The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since January 19, 1999. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, and is covered by the collective bargaining agreement between the School Board and TALC. Respondent is certified in the area of Physical Education, Grades K through 12. From the time of his hiring until the fall of 2004, Respondent was a physical education ("PE") teacher at the elementary and high school levels. In the fall of 2003, Respondent applied and was hired for a position as an adaptive PE teacher. An adaptive PE teacher works exclusively with Exceptional Student Education ("ESE") students, generally those who have physical disabilities or are developmentally delayed. This adaptive PE teacher position was itinerant. Respondent drove a circuit of several schools, teaching one or two classes at each, including Mirror Lakes. Prior to the 2003-2004 school year, Respondent had never taught at Mirror Lakes. During the 2003-2004 school year, Respondent drove to the various schools in his personal car, a blue Nissan Altima. Respondent commenced his duties as an adaptive PE teacher during the second quarter of the 2003-2004 school year, either in October or November 2003. He came to Mirror Lakes an average of once a week1 for two consecutive class periods. Respondent would arrive at the school between 8:30 a.m. and 9:00 a.m. He would park his car in the visitor's parking lot at the front of the school. Respondent would enter the school office just inside the main entrance, sign in, and walk to the classroom to meet his first class of students. With the classroom teacher and the teacher's aides,2 Respondent would accompany the class outside to the PE field, where he would provide instruction to the ESE students. Following completion of the first period, Respondent would accompany the students back to their classroom, in the company of their classroom teacher and the teacher's aides. Respondent would then go to the adjacent classroom, taught by ESE teacher Gail Joyal. Ms. Joyal, her two aides, and Respondent would walk the class of 14-to-16 ESE students through the hallway to the art and music rooms. Half of the class would stay for art or music, and the other half would walk outside to the PE field under the supervision of Ms. Joyal, her aides, and Respondent. At the PE field, Ms. Joyal's class joined approximately 50 students from other classes for instruction by PE teacher Robert Bates and his two aides. Ms. Joyal would return to her classroom, but her two aides would remain on the PE field to supervise the class. Thus, there would be at least six adults on the PE field with the students: Mr. Bates and his two aides, Ms. Joyal's two aides, and Respondent. The PE field was about the size of a football field and was surrounded by a chain link fence. The field could be accessed through the school, as was done by the children going in and out for PE class, or via an outside gate. The outside gate was plainly visible from Mr. Bates' office and from the PE pavilion where the students gathered at the beginning and end of PE class. At the beginning of PE class, the students would take their assigned spaces in the covered PE pavilion. Mr. Bates would lead the entire class in ten to 15 minutes of calisthenics. He would then explain the day's planned activity to the class. Once the activity began, Respondent would work with the ESE students from Ms. Joyal's class. Among these students was J.P., a seven-year-old boy classified as educable mentally handicapped, with speech and language impairments. J.P. functions at the approximate level of a three-year-old. Respondent taught J.P. and the other ambulatory students as a group. The only student with whom Respondent worked one-on-one was wheelchair-bound. The PE class lasted 45 minutes. Near the end of class, Mr. Bates would reassemble the students in their assigned spaces under the PE pavilion. Ms. Joyal's aides would take a head count of their students. Ms. Joyal would rejoin the class. Once Mr. Bates dismissed the class, Ms. Joyal and her aides would accompany the children back to their classroom. Respondent would walk with the class as far as the entrance to the school hallway, then would walk to the front office to sign out and move on to his next assigned school. Kelly Bach, J.P.'s mother, testified that during the middle of the 2003-2004 school year, J.P. began telling her about someone at school named "Mr. Bob." J.P. told Ms. Bach that he had kissed Mr. Bob, which caused Ms. Bach no alarm because J.P. "kisses everybody." J.P. also mentioned something about "marrying Mr. Bob." Ms. Bach thought Mr. Bob might be another student at Mirror Lakes. Out of curiosity, she asked J.P.'s teacher, Ms. Joyal, if there was someone at the school called Mr. Bob. Ms. Joyal told Ms. Bach that "Mr. Bob" was the students' name for Respondent. This fact was confirmed at the hearing by Respondent. Ms. Bach testified that two or three months passed with J.P. making no mention of Mr. Bob. Then, one evening in late May 2004, J.P. told her that he had ridden in Mr. Bob's car.3 Ms. Bach questioned J.P. further, but he was reluctant to say more. J.P. told Ms. Bach that "Mr. Bob is going to be mad at me, and Daddy is going to be mad at me, and Daddy is going to give me a spanking."4 After Ms. Bach assured J.P. that no one was going to hurt him, J.P. told her a disjointed story about being taken away from school, having his pants removed, being handcuffed, and having his "butt" touched by a person variously identified as "Mr. Bob," "Big Bird," and "Christmas tree." J.P. told his mother that "Brian" was supposed to save him but didn't. "Brian" is the lead character in the film "The Fast and The Furious," which J.P. watched repeatedly at home. Ms. Bach held J.P. out of school on May 27, 2004, and took him to the emergency room of Lehigh Regional Medical Center to be examined for a suspected sexual battery. The hospital referred her to the Children's Advocacy Center of Southwest Florida. The Lee County Sheriff's Office was also contacted because of the nature of the allegations, and the Lee County CPT became involved. Lee County Sheriff's Office Deputy Kim Swanson responded to the hospital and interviewed Ms. Bach. Deputy Swanson filed an incident report recounting the interview with Ms. Bach. Deputy Swanson did not interview J.P. The relevant portions of Deputy Swanson's report stated: Ms. Bach advised that the victim described being brought by Mr. Bob during his physical therapy session on 5/26/04[5] to a white car parked at the school. The victim stated to his mother that the car was dark inside and he couldn't see outside. Victim stated there was country music playing in the car. The victim told his mother that Mr. Bob took off his clothes and was naked and that Mr. Bob took off the victim's pants so the victim was naked from the waist down. Then the victim told his mother that Mr. Bob hurt him in the butt, bit his butt, put something in his butt and touched the victim on different parts of his butt. The victim advised his mother that Mr. Bob slapped his face with an open hand when he started to cry. The victim also told his mother that Mr. Bob put "handcuffs" on his hands and then cut them off. Ms. Bach advised the victim stated he was "scared of his arms getting cut." Ms. Bach stated she asked the victim what he used to cut the handcuffs and the victim said a "knife." Ms. Bach advised that the victim was scared of Mr. Bob finding out that he told. Ms. Bach advised that off and on while making his statements about the events, the victim would say that the events happened to the Spider Man doll he was holding during the conversation. Ms. Bach advised that the victim has not seen any movies or TV that would demonstrate such events as the victim was describing and Ms. Bach believes that the event(s) may have been ongoing during the school year from 8/03 to 5/27/04 but does not know how many times. Ms. Bach stated that Mr. Bob provides physical therapy to other of the students as well. Ms. Bach advised after this conversation she recalled previous incidences during the past months when the victim had occasional episodes of blood on the toilet paper when she wiped him after going to the bathroom and stated "it hurts" when she wiped him. On other occasions the victim would come home from school mad and state he was sad because someone hurt him but the victim would not say who it was. Ms. Bach advised that the victim stated he wanted his friend to go to school and beat up Mr. Bob. Ms. Bach advised that the victim used to love school and now does not want to go and is scared to go. Ms. Bach also advised he takes a bath with his younger brother and that the victim has been touching his younger brother's private areas while bathing but she thought it was normal behavior for his age. Also on May 27, 2004, at the request of the Lee County CPT, J.P. was examined by Kathleen Mahan, an ARNP with the Children's Advocacy Center. Before the exam, Ms. Bach told Ms. Mahan that J.P. had complained of pain in his buttocks and said someone had abused him. Also prior to the exam, Ms. Bach told Ms. Mahan that the hospital examination had revealed blood in J.P.'s rectum. However, Ms. Mahan never received confirmation of this statement from the hospital. No such confirmation was offered in evidence at the hearing. Ms. Mahan's examination revealed no conclusive evidence that J.P. had been sexually assaulted. She found no marks on J.P.'s body consistent with the allegations that he had been bitten, hit, or cut with a knife. She found a minor fissure in J.P.'s rectum, but testified that such fissures are a "nonspecific finding" that could result from penetration, but could also be caused by a bowel movement. Ms. Mahan testified that she spoke to J.P. during the examination. She stated that J.P. was unable to state a timeframe for the abuse, which was consistent with Ms. Bach's testimony that J.P. had no concept of time and would state that any past event had occurred "yesterday." Ms. Mahan asked J.P. if anyone had hurt him. J.P. said that Mr. Bob had hurt him. J.P. also told Ms. Mahan that his wrists hurt because Mr. Bob had handcuffed him, that Mr. Bob "touched my penis with his penis," and that Mr. Bob "touched my butt, and he was naked." Also on May 27, 2004, Shaston Boyd, a therapist at the Children's Advocacy Center, conducted a videotaped interview with J.P.6 At the outset, Ms. Boyd established that J.P. could recite the alphabet and count to ten. She used crayons to establish that J.P. knew his colors. Ms. Boyd next attempted to establish that J.P. could distinguish "things that are real" or that "really happened" from "things that are fake." J.P. understood that a Mickey Mouse doll was a "fake" mouse, not a real one. He also assented to the proposition that Brian from "The Fast and The Furious" was not real. Nonetheless, J.P. persistently volunteered that he had raced cars with Brian and that he sees Brian at school. Throughout the interview, J.P. would return to the topic of Brian and race cars at every opportunity. J.P. was also preoccupied with his shoes and socks, because of some sand in his shoes. Ms. Boyd had great difficulty keeping J.P. focused. His responses were often simply free associational statements having nothing to do with Ms. Boyd's questions. When Ms. Boyd first asked about Mr. Bob, J.P. volunteered that he had watched fire safety movies with Mr. Bob and that he would go to lunch in the cafeteria with Mr. Bob. In fact, Respondent's only contacts with J.P. occurred on the PE field. Unable to get J.P. to volunteer sexual allegations about Mr. Bob, Ms. Boyd began to lead the child toward the topic. She asked J.P. about Mr. Bob's car. J.P. told her that he listened to country music in the white