03-002877PL Jim Horne, As Commissioner Of Education vs. Raymond Joseph Agostino Status: Closed Recommended Order on Thursday, February 19, 2004.

Summary: The evidence established that Respondent, a certified educator, committed domestic violence against his wife, whose attempt to recant her statements to police was not credible. Recommend two-years` probation under appropriate conditions by the Commission.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2877PL

)

RAYMOND JOSEPH AGOSTINO, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case before Lawrence P.

Stevenson, Administrative Law Judge, Division of Administrative

Hearings, on October 30, 2003, via video teleconference at sites

in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petit ioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731 - 0131

For Respondent: Robert B. Burandt, Esquire

Roosa, Sutton, Burandt, Adamski

& Roland, LLP

1714 Cape Coral Parkway, East

Cape Coral, Florida 33904 - 9620

STATEMENT OF THE ISSUE

Whether Respondent's educator's certificate should be

subject to discipline for the violations alleged in the

Administrati ve Complaint dated May 7, 2003.

PRELIMINARY STATEMENT

Following an investigation by the Department of Education

(the "Department"), Petitioner filed an Administrative Complaint

against Respondent on May 7, 2003. Respondent denied the

allegations and filed an Election of Rights, seeking a formal

hearing. This matter was referred to the Division of

Administrative Hearings on August 7, 2003. The case was

initially set for hearing on October 2, 2003. The case was

continued once due to technical problems wit h the video

teleconference equipment in Fort Myers. The hearing was

rescheduled for final hearing on October 30, 2003.

The Administrative Complaint set forth the following

material allegations of fact:

On or about May 15 and 16, 2002, Respondent

engaged i n more than one physical

altercation with his wife. During these

altercations, Respondent choked his wife,

tried to gouge her eyes out, and scratched

her face drawing blood. Respondent was

arrested and charged with Battery -- Domestic

Violence. On or abou t July 31, 2002, the

state attorney's office nolle prossed the

case.

Based on the these factual allegations, the Administrative

Complaint alleged one statutory violation: that Respondent was

in "violation of Section 1012.795(1)(c), Florida Statutes , in

that Respondent has been guilty of gross immorality or an act

involving moral turpitude."

At the hearing, Petitioner presented the testimony of

Officers Don Donakowski and Jason Matayas, and Sergeant Keith

Munser, all of the Cape Coral Police Departm ent; Michael

Carroll, a 911 operator for the Cape Coral Police Department;

and Georgianna McDaniel, director of personnel services for the

Lee County School District. Petitioner's Exhibits 1 through 6

were admitted into evidence.

Respondent testified on his own behalf and presented the

testimony of his wife, Pamela Agostino, and of Steven V.

DeShazo, principal of North Fort Myers High School.

Respondent's Exhibit 1 was admitted into evidence.

A Transcript of the hearing was filed on November 26, 2003.

Petitioner timely filed a Proposed Recommended Order on

December 8, 2003. On December 11, 2003, counsel for Respondent

filed a motion for extension of time to file his proposed

recommended order. As grounds therefor, counsel stated that he

had not receiv ed a copy of the Transcript and was unaware that

it had been filed until he received his service copy of

Petitioner's Proposed Recommended Order. On December 19, 2003,

Petitioner filed a response objecting to the motion on the

ground that it would give Re spondent the unfair advantage of

responding to Petitioner's Proposed Recommended Order.

On December 22, 2003, the undersigned entered an Order

granting the motion and giving Respondent until January 5, 2004,

to file a proposed recommended order. Acknowl edging

Petitioner's objection, the Order also gave Petitioner until

January 12, 2004, to reply to those aspects of Respondent's

proposed recommended order that may fairly be read as responsive

to Petitioner's Proposed Recommended Order. Respondent filed

h is Proposed Recommended Order on December 22, 2003. Petitioner

filed a short response on January 12, 2004.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record of this proceeding, the

following Fi ndings of Fact are made:

1. Respondent, Raymond J. Agostino, holds Florida Educator

Certificate No. 385460, covering the areas of educational

leadership, elementary education, and English to Speakers of

Other Languages, which is valid through June 30, 200 5.

2. At all times relevant to this proceeding, Mr. Agostino

was employed as an assistant principal at North Fort Myers High

School in the Lee County School District.

