01-001135PL Charlie Crist, As Commissioner Of Education vs. Hakim A. Shahid Status: Closed Recommended Order on Thursday, September 6, 2001.

Summary: Teacher guilty of gross immortality and violating principles of professional conduct. Certificate should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, as Commissioner )

of Education, )

)

Petitioner, )

)

vs. ) Case No. 01- 1135PL

)

HAKIM A. SHAHID, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on July 13, 2001, by video teleconference between Fort

Lauderdale and Tallahassee, Florida, before Claude B. Arrington,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Gonzalo R. Dorta, Esquire

334 Minorca Avenue

Coral Gables, Florida 33134-4303

For Respondent : Hakim A. Shahid, pro se

5279 Jamboree Place

Margate, Florida 33063

STATEMENT OF THE ISSUES

Whether Respondent, a teacher, committed the violations

alleged in the Administrative Complaint and the penalties, if

any, that should be imposed.

PRELIMINARY STATEMENT

On July 20, 2000, Petitioner filed an Administrative

Complaint containing factual allegations as to Respondent's

conduct. Based on the alleged conduct, Petitioner alleged that

Respondent committed the following violations:

Count 1 : Violated Section 231.28(3)(c),

Florida Statutes (1999), by being guilty of

gross immorality or an act involving moral

turpitude.

Count 2 : Violated Section 231.28(1)(f),

Florida Statutes (1999), by being guilty of

personal conduct which seriously reduced his

effectiveness as an employee of the School

Board.

Count 3 : Violated Section 231.28(1)( i),

Florida Statutes (1999), by violating the

Principles of Professional Conduct for the

Education Profession in Florida as

prescribed by the State Board of Education.

Count 4 : Violated Rule 6B-1.006(3)(a),

Florida Administrative Code, by failing to

make reasonable efforts to protect the

student from conditions harmful to learning

and/or to the student's mental health and/or

physical safety.

Count 5 : Violated Rule 6B-1.006(3)(e),

Florida Administrative Code, by

intentionally exposing a student to

unnecessary embarrassment or disparagement.

Count 6 : Violated Rule 6B-1.006(5)(d),

Florida Administrative Code, by engaging in

harassing or discriminatory conduct which

unreasonably interfered with an individual's

performance or professional or work

responsibilities or with the orderly process

of education or which created a hostile,

intimidating, abusive, offensive, or

oppressive environment and further, failed

to make reasonable effort to assure that

each individual was protected from

harassment or discrimination.

Respondent timely requested a formal administrative

hearing, the matter was referred to the Division of

Administrative Hearings (DOAH), and this proceeding followed.

At the final hearing, Petitioner presented the testimony of

Respondent, three of Respondent's co-workers at an after-school

program, and one of Respondent's former students. Petitioner

offered one composite exhibit into evidence, which was accepted

into evidence. Respondent did not offer any additional

testimony. Respondent offered as exhibits seven

unauthenticated, hearsay statements and one hearsay letter.

Respondent's offered exhibits were not admitted into evidence.

A Transcript of the proceedings was filed on August 6,

2001. The undersigned has given due consideration to the

Petitioner's timely-filed Proposed Recommended Order.

Respondent did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent has held Florida Teaching Certificate 720034

at all times material to this proceeding. His certificate

covers the area of sociology and is valid through June 30, 2002.

2. The Broward County School Board (School Board) employed

Respondent as a classroom teacher pursuant to a professional

service contract at all times material to this proceeding.

Respondent began his employment with the School Board on

February 14, 1992. On March 8, 1999, Respondent was placed on

administrative leave. On July 20, 1999, the School Board

suspended Respondent's employment without pay. On August 17,

1999, Respondent requested a formal administrative hearing, and

the matter was referred to DOAH. Petitioner offered no evidence

as to the outcome of the DOAH proceeding or as to Respondent's

current employment status with the School Board. 1/

3. Respondent's first teaching assignment was at Apollo

Middle School, a public school in Broward County, where he

taught for three years. His performance was evaluated several

times during his tenure at Apollo. Each evaluator found

Respondent to need improvement in the area of classroom

management.

4. Respondent was transferred to Attucks Middle School, a

public school in Broward County, where he was working during the

1998-99 school year. Respondent's assignment for that school

year was to teach a class of seventh-grade students who had

behavioral problems in other settings. Respondent, a former

college and professional basketball player who is approximately

6'7" tall, believed he was given that assignment, in part,

because his stature would intimidate the students in that class.

5. On or about November 25, 1998, D. S., a male student in

Respondent's class, was misbehaving. Respondent chased D. S.

around the classroom, shoved him into a wall, and physically

threw him out of the classroom.