car with Mr. Bob. J.P. later specified that Mr. Bob drove a white Toyota.7 He played with Mr. Bob, ate a sandwich, and got a Dr. Pepper. J.P. said that they raced in Mr. Bob's car. J.P. also mentioned Spider-Man and his Aunt Tracy in connection with riding in Mr. Bob's car. After several minutes of questions focused on Mr. Bob, with still no mention of sexual allegations, Ms. Boyd directly asked J.P. whether anyone had ever touched him on his butt. J.P. said that Mr. Bob had touched him on his butt, and it "felt brown."8 Mr. Bob's clothes were on. Mr. Bob called J.P. "stupid" and told him to "shut up." Ms. Boyd asked what Mr. Bob did to his butt. J.P. answered, "Clock," because he had noticed the clock on the wall. J.P. then told Ms. Boyd that he had a new car, but that it didn't work because it needed "big, big batteries." Ms. Boyd again asked J.P. what Mr. Bob had done to his butt. J.P. answered, "Couch," then talked about "black speakers" that he had seen in a dream, and said that the smoke detector at his old house scared him. He said that "fire safety" had been in the car with Mr. Bob and him. In response to Ms. Boyd's gentle but persistent questioning, J.P. said that Mr. Bob had cut him with a "white knife" and that Mr. Bob had called him a "butthead." Contradicting his earlier statement, J.P. said that Mr. Bob's clothes were off when he touched J.P.'s butt. Ms. Boyd asked where else Mr. Bob touched him. J.P. answered, "My race car." A little later, Ms. Boyd repeated the question, and J.P. answered, "My shoe." J.P. told Ms. Boyd that Mr. Bob had a tattoo on his belly. Respondent does not have a tattoo on his stomach. J.P. also stated that Mr. Bob had a "green ball" on his belly. J.P. told Ms. Boyd that Mr. Bob "hit me on my face." J.P. said that a policeman saw Mr. Bob hit him and that J.P. told a fireman that Mr. Bob had hit him. At no point during the interview did J.P. appear upset. He raised his voice at one point late in the interview, saying, "I am telling the truth." In the context of J.P.'s conversation and demeanor throughout the 45-minute interview, this statement was extraordinary. It was the first time J.P. indicated any concern with Ms. Boyd's response to anything he was saying or doing. It also did not impress the undersigned as a statement this child would have spontaneously conceived on his own, without adult coaching. Toward the end of the interview, J.P. remarked that someone named "Mikey" had also touched his butt. Ms. Boyd did not follow up on this statement to ascertain the identity of "Mikey."9 For reasons explained in the Conclusions of Law below, the videotaped interview of J.P. is admissible only as hearsay pursuant to Subsection 120.57(1)(c), Florida Statutes (2004). Even if the tape were admissible over objection pursuant to the hearsay exception in Subsection 90.803(23), Florida Statutes, no findings of fact could be derived from this interview, aside from the recitation of J.P.'s statements. The child's imaginary statements were so commingled with his "real" statements about Mr. Bob that it is impossible to separate them with any degree of confidence. "Brian" seemed as real to J.P. as "Mr. Bob." J.P. related the story of Mr. Bob with the same level of emotion he evinced when speaking of the sand in his shoes. Verifiable portions of J.P.'s stories about Mr. Bob were not true, if Respondent was indeed "Mr. Bob": Respondent did not drive a white Toyota or any kind of white car, Respondent did not have a tattoo on his stomach, Respondent did not have lunch with J.P. in the school cafeteria, and Respondent did not watch fire safety movies with J.P. Detective Tim Fisher of the sex crimes division of the Lee County Sheriff's Office witnessed J.P.'s interview. Both he and his supervisor believed that the interview provided grounds for an investigation. Though he obtained approval from the state attorney's office to conduct his own interview of J.P., Detective Fisher did not conduct the interview because of J.P.'s difficulties in articulating. Detective Fisher hoped that counseling might help J.P. to "get it out," and he decided to wait until some future date to interview J.P.10 As of the date of the hearing in this matter, the interview had not occurred. Detective Fisher interviewed Ms. Bach on some date shortly after J.P.'s examination. By this time, Ms. Bach claimed that J.P. had given her more details about events with Mr. Bob. According to Ms. Bach, J.P. told her that, during the school day, Mr. Bob drove him to Mirror Lakes Golf Club and bought him a sandwich and a Dr. Pepper. Mr. Bob sexually abused him on this excursion. Because Mirror Lakes Golf Club is less than a half-mile from the school, this story seemed plausible to Detective Fisher. Even later, Ms. Bach came forward with additional allegations against Mr. Bob. J.P. told her that on a class bowling trip, Mr. Bob smacked him in the head and called him "stupid" and told him that "he needs to fix his brain." Ms. Bach also stated that J.P. told her that Mr. Bob bled on him, that it was "white blood," and that Mr. Bob put it on his back and stomach. Detective Fisher could not recall Ms. Bach telling him these details. On June 10, 2004, after the 2003-2004 school year had ended, Detective Fisher phoned Karen Holliday, the principal of Mirror Lakes. He told her that J.P. had been physically assaulted by a male teacher at the school and had been removed from campus by this teacher several times during the school year. He provided a general description of the assailant and asked Ms. Holliday for the names of male personnel who might have had contact with J.P. Detective Fisher requested that Ms. Holliday wait to notify the School Board, because he did not want a School Board inquiry to interfere with his own investigation. Ms. Holliday agreed. However, one week later, during a face-to-face meeting, Detective Fisher told Ms. Holliday that Respondent was the target of his investigation. At this point, she told Detective Fisher that she could not keep the matter from her superiors. Ms. Holliday contacted the School Board counsel's office and was referred to Becky Garlock, an investigator in the School Board's human resources department. Ms. Garlock opened her own investigative file. Ms. Holliday testified that she saw Ms. Bach with J.P. on the Mirror Lakes campus twice during the summer of 2004.11 On both occasions, Ms. Bach was walking J.P. up and down one hallway leading to and from the PE field. Ms. Holliday told both Detective Fisher and Ms. Garlock that she was concerned about these visits. Ms. Holliday stated that J.P. was "impressionable" and Ms. Bach could have been attempting to influence the investigation by planting ideas in J.P.'s mind. On this point, Ms. Bach testified that she was following Detective Fisher's instructions to have J.P. show her how Mr. Bob got him out of the school. Detective Fisher did not testify on this point, though his testimony generally indicated that he spent a lot of time dissuading Ms. Bach from being a "little detective" and obstructing his investigation. Ms. Garlock officially opened her investigation in June 2004. She was contacted by Detective Fisher, who requested that she delay her investigation until the criminal investigation was completed. Ms. Garlock notified her superior of the request, and the School Board agreed to hold its investigation in abeyance until Respondent returned to work after the summer break. In June 2004, Detective Fisher, acting on Ms. Bach's information, went to Mirror Lakes Golf Club.12 Detective Fisher interviewed Steve Knott, the golf pro at the club. Detective Fisher testified that he verbally described J.P., who is red- haired, somewhat overweight, and wears glasses. Mr. Knott recognized J.P. from the description, even without a photograph to confirm it. Detective Fisher testified that he then conducted a photo lineup that included Respondent's driver's license photograph. According to Detective Fisher, Mr. Knott went straight to the photo of Respondent and identified him as "the guy that brings" J.P. Mr. Knott stated that he had seen Respondent at the club "many times." Mr. Knott was an extremely reluctant witness. He did not appear at the hearing, though he was subpoenaed by Respondent. In lieu of live testimony, Mr. Knott's deposition was admitted into evidence. Mr. Knott's sworn version of the interview was very different from Detective Fisher's. Mr. Knott confirmed that Detective Fisher first asked about J.P. and that he did remember that J.P. had come to the golf club. Then, Detective Fisher showed Mr. Knott a photograph of Respondent, and asked if he looked familiar. Mr. Knott said that Respondent did look familiar, but that he sees hundreds of people every day and could not positively say whether he had seen Respondent. Then, Detective Fisher "showed me a lineup and the same picture [of Respondent] was in the lineup." Mr. Knott said, "Well, I'm not an idiot," and picked Respondent's photo out of the lineup. Mr. Knott testified that he recalled J.P. coming to the golf club twice, the second time with Ms. Bach. Mr. Knott could not recall who J.P. was with the first time, though he remembered J.P. pounding on the fish tank in the pro shop. However, Mr. Knott could not say that he had seen Respondent with J.P. In fact, Mr. Knott could not say definitely that he had ever seen Respondent, even after meeting him in person at the deposition. He could only say that Respondent looked "familiar," but that "a lot of guys look the same." At the hearing, Detective Fisher was questioned as to Mr. Knott's version of events. Detective Fisher stated that he did not recall showing Mr. Knott the picture of Respondent prior to showing him the lineup, but that he was willing to take Mr. Knott at his word. Detective Fisher candidly admitted that, if Mr. Knott's version of events was accurate, then "that would have made my lineup worthless." Detective Fisher elaborated: You're telling me that he is giving you a statement contrary to what he gave me. That is not the statement he gave me, sir. If he is saying that this is his sworn statement that you're looking at right now [i.e., Mr. Knott's deposition], then I can't say that Mr. Bob is Robert Vandeventer. [Emphasis added] Detective Fisher conceded that Mr. Knott was the only witness who could place Respondent and J.P. together away from the Mirror Lakes campus. Detective Fisher also conceded that he had been unable to establish probable cause sufficient to arrest Respondent. Though the criminal case had not been officially closed, Respondent had not been arrested or charged with any crime as of the date of the hearing. On August 6, 2004, Detective Fisher contacted Respondent at a school where Respondent was participating in a training session for the upcoming 2004-2005 school year. Respondent agreed to drive across town to the Sheriff's Office and submit to an interview with Detective Fisher. Respondent testified that, as he drove to the Lee County Sheriff's Office, he telephoned a friend who works in the criminal justice system. This friend advised Respondent to cooperate with Detective Fisher, but to stop the interview and ask for a lawyer if any of the questions made him uncomfortable. During the interview, Detective Fisher attempted to elicit a confession from Respondent by falsely suggesting that a witness had seen Respondent removing J.P. from the Mirror Lakes campus. Respondent immediately declined to answer any more questions without a lawyer. Detective Fisher told Respondent that his refusal to continue the interview just made him look guilty, but did not pursue the interview any further. After hiring a criminal defense lawyer, Respondent contacted Detective Fisher to reschedule their interview. Respondent answered all of Detective Fisher's