02-000310PL Charlie Crist, As Commissioner Of Education vs. Tonya Whyte Status: Closed Recommended Order on Monday, October 14, 2002.

Summary: Commissioner of Education failed to clearly and convincingly prove that certified teacher engaged in lewd and lascivious acts alleged in Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0310PL

)

TONYA WHYTE, )

)

Respondent. )

____ _____________________________)

RECOMMENDED ORDER

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

accordance with Section 120.57(1), Florida Statutes, on

May 3, 2002, by video teleconference at sites in Fort Lauderdale

and Tallahassee, Florida, b efore Stuart M. Lerner, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gonzalo R. Dorta, Esquire

Gonzalo R. Dorta, P.A.

334 Minorca Avenue

Coral Gables, Florida 33134 - 4304

F or Respondent: Mitchell J. Olin, Esquire

Mitchell J. Olin, P.A.

1000 South Andrews Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint, and, if s o, what disciplinary action

should be taken against her.

PRELIMINARY STATEMENT

On or about October 11, 2000, Petitioner's predecessor, the

Honorable Tom Gallagher, filed an Administrative Complaint

against Respondent, in which he asserted the following:

Petitioner, Tom Gallagher, as

Commissioner of Education, files this

Administrative Complaint against Tonya

Whyte. The Petitioner seeks the appropriate

disciplinary sanction of the Respondent's

educator's certificate pursuant to Sections

231.262 and 23 1.28, Florida Statutes, and

pursuant to Rule 6B - 1.006, Florida

Administrative Code, Principles of

Professional Conduct for the Education

Profession in Florida, said sanctions

specifically set forth in Section 231.262(6)

and 231.28(1), Florida Statutes.

Th e Petitioner alleges:

JURISDICTION

1. The Respondent holds Florida

Educator's Certificate 801286, covering the

area of Mathematics, which is valid through

June 30, 2003.

2. At all times pertinent hereto, the

Respondent was employed as a Mathem atics

teacher at Deerfield Beach High School, in

the Broward County School District.

MATERIAL ALLEGATIONS

3. On or about January 17, 1999,

Respondent engaged in lewd and lascivious

acts when she allowed someone to fondle her

exposed vaginal area in front of the patrons

of an adult club. Respondent was arrested

and charged with Lewd and Lascivious Act and

Remaining in a Place for the Purpose of

Prostitution. On or about July 18, 2000,

the charges were dropped by the court.

Respondent was suspended from her teaching

position and or about January 24, 2000,

Respondent resigned from her position with

the Broward County school system.

STATUTE VIOLATIONS

COUNT 1 : The Respondent is in violation

of Section 231.28(1)(c), Florida Statutes,

in that Res pondent has been guilty of gross

immorality or an act involving moral

turpitude.

COUNT 2 : The Respondent is in violation

of Section 231.28(1)(f), Florida Statutes,

in that Respondent has been found guilty of

personal conduct which seriously reduces h er

effectiveness as an employee of the school

board.

WHEREFORE , the Petitioner recommends

that the Education Practices Commission

impose an appropriate penalty pursuant to

the authority provided in Sections

231.262(6) and 231.28(1), Florida Statutes,

which penalty may include a reprimand,

probation, restriction of the authorized

scope of practice, administrative fine,

suspension of the teaching certificate not

to exceed three years, permanent revocation

of the teaching certificate, or combination

ther eof, for the reasons set forth herein,

and in accordance with the Explanation and

Election of Rights forms which are attached

hereto and made a part hereof by reference.

Through the submission of a completed Amended Election of

Rights form signed by her a ttorney on or about November 3, 2000,

Respondent requested a "formal hearing" on the allegations of

wrongdoing made in the Administrative Complaint if settlement

negotiations did not result in a settlement agreement. On

January 22, 2002, the matter was re ferred to the Division of

Administrative Hearings (Division) for the assignment of a

Division Administrative Law Judge to conduct the "formal

hearing" Respondent had requested. 1/

The final hearing in this case was initially scheduled for

April 3, 2002. On March 13, 2002, Respondent, through her

counsel of record, Mitchell J. Olin, Esquire, filed a motion

requesting that the final hearing be continued on the ground

that her attorney had a scheduling conflict and on the following

additional ground:

Additio nally, due to financial hardship in

Ms. Whyte having lost her teaching

occupation, and due to the severe anguish

and distress she has suffered and continues

to suffer, all as a result of the underlying

incident, Ms. Whyte is not medically fit for

this hear ing and has moved back to the State

of Michigan to be with her family members

for support, both financially and

emotionally. Currently, Ms. Whyte is

receiving Social Security disability

payments.