6. During the 1998-99 school year, Respondent encouraged

the students in his class to settle their differences by

fighting, using the expression "fight till you die, death row."

He also permitted the students in his class to gamble by

flipping coins and playing cards.

7. On or about March 8, 1999, Respondent was placed on

administrative leave by the School Board. While on

administrative leave, Respondent worked as a counselor for an

after-school program located at the Whiddon-Rogers Education

Center ( Whiddon-Rogers). The City of Fort Lauderdale

administered that after-school program and employed the staff

for the program. The City of Fort Lauderdale employed

Respondent while he worked for the after-school program.

8. K. F. J . is a married female. At all times material to

this proceeding, K. F. J. was dually employed as a counselor at

Whiddon-Rogers and as a teacher's assistant. The School Board

employed K. F. J. during the part of the day that she worked as

a teacher's assistant. The City of Fort Lauderdale employed

K. F. J. during the part of the day that she worked at the

after-school program.

9. K. F. J. testified that her duties as a counselor at

Whiddon-Rogers were ". . . to play with the kids with different

recreations [sic], ping pong, volleyball, basketball, different

games, stuff like that." The after-school program at Whiddon-

Rogers was a child care program. Petitioner failed to establish

that the after-school program was an educational activity.

10. While he was employed at Whiddon-Rogers, Respondent

repeatedly sexually harassed K. F. J. This behavior regularly

consisted of unsolicited sexual advances and offensive behavior

implying Respondent's sexual desires. K. F. J. emphatically

rebuffed Respondent's advances. Respondent created a hostile,

intimidating, abusive, offensive, or oppressive environment for

K. F. J., who was justifiably afraid of Respondent.

11. On April 28, 1999, Respondent made sexually

inappropriate comments to K. F. J., asking her to gi ve her a hug

and to let him grab her "ass." K. F. J. became very angry and

an argument ensued. Respondent made vague threats against

K. F. J. and her husband. C. C., a seventeen-year-old male

student, interceded between Respondent and K. F. J., telling

Respondent to leave her alone.

12. James Parrish was the head custodian at Whiddon-Rogers

in April 1999. Mr. Parrish heard the verbal exchanges between

Respondent and K. F. J., and he saw C. C. intercede between the

two of them.

13. Later that afternoon, Respondent came to believe that

C. C. had punctured a tire on Respondent's automobile.

Respondent saw C. C. leaving Whiddon-Rogers and ran after him.

Mr. Parrish and a male counselor named Dennis ran after

Respondent. Respondent caught C. C., grab bed him by the neck,

and was about to strike C. C. when Mr. Parrish and Dennis

physically restrained Respondent.

14. Petitioner filed the Administrative Complaint that

underpins this proceeding on July 20, 2000. 2/

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

16. This is a proceeding to revoke Respondent's teacher's

certificate, which is a valuable property right. Petitioner has

the burden in this proceeding to prove the allegations against

Respondent by clear and convincing evidence. See Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987) ; Evans Packing Co. v.

Department of Agriculture and Consumer Services , 550 So. 2d 112

(Fla. 1st DCA 1989); and Inquiry Concerning a Judge , 645 So. 2d

398 (Fla. 1994). The following statement has been repeatedly

cited in discussions of the clear and convincing evidence

standard:

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

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

(sic) conviction, without hesitancy, as to

the truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.2d

797, 800 (Fla. 4th DCA 1983).

17. Pursuant to Section 231.28, Florida Statutes (1999),

the Educational Practices Commission has the authority to

suspend or revoke, including permanent revocation, a teaching

certificate for certain specified grounds. Section 231.28(1),

Florida Statutes (1999), provides, in pertinent part, as

follows:

(1 ) The Education Practices Commission

shall have the authority to suspend the

teaching certificate of any person as

defined in s. 228.041(9) or (10) for a

period of time not to exceed 3 years,

thereby denying that person the right to

teach for that period of time, after which

the holder may return to teaching as

provided in subsection (4); to revoke the

teaching certificate of any person, thereby

denying that person the right to teach for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); to revoke permanently the

teaching certificate of any person; to

suspend the teaching certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; or to

impose any other penalty provided by law,

provided it can be shown that the person:

* * *

(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.

18. In Count 1 of the Administrative Complaint, Petitioner

charged Respondent with violating Section 231.2615(1)(c),

Florida Statutes, alleging that Respondent has been guilty of

gross immorality or an act involving moral turpitude.

19. Rule 6B-4.009(2), Florida Administrative Code, a rule

duly adopted by the State Board of Education, defines the term

"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.