questions and submitted to a voice stress analysis test conducted by another Lee County Sheriff's Office employee. The test indicated that Respondent's denial of having committed abuse on J.P. was truthful. The test was inconclusive as to Respondent's denial of ever having been to Mirror Lakes Golf Club.13 After the initial interview on August 6, 2004, Detective Fisher notified Ms. Garlock that he had interviewed Respondent and that Respondent had refused to answer his questions. The School Board immediately suspended Respondent with pay, pending the outcome of its own investigation, which was activated at that time. Ms. Garlock phoned Ms. Bach to arrange an interview, which was scheduled to take place at Ms. Bach's home. When Ms. Garlock arrived at the appointed time, Ms. Bach was not home and had left no explanatory message for Ms. Garlock. After Ms. Garlock made several attempts to reschedule the interview, Ms. Bach agreed to meet with her at the School Board's office on September 2, 2004. During this interview, Ms. Bach told Ms. Garlock that J.P. had identified Mr. Bob's car as a white Toyota SUV. Mr. Bob had a camera in the car with a green light just like a camera owned by J.P.'s uncle. Ms. Bach stated that J.P. told her that he hated it when Mr. Bob would fold down the seats and place the camera on a speaker in the back, because that is when J.P. would get hurt. J.P. accompanied Ms. Bach to the interview, but Ms. Bach would not allow Ms. Garlock to speak with J.P. During the interview, Ms. Bach told Ms. Garlock about the CPT interview and reports and offered to provide them to Ms. Garlock.14 Ms. Bach never provided those materials to the School Board. Ms. Bach also agreed to prepare a written statement for Ms. Garlock. She never provided a written statement, claiming that Detective Fisher had told her that doing so would impede his criminal investigation. At the hearing, Detective Fisher could not recall telling Ms. Bach that she should decline to cooperate with the School Board's investigator. On September 10, 2004, Ms. Garlock interviewed Respondent. In the interest of speeding up the interview, Respondent declined Ms. Garlock's offer to have his attorney present. Ms. Garlock described Respondent as cooperative and to all appearances open and honest during the interview. Respondent told Ms. Garlock that he always signs in and out of the offices of the schools on his schedule and that he is never alone with students, including J.P. Respondent explained to Ms. Garlock the procedure for taking the children as a group to and from PE class, and recounted that there were always four or five other adults on the Mirror Lakes PE field during the period in which he taught J.P.'s class. Respondent told Ms. Garlock that he had been driving a blue Nissan Altima for more than a year, had previously driven a blue Ford Escort, and had never driven someone else's car to work. In other words, during the relevant period, Respondent had never driven a white car, a white SUV or a white vehicle of any kind. Respondent told Ms. Garlock, as he had Detective Fisher, that he had no tattoos on his stomach. After interviewing Respondent, Ms. Garlock contacted the principals of all eight schools at which Respondent provided adaptive PE services. Each principal reported that no complaints of any kind had been lodged against Respondent by any parent, student, teacher, or administrator. On September 15, 2004, Ms. Garlock interviewed Mr. Knott at the Mirror Lakes Golf Club. Mr. Knott identified a Mirror Lakes yearbook photo of J.P. as a boy who had been to the golf course "a few times." Mr. Knott also identified a driver's license photo of Respondent as someone he had seen at the golf course. Mr. Knott could not say "for sure" whether Respondent and J.P. had been at the course together. Ms. Garlock interviewed and obtained written statements from Mr. Bates, the Mirror Lakes PE teacher, and from Ms. Joyal's two teacher's aides, Nancy Busack and Teresa Rosales. Each of these three interviewees told Ms. Garlock that he or she never saw Respondent alone with J.P. Both Mr. Bates and Ms. Busack stated that they did not see how Respondent could arrange to be alone with a student, given the logistics of the PE class. Mr. Bates also stated that he did not see how Respondent could take J.P. off the campus in his car, drive to the golf course, and return during the PE class because of the time involved and because at least one of Ms. Joyal's aides was always with him. Ms. Garlock did not seek to obtain the results of the voice stress analysis test taken by Respondent or of the medical exam performed on J.P. by Ms. Mahan, though Ms. Garlock was aware of them. Ms. Garlock made no further efforts to obtain the CPT records after Ms. Bach failed to provide them as promised during her interview. Though every piece of adverse information about the alleged abuse available to Ms. Garlock had been filtered through Ms. Bach,15 Ms. Garlock conducted no inquiry regarding Ms. Bach's background or credibility. At the hearing, Ms. Garlock conceded that ascertaining the credibility of the sole witness against Respondent would probably be important. At the hearing, Ms. Bach admitted that she had pled no contest to a child abuse charge for allowing J.P. to be bitten on the head by a snake at a friend's residence when he was an infant, an incident that possibly caused his mental disability. Ms. Bach also admitted to having been convicted of petit theft, admitted to having been a victim of repeated domestic violence that J.P. had witnessed, admitted to having multiple live-in boyfriends, and admitted to having had three children by three different fathers. Though Ms. Bach claimed to have exposed J.P. to nothing that could have caused him to invent the allegations he made against Mr. Bob, her background at least suggests otherwise. Ms. Bach's stated intention to sue the School Board if she could prove the allegations against Respondent,16 coupled with her criminal history and her refusal to allow J.P. to testify in any way (including her defiance of this tribunal's subpoena),17 gives rise to an adverse inference regarding Ms. Bach's motive to fabricate the details of J.P.'s story. J.P. never testified in this proceeding. Over the strenuous objection of Respondent, the undersigned has considered the videotaped interview conducted by Ms. Boyd at the Children's Advocacy Center, pursuant to the hearsay provision of Subsection 120.57(1)(c), Florida Statutes (2004). As noted above, even if it met the standard for a hearsay exception, the statement would be wholly unreliable as the basis for findings of fact due to J.P.'s constant commingling of apparent reality and obvious fantasy. At no time prior to the hearing in this case did the School Board have access to this videotaped statement or to any other direct evidence that Respondent committed sexual battery on J.P.18 The medical examination was inconclusive, and the alleged eyewitness, Mr. Knott, refused to give the School Board a written statement or to confirm in any way that he saw Respondent and J.P. together at Mirror Lakes Golf Club. The School Board's own employees, including Ms. Holliday, Mr. Bates, and Ms. Busack, were skeptical that these allegations could be true,19 both because of Respondent's observed behavior on the PE field and because of the logistics of the situation. In the space of approximately 45 minutes, Respondent supposedly managed to take J.P. off the PE field, walk him across campus to the visitors' parking lot, put him into his car, drive off campus to the golf course, strip naked and sodomize J.P., re-dress himself and J.P., then drive back to campus and return J.P. to the PE field in time to line up with his class. In at least one instance, Respondent allegedly also bought J.P. a sandwich and Dr. Pepper at the golf club. Further, Respondent supposedly managed to do all this, on several occasions, without ever being noticed by anyone at the school. On August 6, 2004, Respondent received notice that the School Board was suspending his employment with pay and benefits pending the outcome of the School Board's investigation. A pre- determination conference was scheduled for and held on October 1, 2004. Respondent appeared at the conference with his criminal defense attorney, Joseph A. Simpson. Also at the conference were Georgianna McDaniel, the School Board's director of personnel services; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment; and J. Paul Carland, II, the School Board's staff attorney. At the outset, Mr. Carland stated that Respondent had the Fifth Amendment right not to speak at the conference and to communicate through his counsel. Mr. Simpson answered that Respondent was there to disclose all he knew. Respondent answered all questions put to him at the conference, and Mr. Simpson made a detailed presentation refuting the factual allegations as they were then understood.20 Among the telling points made by Mr. Simpson: Respondent did not drive a white car, every School Board employee actually on the PE field stated that Respondent was always in plain sight and never alone with J.P., Ms. Holliday was concerned that Ms. Bach had led J.P. through the school to coach him in making a statement, Mr. Knott refused to give the School Board a written statement, and Detective Fisher had told Ms. Garlock that his case against Respondent was going nowhere. Nonetheless, by letter dated October 7, 2004, the School Board informed Respondent that it had found probable cause for disciplinary action and was recommending to the Superintendent of Schools that Respondent be terminated from his position. On October 13, 2004, the School Board filed the Petition, alleging that Respondent "committed a sexual battery on a student during the 2003-2004 school year." In a letter dated October 29, 2004, counsel for Respondent notified the School Board of Respondent's intention to seek an award of attorney's fees should the School Board elect to proceed with its intended action. The Petition was heard by the School Board on November 4, 2004. The School Board voted to suspend Respondent without pay and to forward the Petition to DOAH for a formal hearing. The case was forwarded to DOAH on November 12, 2004. Respondent filed a motion for attorney's fees on January 3, 2005, and filed an amended motion on March 7, 2005, seeking an award of attorney's fees pursuant to Subsections 120.569(2)(e) and 57.105(1) and (3) and Sections 120.595 and 1012.26, Florida Statutes (2004). On January 20, 2005, the School Board filed a motion for protective order seeking to prevent counsel for Respondent from taking J.P.'s deposition "now or in the future," because his therapist at the Child Advocacy Center believed that the deposition would be "detrimental to his emotional stability." The motion also disclosed that the School Board had become aware of the existence of the videotaped interview and offered that tape to Respondent in lieu of taking J.P.'s discovery deposition. After a telephonic hearing, an order was entered denying the motion on January 21, 2005. On January 25, 2005, the parties filed an agreed motion for an order directing the Lee County CPT to release the confidential videotaped statement to both the School Board and Respondent, pursuant to Subsection 39.202(6), Florida Statutes (2004). By Order dated February 9, 2005, the undersigned denied the motion because the cited statute provides for release of these confidential CPT materials pursuant to "order of the court." Because DOAH is an executive branch tribunal, not a "court," the undersigned concluded that he was without authority to enter the requested order. On February 9, 2005, Ms. Bach and J.P. were subpoenaed to testify at the final hearing on March 15, 2005. On March 8, 2005, counsel