By Order issued April 2, 2002, the motion was granted and the

final hearing in this case was rescheduled for May 3, 2002.

On April 25, 2002, Respondent, again through Mr. Olin,

filed a second Motion for Continuance, in which she stated the

following:

1. This cause is scheduled for hearing on

Friday, May 3, 200 2, at 9:30 p.m.

2. Undersigned has [a] conflict with said

time and date as he has been called to begin

a jury trial before the Honorable Estella

Moriarity, on April 29 - May 5 (special set in

case style Glazier v. Connell , case #00 -

21020 CACE (05), in the Circuit Court in and

for Broward County.

3. Additionally, due to financial hardship

in Ms. Whyte having lost her teaching

occupation for which she has moved back to

the State of Michigan to be with her family

members, Ms. Whyte has enrolled in real

estat e and marketing classes which classes

continue past May 3, 2002 and she is

genuinely unavailable for trial.

4. The Department will suffer no prejudice

in the granting of this motion, and, should

Ms. Whyte successfully complete and receive

her real estate license, an agreement can

probably be reached with Petitioner.

This second Motion for Continuance was denied by Order issued

April 26, 2002.

As noted above, the final hearing in this case was held on

May 3, 2002, as scheduled.

At the outset of the hearin g, Petitioner's counsel of

record, Gonzalo R. Dorta, Esquire, moved, without opposition, to

have the style of the instant case changed to reflect that the

Honorable Charlie Crist had become the Commissioner of Education

since the Administrative Complaint h ad been filed against

Respondent. The motion was granted.

At the hearing, Respondent appeared through her attorney,

Mr. Olin. She did not make a personal appearance. As a

preliminary matter, Mr. Olin explained that Respondent was

"finishing up final exa ms and classes in a real estate [course]

in the State of Michigan and hence could not be [present at the

hearing]," and he then requested that Respondent be allowed to

testify "telephonically." Mr. Dorta indicated that he opposed

this request, to which Mr . Olin responded as follows:

Ms. Whyte, as a direct result of the actions

here that she finds herself has been

financially and adversely affected. She did

move back to her family in the State of

Michigan. She is undergoing a change in

occupational profes sions into the real

estate market. She is enrolled and involved

in final exams as a result of that in both

marketing and real estate classes

culminating today. If she wasn't there to

take them today she would not be able to sit

again for many months whic h would severely

prejudice her again financially, which is

the grounds [that] I raised in my motion to

continue this hearing so that she could be

present and that we could proceed properly

with her.

And again, I would renew that motion at this

point if th e State has taken the position

that they must have her here for this.

The undersigned declined to continue the hearing and deferred,

until "after the Petitioner conclude[d] the presentation of his

case," further discussion of the matter of whether Respond ent

would be testifying and, if so, by what means she would do so.

Another preliminary matter discussed before the taking of

evidence concerned the statutory provisions cited in Counts 1

and 2 of the Administrative Complaint. Both parties agreed that

the se provisions (Subsection (1)(c) of Section 231.28, Florida

Statutes, and Subsection (1)(f) of Section 231.28, Florida

Statutes) had been renumbered (to Section 231.2615(1)(c),

Florida Statutes (2001), and Section 231.2615(1)(f), Florida

Statutes (2001), r espectively).

Mr. Dorta, on behalf of Petitioner, presented the testimony

of one witness, Deputy John Duncan of the Broward County

Sheriff's Office. In addition to Deputy Duncan's testimony,

Mr. Dorta offered into evidence 15 exhibits (Petitioner's

Exhibi ts 1 through 5, 7 through 10, 12, and 14 through 18), all

of which were received.

Mr. Olin, on behalf of Respondent, also called to the stand

a single witness, William Markowitz, Respondent's former

husband. Mr. Olin did not offer any exhibits into eviden ce, but

he did ask the undersigned to take official recognition,

pursuant of Section 120.569(2)(i), Florida Statutes, of the

Order on Defendant's Motion to Dismiss issued in State of

Florida v. Tammy Schmidt , Palm Beach County Circuit Court Case

No. 93 - 010 064MM A02, on October 4, 1993, and the Order and

Opinion Affirming Trial Court issued in State of Florida v.

