05-001450 Lee County School Board vs. Franklin Lewis Status: Closed Recommended Order on Monday, October 31, 2005.

Summary: Respondent`s inappropriate touching of a student constituted immorality and misconduct in office and just cause for his dismissal by Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1450

)

FRANKLIN LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on August 24 and 25, 2005, in Fort Myers, Florida, before

Bram D.E. Canter, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jason L. Odom, Esquire

Thompson , Sizemore & Gonzalez, P.A.

501 East Kennedy Boulevard

Suite 1400

Tampa, Florida 33602

For Respondent: Victor M. Arias, Esquire

Arias Law Firm, P.A.

3013 Del P rado Boulevard, Suite 2

Cape Coral, Florida 33904

STATEMENT OF THE ISSUES

Whether Respondent, Franklin Lewis, inappropriately touched

a student, and, if so, whether this misconduct violates Section

1012.33, Florida Statutes (2004), 1 / and Florida Administrative

Code Rules 6B - 1.001 and 6B - 4.009 and constitutes "just cause"

for Respondent's dismissal.

PRELIMINARY STATEMENT

On March 10, 2005, Dr. James W. Browder, Superintendent of

Schools for Lee County, Florida, filed a Petition f or

Termination of Employment with the School Board of Lee County

(School Board). The petition alleged that Respondent Franklin

Lewis "kissed and/or touched [a] student's body and/or

genitals/pubic area," and recommended that Respondent be

dismissed from h is employment as an instructional employee with

the School Board. Respondent requested an administrative

hearing to contest the allegations of the petition. The School

Board considered the petition on April 14, 2005. It referred

the matter to DOAH and s uspended Respondent, without pay,

pending the outcome of the hearing and this Recommended Order.

Upon its referral of the matter to DOAH, the School Board became

the Petitioner (hereinafter "Petitioner") in this proceeding.

At the final hearing, Petitione r presented the testimony of

Jeffrey Spiro, Franklin Lewis, M.G., J.M., S.W., and Laurie

Beaudry. Petitioner's Exhibits 1 and 2 were admitted into

evidence. Petitioner was directed to file a redacted copy of

Exhibit 2, the transcript of the deposition of Samuel Dukes, the

assistant wrestling coach at Dunbar, following the hearing. The

redacted Exhibit 2 was filed on October 3, 2005. In a telephone

conference held on October 12, 2005, Respondent was provided an

opportunity to raise any objections to the deposition testimony

of Mr. Dukes that were not already stated in the transcript.

Respondent raised a generic hearsay objection, and it was agreed

by the parties that Mr. Dukes' testimony about what he was told

by persons other than Respondent is hearsay and only admissible

for the purpose of supplementing or explaining non - hearsay

evidence in the record.

At the hearing, Respondent testified in his own behalf and

presented the testimony of Marjorie Lewis, P.L., and S.J.

Respondent did not offer any exhibi ts.

The three - volume Transcript of the final hearing was filed

on September 29, 2005. The parties timely filed their Proposed

Recommended Orders on October 20, 2005, and they have been

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner as an

instructional employee since August 20, 1996. At the time of

his suspension, he taught reading and was the wrestling coach at

Dunbar High School (Dunbar) in Fort Myers.

2. Respo ndent is a member of the collective bargaining

unit for instructional personnel. His employment is subject to

the terms and conditions of the written agreement between

Petitioner and the Teachers Association of Lee County.

3. Prior to the February 7, 200 5, incident 2/ that is the

subject of this case, Respondent was a well - liked and respected

person that many students looked up to and turned to for help

and support.

4. Respondent is 43 years old. He is divorced and the

father of four children.

5. S.W. i s 18 years old. He was a student at Dunbar and

graduated in 2005. He was a member of the wrestling team during

his sophomore, junior, and senior years at Dunbar.

6. Prior to joining the wrestling team, S.W. was in a

combined geography/history class taug ht by Respondent.

