05-000361PL John L. Winn, As Commissioner Of Education vs. Timothy Holmes Status: Closed Recommended Order on Wednesday, June 1, 2005.

Summary: Petitioner, who grabbed and kissed two eighth-grade female students, is guilty of gross immorality and failure to protect students from embarrassment and a negative education experience. Recommend revocation of certificate for two years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as Commissioner )

of Education, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0361PL

)

TIMOTHY HOLMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on April 20, 2005, in

Bartow, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: James Domineck, Jr., Esquire

Law Offices of James Domineck, Jr., P.A.

100 South Kentucky Avenue

Lakeland, Florida 33801 - 5096

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the acts

alleged in the Administr ative Complaint, and, if so, what

penalty, if any, should Petitioner impose on Respondent's

teaching certificate.

PRELIMINARY STATEMENT

On October 25, 2004, Petitioner filed an Administrative

Complaint against Respondent. Respondent timely requested an

a dministrative hearing.

At the hearing, Petitioner presented the testimony of three

witnesses. Respondent testified and submitted two exhibits.

The ALJ granted Respondent 10 days to file copies of the

original exhibits, but Respondent failed to file the original

exhibits or copies of the exhibits within 10 days after the

administrative hearing. The identity of witnesses and exhibits

and the rulings regarding each are reported in the one - volume

Transcript of the hearing filed with DOAH on May 5, 2005.

P etitioner filed its Proposed Recommended Order (PRO) on May 16,

2005. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

certifying and regulating public school teachers in Florida.

Respondent is authorized to teach mathematics pursuant to

Florida Educator's Certificate N o. 793778. The certificate is

valid through June 30, 2005.

2. At all times pertinent hereto, Respondent was employed

as a math teacher at the Discovery Academy in the Polk County

School Di strict (Discovery). Discovery was formerly known as

the Lake Alfred Middle School.

3. Student C.H. first attended Discovery in the fall of

1997 as a sixth - grade student and continued at Discovery for

approximately two and one half years. In the sixth grade, C.H.

was assigned to a math class taught by Respondent.

4. During the sixth grade, Respondent issued C.H. a

referral on one occasion for being out of her designated area ,

but did not discipline C.H. on any other occasion while C.H.

attended Disco very. Respondent did not teach C.H. in either the

seventh or eighth grades.

5. Sometime in November 1999, when C.H. was in the eighth

grade at Discovery, Respondent called C.H. out of her gym class.

The gym teacher allowed C.H. to leave and sent anoth er student

with her who needed to use the restroom.

6. While the other student was using the restroom,

Respondent and C.H. entered an empty classroom. Respondent

leaned against a table, within reach of C.H., stated that he was

watching C.H. from the wi ndow and that she was "looking good."

Respondent then grabbed C.H. by the waist and forced a kiss onto

the lips of C.H. Respondent attempted to "stick his tongue"

into the mouth of C.H. C.H. backed away and returned to her gym

class.

7. Later in the week, C.H. reported the incident to an

assistant principal. As a result of Respondent's conduct, the

administration at Discovery granted C.H. a transfer to a

different middle school. The report of the incident and

transfer to another middle school did no t result in the

circulation of rumors among the students or other adverse

notoriety.

8. During the 2001 - 2002 school year, student K.V. was in

the eighth grade at Discovery. K.V. met Respondent through

another teacher while socializing in the school co urtyard in the

mornings before classes began. Respondent never taught K.V. in

any of his classes and never disciplined K.V. for any reason.

9. Discovery conducted its commencement ceremony for the

2001 - 2002 school year on May 21, 2002, the last day of that

school year. K.V. arrived approximately 30 minutes early to

meet a friend to prepare for the commencement ceremony.

10. K.V. walked across campus to meet her friend and

encountered Respondent and a male student of Respondent. At

Respondent's re quest, K.V. agreed to accompany Respondent to his

classroom to sign his yearbook.

11. The classroom was empty. The male student placed his

belongings on a desk and left the classroom for the basketball

court. Respondent and K.V. were alone in the cl assroom.

12. K.V. noticed a series of photographs of Respondent and

his family on a table in the corner of the classroom. While

K.V. was looking at the photographs, Respondent approached K.V.

from behind, leaned back on a table that was behind him, and

pulled K.V. onto his lap. Respondent said to K.V. that he

"would get with" her "small waist and big hips . . . any day."

K.V. immediately pulled away from Respondent.

13. K.V. had never had such an experience with an educator

or other authority figur e. K.V. was frightened and shocked.

14. K.V. stayed in the classroom and signed Respondent's

yearbook. K.V. feared what Respondent may have done if K.V. had

declined to sign the yearbook. After K.V. signed the yearbook,

Respondent suggested that they walk to the basketball court.

15. While walking through an empty adjoining room,

Respondent stopped and asked K.V. for a goodbye hug. K.V. put

one arm around Respondent's side, at which point Respondent

pulled K.V. face to face. Respondent proceeded to "peck kiss"

K.V. on her lips. Although K.V. attempted to pull away,

Respondent pulled her back and again kissed her on the lips.

Respondent also attempted to "stick his tongue" into the mouth

of K.V. K.V. pulled away from Respondent and told him that she

needed to leave.

