (the Commission) through an amended administrative complaint brought by Frank T. Brogan, as Commissioner of Education, Petitioner's predecessor? In particular is the certificate subject to discipline based upon the material allegations that: 1. On or about October 3, 1997, Respondent made sexually suggestive remarks to a minor female L.S. asking her to fondle him. He then put his hands on her breasts; and 2. During the 1983-1984 school year,1 Respondent had sexual intercourse with a minor female student, J.M., during school hours. Respondent also touched the student inappropriately and engaged in a romantic relationship with her.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 476423, covering the areas of Administration and Supervision in Physical Education, which is valid through June 30, 2000. At all times relevant to the allegations in the amended administrative complaint, Respondent was an employee of the School Board of Duval County, Florida, holding a professional services contract as a Physical Education teacher. J.M. Allegations in reference to J.M. refer to Julie Wallner Morris. Ms. Morris was formerly Julie Ann Wallner, while attending Wolfson High School in Duval County, Florida, in the years 1981-1985. Wolfson High School is a part of the Duval County School District. In the school year 1983-1984, Ms. Wallner was enrolled in a Spanish class at Wolfson High School. Rather than attend that class, Ms. Wallner would frequently abandon that class in favor of spending time in the gymnasium where Respondent was teaching a class in which Ms. Wallner was not enrolled. There Ms. Wallner became acquainted with Respondent. At first, Respondent was among a group of students whom Respondent would talk with. The initial conversations between Respondent and Ms. Wallner, among other students, was casual in its tone. At that point in time, Respondent did not appear to realize that Ms. Wallner was not supposed to be in the gymnasium. At some point in time, Respondent realized that Ms. Wallner was not appropriately in the gymnasium, in that she was not taking a class at that period. Subsequently, while in the gymnasium, in the weight room, Respondent began to converse with Ms. Wallner individually. While in the gymnasium, Respondent and Ms. Wallner had physical contact in the weight room. Respondent was seated on a weight bench. Respondent commented to Ms. Wallner about tightness in Respondent's shoulders and asked Ms. Wallner to massage his shoulders. Ms. Wallner massaged the top of Respondent's back and shoulders, an activity that she did not consider to be sexual in nature. That was Respondent's first physical contact with Ms. Wallner. Ms. Wallner saw Respondent in the weight room five to seven times alone. During those occasions Ms. Wallner and Respondent would converse. Respondent also would kiss and touch Ms. Wallner. When Respondent kissed Ms. Wallner, she returned the embrace. Respondent's touching of Ms. Wallner involved touching her shoulders and breasts over her clothing. Respondent also touched Ms. Wallner's skin. During the time of these encounters Ms. Wallner was sixteen years old. Ms. Wallner felt flattered by the attention she received from Respondent. On the last occasion in which Respondent and Ms. Wallner were in the weight room kissing and touching, Respondent invited Ms. Wallner to come with him to another area within the gymnasium. That area was a loft. Respondent unlocked the loft area and invited Ms. Wallner into the loft. Ms. Wallner willingly complied. Once inside the loft area, Respondent locked the door to the loft. While in the loft, Respondent started kissing Ms. Wallner and touching her and fondling her. Ms. Wallner and Respondent took off their clothes and they engaged in sexual intercourse in which Respondent penetrated Ms. Wallner's vagina with his penis. This encounter took approximately five minutes. Respondent and Ms. Wallner put their clothes back on and left the area. After the incident, Ms. Wallner felt "pretty bad" and felt that she had done something wrong. In parting, Respondent told Ms. Wallner not to tell anyone about the encounter or they would both be in trouble. Respondent told Ms. Wallner that it was a secret. Ms. Wallner did not keep their secret; she told her two closest friends about the relationship between Ms. Wallner and Respondent. Thereafter, rumors began to circulate at Wolfson High School concerning a relationship between Ms. Wallner and Respondent. The rumors were made known to Ms. Wallner in that other students would "crack jokes or say things" in Ms. Wallner's presence about Respondent and Ms. Wallner. Ms. Wallner would deny those rumors. Ms. Wallner understood that one of the friends she had told about the relationship between Respondent and Ms. Wallner had been summoned to the principal's office at the high school. This upset Ms. Wallner. On the same day, when Ms. Wallner's father noticed that she was upset, he asked her what was wrong. Ms. Wallner told her father about the rumors that Ms. Wallner and Respondent were having an affair. On the date that