for Ms. Bach entered an appearance and filed a motion for protective order on behalf of J.P., pursuant to Section 92.55, Florida Statutes (2004). On March 11, 2005, counsel for the School Board filed an emergency motion for continuance, which related the following: "Counsel [for Ms. Bach] also advised the undersigned today that should the motion [for protective order] be denied, the mother has stated that she will not make the student/victim available to testify despite having been subpoenaed to do so." Ms. Bach never retreated from this position. As noted above, Ms. Bach reiterated at the final hearing that she would not permit J.P. to testify, at least not under circumstances that would allow counsel for Respondent to cross-examine the child. Respondent testified without contradiction that he had received a supplemental coaching contract worth approximately $1,600.00 annually every year he was employed by the School Board. Respondent's undisputed testimony was that he had been offered the supplemental coaching contract for the 2004-2005 school year and that he would have signed the contract had he not been suspended. In summary, it is found that the School Board failed to prove by a preponderance of the evidence that Respondent committed a sexual battery on J.P. during the 2003-2004 school year. In fact, the School Board produced no evidence that would cause a reasonable person to suspect that Respondent did or even could have done the acts attributed to him. J.P. did not testify, and his videotaped interview was unreliable. The sole alleged eyewitness, Mr. Knott, denied having seen Respondent with J.P. At the hearing, the School Board was reduced to asking its own employees whether it was "possible" that Respondent could have taken J.P. off the campus and back, unseen, during the 45-minute PE period, after those employees testified as to the extreme unlikelihood of that scenario. The undersigned cannot find that Ms. Bach formed her allegations from whole cloth, despite her stated intent to sue the School Board. She took the fragmentary elements of J.P.'s May 26 conversation and constructed a narrative that implicated Respondent. She later came forward with details that became increasingly less likely to have originated with J.P. It cannot be stated with any degree of certainty whether J.P. was initially relating something that actually happened to him or was telling a story based on something he had witnessed, either in a movie or at home. The hearsay statement of Ms. Joyal rings true in this regard: "[J.P.] is simply innocent and not socially aware enough to make up such a horror story. It would not be in his realm of awareness to imagine such a thing." Whatever embellishments his mother added to his story,21 J.P. may well have been the victim of sexual abuse. It certainly made sense that the police and the School Board investigated the matter. It also made sense that Respondent would be the initial focus of the investigation, given that he was apparently the only "Mr. Bob" known to J.P. However, at some point well before the filing of the Petition, it should have been obvious to any objective observer that it was a virtual certainty Respondent was not and could not have been the perpetrator. The School Board conceded that Respondent's only point of contact with J.P. was during the 45-minute PE class, obviously not time enough for Respondent to accomplish without notice the acts of which he stands accused. The School Board's own investigator believed that the factual scenario offered by the School Board was "implausible." Nothing in the record of this proceeding gives reason to dispute Ms. Garlock's conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing the Petition and reinstating Respondent as an assistive physical education teacher with the Lee County School Board, with an award of back pay and benefits to include his supplemental coaching contract for the period in question. Jurisdiction is reserved to enter a final order, pursuant to Subsections 57.105(1) and (5) and 120.569(2)(e), Florida Statutes (2004), that the School Board shall pay Respondent his reasonable attorney's fees and costs in connection with the defense of this case. If the parties are unable to agree upon the amount of fees and costs to be awarded pursuant to this paragraph, and document this agreement, within 60 days from the date of the School Board's final order, Respondent shall file a motion seeking a hearing on, and determination of, the amount of such fees and costs. If Respondent fails to do so within 180 days from the date of the School Board's final order, Respondent shall have waived his right to obtain such an award. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of October, 2005.
The Issue The issue in this case is whether Respondent is guilty of misconduct in office.
Findings Of Fact Respondent has been employed as a physical education teacher at Avon Park Middle School in Highlands County since 1978. He holds a teaching certificate and at all material times was on continuing contract with Petitioner. Normally, middle school consists of sixth through eighth grades. However, during a portion of the relevant time period, Avon Park Middle School included fifth through eighth grades. Student 2 is C. B., who is now 17 years old and in 10th grade. C. B. entered fifth grade at Avon Park Middle School in the fall of 1988. At this time, C. B. first encountered Respondent and soon developed a crush on him. Late the following school year, C. B. wrote two notes to classmates that indicate the strength and persistence of her infatuation with Respondent. The first note is dated April 9, 1990. The note states that she has been "day dreaming" about "me and C. J. [Coach Jarvis]." The second note, which is dated May 29, 1990, mentions a dream that C. describes as "so real." C. B. wrote that she was going to recount the dream to Respondent and the female physical education coach, Ms. Dixon, although there is no evidence that she ever did. In the note, C. B. wishes that Respondent would get a divorce and marry and "have sex with me." C. B. also stated in the note that she wishes that Respondent "would give me a kiss before school is out." C. B. signed the note as "[C. B.] or [C.] Jarvis." At the end of sixth grade, C. B. signed the yearbooks of at least two classmates, "C. Jarvis." The signatures reflected her desire to marry Respondent. The crush continued while C. B. was in seventh grade. In an undated note probably written in sixth or seventh grade, C.B. writes: . . . Have you ever seen Coach J['s] house[?] If you hadn't seen it, the house must not be very far. You know for me to get Coach J. I'm going to have to go to his house and punch his wife [out?] & then she'll die & I'll have Cochy pooh to my self. . . . During seventh grade, C. B. developed crushes on two other adults. The first was Deputy Keith Starling, who is a 25 year old coworker and friend of C.B.'s father. Although Deputy Starling never did anything to encourage C. B., she wrote, "I [love] Keith Starling" in a classmate's yearbook at the end of seventh grade. A more serious incident took place the summer following seventh grade. B. babysat five days a week from about 8:30 am to 2:30 pm for the children of Mike and Bonnie Brown. Mr. Brown, who is in his 30s or 40s, began to find letters from C. B. in his underwear drawer. Although he had never spoken to her except to say hello, the letters addressed highly personal matters, such as that he had a nice body, his wife did not dress him well, and C.B. would like to dress him like he should be dressed. The letters started the first week after C. B. began babysitting for the Browns. Mr. Brown showed the first or second one to his wife, but they dismissed the letters as unimportant. They did not discuss them with C. B. or her father. After two months, the Browns quit asking C. B. to babysit after she pulled the hair of one of their young children. C. B. was assigned to Respondent's physical education class in eighth grade, which was the 1991-92 school year. This was the first time that Respondent was C. B.'s teacher. Respondent had been indirectly aware that C. B. had developed a crush on him in fifth grade, but he paid it no attention. Respondent and Ms. Dixon had had direct contact with C. B. in sixth grade when C. B. paid them regular visits while they had hall duty. C. B. told them that she was having serious problems with her stepmother, who she felt favored C. B.'s younger stepsister. C. B.'s biological mother had died when C.B. was only one year old. C. B.'s older sister had become pregnant outside of marriage and at a young age. Respondent had some special insights into teenage pregnancies as a family member had gone through the same problem. There is no evidence that Respondent had any significant contact with C.B. during the following school year, which was when C. B. developed crushes on Deputy Starling and Mr. Brown. Early in the 1991-92 school year, as C. B. was now in eighth grade and taking Respondent for physical education, she began to be more obvious in making Respondent the object of her attentions. She became more vocal. She approached Respondent in the hall and said that she really liked the way he looked. She went out of her way during physical education class to say hello to Respondent. By Thanksgiving, C. B.'s infatuation had worsened. She told Respondent that she had a goal for her birthday--a kiss from Respondent. Respondent tried to laugh off the inappropriate comments. Like Mr. and Mrs. Brown, Respondent did not take the infatuation seriously, so, like them, he did not discuss it with anyone. Sometime before Christmas break, Respondent received a note from C. B. that said she really liked him and her goal was a kiss. Respondent threw the note away. About a week or so later, Respondent received another note saying that she cared about him. Again, Respondent discarded the note and assumed that he would have no trouble if he stayed away from her. Just prior to Christmas break, C. B. began stopping in to see Respondent. He began to become aggravated and started to evade her. However, he figured that the crush would cease during Christmas break. At Christmas, Respondent received a Christmas card from C. B. The card featured three bunnies--one marked "[C. B.]," one marked Respondent, and one marked "[R.]," who is Respondent'sson. The situation took a turn for the worse when school resumed in January. After a few days of relative inattention from C. B., Respondent received two notes within four days of each other. The first note is dated January 6, 1992. C. B. gave the note to Respondent on that day or perhaps the following day. The note reads: Hey or hi, oh let's get to the point. Over the Christmas break I thought about you a lot. Even had dreams. I have thought about everything that could go wrong, but I want to go all the way with you. You may think this is just a crush but it's more than a crush. I really LOVE you. And I don't use that phrase unless I mean it. I know I could get preg. or something but that is why they invented condoms. Just tell me when and where and I'll be there in my birthday suit. Well, that's enough for now & bells gonna ring so Chow Baby for now! LOVE YA ALWAYS, [C.] [B.] Jarvis I wish! On the same day, C. B. wrote a note to a classmate. The note states in part: Today I'm going to tell Coach "J" that I want to go all the way, Now I'll probley won't but I just want to see want he saids. It's going to be embarracing!!!!!! Now should I say it. Well write Back! On January 10, C. B. wrote Respondent another note, which she delivered the same or following day. The note states: O.K. Look, I'm sorry your name got mention this morning. I just wish I could crawl underneith a whole. Season told her