16. K.V. first reported the incident to her mother and

aunt approximately two weeks after May 21, 2002, during a

conversation at a restaurant. K.V. suddenly broke down and

disclosed the incident. When K.V. disclosed the incident to her

mother and aunt, K.V. had no knowledge of the previous incident

involving C.H.

17. In June 2002, Respondent telephoned K.V.'s residence

on three occasions. During one of the conversations, Respondent

spoke with K.V. and asked her if she had told anyone what had

happened. During this conversation, Respondent also instructed

K.V. not to report the incident. On another occasion,

Respondent telephoned the residence and asked K.V.'s mother if

he could speak with K.V. K.V.'s mother reported the inci dent to

administrators at Discovery shortly after her conversation with

Respondent.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the subject matter and the

parties pursuant to Subsection 120.57(1), Florida Statutes,

(2004). DOAH provided the partie s with adequate notice of the

administrative hearing.

19. Petitioner bears the burden of proof in this

proceeding. Petitioner must show by clear and convincing

evidence that Respondent committed the acts alleged in the

Administrative Complaint and the reasonableness of the proposed

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

20. Section 231.28, Florida Statutes (1999), provides in

pertinent part:

(1) The Education Practices Commission

shall have authority to suspend the teaching

certi ficate 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

rev oke 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

per son; or to impose any other penalty

provided by law, provided it can be shown

that such person:

* * *

(c) has been guilty of gross immorality or

an act involving moral turpitude . . . .

* * *

(i) has violated the Principles of

Professional C onduct for the Education

Profession prescribed by the State Board of

Education rules . . . .

21. Florida Administrative Code Rule 6B - 1.006(3)(a)

requires Respondent to make reasonable effort to protect

students, such as C.H. and K.V. , from conditions ha rmful to

learning and/or to the students' mental and/or physical safety.

Florida Administrative Code Rule 6B - 1.006(3)(e) prohibits

Respondent from intentionally exposing students, such as C.H.

and K.V. , to unnecessary embarrassment or disparagement.

22. Petitioner satisfied its burden of proof. Petitioner

showed by clear and convincing evidence that Respondent is

guilty of gross immorality within the meaning of Subsection

231.28(1)(c), Florida Statutes (1999).

23. Gross immorality is defined, by neces sary implication,

in the disciplinary guidelines prescribed in Florida

Administrative Code Rule 6B - 11.007(2). Rule 6B - 11.007(2)(i)

prescribes a penalty that ranges from suspension to revocation

for sexual misconduct with a student in violation of the

proh ibition in Subsection 231.28(1)(c), Florida Statutes (1999),

against gross immorality.

24. The acts that Respondent engaged in with C.H. and K.V.

constituted sexual misconduct with each student, within the

meaning of Florida Administrative Code Rule 6B - 11.007(2)(i), and

gross immorality, within the meaning of Subsection 231.28(1)(c),

Florida Statutes (1999). The same acts committed by Respondent

violated Florida Administrative Code Rules 6B - 1.006(3)(a)

and (e) by subjecting C.H. and K.V. to conditions harmful to

learning and to each student's mental safety; and by

intentionally exposing C.H. and K.V. to unnecessary

embarrassment and disparagement. See Castor v. Cannon , DOAH

Case No. 87 - 1592 (October 7, 1987)(acts which may be morally

permissible in som e quarters may be considered immoral when

committed by a teacher); Brogan v. Rito , 1995 WL 1053 (Fla. Div.

Admin. Hrgs. 1995)(gross immorality involves a flagrant

disregard of proper moral standards); Crist v. Hendricks , 2002

WL 31125210 (Fla. Div. Admin. Hrgs. 2002)(fondling of seventeen -

year - old student is an act of gross immorality); Brogan v.

Merritt , 1998 WL 930083 (Fla. Div. Admin. Hrgs. 1998) (fondling

of a minor constitutes an act of gross immorality and moral

turpitude).

25. Petitioner's PRO seek s permanent revocation of

Respondent's teaching certificate. The proposed penalty exceeds

relevant disciplinary guideline that range from suspension to

revocation. Compare Fla. Admin. Code R. 6B - 11.007(2)(i)

(prescribing a maximum penalty of "revocation" ) with Fla. Admin.

Code R. 6B - 11.007(2)(m)(prescribing a maximum penalty of

"permanent revocation").

26. Petitioner did not prove by clear and convincing

evidence that aggravating factors prescribed in Florida

Administrative Code Rule 6B - 11.007(3) suppo rt a penalty of

permanent revocation. Rather, Respondent has no previous

discipline and, while the offenses are severe because they were

perpetrated on minors, the evidence is less than clear and

convincing that the students suffered serious physical or m ental

harm within the meaning of Florida Administrative Code Rule

6B - 11.007(3)(r).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Education Practices Commission enter a

final order finding Re spondent guilty of violating Subsections

231.2615(1)(c) and (i), Florida Statutes (1999) , and Florida

Administrative Code Rules 6B - 1.006(3)(a) and (e), and revoking

e ducator c ertificate number 793778 for a period of two years.

DONE AND ENTER ED this 1st day of June, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 1st day of June, 2005.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Matthew K. Foster, Esquire

Brooks, LeBoeuf, Bennett ,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

James Domineck, Jr., Esquire

Law Off ices of James Domineck, Jr., P.A.

100 South Kentucky Avenue

Lakeland, Florida 33801 - 5096

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett ,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Marian Lambeth, Program Specialist

Bur eau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.