20. "Gross immorality" requires conduct more egregious

than that encompassed within the definition of "immorality"

found in Rule 6B-4.009(2):

[t ]he term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorality which involves an act of

misconduct that is serious, rather than

minor in nature, and which constitutes a

flagrant disregard of proper moral

standards." Education Practice Commission

v. Knox , 3 FALR 1373-A (Department of

Education 1981).

Frank T. Brogan v. Eston Mansfield , DOAH Case No. 96-0286

(Recommended Order, August 1, 1996).

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

the term "moral turpitude" as follows:

(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.

22. Teachers are required to maintain a high standard of

conduct. Whether a teacher's conduct constitutes an act of

gross immorality or an act of moral turpitude should be measured

against that high standard. Adams v. State, Professional

Practices Council , 406 So. 2d 1170 (Fla. 1st DCA 1981). In

Tomerlin v. Dade County School Board , 318 So. 2d 159 (Fla. 1st

DCA 1975), the court observed at page 160:

A school teacher holds a position of great

trust. We entrust the custody of our

children to the teacher. We look to the

teacher to educate and to prepare our

children for their adult lives. To fulfill

this trust, the teacher must be of good

moral character; to require less would

jeopardize the future lives of our children.

23. Petitioner established by clear and convincing

evidence that Respondent is guilty of gross immorality. His

sexually harassing a co-worker is immoral conduct; his

physically manhandling two different students is immoral

conduct; his encouraging his students to fight is immoral

conduct; and his permitting his students to gamble in class is

immoral conduct.

24. In Count 2 of the Administrative Complaint, Petitioner

charged Respondent with violating Section 231.2615(1)(f),

Florida Statutes, alleging that the Respondent, upon

investigation, had been found guilty of personal conduct which

seriously reduced his effectiveness as an employee of the school

board. Petitioner failed to prove this alleged violation by

clear and convincing evidence. At most, Petitioner proved that

there was an investigation and there was an administrative

complaint filed by the School Board against Respondent that

resulted in a formal proceeding before DOAH. That proof is

insufficient to establish the alleged violation.

25. In Count 3 of the Administrative Complaint, Petitioner

charged Respondent with violating Section 231.2615(1)( i),

Florida Statutes, alleging that Respondent has violated the

Principles of Professional Conduct for the Education Profession

in Florida prescribed by rules of the State Board of Education.

The specific rules Respondent is alleged to have violated are

set forth in the paragraphs designated as Counts 4, 5, and 6 of

the Administrative Complaint. Accordingly, it is not necessary

to devote separate discussion to Counts 4, 5, and 6 because the

violations alleged there are encompassed by the allegations of

Count 3.

26. The provisions of Rule 6B-1.006, Florida

Administrative Code, which the Respondent is alleged to have

violated read as follows:

(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.

* * *

(5 ) Obligation to the profession of

education requires that the individual:

* * *

(d ) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

27. Petitioner established by clear and convincing

evidence that Respondent violated Rule 6B-1.006(3)(a), Florida

Administrative Code, as alleged in Count 3 as supplemented by

Count 4 of the Administrative Complaint by physically

manhandling students, by encouraging students to fight, and by

permitting students to gamble.

28. Petitioner established by clear and convincing

evidence that Respondent violated Rule 6B-1.006(3)(e), Florida

Administrative Code, as alleged in Count 3 as supplemented by

Count 5 of the Administrative Complaint by physically throwing a

student out of his classroom.

29. Petitioner failed to establish that Rule 6B-

1.006(5)(d), Florida Administrative Code, applies to the after-

school program at Whiddon-Rogers run by the City of Fort

Lauderdale. While Petitioner clearly established that

Respondent sexually harassed K. F. J. while they both worked as

counselors at the after-school program, Petitioner failed to

establish that the after-school program had sufficient

connection with the educational process to come within the

purview of the rule. No violation should be found based on the

allegations of Count 3 as supplemented by Count 6.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the findings of fact and conclusions of law set forth

herein. The final order should revoke Respondent's teaching

certificate.

DONE AND ENTERED this 6th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September, 2001.

ENDNOTES

1/ From a review of DOAH's records, the proceeding to terminate

Respondent's employment appears to have been DOAH Case 99-3764,

which was closed on September 11, 2000, following Respondent's

apparent failure to respond to an Order to Show Cause.

Petitioner offered no evidence as to whether the School Board

thereafter entered a Final Order terminating Respondent's

employment.

2/ The matter was not referred to DOAH until March 22, 2001.

COPIES FURNISHED:

Gonzalo R. Dorta, Esquire

334 Minorca Avenue

Coral Gables, Florida 33134-4304

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

224-E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

Hakim A. Shahid

5279 Jamboree Place

Margate, Florida 33063

Jerry W. Whitmore, Chief

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

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.