mom about me having a crush on you. So my mom questioned me this morning about it, and I told her that I still kinda. If she asks me again tonight I'm going to tell her no! I'm also going to [tell] everyone at school the same thing. But, I still love you, and I wouldn't want to do anything that would hurt you. . . . It's just everything is coming all at once and I'm beginning to feel I can't handle it. It's just everything is happenin so fast and at once. At this point right no I wish I was dead! I mean all of my emotion is going crazy right now. But, today at A/ [?] your class better watch out! Well enough of boring you with my problems better go!!!! *Love ya Always & Never won't stop! [C.] [B.] Jarvis Oh, you want to hear a joke-- In 1998, your moma tried to skate, She hit the pole, her titties roled, in 1998. *NOTE: The word "Love" has been substituted in this ACCESS document for the heart symbol which is typed on original document on file in the Clerk's Office. There is a third note dated January 13, 1992. It is of the same nature as the two preceding notes. However, C. B. never delivered the note to Respondent. After getting the second note, Respondent discussed them with Ms. Dixon and asked her advice. From her conversations with C.B., Ms. Dixon was aware that C. B. was upset that her father did not trust her after her sister had gotten pregnant. Ms. Dixon and Respondent agreed that he needed to take the notes to the guidance counsellor. Respondent immediately took the notes to the guidance counsellor at Avon Park Middle School, Patricia Jackson. Ms. Jackson read the notes and arranged for a meeting among her, Respondent, and C. B.'s father. At the meeting, C. B.'s father was cooperative, explaining that C. B. had started to develop an interest in boys. Respondent said that he had asked C. B. to stop this behavior, and he needed the father's help in this regard. The father expressed his appreciation that the matter was brought to his attention, but asked why he had not been told about it sooner. Respondent explained that he had not previously taken the infatuation seriously. The meeting closed with an assurance from the father that he would take C. B. to a friend at church for counselling. He left with the two notes. At this time, Respondent and Ms. Dixon transferred C.B. to Ms. Dixon's physical education class. C. B. was quite upset at this action, and she became more upset when she learned that Respondent had told her father about the notes. Her father had disciplined her by restricting her social activities. About one to two weeks later, someone brought C. B. to Ms. Jackson because C. B. had been crying in the hall. C. B. explained that she was upset because her father had placed restrictions on her and she was embarrassed by the notes. After about 15-20 minutes, C. B. quit crying, seemed comfortable, and returned to class. At no time did she mention any other reason for her agitation. Respondent avoided C. B. for the remainder of the 1991- 92 school year. All contact between them stopped at that time until the last day of the school year. Shortly after the students were released at midday, Respondent was checking the gym for equipment, forgotten books, and lost clothing. He heard someone call, "Coach, Coachie pooh." It was C. B., who was at the other end of the gym. Respondent asked C. B. what she was doing there. Instead of answering, she climbed the stairs and entered the Future Farmers of America (FFA) room that is over the gym. Respondent followed her into the room. C. B. was misty eyed and said that she wanted to say goodbye and did not want to leave middle school. Respondent said that she needed to leave. He heard someone in the storage room adjoining the FFA room. C.B. said that a girlfriend and her boyfriend were in the storage room. At this moment, the public address system summoned Respondent to the office. A football equipment salesperson had come to the school to speak with Respondent, who was also a football coach, about repairing old helmets and ordering new ones to replace those that could not be repaired. Respondent and the salesperson visited the equipment room and inventoried the football helmets. They examined about 50 helmets in 25-30 minutes. After determining that an unexpectedly high number of helmets needed to be replaced, Respondent and the salesperson visited an assistant principal and told him of the need to purchase $1000 worth of new helmets. The assistant principal conferred with the principal, who decided to defer making a decision. At this point, the salesperson left and Respondent returned to the gym. He then found C. B. and her two friends at Respondent's desk in the locker room area. Respondent walked up to C. B. and demanded, "What the devil are you doing here?" She replied that she had to say goodbye one more time. Respondent told her to get out. He told C. B.'s two friends to get out too. The three students left the school area at that time. C. B. testified to a different version of events. She described sexual encounters with Respondent just before Christmas break in 1991 and on the last day of school in 1992. For the reasons set forth below, C. B.'s testimony has been discredited. C. B. testified that Respondent flirted with her intensely in December 1991. She testified that on one occasion he declared that he would kiss her before Christmas. She testified that Respondent gave her a pass to leave math class and go to the library. Instead, C. B. and Respondent met in his office and kissed, according to C. B. When his hand wandered toward her buttocks and breast, she testified that she left, and he said that he would show her how much he cared for her. Initially, C. B.'s testimony on direct stopped at this point in the description of the alleged December incident. Later in direct, she added that Respondent had exposed his penis, masturbated in front of her, and ejaculated. C. B. testified that Respondent gave her two or three audio cassettes of love songs by which to remember him, after he had turned in the notes in January 1992. C. B. testified that her relationship with Respondent resumed toward the end of the 1991-92 school year. She testified that she met Respondent in his office before school each morning during the last couple of weeks of school and that each meeting he would try to kiss her. She testified that Respondent promised that he would show her how much he loved her on the last day of school. C. B. testified on direct examination that she and a girlfriend went to the FFA room on the last day of school when school ended. She did not mention the boy. C. B. testified that Respondent met her in the FFA room, held her hand, and said that he loved her. She testified that, in a 45-60 minute period, Respondent exposed his penis, masturbated, and ejaculated three times--once in the FFA room, once a few minutes later on the gym floor, and once a few minutes after that in his office in the locker room. She testified that he masturbated in the FFA room after she told him her two friends were in the adjoining storage room. There are many problems with C. B.'s testimony. In her deposition given on September 22, 1993, C. B. testified that the first time she saw anyone's penis was during the alleged June encounter. She stated in her deposition that Respondent's penis remained in his pants during the December encounter. Likewise, she never mentioned in other statements the penis, masturbating, or ejaculating that she testified took place in December 1991. There are also variations concerning C. B.'s description of the alleged June encounter with Respondent. On cross-examination, C. B. admitted for the first time that a boy had accompanied her girlfriend to the storage room adjoining the FFA room. She had testified previously on direct and in deposition that only her girlfriend had accompanied her to the FFA room. C. B. explicitly mentioned only one of the three incidents of masturbation and ejaculation when she gave her statement to the school in March 1993. She clearly omitted from her statement the June office encounter, which was also omitted from her deposition testimony. C. B. also testified in her deposition that, immediately afterwards, she told her waiting girlfriend that Respondent had masturbated and ejaculated in front of her. The girlfriend testified that C. B. said only that she had kissed Respondent and implied either that more sexual activity had happened or that she had wished that more had happened. Besides these discrepancies, C. B.'s story lacks credibility due to its improbability. The last day of school is chaotic, and it is highly unlikely that Respondent would masturbate in the FFA room, after being told that two students were in the adjoining room; then on the gym floor, with unlocked doors all around him; and lastly, in his office just a few minutes later, as C. B. testified. Likewise, C. B. testified that the December encounter took place during the school day in front of a window between the office and locker room. C. B. is a spirited, sensitive young person. It is not uncharacteristic of middle school students that they engage in sexual fantasizing, and C. B. is no exception in this regard. C.B.'s sexual fantasizing has extended to two adult males besides Respondent--Deputy Starling and Mr. Brown. In the case of Deputy Starling, C. B. acknowledged the attraction at least once in a classmate's yearbook, as she did repeatedly as to Respondent. In the case of Mr. Brown, C. B. sent numerous notes, as she did to Respondent. C. B.'s reputation of truthfulness is poor among her peers and even her friends. There is no doubt that she deviated from the truth numerous times during her testimony. In addition to the matters set forth above, she testified that she never told anyone that she liked Deputy Starling and that she never left notes for Mr. Brown in his underwear drawer. At various times, C. B. said different things to her friends concerning her alleged relationship with Respondent. To a current girlfriend of hers, C. B. said that she "sucked [Respondent's] dick." She admitted to the same person that she had made up at least some things concerning her and Respondent. To another girlfriend, C. B. said that she and Respondent performed oral sex and intercourse, but later said to her that she never had sex with Respondent. For the above-cited reasons, none of the above-cited testimony of C. against Respondent can be credited. Student 3 is C. Ba., who is now 14 years old. She moved to Highlands County around February 1, 1993, while she was in sixth grade. She was assigned to Respondent's physical education class. One day during class, evidently not long after C. Ba. had entered Avon Park Middle School, Respondent named a team of crab soccer players as Ba.'s Bimbos. C. Ba. may not have known, but it was Respondent's custom to give the teams silly alliterative names, such as M.'s Maniacs. C. Ba. objected strongly to the name, claiming that she believed that it meant that she was a prostitute. According to local usage, a "bimbo" is an "airhead." According to the dictionary, a "bimbo" is a "thick-headed" person of either sex. Respondent intended the remark in this fashion, and most persons in Avon Park, including sixth grade students, would not have taken the remark to mean that Respondent was calling C. Ba. (or, strictly speaking, her team) prostitutes. Although in retrospect the name selected for the team was ill- considered, Respondent did not thereby reasonably cause C. Ba. any embarrassment or discomfort. As testified by the Superintendent, the school principal adequately handled this minor problem at the time. When asked to give a statement to the school on March 2, 1993, C. Ba. wrote that Respondent flirted with her. She specified that Respondent tickled her, placed his hands where her back and buttocks join, and called her "bimbos" [sic]. The note also adds: "There's a rumor, not really a rumor, but a girl by the name of [C. B.]