Respondent encouraged S.W. to join the wrestling team because

other students "called him a woman and stuff like that."

Respondent believed that if S.W. joined the wrestling team, he

would gain the respect of other students because they would know

S.W. could defend himself. Mr. Dukes also encouraged S.W. to

join the wrestling team.

7. During the wrestling season, October through February,

the team practiced every day after school until 5:15 p.m. or

5:30 p.m. Respondent and Mr. Dukes of ten gave students a ride

home after wrestling practices. During the 2004 - 2005 school

year, Respondent usually drove S.W. home after wrestling

practices.

8. Early in 2005, S.W. told Respondent that he was

interested in becoming a massage therapist, but he did not want

other students to know. Respondent agreed not to tell anyone.

According to Respondent, he has chronic neck pain from an old

injury and wanted to give S.W. an opportunity to practice

massage. Respondent suggested that S.W. give Respondent

m assages, and Respondent would pay S.W. $20 for each massage.

S.W. gave Respondent two or three massages before February 7,

2005, and Respondent paid S.W. for them.

9. All the massages took place at Respondent's house. The

record does not indicate in wha t room the earlier massages took

place, but a reasonable inference from the record evidence is

that the massages always took place in Respondent's bedroom.

Respondent stated that during the massages, the door to the room

was usually closed.

10. S.W. owed money to Respondent. Although the size of

the debt was disputed, S.W. was indebted to Respondent for money

Respondent spent on food and drinks for S.W. At S.W.'s request,

Respondent occasionally purchased food and drinks for S.W. at

convenience stores w hen Respondent was driving S.W. home from

wrestling practices. Sometimes Respondent gave money to S.W. to

buy food and drinks on his own.

11. Respondent gave or loaned money to other students.

Mr. Dukes also gave small amounts of money to students from time

to time, but he never asked to be paid back.

Monday, February 7, 2005

12. On February 7, 2005, following wrestling practice,

Respondent drove S.W. and two other members of the team, J.M.

and P.L., to an apartment complex where Mr. Dukes lived. They

went there to use the complex's sauna for the purpose of

"sweating off" weight. Wrestlers compete in weight

classifications, and it is important to a wrestler to keep his

weight within the classification that is considered optimum for

him.

13. Following their use of the sauna, the three students

got back in Respondent's car to be taken home. Respondent first

dropped off P.L. at P.L.'s house and then dropped off J.M. at

J.M.'s church. At S.W.'s urging, Respondent drove back to

Dunbar so S.W. could use th e scale at the school to check his

weight. After S.W. checked his weight, Respondent and S.W.

drove to Respondent's house.

14. According to Respondent, they went to his house

because S.W. wanted to give him a massage to "pay off" S.W.'s

debt to Responden t. S.W. says Respondent suggested the massage.

15. When Respondent and S.W. arrived at Respondent's

house, Respondent's 10 - year - old daughter and adult sister were

in the house. Respondent and S.W. went into Respondent's

bedroom. At first, the door to the bedroom remained open. They

watched a video of Respondent competing in a wrestling match

when he was in high school.

16. When the video ended, Respondent closed the bedroom

door. Respondent took off his shirt and lay on the bed to get a

massage from S.W. According to Respondent, he was lying on his

stomach with his head on a pillow at the bottom of the bed.

S.W. was sitting on the bed, at Respondent's right side, with

his feet on the floor. S.W. began to massage Respondent's

shoulders.

17. Accord ing to Respondent, his head was on the pillow at

the beginning of the massage; but in order to see what S.W. was

referring to on the video that was playing on the television

located to Respondent's front and right, Respondent raised his

head and held it in his right hand, propped up by his right

elbow. Respondent said his body was also twisted to the right.

It was from this position that Respondent claims his head

accidentally slipped from his hand and landed in S.W.'s lap or

on S.W.'s leg.

