The Issue The issue is whether Walter Gilbert should be terminated from employment by the Sarasota County School Board.
Findings Of Fact The Sarasota County School Board is the agency responsible for the administration of the Sarasota County School System. Mr. Gilbert is a 53-year-old man who has worked for the Board since 1998. He has been employed as a security aide since 2000, and was so employed during the 2004-2005 school year. It is his job to protect students at Sarasota High School. Mr. Gilbert has been a football coach, has been active in the Youth Football League, and is prominent in the community. He is married, has seven children, and is a grandfather. D.B. is a 2006 graduate of Sarasota High School. She was born November 26, 1987. She was 17 years old in the winter and spring of 2005, when the events that will be related herein, occurred. Sarasota High School is a large school and comprises numerous buildings. Approximately 2500 students attend the school. The campus includes a field house, a football field, the original building, a cafeteria, a library, and numerous classrooms. D.B. has been an acquaintance of Mr. Gilbert for several years. She frequently talked to him, and his long-time friend John Jones (Mr. Jones), beginning in the ninth grade. She would talk to Mr. Gilbert and Mr. Jones, who is also a security aide, almost every day. She was advised by Principal Hradek not to talk to Mr. Jones so much. Principal Hradek counseled Mr. Gilbert on at least one occasion to act professionally in his conduct with regard to students. Before Christmas 2004, D.B. and Mr. Gilbert discussed lingerie. Sometime after these discussions Mr. Gilbert presented her with lingerie. This occurred around Christmas 2004. D.B. described this lingerie on some occasions as three thongs, and on at least one other occasion, two thongs and a pair of "regular" panties that did not fit her. D.B. said Mr. Gilbert on at least one occasion asked her to show him her underwear, which she was wearing. She showed him the thong underwear by pulling it upwards over her pants although on another occasion she said she did this by removing, or at least lowering, her pants. In January 2005 D.B., engaged in fellatio with Mr. Gilbert under a stairwell in Building 13 of Sarasota High School during the school day. The stairwell was not readily accessible to students. Subsequently, during the spring of 2005, she had sexual intercourse in the Building 13 stairwell with Mr. Jones, in the Building 13 maintenance room with Mr. Jones, in the Building 13 stairwell with Mr. Gilbert, in a Building 13 maintenance storeroom with Mr. Gilbert, in a Building 13 maintenance room with Mr. Jones, in a coach's office in the field house with Mr. Gilbert, and in the field house bathroom with Mr. Gilbert. Also during this period, she and Mr. Gilbert were in an unused school resources office in Building 5 together but did not engage in sex acts. When they left that room they went into an elevator but only kissed while on the elevator. On one occasion, Mr. Gilbert took her into a room in Building 5 that had a chair in it. D.B.'s clothes were removed and Mr. Gilbert attempted intercourse but was unable to do so. Thereafter Mr. Jones entered the room and had intercourse with D.B. while Mr. Gilbert watched. As the end of the 2004-2005 school year approached, she ended her relationship with Mr. Gilbert but continued engaging in sex acts with Mr. Jones. All of the sexual activity between Mr. Gilbert and D.B., and Mr. Jones and D.B. was consensual. All of the sexual activity took place on campus, during school hours, and in places generally inaccessible to students. Mr. Gilbert and Mr. Jones were gentle and kind with her, according to D.B. She did not wish to cause them trouble with the authorities. Near the end of the 2004-2005 school year, Assistant Principal Downes became aware of rumors that D.B. was having a sexual relationship with a member of the school staff and as a result called D.B. into his office. When confronted by him, she denied the allegation. She also denied it to the police and to her mother. Eventually, she admitted to her mother that she had a sexual relationship with Mr. Jones and the appropriate authorities were notified and an investigation ensued. Subsequently, she revealed her relationship with Mr. Gilbert and participated in a controlled telephone conversation with him while in the company of Detective Corrine Stannish. After the revelation of these encounters D.B. met with Detective Stannish, Deputy Brian Woodring, who is the School Resource Officer, and a Sarasota Police Department evidence technician on the Sarasota High School Campus. This occurred after the end of the school year in 2005. D.B. was asked to describe to the officers the site of each sexual encounter. After some initial confusion over whether she was going to Building 13 or 14, buildings which are mirror images of each other, she led the officers to Building 13, and to the other places in which she had encounters with Mr. Gilbert and