00-003888PL Tom Gallagher, As Commissioner Of Education vs. Stephen H. Rosenthal Status: Closed Recommended Order on Wednesday, January 10, 2001.

Summary: Respondent guilty of possession of pornographic photographs of minors transmitted by computer. Teaching certificate permanently revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as Commissioner )

of Education, )

)

Petitioner, )

)

vs. ) Case No. 00-3888PL

)

STEPHEN ROSENTHAL, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, by telephone on

November 27, 2000.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Stephen H.

Rosenthal, committed the offenses alleged in an Administrative

Complaint issued on or about December 22, 1999, by Petitioner,

Tom Gallagher, as Commissioner of Education and, if so, what

penalty should be imposed upon Respondent.

PRELIMINARY STATEMENT

Petitioner issued an Administrative Complaint on or about

December 22, 1999, recommending that the Education Practices

Commission impose appropriate disciplinary sanctions on the

educator's certificate of Respondent pursuant to Sections

231.262 and 231.28, Florida Statutes, and Rule 6B-1.006, Florida

Administrative Code, due to certain conduct alleged in the

Administrative Complaint. Respondent filed an unexecuted

Election of Rights form and a letter in response to the

Administrative Complaint. Although Respondent did not

specifically request an administrative hearing, he did dispute

the material facts of the Administrative Complaint. Therefore,

the Administrative Complaint, the Election of Rights form, and

Respondent's letter were filed with the Division of

Administrative Hearings on September 19, 2000, with a request

that the matter be assigned to an administrative law judge. The

request was designated DOAH Case No. 00-3888PL and was assigned

to Judge Michael M. Parrish. The case was subsequently

transferred to the undersigned.

The formal hearing was scheduled for November 27, 2000, by

a Notice of Telephonic Hearing entered October 11, 2000. The

hearing was scheduled to be conducted by telephone.

On November 13, 2000, Respondent filed a pleading titled

"Notice to Cease and Desist 'Notice of Telephonic Hearing' and

any Hearing Regarding Stephen Rosenthal's Florida Teaching

Certificate." On November 20, 2000, an Order Denying Request to

Cease and Desist was entered. The Order indicated that, to the

extent that Respondent was requesting that no final hearing be

held in this case, the request was denied.

By Order entered November 20, 2000, official recognition of

a number of documents which had been requested in Petitioner's

Request for Judicial Notice was taken.

As directed in the Notice of Telephonic Hearing, Petitioner

made an appearance at the appointed time. After waiting a

reasonable period of time for Respondent to make an appearance,

the undersigned telephoned the correctional institution in which

Respondent is incarcerated and spoke to Respondent. Respondent

was informed that the hearing had commenced and was asked

several times to indicate whether he intended to participate in

the final hearing of this matter. Respondent refused to answer

the undersigned's question. After asking Respondent several

times for an answer, Respondent was informed that he would be

given one last opportunity to indicate whether he intended to

participate in the hearing and that, if he refused to indicate

his intent, the hearing would proceed without Respondent's

participation. Respondent refused to answer the question.

After returning to the scheduled telephonic hearing,

Petitioner was informed of the undersigned's efforts to get

Respondent to indicate whether he intended to participate in the

final hearing. Petitioner indicated a desire to proceed without

Respondent and the undersigned agreed. At no time during the

hearing did Respondent make any known effort to participate in

the hearing.

Petitioner presented the testimony of Susan Ranew,

Personnel Director for the St. Lucie County School District;

Todd Schrader, a sergeant with the City of Port St. Lucie Police

Department; and Paul E. Griffith, a detective with the City of

Port St. Lucie Police Department. Petitioner offered eight

exhibits which were accepted into evidence.

On November 28, 2000, an Order Establishing Filing Date for

Proposed Recommended Orders was entered. The parties were

informed that proposed orders were to be filed on or before ten

days after the filing of the transcript in this case.

The Transcript of the hearing, consisting of one volume,

was filed on December 12, 2000. Petitioner filed Petitioner's

Proposed Recommended Order on December 21, 2000. No proposed

order has been filed by Respondent. Petitioner's post-hearing

submittal has been fully considered in entering this Recommended

Order.