Maryann Silvers and Ray Hall , Broward County Circuit Court Case

No. 00 - 08AC10A, on June 15, 2000. The undersigned indicated

that he would grant th e request provided that he and Mr. Dorta

were provided copies of these court orders, a ruling Mr. Dorta

indicated he had "no problem with." 2/

The evidentiary record was closed without Respondent

testifying; however, the undersigned stated that he would

e ntertain a motion to reopen the record for the purpose of

taking Respondent's testimony, if such a motion was filed within

two weeks (by May 17, 2002).

At the close of the evidentiary portion of the hearing on

May 3, 2002, the undersigned set the deadlin e for filing

proposed recommended orders at 15 days from the date of the

filing with the Division of the transcript of the final hearing.

The parties indicated, before leaving the Fort Lauderdale

hearing site, that they intended to further explore, prior to

the proposed recommended order filing deadline, the possibility

of amicably resolving the instant controversy.

Having received neither the transcript of the final

hearing, nor any post - hearing pleading from the parties, the

undersigned, on August 6, 200 2, issued an Order directing the

parties "to confer and advise the undersigned, in writing, no

later than 15 days from the date of this Order, as to the status

of this matter and whether there still remain[ed] issues in

dispute [to be] resolved by the unde rsigned."

A Transcript of the final hearing (consisting of one

volume) was filed with the Division on August 19, 2002.

On August 23, 2002, Mr. Dorta filed a response to the

undersigned's August 6, 2002, Order. In his response, Mr. Dorta

advised that t he parties were unable to amicably resolve the

instant controversy.

On September 5, 2002, Mr. Dorta filed a motion requesting

an extension of time, until September 15, 2002, to file

Petitioner's proposed recommended order in the instant case. A

hearing on the motion was held that same day by telephone

conference call. During the motion hearing, Mr. Olin requested,

without opposition, that the deadline for filing proposed

recommended orders be extended beyond September 15, 2002, to

September 18, 2002. By Order issued September 6, 2002, the

deadline for filing proposed recommended orders was extended to

September 18, 2002.

Petitioner's Proposed Recommended Order was filed on

September 18, 2002. Respondent's Recommended Order was filed on

September 20, 2002 . These post - hearing submittals have been

carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and

the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been at all times material

to the instant case, a Florida - certified teacher authorized to

teach mathematics.

2. She holds Florida Educator's Certificate No. 801286,

which covers the five - year period ending June 30, 2003.

3. Respondent was a teacher for more than a decade in

Michigan before moving to Florida.

4. She began teaching in Florida in or around September of

1998, when she was hired to teach mathematics at Deerfield Beach

High School (DBHS).

5. Respondent taught at DBHS only into the early par t of

the second semester of the 1998 - 1999 school year, when she was

removed from the classroom following her arrest, during the

early morning hours on January 17, 2002, for lewd and lascivious

conduct.

6. The arrest occurred at Athena's Forum, a club that

Respondent and her then fiancée, William Markowitz, had read

about in a magazine article about "swing clubs." The article

"peaked [their] interest to go in[to one of these clubs] and see

what it was all about."

7. Respondent and Mr. Markowitz entered A thena's Forum at

approximately 9:30 p.m. on Saturday, January 16, 1999. Neither

she nor Mr. Markowitz had been to the club before.

8. They were stopped in the vestibule and asked to fill

out and sign a membership application and to pay a membership

fee of $75.00, which they did. They were then allowed to go

into the interior of the building.

9. There were signs posted in the vestibule and elsewhere

in the club cautioning that those who might be offended by

"sexual activity or nudity" should not ente r the club.

10. Upon entering the interior of the building, Respondent

and Mr. Markowitz went to the bar and ordered drinks. They

later went to the buffet area where food was being served to get

dinner. They brought their dinner to a table "at the stage

level," where they sat down and ate. It was "very dark" there.

They spent the rest of the evening sitting at their table (next

to each other) listening to music and watching "people coming

and going throughout the club." On occasion, they got up to

dan ce.

11. There were at least 50 people in the club that

evening, some of whom were in various states of undress, being

"fondl[ed]" and "touch[ed]" by others.

12. Respondent and Mr. Markowitz, however, both remained

clothed throughout their stay at the cl ub.

13. Among the other people in the club that evening was

Deputy John Duncan of the Broward County Sheriff's Office

(BCSO). Deputy Duncan was there, along with eight to 12 other

law enforcement officers, as part of a BCSO undercover

operation.

14. Deputy Duncan had been to the club on a prior occasion

to conduct "surveillance."

