09-005350PL Dr. Eric J. Smith, As Commissioner Of Education vs. Eric Ashan Riggins Status: Closed Recommended Order on Wednesday, February 10, 2010.

Summary: Petitioner proved that Respondent committed all violations alleged in Administrative Complaint when he socialized with students while under the influence of alcohol and engaged in sexual misconduct with 2 female students. Recommend permanent revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-5350PL

)

ERIC ASHAN RIGGINS, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 18, 2009, a duly-noticed hearing was held in

Brooksville, Florida, before Lisa Shearer Nelson, an

administrative law judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Eric Ashan Riggins, pro se

4594 Chamber Court

Springhill, Florida 34609

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida

Statutes (2007)

1/ , and Florida Administrative Code Rule 6B-

1.006(3)(a) and (e), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On July 16, 2009, Eric Smith as Commissioner of Education

(Petitioner), filed a five-count Administrative Complaint against

Respondent, Eric Ashan Riggins (Respondent or Riggins), alleging

statutory and rule violations as a result of alleged improper

sexual behavior with respect to two female students and drinking

alcoholic beverages or being under their influence while

socializing with students. On October 1, 2009, the Agency

referred the matter to the Division of Administrative Hearings,

indicating that there appeared to be disputes of material fact

and requesting the assignment of an administrative law judge.

On October 13, 2009, a Notice of Hearing was issued

scheduling the case for hearing December 18, 2009, and the case

proceeded as scheduled. At hearing, Petitioner presented the

testimony of Vicelia Azzarelli, Detective Jill Morrell, Joy Nagy,

A.M., M.C., M.G., N.J., Barbara Kidder, Deputy Bill Pope and

A.H. 2/ Petitioner's Exhibit 1 was admitted into evidence.

Respondent testified on his own behalf but submitted no exhibits.

The Transcript of the proceedings was filed with the

Division on January 12, 2009, and Petitioner filed its Proposed

Recommended Order on January 22, 2009. To date, no submission

has been received by Respondent. All references are to the 2007

codification of the Florida Statutes unless otherwise indicated.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

held a Florida Educator's Certificate, numbered 1003139, covering

the area of athletics coaching. The certificate was valid

through June 30, 2008.

2. Petitioner is the state agency charged with the

certification and regulation of teachers, pursuant to Chapter

1012, Florida Statutes.

3. At all times relevant to these proceedings, Respondent

was employed as an in-school suspension teacher and a track coach

at Hernando High School in the Hernando County School District.

4. The allegations in this proceeding involve events that

occurred during the 2007-2008 school year, and deal with three

separate incidents: Respondent's conduct in connection to the

prom; his actions toward M.G.; and his actions toward A.H.

The Prom

5. The prom for Hernando High School was held on or about

April 5, 2008, at the Glen Lakes Country Club in Hernando County.

Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli

was the administrator on duty.

6. Teachers who desired to chaperone the prom signed up in

advance. They were given specific responsibilities, including a

schedule for monitoring students' behavior. Volunteers' duties

did not include dancing with the students. Those teachers who

were not volunteering but wanted to stop by and see the students

dressed up in their prom attire were also expected to get prior

authorization.

7. According to Joy Nagy, Respondent neither signed up to

volunteer nor sought permission to attend the prom.

8. Respondent came to the prom with Mr. Mobley, a long-time

substitute teacher. Both men were present for a short time,

approximately twenty minutes. During their appearance at the

prom, they were seen on the dance floor dancing with the

students. Assistant Principal Azzarelli observed Respondent

while he was at the prom, and he appeared to her to be under the

influence of alcohol. He had the smell of alcohol on his person

and on his breath, his eyes were dilated and his gait was

unsteady. She and another administrator requested that

Respondent and Mr. Mobley leave the dance, and they did so.

9. After the prom, a group of students chose to continue

celebrating, and rented rooms at a hotel in Clearwater Beach.

Respondent and Mr. Mobley went to the hotel where the students

were staying, and socialized with the students. The students

were drinking alcohol at the hotel, and the presence of alcoholic

beverages was evident.

10. The next week, some students came forward asserting

that Respondent and Mr. Mobley were partying with students in

Clearwater Beach following the prom. During a subsequent

investigation into the partying, Respondent admitted to

Ms. Azzarelli that he went to Clearwater Beach after the prom,

and had a couple of drinks at a club there. He also admitted

that he went to the hotel room of some of the students. As a

result of the investigation into the events surrounding the prom,

school officials also received information regarding possible

conduct by Respondent with respect to two female students at

Hernando High School.

M.G.