3. On the morning of May 16, 2003, at about 5:34 a.m., a

911 emergency call was rece ived by the Cape Coral Police

Department. A female voice could be heard screaming on the

line. The 911 operator asked the caller to state the nature of

the emergency. The caller did not identify herself but could be

heard screaming, "Get the fuck off of me! Get the fuck off of

me!"

4. Michael Carroll, the 911 operator who received the

call, testified that when he answers an emergency call, his

equipment provides a readout of the caller's phone number and

address. Mr. Carroll relays the call to the p olice department's

dispatcher, who in turn dispatches officers to the indicated

address.

5. In this instance, the caller identification equipment

indicated that the call came from a telephone with the number

"458 - 5077." At the time, this was the phone nu mber of

Mr. Agostino and his wife, Pamela Agostino. They resided at

1943 Northeast Fifth Terrace in Cape Coral.

6. Officers Don Donakowski and Jason Matyas of the Cape

Coral Police Department were dispatched to the Agostino house at

about 5:35 a.m. on Ma y 16, 2003, and arrived in separate cars at

about 5:39 a.m. From outside the house, they observed a

shirtless male, later identified as Mr. Agostino, in the living

room area. They did not see Mrs. Agostino. They knocked on the

front door, and Mr. Agosti no answered. The officers identified

themselves, told Mr. Agostino why they had been sent to the

house, and asked him what happened.

7. Mr. Agostino told the officers that he and his wife had

been arguing over financial matters but denied that there had

been any kind of physical confrontation. Officer Matyas noted

that Mr. Agostino was reluctant to provide details of the

incident. The officers noted no visible injuries on

Mr. Agostino. While talking to Mr. Agostino in the doorway,

they observed Mrs. Ag ostino emerge from the master bedroom.

8. Officer Donakowski went inside the house to speak with

Mrs. Agostino, who appeared very emotional, scared, and crying.

Officer Donakowski observed that she appeared to have been in a

physical altercation. There were scratches and a lump over her

right eye and dried blood in her hair.

9. Mrs. Agostino told Officer Donakowski that she and her

husband had an argument. She told Officer Donakowski that her

husband was bipolar and sometimes would go on binges, includ ing

spending money he didn't have. Mrs. Agostino told Officer

Donakowski that her husband asked her for a $500 check to pay

the mortgage. She told him she didn't have the money, and he

became angry and began screaming at her. Fearing for her

safety, she ran into the bedroom and locked the door. When

Mr. Agostino broke down the door to get to her, Mrs. Agostino

grabbed the bedroom telephone and dialed 911.

10. Mrs. Agostino told Officer Donakowski that when her

husband saw her dialing 911, he threw her down, knocked the

phone out of her hand, gouged at her eyes, and pulled out a

handful of her hair. It was during this attack that she

screamed at her husband to get off of her. Mrs. Agostino told

Officer Donakowski that she was then able to escape her

hu sband's grasp and run into another room. She also told

Officer Donakowski that her husband had attempted to strangle

her in a confrontation on the previous day. Mrs. Agostino told

Officer Donakowski that she would not give a written statement

because she feared retaliation from her husband.

11. After he interviewed Mrs. Agostino, Officer Donakowski

went outside and spoke with Mr. Agostino, while Officer Matyas

conducted his interview with Mrs. Agostino. Mr. Agostino told

Officer Donakowski that the only thing that happened was an

argument, though he did admit to breaking down the bedroom door.

Mr. Agostino stated that he had never physically abused his wife

in seven years of marriage.

12. Officer Matyas noted that Mrs. Agostino was visibly

upset and sh aken. He observed fresh bloody scratches and

swelling around her right eye, as well as blood in her hair near

the scratches. Officer Matyas also noted several broken panels

in the master bedroom door.

13. When Officer Matyas asked Mrs. Agostino what had

happened, she told him that she and her husband had been in the

living room. Mr. Agostino asked her for a $500 check to pay the

mortgage, because he had spent $600 on a sprinkler system. She

told him that she could not give him the money because she

nee ded it for a car payment. Mr. Agostino became angry and

verbally abusive. Mrs. Agostino became fearful and locked

herself in the bedroom. Mr. Agostino began banging on the

bedroom door. As Mrs. Agostino picked up the phone to call 911,

Mr. Agostino bro ke through the door and entered the bedroom. He

forced Mrs. Agostino's head down to the floor while gouging at

her eyes with his fingers and thumbs. She agreed to give him

the money and he let her up.