. [C. B.] told [another girl] during an FFA meeting that [Respondent] and [C.B.] had screwed each other." In testifying, C. Ba. said that she could tell that Respondent was flirting with her due to the shine in his eyes-- the same look that she has seen boys get when they have tried to pick up other girls. There is no credible evidence that Respondent tickled C. Ba. or looked at her suggestively. If any contact really took place in the area of C. Ba.'s lower back, it was strictly incidental. Student 1 is S. H., who is 15 years old. She was in seventh grade during the spring of 1993. S. H. testified that Respondent touched her at the top of the buttocks while passing her in a crowded hall. Based on S.H.'s description of the circumstances, Respondent, who has no recollection of such an event, testified that he would have been trying to get through a crowd of students during a short break between classes in order to see someone in the office. There is no credible evidence of an intentional or otherwise inappropriate touching. The circumstances surrounding the reporting of S. H.'s story are pertinent. She did not report the matter, which was clearly casual contact. When the other allegations against Respondent emerged, she mentioned the "incident" to her boyfriend, who reported the "incident" to school officials. The spring and summer of 1993 was a fertile time for rumors and innuendos concerning Respondent among the minority of persons in the school and outside communities easily susceptible to suggestion or perhaps predisposed to dislike Respondent for some reason unrelated to the present case. For instance, rumors linked Respondent to at least two physical education teachers. There is no substance to these rumors, or even to allegations that Respondent inappropriately touched these teachers, such as by draping a leg over their legs in the presence of students (or at any other time). Other rumors were that Respondent entered the girl's locker room while girls were present and dressing. There is no substance to these rumors. Rumors of Respondent's flirting with numerous other students began to circulate. In the end, evidently, the only students to step forward with sufficiently substantial charges to warrant inclusion in the subject case were B., C. Ba., and S.H. As a result of the allegations of the three students, Petitioner suspended Respondent with pay in March 1993. Petitioner suspended Respondent without pay when, in the summer of 1993, the State Attorney filed criminal charges against Respondent based on the allegations of C. B. The record does not reveal much about the decision to arrest Respondent and the ensuing investigation, except that C.B.'s father never bothered to give the State Attorney the notes that his daughter had written Respondent. In any event, the criminal case was eventually dropped, presumably for lack of evidence. Petitioner's newly elected Superintendent had been a classroom teacher for 20 years. He testified that Respondent had a reputation as a flirt, although the Superintendent described this reputation as part of Respondent's personality and not anything specific. The Superintendent elaborated that the reputation was based on Respondent smiling, getting close to people, and combing his hair at halftime during football games that he officiated. More importantly, the Superintendent testified that Respondent has lost his effectiveness as a teacher, and his opinion on this matter would not change even if C. B. withdrew her charges. The Superintendent's opinion appears to be based in part on the perception that Respondent did not do what he could to stop the rumors. But if Respondent had dignified the rumors with a public denial, he would only have added fuel to the fire. The Superintendent's reasoning is also based in part on community opinion. However, media coverage of the charges has been reserved, factual, and balanced. Most of commentary against Respondent has come from a person or persons who chose to remain anonymous. By contrast, an impressive array of persons chose to appear at the hearing and publicly support Respondent and his reputation. A retired teacher, who had taught physical education with Respondent during her last 10 years of teaching, testified that she never saw Respondent touch students in the breast, buttocks, or genitals and never saw Respondent in the girls' locker room while it was occupied. A math and science teacher, who taught 12 years at Avon Park Middle School, testified that Respondent could teach effectively in Highland County if the charges were unproved. The Field Director of the Heart of Florida Girl Scout Council, who had two daughters in classes taught by Respondent and a son awaiting Respondent's return, testified that his reputation contains nothing derogatory and he never said or did anything improper. A secretary at Avon Park Middle School and wife of a local circuit judge, who had a daughter in classes taught by Respondent for four years and who has younger children not yet of middle school age, testified that she and her husband would have no problem with Respondent teaching their younger children and that Avon Park Middle School employees would have no problem with Respondent's returning. A substitute teacher and school volunteer, who has a daughter at Avon Park Middle School, testified that she would be comfortable with Respondent teaching her daughter and other children. A local attorney, who is active in local organized baseball, testified that Respondent is an honest person, good teacher, good coach, and someone involved with children and that the local community believed that Respondent was innocent until proven guilty. The Director of a local Christian preschool, who has daughters in seventh and ninth grades, testified that Respondent had a good reputation, parents wanted him back, and he could return to Avon Park Middle School and be effective. An employee of the Department of Corrections facility in Avon Park, who has had two daughter who recently finished middle school, testified that Respondent's reputation is good and that the people of the community have not prejudged his guilt, but instead want him back at Avon Park Middle School where he could return as an effective teacher. The coach and athletic director at Sebring High School for the past 25 years testified that Respondent could return as an effective teacher if cleared of the charges. Respondent also enjoys substantial support among students. On the other hand, Petitioner offered insubstantial evidence that Respondent could not return as an effective employee in the Highlands County school system or even at Avon Park Middle School, if the underlying charges were not proved. The greater weight of the evidence is that Respondent can return to teach physical education at Avon Park Middle School, or anywhere else in the Highland County school system, and enjoy the support of students, parents, teachers, administrators, and the public.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highland County School Board enter a final order reinstating Respondent and awarding him full back pay for the time that he was suspended without pay. ENTERED on May 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 4, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-2 (second sentence): adopted or adopted in substance. 2 (third sentence)-5: rejected as unsupported by the appropriate weight of the evidence. 6-8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as irrelevant. 11-13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance except that she only gave him two of the notes. 16 (first sentence): adopted or adopted in substance. 16 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as recitation of evidence. 18-20: adopted or adopted in substance. 21 and 23: rejected as subordinate. 22: adopted or adopted in substance. 24: rejected as subordinate. 25: rejected as unsupported by the appropriate weight of the evidence. 26-32: rejected as unsupported by the appropriate weight of the evidence. 33 (first and second sentences): adopted or adopted in substance. 33 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance except for proposed contradiction in Respondent's testimony. 35 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Respondent came to the FFA room. (second sentence)-36 (first sentence): adopted or adopted in substance. (second sentence): rejected as unsupported by the appropriate weight of the evidence. 37-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as irrelevant. 47: rejected as unsupported by the appropriate weight of the evidence and subordinate. 48-51: rejected as unsupported by the appropriate weight of the evidence. 52: rejected as irrelevant. 53-73: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, subordinate, and irrelevant at least as to anything but a few isolated, unfounded rumors. 74: adopted or adopted in substance except for the attitude of the friends who know her well, which is rejected as unsupported by the appropriate weight of the evidence, subordinate, and irrelevant. 75: rejected as unsupported by the appropriate weight of the evidence except that Respondent did refer to C. B.'s teammates as "[B.]'s Bimbos." 76-95: rejected as unsupported by the appropriate weight of the evidence. 96-148: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, repetitious, subordinate, and irrelevant. 150-58: rejected as irrelevant and subordinate. 159-71 and 173-90: rejected as irrelevant, recitation of evidence, subordinate, repetitious, and unsupported by the appropriate weight of the evidence with respect to the prevailing reputation of Respondent in the relevant communities. 172: adopted or adopted in substance as there was nothing he could say or do without intensifying the rumors. 191-311: rejected as recitation of evidence, unsupported by the appropriate weight of the evidence, legal argument, and irrelevant as Petitioner proved neither the underlying conduct nor the impaired reputation. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5-17: adopted or adopted in substance. 18 (first three lines): rejected as unsupported by the appropriate weight of the evidence. 18 (remainder)-53 (second sentence): adopted or adopted in substance. 53 (third sentence)-54: rejected as unnecessary. 55: adopted or adopted in substance. COPIES FURNISHED: James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870 Ronald G. Meyer Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Dr. Richard Farmer Superintendent Highlands County School District 426 School St. Sebring, FL 33870-4048
Findings Of Fact During the 1982-1983 school year, Jorge Valdez is a seventh grade student. He was assigned to Lake Stevens Junior High School for this school year. In October 1982, pursuant to a request from his physical education teacher, Respondent was counseled and issued strokes for being repeatedly late and for refusing to "dress out" for class. On two occasions in November 1982, pursuant to requests from his art teacher, Respondent was counseled and issued strokes for being disruptive in art class by walking around the room during class and refusing to participate in class activities. In December 1982, Respondent was suspended from school for three days as a result of an incident at the bus stop. When Respondent returned to school after his suspension, he was wearing a linked chain approximately three feet long hidden under his shirt. On the third day, he was caught using the chain to threaten another student. Respondent was given a ten-day suspension, and a conference was held with his mother. The Student Code of Conduct provides for expulsion of any student possessing a concealed weapon. As a result of his conference with Grizel Valdez, Jorge's principal agreed he would request a waiver of expulsion with an alternative placement instead. As of November 5, 1982, Respondent's grades in his six classes at Lake Stevens Junior High School were one C, one D and four Fs. In conduct, his grades were one A, one C and four Fs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Jorge Valdez to Petitioner's opportunity school program at Jan Mann Opportunity School North. DONE and RECOMMENDED this 31st day of May, 1983, Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Grizel Valdez 4901 NW 173rd Street Carol City, Florida 33055 Phyllis O. Douglas, Esquire Assistant Board Attorney Lindsey Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