15. He had gone there at the direction of his supervisor,

Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy

Duncan and the other participants in the undercove r operation

that a "tip" had been received that "lewd activity was

supposedly going on inside the club" and that they "were going

in there to look for" such activity and to see if "any narcotics

[were] being sold."

16. During that first visit, the club was "dead." The

bartender, however, told Deputy Duncan that there were other

times, including "certain nights [designated as] couples nights,

that things [did] go on" at the club. Among these "things,"

according to the bartender, was "sexual activity."

1 7. Deputy Duncan returned to the club at approximately

10:00 p.m. on January 16, 1999.

18. He gained entry to the interior of the building after

showing his "membership number" to a woman "at the front desk,"

giving the woman a "bottle of liquor" he had brought with him,

and having his "cover charge" paid (by a fellow undercover

officer).

19. Deputy Duncan, along with Sergeant Stewart, who was

part of the BCSO undercover operation at the club that evening,

proceeded to the "northwest section of the bar," where they sat

down.

20. Next to the bar was a "dance floor." There were

tables and chairs surrounding the "dance floor."

21. Approximately 30 feet from where he was seated at the

bar, in the area of the "dance floor," Deputy Duncan observed a

"white female," 3/ standing up, straddling the right leg of a

"gentleman" sitting on a chair. The "white female" was wearing

a tight - fitting, black spandex dress. Deputy Duncan saw the

"gentleman" "lift her dress up" above her vaginal area. It

appeare d to Deputy Duncan that the "white female" did not "have

any underwear on." The "gentleman" then proceeded to fondle the

"white female's" vaginal area. This went on for two to five

minutes. At no time did the "white female" attempt to pull down

her dres s or otherwise cover her vaginal area. Neither she, nor

the "gentleman," made any effort to hide what they were doing.

22. Although Deputy Duncan considered the "white female's"

and the "gentleman's" conduct to be lewd and lascivious, he did

not immed iately place them under arrest inasmuch as the

undercover operation had not concluded.

23. Before the club was "raided" later that evening and

arrests were made, Deputy Duncan observed other instances of

people in plain view engaging in activities of a sexual nature.

24. He saw, among other things, "women with other women

where they were fondling the breast," "women with men doing

dirty dancing," and "men and women in corners."

25. In the "back area" of the club, he saw "hot tubs with

several naked ind ividuals inside" and rooms where people were

"engaging in open intercourse."

26. There were approximately 38 people arrested as a

result of the BCSO undercover operation at Athena's Forum that

evening.

27. Respondent and Mr. Markowitz were among those

arrested.

28. Respondent's and Markowitz's arrests were for lewd and

lascivious conduct. The arrests occurred at 1:30 a.m. on

January 17, 1999 (after the club had been "raided").

29. Deputy Duncan was the arresting officer. He believed

that Responden t and Mr. Markowitz were the "white female" and

"gentleman," respectively (referred to above) whom he had

observed earlier that evening in the area of the "dance floor"

engaging in conduct that he considered to be lewd and

lascivious.

30. Deputy Duncan, however, was mistaken. Respondent was

not the "white female" 4/ and Mr. Markowitz was not the

"gentleman" 5/ Deputy Duncan had seen.

31. At no time that evening at the club had Mr. Markowitz

pulled Respondent's dress up or fondled Respondent's vag inal

area.

32. Respondent's and Mr. Markowitz's arrests were two of

the "many" arrests Deputy Duncan made at "swing clubs" in the

county.

33. Respondent's arrest was reported in the media.

34. It was common knowledge at DBHS that she had been

arrested for lewd and lascivious conduct at a "swing club."

35. The Broward County School Board initiated disciplinary

proceedings against Respondent. It removed her from the

classroom and reassigned her to a "security guard" position

pending the outcome of the disciplinary proceedings.

36. Respondent thereafter submitted a letter of

resignation, dated January 24, 2000, to the Broward County

School Board. In her letter, she stated, among other things,

the following:

Broward County showed me a warm welcome by

ta king away my civil rights to privacy and

making my entire ordeal a Nationwide joke.

No one, except my attorney and my future

husband knew of my arrest on January 17,

1999, until the School Board . . . gave

information to the local and national media.

. . . . The Broward County School Board

showed an excellent, motivated and

experienced educator that they are more

interested in what teachers do after hours

than the students' well - being. I was

wrongfully arrested on January 17, 1999 in a

private club wher e no children were present.