FINDINGS OF FACT

1. Respondent, Stephen Rosenthal, holds a valid Florida

Educator's Certificate, Number 644646. Respondent's Certificate

covers the areas of Elementary Education and Mathematics and is

valid through June 30, 2001.

2. At all times relevant to this matter, Respondent was

employed as a fifth-grade teacher at Manatee Elementary School,

an elementary school in the St. Lucie County School District.

3. During the fall of 1997 Paul E. Griffeth, a detective

with the Port St. Lucie Police Department, was informed that

Respondent had been in contact through the internet with a

detective of the Keene, New Hampshire Police Department, that

Respondent believed that he was communicating with a minor, and

that Respondent had sent the Keene detective pornographic

pictures via the Internet.

4. Based upon the information Officer Griffeth received, a

search warrant was obtained. The search warrant authorized a

search of an address where Respondent was believed to reside.

5. Officer Griffeth, Todd Schrader, then a detective with

the Port St. Lucie Police Department, and a Detective Calabrese

attempted to execute the search warrant. When they served the

search warrant on Respondent they learned that Respondent no

longer lived at the address identified in the search warrant.

6. Respondent informed Detectives Schrader and Griffeth of

his new residence address and agreed to allow them to search his

residence without obtaining a new warrant.

7. Respondent inquired into the reason for the search

warrant and was told that it was believed that he was suspected

of having sent child pornography on the internet and of having

files on his computer and computer disks in his residence that

contained child pornography. Respondent initially denied these

allegations.

8. Detective Schrader asked Respondent if he knew who

"Luke 14" was. Respondent admitted that he believed that

"Luke 14" was a 14-year-old male. Detective Schrader told

Respondent that "Luke 14" was a police detective. Respondent

shook his head and said, "No, no." Respondent later admitted

that he had sent pornographic pictures, including pictures of

Respondent naked, to "Luke 14," believing he was a 14-year-old

boy.

9. Respondent then admitted to Detective Schrader that he

had a number of pictures that he had downloaded from the

internet and acknowledged that some of the pictures could be

construed as child pornography. Respondent also admitted that

he had numerous diskettes with pictures of minors that he had

downloaded from the internet.

10. When the detectives entered Respondent's residence,

they found two pictures of two individual nude males, with their

genitalia exposed, which the detectives believed to be between

the ages of 12 to 16. Respondent admitted that he believed that

that was the age of the boys. Respondent also admitted that he

had downloaded the pictures off the internet and that he had

printed them.

11. A number of diskettes were found at Respondent's

residence which contained pictures of males with their genitalia

exposed. Although some of the males pictured appeared to be

minors, the evidence failed to prove that they were in fact

pictures of minors. 1/

12. On November 3, 1997, Respondent was arrested. He was

charged in an Indictment filed before the United States District

Court for the Southern District of Florida (hereinafter referred

to as the "U.S. District Court") with eight counts of Knowingly

Receiving a Visual Depiction of a Minor Engaged in Sexually

Explicit Conduct that had been transported and shipped in

Interstate Commerce by Computer and one count of Having

Possession of Three or More Visual Depictions of a Minor Engaged

in Sexually Explicit Conduct that had been transported and

shipped in Interstate Commerce by Computer.

13. In March 1998 Respondent entered into a Plea Agreement

in the U.S. District Court, agreeing, in part, to the following:

1. The [Respondent] agrees to plead

guilty to Counts 1 and 3 of the Indictment,

which charges the defendant with the knowing

receipt of child pornography in interstate

commerce by computer, that is, visual

depictions of minors engaged in sexual

conduct . . . . The [Respondent] admits

that he is, in fact, guilty of this offense.

14. On March 12, 1998, Respondent appeared before the

Honorable James C. Paine, United States District Court Judge for

the Southern District of Florida. Respondent was questioned

extensively concerning the Plea Agreement and Respondent's

understanding of the charges to which he had admitted. During

this proceeding, the essential facts relating to Counts 1 and 3

were summarized and Respondent was asked whether he agreed with

those facts. Respondent agreed with all the summarized facts;

except the allegation that he thought that Luke 14 was a minor.