Findings Of Fact For approximately a year and a half, respondent Crowley and his family have lived on Lake Irma, which lies in Orange County, Florida, and has a surface area of approximately 122 acres. Respondent Crowley is an avid water skier, as are his two sons, the younger of whom, Michael, is a Florida state slalom skiing champion. Mr. Crowley owns lot 168, Barber East, 1507 T. C. U. Boulevard, in Orlando, which has 85 feet of frontage on Lake Irma. The Crowleys have a Ski Nautique motor boat powered by a 255 horsepower engine equipped with a muffler system. The engine discharges exhaust into the air above the water's surface. Even though there is no public access to Lake Irma, there is a lot of boat traffic on the lake. Some ten other families who live on Lake Irma also water ski. A majority of the boats on Lake Irma have engines rated at less than 100 horsepower. The Crowleys are not the only family living on Lake Irma who owns a Ski Nautique, however, nor is their boat the noisiest on the lake. Mr. Bagwell, president of the Lake Irma Association, owns two ski boats. One has a 60 horsepower engine, and the other has a 100 horsepower engine. His next door neighbor has a boat with a 55 horsepower engine and another neighbor has a boat powered by an 85 horsepower engine. There is no commercial boating on the lake, however. Skiing over the deeper portions of Lake Irma does not affect the bottom directly underneath. The wake thrown by ski boats, however, causes waves to wash up on shore up to 100 yards away, with the result that sand becomes suspended in the water. Another consequence of the use of these boats is that oil and gas are introduced into the lake water. Respondent Crowley's testimony to the effect that the Crowleys and their friend, Mr. Terry, would spend no more time skiing on Lake Irma if the ski slalom course should be built, than they spend skiing on Lake Irma at present, went unrebutted. Respondent Crowley plans to try to ski through the slalom course at 30 miles per hour. The fastest speed contemplated for skiing the course is 36 miles per hour. Slalom skiing is particularly demanding and no one person could expect to ski the course for more than twenty minutes or so, without taking a long rest. At present, Mr. Crowley, his two sons, and Mr. Terry, regularly use the boat for water skiing on Lake Irma. Sometimes they ski in the same pattern over and over again. The Crowleys' boat pulls barefoot skiers at speeds of 32 to 36 miles per hour. These skiers throw a wake comparable to the wake slalom skiers throw. When he is "trick" skiing, Michael is pulled at only 17 or 18 miles per hour, but the resulting wake is larger than the wake slalom skiing creates. While Mr. Crowley belonged, at the time of the hearing, to two ski clubs (and a national skiing association) , he had never invited any other boat owner to launch his boat onto Lake Irma from the Crowley property, and had no intention of ever doing so. The proposed slalom course would consist of a permanent underwater apparatus and 22 removable buoys with diameters of 16 to 21 inches. Attached to each buoy would be a three to five foot length of line fitted with a snap device at the free end. Before slalom skiing sessions, the free ends would be snapped onto the permanent installation so that the buoys would float on the lake surface; after each session they would be removed. The permanent installation contemplates setting 22 screw anchors into the lake bottom. Lines would be tied to the anchors. Styrofoam blocks 10 inches by 10 inches by 14 inches would keep these permanent lines suspended vertically with their free ends three to five feet below the surface of the lake, depending on fluctuations in the water level. The free ends would be equipped with snap devices to which the buoy painters could be fastened. Neither setting the anchors nor fastening and unfastening the removable parts of the gear would create any measurable pollution. Respondent Crowley proposes to construct the slalom course along a portion of the southern shore of Lake Irma, a considerable distance from his home. As proposed, the slalom course would cover an area 285 yards by 25 yards. Respondent Crowley has no proprietary interest in the bottom underneath. He testified that he chose the location for the slalom course with a view towards safety and in the hope of minimizing adverse impacts on lakefront dwellers. Land along the edge of thelake near the slalom course site is relatively undeveloped. Because of the shape of the lake, there are two "blind corners" for skiers, both of which the proposed site would avoid. In choosing the site, respondent Crowley also considered a canal which opens onto the lake, and sought to avoid interfering with boat traffic using the canal. The average draft for the boats on Lake Irma powered by outboard motors is about one and one half feet. People might foul their fishing lines on the submerged styrofoam blocks. Along the shore nearest the proposed site is a littoral botanical community in which marsh grasses and cattails predominate. Cattails and the tuber root system of the marsh grass have a good ability to dampen wave action and hinder erosion. Directly underneath the proposed site, which is 125 feet off shore, the lake is 14 to 17 feet deep. The bottom is mostly sandy with silt and fine mud covering portions of the bottom. Because sunlight does not penetrate to that depth, benthic vegetation is not present. In the past, DER has followed the practice, when permitting docks, of requiring that they be built waterward of the applicant's upland lot and not in front of some other lot DER's proposed findings of fact have been considered in preparation of the foregoing findings of fact. They have all been adopted, in substance, insofar as material.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED That respondent DER deny respondent Crowley's application for a construction permit. DONE and ENTERED this 24th day of April, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Sam Charles Meiner, Esq. Mr. Richard F. Thomson 26 Wall Street R.R. 1, Box 130 Orlando, Florida 32801 Maitland, Florida 32751 Stanley J. Niego, Esquire Mr. & Mrs. Burwell C. Harrison Department of Environmental Route 1, Box 128 Regulation Matiland, Florida 32751 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Carl B. Hatchell Post Office Box 4201 Winter Park, Florida 32793 Mr. Jesse G. Bagwell, Jr. Route 1, Box 126A Maitland, Florida 32751
The Issue Whether respondent should be dismissed from his employment with the Palm Beach County School District on charges of engaging in misconduct and immorality which impaired his effectiveness as a teacher, in violation of Section 231.36, Florida Statutes, and of exploiting a professional relationship with a student for personal gain in violation of Rules 6B-1.06(3)(h) and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or "Garden Shop." Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. He then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. He had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Loss Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Palm Beach County dismiss respondent from his employment for violating Section 231.36(4)(c), Florida Statutes, and Rule 6B- 1.06(3)(h), Florida Administrative Code. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1984. COPIES FURNISHED: John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Abbey G Hairston, Esquire School Board of Palm Beach County 3323 Belvedere Road Building 503, Room 232 West Palm Beach, Florida 33402 Thomas J. Mills, Superintendent School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402
Findings Of Fact Respondent David Halfen applied for a permit from the Department of Environmental Regulation authorizing construction of a footbridge across Little Red Fish Lake in Section 7, Township 3 South, Range 19 West in Walton County, Florida. The footbridge would be 490 feet long and four feet wide with a raised area five feet high in the middle permitting small boat traffic underneath. The bridge would be constructed from treated pilings, timbers and planks and the pilings would be jetted down into the sub-strate or bottom of Little Red Fish Lake. Mr. Cliff Rohlke was accepted as an expert witness in water quality. He is employed by the Department as an Environmental Specialist with the specific duties of dredge and fill inspector. In this capacity he conducts field appraisals, reviews and makes reports of biological impacts of dredge and fill projects in conjunction with applications filed with the Department for dredge and fill permits. In this regard, Mr. Rohlke went to the site of the project and made an assessment of both the long and short-term impacts of the project on water quality in Little Red Fish Lake. Mr. Rohlke made a biological appraisal of the subject project in evidence in this proceeding as Exhibit 1. It was thus established that the short-term impacts of the project would be limited to minor turbidity and sub-strate disturbance related to the placement of the pilings. Long-term impacts will be insignificant. Based upon his long experience as a dredge and fill inspector and biologist, Mr. Rohlke established that no significant problems or impairment of water quality are associated with the construction of such a pier or footbridge by using treated pilings and timbers. Mr. Richard Fancher was accepted as an expert witness in water quality. He is the Environmental Supervisor of the Department's northwest district, supervising the Department's permitting and enforcement program in the area of dredge and fill permitting. In his years of experience with the Department, he has reviewed some 3,000 dredge and fill applications. He evaluated Mr. Halfen's application for the proposed footbridge. His review of the proposed project was conducted with a view toward whether it complied with the standards of Chapters 253 and 403, Florida Statutes and Chapter 17-3 and 17-4, Florida Administrative Code. He established that the water quality standards that the Department is charged with enforcing by these legal provisions would be complied with, with construction of the proposed project, in that the pilings for the pier or footbridge would be jetted into the sub-strate of the lake and turbidity curtains would be used to minimize the short-term deleterious effects of turbidity or sediment disturbance on the lake as a whole by confining such turbidity to the immediate area of the project. The project will not significantly affect fish and wildlife in the water body involved, nor impair water flow so as to be contrary to the public interest. Neither will any significant loss of fish or wildlife or fish or wildlife habitat be occasioned by installation of the subject bridge. Mr. Fancher was of the opinion that the bridge would impede and interfere with navigation to some extent, but not, in his opinion, so as to be contrary to public interest. Mr. Fancher, however, has