It was not near or on any school grounds and

it did not impair my ability to teach. As

of this letter, it seems that the criminal

charges against me will be dismissed. On

February 17, 1999, I was handed a letter

that will for ever change my life, when I was

pulled and submitted to complete ridicule in

front of my 4th Period class with only forty

minutes to the end of the day. I

successfully taught for four weeks and would

have continued to successfully teach if the

Board had n ot release[d] my name to the

media. After a national debate on the right

to privacy my career was destroyed, as well

as my life. . . .

In August 1999 I was placed on

administrative reassignment with pay. I was

informed that I would receive a " meaningful "

job that would justify my paycheck while we

awaited the Administrative Hearing. Once

assigned a position, displayed for the world

to see, as a security guard for the main

School Board Building, I reported my health

issues and repeated harassment from th e

media, school board employees, teachers, and

parents. I was informed by Carmen

Rodriguez, attorney for the School Board,

that the position I was assigned would

involve "little or no participation." I

asked for a different position but the

request was d enied. . . . At this point I

am unable to return to work due to

illness . . . .

Therefore, due to the cost to my personal

health, lack of financial resources, lack of

union support, the fact that I am only an

annual contract teacher, being refused a

po sition change, and being denied a Leave of

Absence, and the pride to not submit myself

to the degrading way you treated my fellow

educator, I must with great hesitation

resign as an educator in Broward County. I

am giving up the battle in the

administrati ve courts to win the war of

public opinion.

37. The criminal charges that had been filed against

Respondent following her arrest were "dropped by the court" on

or about July 18, 2000.

38. Respondent married Mr. Markowitz, but they were later

divorced.

3 9. They still keep in touch with one another, however.

40. Mr. Markowitz tried to help Respondent make the

necessary arrangements to attend the final hearing in the

instant case, but due to the expense involved and the fact that

Respondent had an examina tion to take, she was unable to be at

either of the hearing sites. 6/

CONCLUSIONS OF LAW

41. Petitioner is requesting that the Education Practices

Commission (EPC) take disciplinary action against Respondent

pursuant to Subsections (1)(c) and (f) of Sec tion 231.2615,

Florida Statutes (2001), which provide as follows:

Education Practices Commission; authority to

discipline. –

(1) The Education Practices Commission may

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 t hat 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 involvi ng 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.

42. Chapter 231, Florida Statutes ( 2001), does not define

the terms "gross immorality" or "an act involving moral

turpitude." See Sherburne v. School Board of Suwannee County ,

455 So. 2d 1057, 1061 (Fla. 1st DCA 1984).

43. Rule 6B - 4.009, Florida Administrative Code (which

deals with dismi ssal actions initiated by district school boards

against instructional personnel pursuant to Section 231.36,

Florida Statutes), however, provides guidance to those seeking

to ascertain the meaning of these terms, as they are used in

Subsection (1)(c) of Se ction 231.2615, Florida Statutes (2001).

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

Order).

44. Subsection (2) of Rule 6B - 4.009, Florida

Administrative Code, defines "immorality" as follows:

Immorality is defined as conduct that is

incons istent 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.

"T hus, in order to dismiss a teacher for immoral conduct 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 d isgrace the teaching profession and impair the

teacher's service in the community." McNeill v. Pinellas County

School Board , 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

45. "Gross immorality," as the term suggests, is

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

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

rather than minor in nature, and which constitutes a flagrant

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

supra ; and Turlington v. Knox , 3 FALR 1373A , 1374A (EPC

1981)(Final Order).

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

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

found in Subsection (6) of the rule, which provides as follows:

Moral turpitude is a crime that is eviden ced

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.

"Not every criminal act involves moral turpitude; only those

which are by nature 'base[,] [vile,] or depraved' qualify." In

re Berk , 602 A.2d 946, 948 ( Vt. 1991). Lewd and lascivious

conduct is one such crime. See Duvallon v. State , 404 So. 2d

196, 197 ( Fla. 1st DCA 1981). " In contrast to the definition of

immorality in Rule 6B - 4.009(2), the definition of moral

turpitude in Rule 6B - 4.009(6) does not require notoriety or

impaired ability for service in the community ." Gallagher v.

Powell , 1999 WL 1483626 *14 n.16 (Fla. DOAH 1999)(Recommended

Order).

47. In evaluating whether a teacher "[h]as been guilty of

gross immorality or an act involving moral turpitude," in

violation of Subsection (1)(c) of Section 231.2615, Florida

Statutes (2001), it must be remembered that "[b]y 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, 1171 (Fla. 1st DCA 1981).