14. Mrs. Agostino told Officer Matyas that there had been

a physical confrontation on the previous day in which her

husband attempted to strangle her. She believed her husband was

bipolar, though he had not been medically diagnosed. She told

Officer Matyas that she did not want to press charges because

he r husband could be fired from his job.

15. Based on the physical evidence and witness statements,

the officers arrested Mr. Agostino and charged him with

Battery -- Domestic Violence. Officer Donakowski took photographs

of Mrs. Agostino's injuries, the bro ken door, and a clump of

hair that Mrs. Agostino stated had been pulled from her head by

Mr. Agostino. The photographs were admitted into evidence at

this proceeding.

16. The charges against Mr. Agostino were subsequently

dismissed.

17. The Lee County S chool District investigated

allegations of misconduct against Mr. Agostino arising from his

arrest. At his predetermination conference, Mr. Agostino denied

that any physical confrontation took place between his wife and

him. The school district concluded that there was no probable

cause to impose discipline on Mr. Agostino.

18. At the hearing in this matter, Mrs. Agostino testified

that on the morning of May 16, 2003, it was, in fact, she, who

attacked her husband. She testified that at the time, she wa s

taking medication for petit mal seizures that made her very

agitated, violent, and confused. She stated that the medication

also caused her hair to fall out in clumps, accounting for the

hair observed by the police officer.

19. The medication named by Mrs. Agostino was Keflex. In

fact, Keflex is a marketing name for cephalexin, a cephalosporin

antibiotic unrelated to treatment of seizures. However, the

symptoms described by Mrs. Agostino are consistent with common

reactions to seizure medications. It is within reason that

Mrs. Agostino, who is not a medical professional, simply

confused Keflex with another medication she was taking for

seizures.

20. Mrs. Agostino testified that on the morning of May 16,

2003, she was attempting to confront Mr. Agosti no about their

finances, but he would not talk to her. Mrs. Agostino testified

that his silence infuriated her, and she became violent.

Mr. Agostino retreated into the bedroom. She broke through the

door and attacked him, hitting him with the telephone, then

throwing the telephone at him.

21. Mrs. Agostino testified that she did not know how the

911 call was made. She theorized that the speed - dial may have

been activated when she threw the phone at Mr. Agostino. She

also had no idea how the scratches appeared around her eye,

unless she hit her head on the bedroom door as she broke it

down. Mrs. Agostino testified that she told the police officers

that her husband attacked her because she was mad at him.

22. At the hearing, Mr. Agostino testified that he and his

wife were arguing about money. Mrs. Agostino became very

agitated and started to become violent. Mr. Agostino retreated

to the bedroom, closing and locking the door behind him.

Mrs. Agostino "came through the door" and attacked Mr. Agostino,

who put out his hands to fend her off. Mrs. Agostino started

hitting him with the telephone. Mr. Agostino tried to get away,

and she threw the phone at him. Mr. Agostino went into the

living room. Mrs. Agostino followed and continued screaming at

him. Mr. Agostino kept the couch between himself and his wife.

At that point, the police knocked at the front door.

23. Steven DeShazo, the principal of North Fort Myers High

School, testified that he has worked with Mr. Agostino for eight

years. Mr. DeSha zo has had conversations with Mr. Agostino

about scratches and abrasions on the latter's arms, presumably

caused by Mrs. Agostino. Mr. DeShazo testified that he has had

conversations with both Agostinos about their need for

counseling, but that Mr. Agosti no did not want to discuss his

family problems. Mr. DeShazo discussed the May 16, 2003,

incident with Mr. Agostino a few days after the events.

Mr. Agostino told him that Mrs. Agostino had attacked him, and

he had tried to fend her off. Mr. DeShazo had no personal

knowledge of the events of May 16, 2003.