not visited the site himself and has no direct knowledge as to how the lake is used in terms of navigation, fishing, water skiing and the like. Mr. Rohlke opined that navigation in terms of "normal boat traffic" would not be interfered with since on his brief inspection he saw no boats using the lake, and the bridge would have a single span raised to a five-foot elevation over the lake's surface for the purpose of permitting boats to pass under the bridge. Mr. Rohlke, however, spent only a period of less than an hour visiting the lake site and did not confer with any adjacent landowners to ascertain what uses they made of the lake. He did not measure the lake bottom depth but did acknowledge that it was of sufficient size to be used for both sailing and water skiing. He admitted that a portion of the lake would be cut off by the bridge, consisting of approximately two acres on the western side. The Petitioners, the Bannermans, as well as witnesses Klep and Hughes own property and homes on the western side of the lake and their access to the remainder of the approximately 50-acres of the lake would be partially cut off by the bridge. They would be denied some use and enjoyment of the majority of the lake. Mr. and Mrs. Bannerman have a home which fronts on the western edge of the lake. Mr. Bannerman has measured the lake and established that it is five to seven feet deep near the water's edge and approximately 12 to 15 feel deep in the center of the lake. He has a dock and a small boat on the lake and uses the boat for fishing and navigation of the lake. Fishermen frequently utilize the lake from a public access point. The lake is large enough to be used for normal recreational pursuits such as water skiing, sailing, and fishing. Mr. John Klep owns property bordering on the western edge of the lake. Access to the lake was an important consideration in his purchase of the property, and in his continuing use of it. The lake is in excess of six feet deep at his property and physically navigable. He does not wish his access to the entire lake to be restricted. Mr. Lyle Hughes has legal access to the lake conveyed to him by deed although his own property does not actually border the lake. Sailing has been his lifetime recreational pursuit and he desires to use the lake for sailing for himself and members of his family, especially the children in his family. The small sailboats for which the lake is suited generally have a mast of approximately 14 feet in height. Such a boat could not pass under the bridge if constructed as proposed, since the five-foot raised center span would only barely permit small power boats and their occupants to safely pass under it. In short, the subject bridge, while it permits small fishing and pleasure boats to pass under with their occupants, would preclude the adjacent landowners in the western end of the lake cut off by the bridge, from sailing beneath the bridge or water skiing on the lake, since their point of access for water skiing and other purposes is at their own property and it would be impossible to water ski in the lake since the bridge would not be navigable for water skiing boats and skiers. The only way sail boats could navigate under the bridge would be to use a motor, oars or paddles until the sailboat negotiates the bridge span, with attendant stepping and unstepping of the mast every time the boat passes under the bridge. This arrangement is totally impractical for those adjacent landowners to do in order to use the lake for sailing. Water skiers could not pass under a five-foot span for obvious reasons of safety. In short, it has been established that the proposed project comports with Department permitting requirements in terms of water quality impacts and impacts on fish and wildlife and fish and wildlife habitats. The project, however, has not been established to be in the public interest and not contrary to the public interest in terms of its impact on the rights of adjacent landowners to navigate the entire 52-acre lake which they presently have access to for the above-mentioned reasons. Any approval of the permit applied for must be in conjunction with a condition that the bridge be so constructed that sailboats can pass through without having to unstep their masts and water ski boats and skiers can pass through it, possibly through use of a movable span. An additional and more basic problem exists in approving this project as proposed. Department's Rule 17-1.203, Florida Administrative Code requires that a permit applicant execute and submit, with his application, an affidavit of ownership of the property involved in a dredge and fill project. The affidavit and rule requires that a permittee be either the record owner, lessee, record easement holder or an applicant to the record owner of the property for an easement to the property described in the application, and in the affidavit. Mr. Halfen submitted this affidavit with his application certifying that he was the record owner, lessee, or record easement holder of the property upon which the bridge was to be constructed and of the property landward of the construction site, and either had or would have the permission of all other persons with a legal interest in the property prior to undertaking the project. It is the policy of the Department to require the applicant to be the record owner of the submerged land, his lessee or easement holder and to submit the necessary affidavit of ownership or control. The rationale for this policy is so that the Department "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass." 1/ The property involved at the project site is subject to an active title dispute being litigated in the Circuit Court. In dispute is the question of whether the title to the lake bottom is held by the Petitioners, the Bannermans or FDIC, Mr. Halfen or the State of Florida. The property was initially conveyed into private ownership by the President of the United States, Woodrow Wilson, in 1918 as shown by stipulated Exhibit 2 in evidence. The federal government thus conveyed the pertinent property, Lots 1 and 2 of Section 7 in Township 3 South of Range 19 West together with other unrelated land to one Carl Froholm. That conveyance transferred all of the land in Lots 1 and 2 without making reference to Little Red Fish Lake. It does not indicate any reservations of public rights in and to the waters located on that property. It does not indicate any reservation of title to the bottom of the lake to be held by the State or Federal governments. Thus, the legitimate title question now being litigated in the court, is whether the Petitioners, Mr. Halfen or the State of Florida own the lake bottom upon which the bridge will be constructed and not simply whether DNR approval for its use has been obtained. Resolution of that quiet title action is still pending and argument and legal authority has been extensively briefed and provided to the Hearing Officer in the form of the various parties' proposed findings of fact and conclusions of law and memoranda. 2/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application by David Halfen for a dredge and fill permit, as described above, be granted, provided the plans and construction of the proposed bridge are sufficiently altered so as to permit water skiers and sailboats to safely and simply navigate and pass under or through the area of the proposed bridge and provided that Mr. Halfen, at the conclusion of the pending quiet title action, can establish that he has ownership or other right of control of the property on which the project will be built. DONE and ENTERED this 14th day of February, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1985.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Winter Haven Ski Club, Inc. for a permit to construct a ski slalom course and ski ramp on Lake Silver be DENIED. DONE and RECOMMENDED this 30th of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
The Issue Whether respondent's Florida Teacher's Certificate should be revoked or otherwise disciplined on charges of professional misconduct, including gross immorality, acts involving moral turpitude, conduct which seriously reduces his effectiveness as an employee of the school board, intentionally exposing a student to unnecessary embarrassment or disparagement, exploiting a professional relationship with a student for personal gain, and failing to conform to standards of ethical conduct, in violation of Section 231.28, Florida Statutes, and Rules 6B-1.06(3)(e) and (h), and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or Garden Shop. Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. Be then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. Be had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Lobs Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission find respondent guilty of violating Section 231.28 and Rule 6B-1.06, as alleged, and revoke his Florida Teacher's Certificate. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301
The Issue Whether a permit (DER File #411890893) should be issued to James R. Langford in accordance with the Notice of Intent filed herein.
Findings Of Fact In addition to the Department and the National Park Service, a copy of the Initial Order was mailed to: James R. Langford, 6008 Shore Acres Drive, N.W., Bradenton, Florida; and James R. Langford, c/o Benson Engineering, Inc., 311 67th Street West, Bradenton, Florida 34209. Benson Engineering, Inc., was agent for James R. Langford in presenting Langford's application to the Department. All Orders and Notices of Hearings including the Initial Order, mailed to James R. Langford at 6008 Shore Acres Drive, N.W., Bradenton, Florida by the Division of Administrative Hearings were returned by the U.S. Postal Service indicating that the forwarding order had expired. All attempts by the undersigned, including contacting Benson Engineering, Inc., to contact Langford by telephone were unsucessful. Benson Engineering, Inc. received Notice of the Hearing. Mr. Benson appeard at the hearing, and advised the undersigned that he was the agent for Langford in presenting Langford's application to the Department. However, there was nothing in the record where Langford had requested that Benson be allowed to act as his Qualified Representative and Benson did not present anything at the hearing. Therefore, Benson was not allowed to act as Langford's Qualified Representative. Langford did not appear at the hearing, and made no contact with the undersigned, or counsel for the Department or counsel for the National Park Service. Counsel for both the Respondent and the National Park Service attempted to locate Langford on different occasions but were unsuccessful. Counsel for the Department even contacted the real estate office that was handling the sale of the property subject to the permit application but was also unsuccessful in this attempt. There was no evidence presented in support of Langford's application for a permit to build the dock in question.
Recommendation Accordingly, upon the foregoing Findings of Fact and Conclusion of Law, it is, RECOMMENDED: That the Department enter a Final Order denying Respondent James R. Langford's application for permit, DER File Number 411890893. DONE and ENTERED this 24 day of August, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1992. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Patricia Cortelyou-Hamilton, Esquire U.S. Department of the Interior National Park Service SE Regional Office 75 Spring Street SW Atlanta, Georgia 3030 James R. Langford 6008 Shore Acres Dr NW Bradenton, Florida 34209 James R. Langford c/o Benson Engneering Co. 311 67th Street W Bradenton, Florida 34209 Carol Browner, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