11. M.G. is currently a student at Valencia Community

College. At the time of the events in this case, she was a

senior at Hernando High School, and was, along with a few other

students, a manager for the track team.

12. At some point during the 2007-2008 school year, M.G.

was sent to the in-room suspension room for a dress code

violation, because she was wearing a skirt that was too short.

She was the last student to leave the room. As she was leaving

the classroom, Respondent came up behind her and reached around,

putting his hand underneath her skirt, over her underpants.

13. M.G. immediately left the room. She did not report the

incident to anyone initially, because there were no witnesses to

the conduct and she did not think anyone would believe her. She

thought that by staying out of in-school suspension and working

with the other track managers, she would not be in a position

where the situation could be repeated.

14. However, there was a subsequent occasion where M.G. was

taking inventory of the uniforms for the track team. She was

again alone with Respondent, and he again came up behind her and

touched her in the crotch area, over her clothes. On this

occasion, M.G. was wearing capris pants. She left the room and,

as before, did not tell anyone because she did not want to be in

a position where she reported the behavior and no one believed

her. She only came forward after hearing about another incident

involving Respondent's alleged conduct with a female student. 3/

A.H.

15. A.H. was also a student at Hernando High School at the

time of the events in question. She graduated in 2009, and is

now a student at Pasco-Hernando Community College.

16. There was an occasion during the 2007-2008 school year

when A.H. was alone with Respondent in the portable where he

taught. Respondent kissed her, and she tried to walk out. He

grabbed her arm, pulled her back to him and kissed her again.

17. Respondent also sent A.H. inappropriate text messages.

For example, he would text her that he did not want to have sex

with her because he knew she was a virgin, but that "I'll go down

on you and show you a good time."

18. Like M.G., A.H. did not want to tell anyone about the

incident with Respondent because she did not want anyone to know

about it. When questioned initially by school officials, she

denied it for the same reason.

19. Both girls were interviewed by Detective Morrell of the

Hernando County Sheriff's Office during her investigation

stemming from the conduct related to prom. The information given

during the investigation by Detective Morrell and the information

provided during the hearing was consistent. Unfortunately for

both girls, after the conduct was investigated, there was

significant publicity regarding the incidents. Information was

published in both the print and electronic media. Consistent

with her fears, M.G. was subjected to ridicule and the publicity

related to the investigation made it difficult for her to finish

her senior year.

20. Neither girl wanted to press charges as a result of

Respondent's conduct, because they did not want to have to deal

with the publicity associated with criminal charges. Neither

girl wanted to testify in this proceeding. However, both girls

were candid and credible, despite their obvious reluctance to

appear.

21. On or about May 5, 2008, Respondent resigned in lieu of

termination from his position with the school district.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

23. This is a disciplinary proceeding to take action

against Respondent's certification to teach in the State of

Florida. Petitioner bears the burden of proof to demonstrate the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

24. As stated by the Florida Supreme Court,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

25. The Administrative Complaint alleges the following

facts to support the imposition of discipline against Respondent:

During the 2007/2008 school year, Respondent

inappropriately touched M.G., a seventeen-

year-old, female student, outside her

clothing in the area of her vagina. During

the same time period, Respondent kissed A.H.,

a seventeen-year-old, female student, against

her will twice. Additionally, Respondent

conducted himself in an unprofessional and

inappropriate manner by drinking alcoholic

beverages or being under the influence of

alcohol while socializing with students who

were also consuming alcohol.

26. Petitioner has proven by clear and convincing evidence

the material allegations in the Administrative Complaint.

Respondent clearly did not recognize or observe any boundaries

with respect to student-teacher relationships. Respondent showed

up at prom when he was not scheduled to chaperone or otherwise

provide assistance. He socialized with students while staggering

and smelling of alcohol. He went on to have drinks at a club in

Clearwater Beach before again meeting with students who were

drinking alcohol openly. Further, Respondent touched M.G.

inappropriately and kissed A.H., two students at the high school

where he taught. In both instances the conduct was not

consensual.

27. Section 1012.795(1), Florida Statutes, authorizes the

Commission to suspend, revoke, or otherwise discipline a teaching

certificateholder, where it is shown that he or she:

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

28. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

29. The Education Practices Commission has not defined

"gross immorality" or "moral turpitude" for the purposes of

discipline to be imposed pursuant to Section 1012.795, Florida

Statutes. The Commission has, however defined "immorality" and

"moral turpitude" for use by school districts in taking action

against instructional personnel in Florida Administrative Code

Rule 6B-4.009. This rule, which may provide guidance in this

context, provides in pertinent part:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties;

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

30. Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated." State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

31. Count One of the Administrative Complaint charges

Respondent with violating Section 1012.795(1)(a). The Department

has proven this charge by clear and convincing evidence. By

socializing with students while either under the influence of

alcohol or observing those students drinking alcohol; by touching

student M.G. in an inappropriate manner; and by kissing student

A.H., Respondent has engaged in acts of gross immorality that

cannot be condoned for a person who is supposed to provide a

positive role model for students.