24. The testimony of the Agostinos at the hearing

completely contradicted the statements that Mrs. Agostino gave

to the police on the morning of May 16, 2003, as well as

Mr. Agostino’s admission to Off icer Donakowski that he broke

down the bedroom door. Only one version of these events can

be true. It is found that the version of events related by

Mrs. Agostino to the police officers was the truth.

25. The police officers were at the Agostino house w ithin

four minutes of the 911 call. They observed that Mr. Agostino

was pacing the living room floor and was out of breath. Both

officers observed that Mrs. Agostino was very emotional, crying,

scared, and upset. These observations lead to the finding t hat

Mrs. Agostino was still suffering under the stress of the

attack, and in her emotional state did not have time to contrive

a false story.

26. This finding is supported by the fact that

Mrs. Agostino's statements to the police officers were

consisten t with all the other evidence: the 911 call, the

broken door, the clump of hair, her own physical injuries, and

the fact that she was in the bedroom when the police arrived.

At the hearing, Mrs. Agostino attempted to make her new story

comport with the p hysical evidence but was far from convincing.

The clump of hair was plausibly explained as a reaction to

medication, but she had no explanation at all for the scratches

above her eye. Mr. Agostino's testimony hinted that he might

have scratched her eye w hile trying to fend her off.

Mrs. Agostino theorized that throwing the telephone might

somehow have caused it to speed - dial 911.

27. Even if the undersigned accepted the phone - throwing

theory, there is no explanation for why the female voice on the

911 call was screaming, "Get the fuck off of me," if

Mrs. Agostino was the aggressor and Mr. Agostino's only physical

reaction was to fend her off.

28. There is also no explanation for why Mrs. Agostino was

in the bedroom when the police arrived. Mr. Agos tino testified

that she was in the living room when the police knocked on the

front door, directly contradicting the testimony of both police

officers.

29. At the hearing, Mr. Agostino testified that he told

the police and school officials that there was no physical

confrontation in order to protect his wife, who is also an

employee of the Lee County School District. He feared that she

would lose her job if it became known that she attacked him.

30. Given the evidence presented at the hearing, it is far

more likely that Mrs. Agostino changed her story in order to

protect her husband’s job.

31. The evidence presented is sufficient to establish that

Mr. Agostino committed an act of moral turpitude when he broke

down the bedroom door, forced his wife's head down to the floor

and gouged her eyes, releasing her only when she agreed to give

him the money he wanted. This was an act of serious misconduct

in flagrant disregard of society's condemnation of violence by

men against women.

32. The evidence presented is not sufficient to establish

that Mr. Agostino attempted to strangle his wife on May 15,

2003. In this instance, there was no physical or other evidence

to corroborate Mrs. Agostino’s hearsay statement to the police

officers that her husband had attemp ted to strangle her.

33. Although the evidence establishes that Mr. Agostino

committed an act of moral turpitude, the only evidence offered

regarding any notoriety arising from the May 16, 2003, incident

was Mr. DeShazo's testimony that there was news cov erage of the

arrest. Mr. DeShazo stated that several students approached him

expressing concern about Mr. Agostino and their hope that he

would be allowed to remain at the school. Mr. DeShazo testified

that no parents came to him expressing concern about the

incident. There was no evidence to prove that Mr. Agostino's

conduct was sufficiently notorious to cast him or the education

profession into public disgrace or disrespect or to impair

Mr. Agostino's service in the community.

34. There was insufficie nt evidence presented to establish

that Mr. Agostino's performance as a teacher and an employee of

the Lee County School District was diminished as a result of the

May 16, 2003, incident and its aftermath. Mr. DeShazo testified

that Mr. Agostino is the as sistant principal for student

affairs, which he described as the most high pressure, stressful

job at the school. Mr. Agostino has never lost his temper at

work, even in situations in which he has been hit and spat upon

by unruly students. Mr. DeShazo te stified that Mr. Agostino

has been at work every day and has handled this uncomfortable

situation with complete professionalism.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has jurisdiction

of the parties to and the subject matter of these proceedings.

§§ 120.569 and 120.57(1), Fla. Stat. (2003). See also

§ 1012.796(6), Fla. Stat. (2003) .

36. License revocation and discipline proceedings are

penal in nature. The burden of proof on Petitioner in this

proceeding was to demonstrate t he truthfulness of the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

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

37. The "cl ear and convincing" standard requires:

[T]hat 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 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 a firm belief or

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).