2/ Among the summarized facts which Respondent admitted to are

the following:

a. That Respondent knowingly received a visual depiction;

the visual depiction was shipped or transported by interstate

commerce by any means, including computer; that the visual

depiction was of a minor engaged in sexually explicit conduct;

and that Respondent knew that the visual depiction was of a

minor engaged in sexually explicit conduct;

b. That Respondent sent several sexually explicit pictures

to Luke 14. The pictures were of the Respondent, naked; and

c. That Respondent had photographs of two nude minors in

his residence.

15. Respondent entered a plea of guilty to Counts 1 and 3

of the Indictment, was adjudicated guilty of the two counts, and

was sentenced to 70 months in prison on each Count to run

concurrently. The other seven counts were dismissed. The

evidence failed to prove that Respondent's plea of guilty was

made as the result of any threat, coercion, or fraud.

16. By entering a plea of guilty to Count 1 of the

Indictment, Respondent admitted to the following:

On or about February 5, 1997, in St. Lucie

County, in the Southern District of Florida,

the defendant,

STEPHEN H. ROSENTHAL,

did knowingly receive a visual depiction

that had been transported and shipped in

interstate commerce by computer . . .

depicting a minor engaging in sexually

explicit conduct . . . to wit:

a depiction of a minor male engaging

anal-genital sexual intercourse with

an adult male,

the production of which involved the use of

a minor engaging in sexually explicit

conduct.

17. By entering a plea of guilty to Count 3 of the

Indictment, Respondent admitted to the following:

On or about April 15, 1997, in St. Lucie

County, in the Southern District of Florida,

the defendant,

STEPHEN H. ROSENTHAL,

did knowingly receive a visual depiction

that had been transported and shipped in

interstate commerce by computer . . .

depicting minors engaging in sexually

explicit conduct . . . to wit:

a depiction of two minor males engaging

oral-genital sexual intercourse,

the production of which involved the use of

a minor engaging in sexually explicit

conduct.

18. By pleading guilty to Counts 1 and 3 of the Indictment

and admitting to Judge Paine that he had committed those

offenses, Respondent admitted that he had been in possession of

child pornography and that he had downloaded the child

pornography from the Internet.

19. Respondent subsequently attempted to withdraw his

plea. This effort was rejected.

20. Respondent is currently incarcerated at FCC Coleman

serving his 70-month sentence.

21. The arrest and subsequent conviction of Respondent

resulted in adverse and widespread publicity in St. Lucie

County. Respondent's arrest and conviction and the resulting

adverse publicity were sufficiently notorious to disgrace the

teaching profession and seriously reduce Respondent's

effectiveness as a teacher. Respondent's employment with the

St. Lucie County School Board was terminated due to the

foregoing incidents.

22. Petitioner issued an Administrative Complaint on or

about December 22, 1999, in which Petitioner recommended that

the Education Practices Commission impose appropriate

disciplinary sanctions on Respondent's educator's certificate

pursuant to Sections 231.262 and 231.28, Florida Statutes, and

Rule 6B-1.006, Florida Administrative Code, due to the following

alleged facts:

3. During the 1996-1997 and 1997-1998

school year, Respondent was in possession of

child pornography and down loaded the child

pornography from the Internet onto his home

computer. On or about November 3, 1997,

Respondent was arrested and charged with

8 counts of Knowingly Receiving a Visual

Depiction of Minor Engaged in Sexually

Explicit Conduct that had been transported

and shipped in Interstate Commerce by

Computer, and one count of Having Possession

of Three or More Visual Depictions of a

Minor Engaged in Sexually Explicit Conduct

that had been transported and shipped in

Interstate Commerce by Computer. On or

about June 2, 1998, Respondent pled Guilty

to two of the counts of receiving the

photographs. The court dismissed all other

charges and adjudicated Respondent Guilty on

the remaining two. Respondent was sentenced

to 70 months on each count to run

concurrently, to receive health/psychiatric

counseling during incarceration, 3 years of

supervised release, not possess a firearm

and pay $3200 in fines and fees. On or

about November 25, 1997, Respondent was

terminated from his position with the St.

Lucie County School Board.