Mr. Jones. The places where D.B. led the officers were places that students would not normally access. Many of the sites were locked. D.B. was able to describe with remarkable precision the interior of these sites before she entered them with the officers. The evidence technician used a "black light" in an effort to locate semen. Semen fluoresces when exposed to a black light. No residue of semen was found. Subsequent to a report from a custodian during August 2005, Assistant Principal Downes and Deputy Woodring discovered keys in Mr. Gilbert's locker in the field house. These keys included two Sarasota High School master keys, a golf cart key, an elevator key and a gate lock key. The master keys would open Building 13. Although, D.B. offered contradictory testimony with regard to the description of lingerie presented to her by Mr. Gilbert, and offered confusing and sometimes contradictory testimony with regard to the location and the identity of the participant with regard to some encounters, and preliminarily denied certain aspects of her activities to her assistant principal, police officers, and her mother, on the whole it is proven by a preponderance of the evidence that D.B. had sexual liaisons with Mr. Gilbert during the time she was a minor student at Sarasota High School.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County, Florida, uphold the termination of Walter Gilbert's employment. DONE AND ENTERED this 7th day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 7th day of June, 2006. COPIES FURNISHED: Arthur S. Hardy, Esquire Matthews, Eastmoore, Hardy, Crauwels, & Garcia, P.A. Post Office Box 49377 Sarasota, Florida 34230-6377 Robert E. Turffs, Esquire Robert E. Turffs, P.A. 1444 First Street, Suite B Sarasota, Florida 34236-5705 Dr. Gary W. Norris Superintendent of Schools Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft. Findings of Fact Based Upon Evidence Presented at Hearing Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them. Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/ C.J.'s testimony is also not very credible. Like M.H., C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to Orlando while she got her cheerleading certification is not credible. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2009.
The Issue The issue in this case is whether the Florida teaching certificate of Respondent, Edith E. Gonzalez, should be revoked, suspended or otherwise disciplined for the alleged violations set forth in an Administrative Complaint entered on September 21, 1992.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent hereto, Respondent has been a certified teacher in Florida holding Certificate No. 194394. Respondent is certified in the areas of administrative supervision, elementary education, varying exceptionalities, French, Spanish, gifted and special learning disabilities. Her certificate is valid through June 30, 1996. At all times pertinent hereto, Respondent was employed as a teacher at Miami Carol City High School (the "School") in the Dade County School District. The students enrolled in the Dade County Public School System hail from a variety of ethnic and cultural backgrounds. Miami Carol City High School has a student population that is predominantly black. Respondent is 62 years old and will be 63 in December. She is an immigrant from Lima, Peru and Spanish is her native language. Respondent has been a teacher for the School Board for 24 years. She also taught for 5 years in Catholic schools. In addition, she has taught in Korea and Ecuador. The evidence indicates that from 1985 through 1992, the School Board received various complaints regarding Respondent and/or her conduct in the classroom. Except as set forth below, the specific nature of those complaints was not established in this proceeding. In 1987, Respondent was investigated by the Professional Practices Services of the Education Practices Commission for inappropriate discipline techniques. As a result of that investigation, Respondent entered into a settlement agreement pursuant to which Respondent was placed on probation for one and a half years and issued a letter of reprimand. During the 1991/92 school year, the School Board was requested by the School to investigate allegations of inappropriate and derogatory comments purportedly made by Respondent. A formal fact finding investigation was conducted by the School Board. After the investigation was completed, a "conference for the record" was held between Respondent and School Board officials during which the investigative report was reviewed and Respondent's entire record with the School Board was discussed and considered. Respondent did not have an opportunity to review or provide input into the investigation until the conference for the record. During the conference, the School Board advised Respondent that the investigative unit concluded that the allegations of inappropriate and derogatory comments were true. Respondent was further advised that the Regional Supervisor for the School Board was going to