The findings in this case were made based on the standard set

forth in Osborne Stern and Ferris .

38. Counsel for Mr. Agostino contends that the charges

must be dismissed because the only sworn, eyewitness testimony

in the recor d of this case is that Mrs. Agostino attacked her

husband. He argues that the statements of the Agostinos to the

police officer must be disregarded as inadmissible,

uncorroborated hearsay.

39. Florida Administrative Code Rule 28 - 106.213 provides

that hearsay is admissible in an administrative hearing but

cannot alone sustain a finding of fact unless it would be

admissible over objection in a court of law. Under the facts

set forth above, Mrs. Agostino’s statements to the police

officers would be admis sible over objection as "excited

utterances." Section 90.803(2), Florida Statutes, provides:

The provision of s.90.802 to the contrary

notwithstanding, the following are not

inadmissible as evidence, even though the

declarant is available as a witness:

* * *

(2) Excited utterance. -- A statement or

excited utterance relating to a startling

event or condition made while the declarant

was under the stress of excitement caused by

the event or condition.

40. In State v. Jano , 524 So. 2d 660, 661 (Fla. 1988), the

Supreme Court of Florida set forth the standard for application

of the "excited utterance" hearsay exception:

The excited utterance exception is not a

new theory of Florida evidence but rather

one of a group of exceptions subsumed under

the old term of "res gestae." State v.

Johnson , 382 So. 2d 765 (Fla. 2d DCA 1980);

1 F. Read, Read's Florida Evidence 693

(1987). The essential elements necessary to

fall within the excited utterance exception

are that (1) there must be an event

startlin g enough to cause nervous

excitement; (2) the statement must have been

made before there was time to contrive or

misrepresent; and (3) the statement must be

made while the person is under the stress of

excitement caused by the event. Jackson v.

State , 419 So. 2d 394 (Fla. 4th DCA 1982).

41. In the instant case, the police officers arrived

within five minutes of the 911 call. Mrs. Agostino was still

crying and visibly upset. Under all the circumstances and the

facts found above, it is found that Mrs. A gostino’s statements

to the police officers constituted admissible "excited

utterances."

42. Further, Mrs. Agostino’s statements to the police

officers corroborate, and are corroborated by, the other

evidence in the case: the 911 call, the broken door,

Mrs. Agostino’s physical injuries, and the relative locations

of the Agostinos at the time the police officers arrived. On

the other hand, Mrs. Agostino’s sworn testimony at the hearing

conflicts with enough of the other evidence to render it

unreliable in comparison.

43. The Administrative Complaint alleged that Mr. Agostino

committed the acts prohibited by the provisions of Section

1012.795(1)(c), Florida Statutes (2003).

44. Section 1012.795(1), Florida Statutes (2003),

authorizes the Education Pr actices Commission to suspend, revoke

or otherwise penalize a teaching certificate provided it can be

shown that the holder of the certificate, inter alia :

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

45. Florida Administ rative Code Chapter 6B - 4 applies to

school districts, but its definitions provide guidance as to the

terms "immorality" and "moral turpitude." Florida

Administrative Code Rule 6B - 4.009 provides:

(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.

46. "Gro ss immorality" requires conduct more serious than

that encompassed within the definition of "immorality" found in

Florida Administrative Code Rule 6B - 4.009(2):

[T]he term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorali ty 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 (DOE 1981).

Brogan v. Mansfield , Case No. 96 - 0286 (DOAH August 1, 1996).

47. The term "moral turpitude" is defined in Florida

Administrative Code Rule 6B - 4.009(6), as follows:

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.

Moral turpitude has also been defined by th e Supreme Court of

Florida as follows:

Moral turpitude involves the idea of

inherent baseness or depravity in the

private social relations or duties owed by

man to man or by man to society. . . It has

also been defined as anything done contrary

to justi ce, honesty, principle, or good

morals, though it often involves the

question of intent as when unintentionally

committed through error of judgment when

wrong was not contemplated.

State ex rel. Tullidge v. Hollingsworth , 108 Fla. 607, 611, 146

So. 660, 661 (Fla. 1933).