23. Respondent filed an unexecuted Election of Rights form

and a letter in response to the Administrative Complaint.

Although Respondent did not specifically request an

administrative hearing, he did dispute the material facts of the

Administrative Complaint.

24. The Administrative Complaint and Respondent's letter

were filed with the Division of Administrative Hearings on

September 19, 2000, with a request that the matter be assigned

to an administrative law judge.

CONCLUSIONS OF LAW

A. Jurisdiction .

25. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. Section 120.57, Florida Statutes (2000).

B. The Burden and Standard of Proof .

26. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in this proceeding. Antel v. Department of Professional

Regulation , 522 So. 2d 1056 (Fla. 5th DCA 1988); and Department

of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

27. In this proceeding, it is Petitioner that is asserting

the affirmative: that Respondent committed the offenses alleged

in the Administrative Complaint. Petitioner, therefore, has the

burden of proof in this proceeding.

28. Petitioner was required to meet his burden by clear

and convincing evidence. See Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); and Dileo v. School Board of Dade County , 569

So. 2d 882 (Fla. 3rd DCA 1990).

29. To be considered clear and convincing, the evidence

must be "so clear, direct and weighty and convincing as to

enable [the fact finder] to come to a clear conviction, without

hesitancy, of the truth of the precise facts in issue."

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

C. The Administrative Complaint .

30. Based upon the facts alleged in the Administrative

Complaint, Respondent has been charged with having committed the

following violations of Chapter 231, Florida Statutes:

a. Section 231.28(1)(c), Florida Statutes, "in that

Respondent has been guilty of gross immorality or an act

involving moral turpitude";

b. Section 231.28(1)(f), Florida Statutes, "in that

Respondent, upon investigation, has been found guilty of

personal conduct which seriously reduces his effectiveness as an

employee of the school board";

c. Section 231.28(1)( i), Florida Statutes, "in that

Respondent has violated the Principles of Professional Conduct

for the Education Profession in Florida prescribed by [the]

State Board of Education"; and

d. Section 231.28(2), Florida Statutes, by entering a plea

of guilty to offenses which would constitute the grounds for

revocation of a teaching certificate provided for in Section

231.28(1), Florida Statutes.

31. The Principles of Professional Conduct for the

Education Profession in Florida have been adopted as Rule 6B-

1.006, Florida Administrative Code. Respondent has been charged

in the Administrative Complaint with having violated the

following Principles:

a. Rule 6B-1.006(3)(a), Florida Administrative Code, "in

that Respondent failed to make reasonable effort to protect the

student from conditions harmful to learning and/or to the

student's mental health and/or physical safety";

b. Rule 6B-1.006(3)(e), Florida Administrative Code, "in

that Respondent intentionally exposed a student to unnecessary

embarrassment or disparagement"; and

c. Rule 6B-1.006(3)(h), Florida Administrative Code, "in

that Respondent exploited a relationship with a student for

personal gain or advantage."

D. Section 231.28(1)(c), Florida Statutes; Gross

Immorality and Act Involving Moral Turpitude .

32. Section 231.28(1)(c), Florida Statutes, authorizes

disciplinary action against a teaching certificate if the holder

of the teaching certificate has been guilty of "gross

immorality" or "an act involving moral turpitude."

33. The terms "gross immorality" and "an act involving

moral turpitude" are not defined in Chapter 231, Florida

Statutes, or the rules adopted by Petitioner. See Sherborne v.

School Board of Suwannee County , 455 So. 2d 1057, 1061 (Fla. 1st

DCA 1984).

34. Rule 6B-4.009, Florida Administrative Code (dealing

with dismissal actions initiated by school boards against

instructional personnel pursuant to Section 231.36, Florida

Statutes), however, includes a definition of "immorality" which

may be used as guidance in ascertaining the meaning of the terms

as they are used in Section 231.28(1)(c), Florida Statutes. See

Castor v. Lawless , 1992 WL 880829, 10 (EPC Final Order 1992).

35. Rule 6B-4.009(2), Florida Administrative Code, defines

"immorality" as follows:

(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.