4 8. "Personal conduct" that is not itself in any way

wrongful may not form the basis for disciplinary action pursuant

to Subsection (1)(f) of Section 231.2615, Florida Statutes

(2001), regardless of the negative publicity surrounding the

conduct. See Tenb roeck v. Castor , 640 So. 2d 164, 168 ( Fla. 1st

DCA 1994) ("[W]e . . . deem it appropriate to address the issue

of whether appellant's effectiveness as a teacher was impaired

as the result of his conduct. As already stated, no student or

teacher testified t hat appellant's effectiveness as a school

teacher had been seriously reduced as a result of the challenged

conduct. The opinion testimony of appellee's expert to that

effect was pinned upon the notoriety created in the community by

the marriage between ap pellant and Angela. However, standing

alone, the marriage was not unlawful. The attendant publicity

surrounding appellant's marriage, which in itself is not a crime

or a violation of any rule or statute, cannot be used by the

commissioner or the EPC to e stablish that appellant's

effectiveness as a teacher or administrator has been

impaired."); and Baker v. School Board of Marion County , 450 So.

2d 1194, 1195 (Fla. 5th DCA 1984)("The School Board argues that

the record establishes that Baker's effectivenes s as a teacher

has been impaired at the elementary school where he taught and

that this alone justifies his dismissal. While it is true that

the school principal testified as to the impairment of Baker's

teaching effectiveness, we must reject this argumen t, otherwise

whenever a teacher is accused of a crime and is subsequently

exonerated with no evidence being presented to tie the teacher

to the crime, the school board could, nevertheless, dismiss the

teacher because the attendant publicity has impaired th e

teacher's effectiveness. Such a rule would be improper.").

49. Impaired or reduced effectiveness of a teacher may be

established even in the absence of "specific" or "independent"

evidence of impairment where the conduct in which the teacher

engaged is of such a nature that it "must have impaired" the

teacher's ability to discharge his or her job responsibilities.

See Purvis v. Marion County School Board , 766 So. 2d 492, 498

(Fla. 5th DCA 2000); and Summers v. School Board of Marion

County , 666 So. 2d 175, 175 - 76 (Fla. 5th DCA 1995).

50. "No revocation [or] suspension . . . of any [Florida

teaching certificate] is lawful unless, prior to the entry of a

final order, [Petitioner] has served, by personal service or

certified mail, an administrative compla int which affords

reasonable notice to the [teacher] of facts or conduct which

warrant the intended action and unless the [teacher] has been

given an adequate opportunity to request a proceeding pursuant

to ss. 120.569 and 120.57." Section 120.60(5), Flor ida

Statutes.

51. The teacher must be afforded an evidentiary hearing

if, upon receiving such written notice, he or she disputes the

alleged facts set forth in the administrative complaint.

Sections 120.569(1) and 120.57, Florida Statutes.

52. At the h earing, Petitioner bears the burden of proving

that the teacher engaged in the conduct, and thereby committed

the violations, alleged in the administrative complaint. Proof

greater than a mere preponderance of the evidence must be

presented. Clear and co nvincing evidence of the teacher's guilt

is required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987); Po u v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and Section

120.57(1)(j), Florida Statutes ("Findings of fact shall be based

upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or excep t as otherwise

provided by statute . . . .").

53. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 199 7). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

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 expli cit 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 a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

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

1983).

54. In determining whether Petitioner has met his burden

of proof, it is necessary to evaluate his evidentiary

presentation in light of the specific factual allegations made

in the administrative complaint. Due process prohibits the EPC

from taking disciplinary action against a teacher based upon

conduct not specifically alleged in the Petitioner's

ad ministrative complaint. See Hamilton v. Department of

Business and Professional Regulation , 764 So. 2d 778 (Fla. 1st

DCA 2000); Lusskin v. Agency for Health Care Administration , 731

So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of

Insuranc e , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

55. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint] to have been violated." Delk v. Department of

Professional Regulation , 595 So. 2d 9 66, 967 (Fla. 5th DCA

1992). In deciding whether "the statute or rule claimed to have

been violated" was in fact violated, as alleged by Petitioner,

if there is any reasonable doubt, that doubt must be resolved in

favor of the teacher. See Whitaker v. De partment of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

v. Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulatio ns , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

56. In the instant case, Petitioner has alleged that

Respondent violated Subsections (1)(c) and (1)(f) of Section

231.2615 (formerly 231.28), Florida Statutes (2001), when, "[o]n

or about January 17, 1999, [she ] engaged in lewd and lascivious

acts [by] allow[ing] someone to fondle her exposed vaginal area

in front of the patrons of an adult club."