Ms. Wallner told her father about the rumors, her father arranged to have a meeting with the principal at Wolfson High School to discuss the rumors. The meeting was attended by Respondent who acknowledged that Ms. Wallner had been present at the gym classes taught by Respondent but not as a student. Respondent and Ms. Wallner denied having a relationship when confronted with that issue at the meeting held with the principal. During the meeting with the principal, Ms. Wallner denied the relationship because she did not wish to divulge something as personal as the relationship with Respondent and did not wish to be in trouble. She was afraid. Later, Respondent passed a note to Ms. Wallner in the school hall at Wolfson High School. The note was unsigned. The essence of the note was that Respondent "cared" for Ms. Wallner but wanted her to be quiet until it all "blew over." Ms. Wallner hid the note under her bed. Her father found the note and asked Ms. Wallner about the note and whether the note was from Respondent. Ms. Wallner at that time denied that the note came from Respondent. At the time Ms. Wallner had her relationship with Respondent, she did not realize that Respondent was married. When she found out Respondent was married after the relationship had ended, this made Ms. Wallner feel worse than she had felt before. She felt even more ashamed about the relationship because she believed that she had inadvertently dragged someone else into "my mess." This comment was in reference to Respondent's wife. L.S. L.S. refers to Lindsay Schuster who was a student at Wolfson High School in the fall 1997, her senior year. At that time Ms. Schuster was seventeen years old. Ms. Schuster first met Respondent in her ninth grade at Wolfson High School. At that time Respondent was Ms. Schuster's health teacher. While in the ninth grade, Ms. Schuster would speak to Respondent about business that her aunt did with the Respondent outside the school. Ms. Schuster would also speak to Respondent about Ms. Schuster's cousin who was on the school wrestling team. Respondent was coaching that team. In the fall term 1997, Ms. Schuster was taking a gym class with a different gym coach. Although Respondent was not her coach, Ms. Schuster would see Respondent in the gym class. The Respondent and Ms. Schuster would converse during the class. The nature of the relationship became such that Ms. Schuster would confide in Respondent about her personal life. Ms. Schuster had trust in the Respondent in confiding that information. On October 3, 1997, Ms. Schuster was late for school. She had been late numerous times before. When Ms. Schuster arrived at school, Respondent was in front of the hallway where coaches were normally located. Ms. Schuster was concerned that she not be found tardy again to avoid trouble based upon her tardiness. Ms. Schuster made Respondent aware of that problem. Respondent allowed Ms. Schuster to remain with him during the class period that was commencing. Respondent took roll of the members of his gym class. Respondent and Ms. Schuster then went to the football field and Respondent began to fill in holes on the field with sand. During this time, Respondent and Ms. Schuster were having a casual conversation about Ms. Schuster's home-life and Respondent's business outside his school duties. When the period was over, Respondent asked Ms. Schuster if she wanted to come back during her lunch period and help him further prepare facilities for the football game to take place that evening. Ms. Schuster agreed to come back. Ms. Schuster and Respondent met later behind the gymnasium. They then proceeded to the press box at the football field for Wolfson High School. They went inside the press box. Ms. Schuster began looking out of the press box windows. While in the press box, Respondent stated, "You really look good today." Ms. Schuster replied, "Yeah, I know, I always look good." Respondent then approached Ms. Schuster and put his arm around her shoulder and said "touch my cock." This referred to touching Respondent's sexual organ. Ms. Schuster replied, "No. Do you know how old you are?" When Ms. Schuster tried to step away from Respondent, he reached forward and rubbed his hands on Ms. Schuster's breasts. Ms. Schuster then left the press box. While Respondent was standing at the door of the press box, he stated to Ms. Schuster, "Shit. Now I have a hard-on." The results of Respondent's action hurt the feelings of Ms. Schuster. She felt devastated by his conduct given that she had placed her trust in Respondent. After the incident Ms. Schuster left the high school. She tried to return on the following week. Ms. Schuster determined not to permanently return because of her discomfort in realizing that other persons at school knew of the incident and her complaint to school authorities about Respondent's conduct. After Ms. Schuster left Wolfson High School, she obtained her general education diploma.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 476423. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 31st day of March, 1999.