initiate the steps necessary to suspend and dismiss her from employment. The evidence established that the School Board's decision to seek termination of Respondent's employment was based upon a review of her entire employment record with the School Board. The School Board investigation was completed on February 10, 1992, and the School Board moved to suspend Respondent and terminate her employment on or about April 1, 1992. While Respondent initially challenged the termination of her employment, on or about June 4, 1992, she decided to resign her position without a hearing. As a result, she never had an opportunity to confront the witnesses and/or challenge the investigation conducted by the School Board. The only direct evidence presented in this case regarding racial slurs and/or inappropriate and derogatory comments by Respondent was testimony from D. P., who was a student in Respondent's fourth period Spanish Class during the 1991/92 school year, and from Roxanne Mendez, who worked as a Media Specialist at the School. Their testimony was insufficient to establish that Respondent was racially prejudiced, or that she intentionally belittled, degraded, or made fun of students. The evidence established that Respondent's fourth period Spanish class was very difficult to control and included many students who misbehaved on a regular basis. Respondent admittedly had a difficult time in dealing with the class. On a couple of occasions, out of frustration, she told the students they were acting like "animals" or "savages" and told them they needed to be locked in a cage. While these comments may have been insensitive, they were not intended as racial slurs. The only student in the class who testified admitted that the comments were only made when the class was acting up and he was not personally offended by them. The evidence also established that, on some occasions when Respondent could not remember the name of a student, she would refer to them as "boy" or "girl". These comments were made to both black and white students and were not intended to be racially disparaging. While Petitioner contends that Respondent advised her students that she was prejudiced against blacks, the evidence established that any such comments were made sarcastically and/or in jest and were not taken seriously by the students. On one occasion when the students were particularly rambunctious, Respondent reprimanded them and told them they were acting "like a bunch of Haitians just off the boat." The exact circumstances surrounding this comment were not clearly established. Apparently, the aunt of one of the students was present when this remark was made and took great offense. As a result of this incident, Respondent's effectiveness as a teacher at the School was reduced. No evidence was presented of any other incidents which would justify discipline or revocation of Respondent's teaching certificate. Respondent clearly had a difficult time dealing with the serious discipline problems that existed at the School. Many of the students made virtually no effort to learn. On several occasions, students deliberately disrupted classes and Respondent's class in particular. Some of the students referred to Respondent as "Taco Bell." Based upon the evidence presented, it is concluded that Respondent was a dedicated teacher who was trying her best in a difficult situation. Respondent often emphasized to her class the need to be tolerant and overlook cultural differences with other individuals. R. W. was one of Respondent's students during the 1991/92 school year. Even though she was not in the fourth period class, her testimony was very persuasive and is given great weight. She testified that at no time during that year did she ever feel uncomfortable in any way by what the Respondent said or did in the classroom. She also testified that the Respondent never showed disrespect toward her or the class and that the Respondent never referred to students in any way which would indicate that she was prejudiced against black children. The only other student who testified, D. P., confirmed that Respondent did not make him feel ill at ease or uncomfortable or hurt or sad or offended in any way. According to him, the only critical comments made by Respondent were directed to students who were misbehaving. While on some occasions Respondent's comments may have been insensitive and ill- advised, the evidence was insufficient to establish that Respondent was racially prejudiced, and/or that she intentionally embarrassed students or deliberately made racial slurs or disparaging comments. The evidence presented regarding Respondent's personal life confirmed that she harbors no racial prejudices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint, but dismissing the remaining Counts. As a result of her violation of Section 231.28(1)(f), Florida Statutes, Respondent should be reprimanded and placed on probation for one year. DONE and ENTERED this 18th day of August 1993, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993.