57. Petitioner failed to clearly and convincingly

establish at the final hearing that Respondent engaged in such

conduct.

58. While Petitioner's lone witness, Deputy Duncan,

testified that, during an undercover operation at a "swing

club," he had observed a "white female," whom he believed to be

Respondent, engage in the conduct described in the

Administrative Compl aint, it appears to the undersigned, after

careful consideration of the entire evidentiary record, that the

"white female" about whom Deputy Duncan testified was not

Respondent, but rather someone else, and that Deputy Duncan made

a mistake, albeit an hone st one, in testifying otherwise.

59. In an effort to show that Deputy Duncan had

misidentified her as the "white female," Respondent presented

the testimony of Mr. Markowitz. Mr. Markowitz testified that he

had been with Respondent, his then - fiancée, a t the "swing club"

on the evening in question and at no time that evening had

Respondent done what Deputy Duncan had seen the "white female"

do. Mr. Markowitz was clearly in a position to know what

Respondent did and did not do that evening, and he testif ied

about the matter with apparent sincerity and candor and in a

manner that suggested he had a reasonably clear recollection of

the events he described. Furthermore, his testimony that his

and Respondent's arrests that evening were cases of mistaken

iden tity is plausible, particularly given the delayed timing of

their arrests and the large number of other arrests in which

Deputy Duncan was involved. Cf . People v. Gilmore , 48 Cal.Rptr.

449, 454 ( Cal. App. 1966)(" Especially in cases such as that

before us, where the same officer and the same informant were

engaged in a long series of purchases, extending over a

substantial period, may the informant prove to be a valuable

defense witness. As we have said above, these are circumstances

under which the possib ility of an honest mistake in

identification by the officer is well within the realm of

possibility -- the officer knows each defendant only as one of a

large group of sellers, introduced to him by the informant but

otherwise unknown to him, seen perhaps onl y once and often under

conditions of difficult observation. It is, therefore, at least

possible, for any one defendant, that the informant, if

interviewed and called, might testify that the officer was, in

this case, mistaken and that the transaction invo lved was not

with this defendant but with some other individual.").

60. Exercising his authority to "assess witness

credibility" ( see McNeill v. Pinellas County School Board , 678

So. 2d at 478), the undersigned has credited Mr. Markowitz's

testimony and , accordingly, finds that Respondent did not engage

in the conduct alleged in the Administrative Complaint. 7/

61. In view of this finding, the charges against

Respondent should be dismissed. 8/

RECOMMENDATION

Based upon the foregoing Findings of F act and Conclusions

of Law, it is hereby

RECOMMENDED that the EPC issue a final order dismissing the

instant Administrative Complaint.

DONE AND ENTERED this 14th day of October, 2002, in

Tallahassee, Leon County, Florida.

_______ ____________________________

STUART M. LERNER

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 14th day of October, 2002.

ENDNOTES

1/ It is unclear from the record why it took more than a year

for the matter to be referred to the Division.

2/ Copies of these court orders were filed with the Division on

September 13, 2002. They were accompanied by a cover letter

from Mr. Olin, dated September 11, 2002, reflecting that

Mr. Dorta had also been sent copies.

3/ In h is testimony, Deputy Duncan did not provide any further

details regarding the physical characteristics of this "white

female."

4/ Inasmuch as Respondent did not appear at the final hearing,

Deputy Duncan did not have the opportunity to make an "in -

hearin g" identification of Respondent. Compare with Department

of Health, Board of Massage Therapy v. Keys , 2001 WL 1018338

(Fla. DOAH 2001)(Recommended Order)("The factfinder found it

striking that the Department made relatively little effort to

identify Keys conclusively as the wrongdoer. It would have been

a simple matter to have subpoenaed her for the final hearing, so

that a definitive identification could be made, or, failing

that, to have obtained photographs or videotapes of her during

discovery upon wh ich a persuasive in - hearing identification

could be based. The Department's failure to take these or

similar steps toward meeting its heavy evidential burden --

particularly given the paucity of information that it had

concerning Keys' appearance, about whi ch nothing unique or

distinguishing was elicited -- reflected negatively on its entire

case.").

5/ Unlike Respondent, Mr. Markowitz was at the final hearing

(at the Fort Lauderdale hearing site, from where Deputy Duncan

testified). Deputy Duncan, howeve r, was not asked to make an

"in - hearing" identification of Mr. Markowitz as the "gentleman"

he had seen with the "white female."