36. In order to find a teacher guilty of "immorality":

. . . the factfinder must conclude: a) that

the teacher engaged in conduct inconsistent

with the standards of public conscience and

good morals, and b) that the conduct was

sufficiently notorious so as to disgrace the

teaching profession and impair the teacher's

service in the community.

McNeil v. Pinellas County School Board , 678 So. 2d 476, 477

(Fla. 2d DCA 1996). A teacher's impairment may be inferred if

the immoral conduct occurred in the classroom or in the presence

of students, but not if the misconduct was of a "private nature"

not involving students. See Walker v. Highlands County School

Board , 2000 WL 256154 (Fla. 2d DCA, March 8, 2000).

37. "Gross immorality, as the terms suggest, is misconduct

that is more egregious than mere "immorality." It is

"immorality which involves an act or conduct that is serious,

rather than minor in nature, and which constitutes a flagrant

disregard of proper moral standards." See Castor v. Lawless ,

1992 WL 880829, 10 (EPC Final Order 1992); and Turlington v.

Knox , 3 FALR 1373A, 1374A (EPC Final Order 1981).

38. Rule 6B-4.009, Florida Administrative Code, also

contains a definition of "moral turpitude." This definition is

found in subsection (6), which provides:

(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.

Unlike "immorality," an act of moral turpitude does

not require notoriety or impaired ability for service

in the community. See Gallagher v. Powell , 1999 WL

1483626, n. 16 (Fla. DOAH 1999).

39. The evidence in this case established that, during the

1996-1997 and 1997-1998 school year, Respondent was in

possession of child pornography and that he down-loaded the

child pornography from the Internet onto his home computer. The

evidence also established that Respondent admitted that he had

committed one count of Knowingly Receiving a Visual Depiction of

a Minor Engaged in Sexually Explicit Conduct that had been

transported and shipped in Interstate Commerce by Computer, and

one count of Having Possession of Three or More Visual

Depictions of a Minor Engaged in Sexually Explicit Conduct that

had been transported and shipped in Interstate Commerce by

Computer. Respondent's actions were sufficiently notorious to

disgrace the teaching profession and impair his service in the

community. Respondent's actions constitute acts of gross

immorality and acts of moral turpitude.

40. Based upon the foregoing, it is concluded that

Respondent violated Section 231.28(1)(c), Florida Statutes, as

alleged in the Administrative Complaint.

E. Section 231.28(1)(f), Florida Statutes; Personal

Conduct Seriously Reducing Effectiveness as a School Board

Employee .

41. Section 231.28(1)(f), Florida Statutes, authorizes

disciplinary action against a teaching certificate if the holder

of the teaching certificate has been guilty of personal conduct

which seriously reduces the teacher's effectiveness as a school

board employee.

42. As a result of the actions committed by Respondent in

this case, he was terminated as an employee of the St. Lucie

County School Board. He is currently incarcerated serving his

sentence for the acts he committed, which were well known and

publicized.

43. Based upon the foregoing, it is concluded that

Respondent violated Section 231.28(1)(f), Florida Statutes, as

alleged in the Administrative Complaint.

F. Section 231.28(1)( i), Florida Statutes; The Principles

of Professional Conduct for the Education Profession in Florida;

Rule 6B-1.006, Florida Administrative Code .

44. Section 231.28(1)( i), Florida Statutes, authorizes

disciplinary action against a teaching certificate if the holder

of the teaching certificate has been guilty of violating the

Principles of Professional Conduct for the Education Profession

in Florida, as established in Rule 6B-1.006, Florida

Administrative Code.

45. In this case, Respondent has been charged with having

violated Principles (a), (e) and (h), of Rule 6B-1.006(1),

Florida Administrative Code:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

. . . .

(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.

. . . .

(h) Shall not exploit a relationship with

a student for personal gain or advantage.

46. The foregoing principles all involve a teacher's

responsibility to his or her students. The evidence in this

case failed to prove that any of the minors depicted in the

pictures in Respondent's possession were students or, more

importantly, that they had any student-teacher relationship to

Respondent.

47. Based upon the foregoing, it is concluded that the

evidence failed to prove that Respondent violated Section

231.28(1)( i), Florida Statutes, as alleged in the Administrative

Complaint.