The Issue The issue in this case is whether Respondent, Carl D'Agostino, committed the offense alleged in an Administrative Complaint issued by Petitioner, and dated February 13, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact The Department of Education, which the Commissioner was the head of at the times material to this case, is the state agency charged with the responsibility to investigate and prosecute complaints of violations of Section 1012.795, Florida Statutes (2003), against teachers holding Florida Educator's Certificates. §§ 20.15 and 1012.796(1), Fla. Stat. The Education Practices Commission (hereinafter referred to as the "EPC") is charged with the responsibility of imposing discipline for any violation proscribed in Section 1012.795, Florida Statutes. § 1012.795(1), Fla. Stat. Carl D'Agostino holds Florida Educator's Certificate No. 311777, valid through June 30, 2006, covering the area of history. At the times material to this proceeding, Mr. D'Agostino was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools"). Mr. D'Agostino's most recent position with M-D Public Schools was at North Miami Senior High School. Mr. D'Agostino has been employed as a teacher for 32 years and, since 1973, has been employed by M-D Public Schools. Throughout his teaching career, Mr. D'Agostino has received satisfactory performance evaluations. The Commissioner did not present evidence of prior disciplinary action against Mr. D'Agostino. The Commissioner issued an Administrative Complaint against Mr. D'Agostino on February 13, 2002, alleging three incidents, which Mr. D'Agostino has admitted occurred. The following describes the first incident, which is hereby found to have occurred: On or about August 8, 1992, the Respondent was detained by a law enforcement officer in Dade County for trespassing on posted private property. Although he was twice ordered to stop by the officer, the Respondent continued walking. The Respondent made threatening gestures with his arms and told the officer to "go fuck himself." Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the August 8, 1992, incident: Aug [sic] 8, 1992 [sic] Walking home from corner store across RR track abutting my apartment building a man started running toward me and screaming at me. In effort to avoid confrontation I attempted to flee. He tackled me, banged my head against the tracks repeatedly and made arrest. Turns out he was a federal railroad marshall and I unwittingly trespassed by crossing track instead of at street half block away. As the officer wears no uniform, from my view I was being attacked by a wild man. Hundreds of people from adjacent apts. Transverse this route daily to corner store. PTI anger control class 10 wks. Adj w/h. The following describes the second incident, which is hereby found to have occurred: On or about February 23, 1996, the Respondent became enraged because another vehicle was parked in the Respondent's parking space. The respondent tore the windshield wipers off the vehicle and threw one at the owner of the vehicle, striking him in the head. Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to be accurate, concerning the February 23, 1996, incident: Feb [sic] 23, 1996 [sic] After month's [sic] of contention over neighbor's guests using my parking space leaving me nowhere to park, after months of complaining to condo board, and after months of notes to neighbor and on parked cars, I did tear of [sic] windsheild [sic] wipers and flipped them over my shoulder into bushes. I did not aim at anyone or anything nor was I aware of anyone in the vicinity. The person agreed this was an accident, not an assault, did not press charges. Restitution for damages ADJ/WH The following describes the third incident, which is hereby found to have occurred: On or about August 22, 1998, the Respondent became involved in an argument with a neighbor over the volume of the neighbor's music. After the neighbor refused to turn his music down, the Respondent left and returned to the neighbor's home with a rifle. The Respondent cocked the weapon and stated "I will kick your ass." The Respondent told a law enforcement officer who arrived on the scene that "If he does it again, I'm going to kill him." Attached to his Election of Rights' form, Mr. D'Agostino wrote the following explanation, which is hereby found to have been accurate, concerning the August 22, 1998, incident: August 22, 1998 [sic] I did threaten individual with a high school drill team marching rifle which does not have the capacity to chamber or fire a bullet. The object had the appearance of the ability to inflict harm but technically it was neither a weapon or [sic] rifle. I had to be arrested because instead of closure for 1996 incident they issued bench warrant in error. My condo president wrote a letter to judge applauding my actions and the alleged victim was evicted by the condo board for loud music, drugs, and other violations. Judge refused to hear case I have never owned or fired a gun in my life. While the incidents described may evidence an anger management problem, probably exacerbated by 35 years of alcohol abuse,3 they do not constitute gross immorality or acts of moral turpitude. Mr. D'Agostino's conduct was not "sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." The evidence failed to prove that any of the incidents were publicized. None the acts committed by Mr. D'Agostino constituted an "act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 28th day of June, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2004.