6/ Given these circumstances surrounding Respondent's absence

from the final hearing, and the fact Respondent had Mr.

Markow itz testify on her behalf that she had not engaged in the

conduct alleged in the Administrative Complaint, the undersigned

has not drawn an adverse inference from Respondent's failure to

appear and testify at hearing. See Geiger v. Mather of

Lakeland, Inc . , 217 So. 2d 897, 898 (Fla. 4th DCA 1968 ) ("The

unfavorable inference which may be drawn from the failure of a

party to testify is not warranted when there has been a

sufficient explanation for such absence or failure to

testify."); and Weeks v. Atlantic C oast Line Railroad Company ,

132 So. 2d 315, 316 (Fla. 1st DCA 1961) ("The weight of authority

supports the general rule that the failure of a party to

introduce an available witness does not give rise to any

inference or presumption that the testimony of th e witness, if

he had been called, would have been unfavorable to such party,

where other qualified witnesses have testified for the party

concerning the same matters, and the testimony of the uncalled

witnesses would have been merely cumulative or corrobor ative.").

7/ In making this credibility determination, the undersigned

has not overlooked that Mr. Markowitz, while he is divorced from

Respondent, apparently is still friendly with her.

8/ It is questionable whether the conduct that Deputy Duncan

saw the "white female" engage in and about which he testified,

given the setting in which it occurred, constituted "lewd and

lascivious acts" for which a certified teacher in this state may

be disciplined by the EPC. Cf . Schmitt v. State , 590 So. 2d

404, 410 ( Fla. 1991 )("Under Florida criminal law the terms

'lewd' and 'lascivious' are synonymous: Both require an

intentional act of sexual indulgence or public indecency, when

such act causes offense to one or more persons viewing it or

otherwise intrudes upon the rights of others. . . . The terms

'lewd' and 'lascivious' thus mean something more than a

negligent disregard of accepted standards of decency, or even an

intentional but harmlessly discreet unorthodoxy. . . . Acts are

neither 'lewd' nor 'lascivious' unless they substantially

intrude upon the rights of others."); Florida Board of Bar

Examiners Re N.R.S. , 403 So. 2d 1315, 1317 ( Fla. 1981)(" Private

noncommercial sex acts between consenting adults are not

relevant to prove fitness to practice law. This might not be

true of commercial or nonconsensual sex or sex involving

minors."); and Campbell v. State , 331 So. 2d 289, 289 - 90 ( Fla.

1976) ("On the weekend of July 4, 1974, . . . [l]ocal police

officers . . . visited bars and lounges frequented by Pensacola

area homosexuals. Among these establishments was Robbie's

YumYum Tree Lounge, where appellant was employed as a waiter.

At approximately 2:00 a.m. on July 6, 1974, two of four

undercover agents who had been in the YumYum Tree for some two

hours saw appe llant fondle one Jeffries, a patron; both Campbell

and Jeffries were arrested for violating Section 798.02, Florida

Statutes [prohibiting lewd and lascivious conduct]. . . . [T]he

evidence in the record does not substantiate behavior which was

'extremely indecent, immoral, and offensive.' The term

'indecent' is difficult enough of precise definition, but the

term 'extremely indecent' must certainly refer to an act more

outrageous than that perpetrated by the appellant.

Additionally, who in the dark and c rowded recesses of the YumYum

Tree at 2:00 a.m. on July 6, 1974, was 'offended'? This is not

to say that such establishments provide sanctuary from

enforcement of our criminal laws. Our holding today is that

there must be more to constitute 'open and gro ss lewdness and

lascivious behavior' than this record discloses and that a jury

of reasonable persons could not reasonably have concluded that

appellant's conduct at the time and place and under the

circumstances it occurred constituted a violation of Sect ion

798.02, Florida Statutes."); however, since the undersigned has

found that the "white female" was someone other than Respondent,

it is unnecessary to, and the undersigned will not, decide this

issue.

COPIES FURNISHED:

Gonzalo R. Dorta, Esquire

Gon zalo R. Dorta, P.A.

334 Minorca Avenue

Coral Gables, Florida 33134 - 4304

Mitchell J. Olin, Esquire

Mitchell J. Olin, P.A.

1000 South Andrews Avenue

Fort Lauderdale, Florida 33316

Kathleen M. Richards, Executive Director

Education Practices Commissio n

Department of Education

Florida Education Center

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s 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.