G. Section 231.28(2), Florida Statutes; A Plea of Guilty

in Any Court or Decision of Guilty by any Court of Grounds for

Revocation of a Teaching Certificate .

48. Section 231.28(2), Florida Statutes, does not provide

a separate offense for which the holder of a teacher's

certificate can be disciplined. It merely provides that a plea

of guilty in any court or a decision of guilty by any court of

any offense which constitutes a ground for revocation of a

teaching certificate set out in Section 231.28(1), Florida

Statutes, will constitute prima facie proof of the grounds for

revocation of a teaching certificate provided in Section

231.28(1)(a) through (k), Florida Statutes, absent proof that

the plea of guilty or admission of guilt was caused by threats,

coercion, or fraudulent means.

49. The evidence in this case proved that Respondent

entered a plea of guilty and was found guilty of offenses that

constitute offenses for which his teaching certificate may and

should be disciplined pursuant to Section 231.28(1), Florida

Statutes. Accordingly, prima facie proof of the grounds for

revocation of a teaching certificate provided in Section

231.28(1)(a) through (k), Florida Statutes, was presented by

Petitioner in this case.

50. The evidence failed to prove that Respondent's plea of

guilty and the finding of guilt by the court was the result of

any threat, coercion, or fraud. Respondent, therefore, failed

to overcome the prima facie proof that he is guilty of an

offense for which his teaching certificate may be revoked.

H. The Appropriate Penalty .

51. Section 281.28(1), Florida Statutes, provides that the

teaching certificate of any individual holding a certificate

that violates the provisions of Section 281.28(1)(a) through

(k), Florida Statutes, may be suspended for three years, revoked

for a period not to exceed ten years, or permanently revoked.

52. Rule 6B-11.007, Florida Administrative Code, provides

guidelines for the imposition of penalties for violating Chapter

231, Florida Statutes, and the Principles of Professional

Conduct for the Education Profession.

53. The guideline for committing criminal acts and/or

convictions in violation of Section 231.28(1)(c) or (f), Florida

Statutes, is suspension to revocation if the act or violation

constitutes a felony. Rule 6B-11.007(2)(g), Florida

Administrative Code.

54. The guideline for sexual misconduct with any minor in

violation of Section 231.28(1)(c) or (f), Florida Statutes, is

suspension to revocation. Rule 6B-11.007(2)( i), Florida

Administrative Code.

55. Rule 6B-11.007(3), Florida Administrative Code, also

provides for a consideration of certain mitigating and

aggravating circumstances when determining an appropriate

penalty. Those mitigating and aggravating circumstances, to the

extent supported by the evidence, have been considered in this

case.

56. Taking into account the penalty guidelines and the

mitigating and aggravating circumstances of Rule 6B-11.007,

Florida Administrative Code, it is concluded that Respondent's

teaching certificate should permanently revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Respondent, Stephen H. Rosenthal, violated Sections 231.28(1)(c)

and (f), Florida Statutes. It is further

RECOMMENDED that the final order dismiss the charge that

Respondent violated Section 231.28(1)( i), Florida Statutes. It

is further

RECOMMENDED that Respondent's Florida Educator's

Certificate, Number 644646, be permanently revoked.

DONE AND ENTERED this 10th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January, 2001.

ENDNOTES

1 / Petitioner has relied upon the testimony of Detective

Griffeth at hearing and the opinion of the St. Lucie County

medical examiner, who did not testify at the hearing, to support

proposed findings of fact concerning the age of the males

depicted in the pictures found in Respondent's possession.

Detective Griffeth's testimony and the hearsay opinion of the

unnamed medical examiner do not constitute competent substantial

evidence of the ages of the males depicted in those pictures.

2 / Although Respondent denied that he had told Detective

Schrader that he thought Luke 14 was a minor during his

appearance before Judge Paine, Detective Schrader's testimony

that Respondent did make such a statement was credible and has

been relied upon in making finding of fact 8 of this Recommended

Order.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

Stephen Rosenthal

FCC Coleman

Post Office Box 879

Coleman, Florida 33521

Kathleen M. Richards

Executive Director

Education Practices Commission

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399

Honorable Tom Gallagher

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 101

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.