32. Count Two of the Administrative Complaint charges

Respondent with violating Section 1012.795(1)(f), by committing

personal conduct that seriously reduces his effectiveness as a

school board employee. Petitioner has proven a violation of this

section by clear and convincing evidence by virtue of the same

conduct described in paragraph 36.

33. Count Three of the Administrative Complaint charges

Respondent with violating Section 1012.795(1)(i), by violating

the Principles of Professional Conduct for the Education

Profession as prescribed by rule. As explained below,

Respondent's violation of Counts Four and Five require a finding

that the Commission has demonstrated a violation of Count Three

by clear and convincing evidence.

34. Count Four of the Administrative Complaint charges a

violation of Rule 6B-1.006(3)(a), by failing to make a reasonable

effort to protect a student from conditions harmful to learning

and/or to the student's mental health and/or physical safety.

Petitioner has proven this violation by clear and convincing

evidence. As an instructor, Respondent should be trying to

prevent or stop underage drinking, not socializing with students

while they drink. Respondent claimed that he told the students

they needed to call their parents to get someone to chaperone

them at the hotel. Respondent's testimony is not credited.

However, even assuming that Respondent made such a statement,

observing students who were drinking openly without taking some

steps to stop the behavior, for example, calling the students'

parents himself, demonstrates that Respondent failed to make a

reasonable effort to protect these students. Moreover, touching

or kissing M.G. and A.H. subjected them to conditions that

clearly affected them emotionally and affected their learning

experience.

35. Count Five of the Administrative Complaint charges

Respondent with violating Rule 6B-1.006(3)(e), by intentionally

exposing a student to unnecessary embarrassment or disparagement.

Petitioner has proven this charge by clear and convincing

evidence. It was clear at hearing that both M.G. and A.H. were

embarrassed and humiliated to have to recount their experiences

with Respondent. They did so only because they had been

subpoenaed to testify. M.G. testified that the publicity

regarding the incident made it difficult for her to finish her

senior year in high school, and subjected her to ridicule.

Clearly, both students were exposed to unnecessary embarrassment

as a result of Respondent's actions.

36. By virtue of their leadership capacity, teachers are

traditionally held to a high moral standard in a community.

Adams v. Professional Practices Council , 406 So. 2d 1170, 1172

(Fla. 1st DCA 1981). Given the amount of time spent with and the

access to students who are underage, it is imperative, and the

Rules of Professional Conduct demand, that teachers act in a

manner that sets a positive example and fosters a positive

learning environment. Appropriate boundaries are an essential

part of establishing that positive learning environment.

Drinking with or around students, and engaging in sexual conduct

with students, whether consensual or against their will, is

conduct that goes far "over the line."

37. Section 1012.796(7), Florida Statutes (2009), provides

the penalties for violations of Section 1012.796 and Rule 6B-

1.006. Those penalties include denial of a certificate,

revocation or suspension, probation, restriction of the

certificate and administrative fines not to exceed $2,000 per

count or offense.

38. The Commission has adopted disciplinary guidelines for

the imposition of penalties authorized by Section 1012.796,

Florida Statutes. Fla. Admin. Code R. 6B-11.007. The Guidelines

allow for revocation for the violations proven in this case, and

Petitioner has recommended revocation. The recommendation is

appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Education Practices Commission enter a Final Order

(i), Florida Statutes (2007), and Florida Administrative Code

Rules 6B-1.006(3)(a) and (e), and permanently revoking his

teaching certificate.

DONE AND ENTERED this 10th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of February, 2010.

ENDNOTES

1/ Petitioner has cited to the 2009 codification of Section

1012.795, which renumbers the violations charged as subsections

the violations charged. However, licensees can only be found to

have violated the statutory provision in effect at the time of the

conduct alleged. Delk v. Department of Professional Regulation ,

595 So. 2d 966 (Fla. 5th DCA 1992). Accordingly, the undersigned

will refer to the provisions as they existed in the 2007

codification.

2/ Several of the witnesses were minors and students within the

public school system at the time of the events at issue in this

hearing. To protect their identity, these students are referred

to herein by their initials.

3/ The allegations regarding that student are not the subject of

this hearing.

COPIES FURNISHED:

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

Eric Riggins

4594 Chamber Court

Spring Hill, Florida 34609

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.