48. In Adams v. State, Professional Practices Council , 406

So. 2d 1170, 1172 (Fla. 1st DCA 1981), the court concluded that

teachers "charged by §§ 231.09 and 231.28(1) [current Sections]

with providing leadership and maintaining effective ness as

teachers . . . are traditionally held to a high moral standard

in the community."

49. The evidence clearly establishes that Mr. Agostino

broke down the bedroom door, forced his wife’s head to the floor

and gouged her eyes, and released her only w hen she agreed to

give him the money he wanted. Based on the above findings of

fact, Petitioner has proven by clear and convincing evidence

that Mr. Agostino's conduct falls within the definition of gross

immorality found in the cases cited above.

50. Ho wever, there is a second element that must be proven

before Mr. Agostino can be found guilty of gross immorality in

violation of Section 1012.795(1)(c), Florida Statutes (2003).

The court in McNeill v. Pinellas County School Board , 678 So. 2d

476, 477 (Fl a. 2d DCA 1996), interpreting predecessor statute

Section 231.28(1)(c), Florida Statutes, ruled that:

[I]n 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

disgrace the teaching profession and impair

the teacher's service in the community.

(Emphasis in original)

51. Petitioner has failed to prove by clear and c onvincing

evidence that Mr. Agostino's conduct was notorious, brought

public disgrace or disrespect to Mr. Agostino or to the

education profession, or that Mr. Agostino's ability to serve

the community was impaired. Those students who were aware of

the in cident expressed the hope that Mr. Agostino would be

allowed to stay at the school. No parents expressed concern

about the incident. Therefore, Petitioner has failed to meet

its burden of proving that Mr. Agostino committed acts of gross

immorality in vi olation of Subsection 1012.795(1)(c), Florida

Statutes (2003).

52. Petitioner has proven by clear and convincing evidence

that Mr. Agostino committed acts involving moral turpitude when

he committed violence against his wife. Thus, Petitioner has

met it s burden of proving that Mr. Agostino violated

Section 1012.795(1)(c), Florida Statutes (2003). Unlike the

definition of "immorality" in Florida Administrative Code

Rule 6B - 4.009(2), the definition of "moral turpitude" in Florida

Administrative Code Rule 6B - 4.009(6) does not require notoriety

or impaired ability for service in the community.

53. Section 1012.796, Florida Statutes (2003), reads in

pertinent part:

(7) A panel of the [Education Practices]

commission shall enter a final order either

dismis sing the complaint or imposing one or

more of the following penalties:

* * *

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college cou rses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation.

(e) Restriction of the authorized scope

of practice of the teacher, administrator,

or supervisor.

(f ) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certification file of such person.

54. The facts led to the conclusion that Mr. Agostino

violated Section 1012.795(1)(c), Florida Statutes (2003). It

must be noted that Mr. Agostino’s violation occurred away from

school and apparently had no effect on his job performance or on

his reputation among students, parents, and co - workers. Given

these facts, there would be nothing to gain by depriving

Mr. Agostino of his livelihood while he deals with the emotional

and psychological issues underlying the events of May 16, 2003.

It is concluded that the appropriate penalty is the placement of

Mr. Agostino on two years of probation, with the requirement

tha t Mr. Agostino undergo a full psychological evaluation and

receive any necessary counseling to ensure that he is fully

capable of performing his assigned duties with no further

incidents such as those of May 16, 2003.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued finding that

Respondent violated the provisions of Section 1012.795(1)(c),

Florida Statutes (2003). It is further

RECOMMENDED that a final order be issued placing Res pondent

on a two - year period of probation, subject to such conditions as

the Commission may specify, including the requirement that Mr.

Agostino undergo a full psychological evaluation and receive any

necessary counseling to ensure that he is fully capable of

performing his assigned duties with no further incidents such as

those of May 16, 2003 .

DONE AND ENTERED this 19th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative La w Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2004.

COPIES FURNISHED :

Robert B. Burandt, Esquire

Roosa, Sutton, Burandt, Adamski

& Roland, LLP

1714 Cape Coral Parkway, East

Cape Coral, Florida 33904 - 9620

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731 - 0131

Marian Lambeth, Program Specialist

Bureau of Educator Standa rds

Department of Education

325 West Gaines Street, Suite 224 - E

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 ex ceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.