18. Petitione r claims that, if Respondent's description of

the relative positions of Respondent and S.W. on the bed were

true, it would have been physically impossible for Respondent's

head to have slipped from his hand and fallen against S.W.'s

leg. The evidence is n ot sufficient to support a finding that

it would have been impossible. The improbability of such an

occurrence, however, is a factor that contributes to the overall

finding that Respondent's account of the incident lacks

credibility.

19. According t o Respondent, when his head slipped and

fell against S.W.'s leg or lap, no part of his hands ever

touched S.W. in "his private area."

20. S.W.'s account of the incident in the bedroom is much

different. He testified that during the massage, they were not

watching a video. Respondent had his head in S.W.'s lap. As

S.W. was massaging Respondent's shoulders, Respondent pulled

S.W.'s pants outward. S.W. said that he "felt lips on [his]

stomach." Then, he felt Respondent's hand go into his pants and

touch the "top of [his] penis" and pubic hair. S.W. explained

that he was referring to the base of his penis, where it

attaches to his abdomen.

21. Respondent and S.W. agree that S.W. pushed Respondent

away, and S.W. asked Respondent to take him home.

22. Acc ording to Respondent, he told S.W. it was an

accident and that he was sorry. S.W. said he walked out of the

bedroom and looked back to see Respondent with "his head down

shaking it like when, you know, you can't believe you did

something."

23. While he w as waiting for Respondent to put his shirt

back on and take him home, S.W. stood for a few minutes near a

pool table where Respondent's sister and daughter were playing

pool. Respondent's sister, Marjorie Lewis, M.D., testified that

S.W. looked "very calm ."

24. According to S.W., during the short drive to his

house, Respondent "told me he was sorry, that this never

happened before, and he didn't know what got into him."

Tuesday, February 8, 2005

25. The next morning, S.W. got a ride to school from his

fr iend and fellow Dunbar student, M.G. S.W. told M.G. that he

was quitting the wrestling team, and M.G. pressed S.W. for the

reason. According to M.G., S.W. told him that he was giving

Respondent a massage when Respondent placed his head in S.W.'s

lap and then put his hand in S.W.'s "pubic area." S.W. told

M.G. he shoved Respondent away, and Respondent sat on the bed

with his head in his hands, as if "he was ashamed of himself."

26. S.W. did not tell M.G. that Respondent kissed his

stomach.

27. At the he aring, S.W. said he told M.G. that Respondent

"started to pull his [S.W.'s] pants down," reached into his

pubic area, and "tried" to grab his penis. In explaining why he

told M.G. that Respondent "tried" to touch his penis, S.W. said

he meant that Respond ent only touched the top of his penis, but

did not grab all of it.

28. Other statements made by S.W. that Respondent "grabbed

my penis," are not inconsistencies that show S.W. lacks

credibility. In this case, the inconsistencies simply reflect

the imprec ision that is common when the circumstances of an

event are repeated several times to both friends and strangers.

S.W. was a credible witness, and he showed no doubt that

Respondent touched his penis.

29. When S.W. and M.G. got to Dunbar, M.G. accompanie d

S.W., at S.W.'s request, to Respondent's classroom to get some

things belonging to S.W. Respondent was in the classroom, and

M.G. approached and talked to him. M.G. and Respondent knew

each other because M.G. had been on the wrestling team. During

the ir conversation, Respondent never made eye contact with M.G.,

but kept his eyes on his computer screen. According to M.G.,

that was unusual behavior for Respondent.

30. Later that same day, M.G. repeated what S.W. told him

to S.W.'s friend and w restling teammate, J.M. J.M. testified

that M.G. told him that Respondent made S.W. give him a massage

and Respondent "tried to touch his penis."

31. J.M. talked to S.W. in the school cafeteria a short

time later. S.W. said he quit the wrestling team be cause of

what happened the day before at Respondent's house and that S.W.

felt "degraded" and "like a four - year - old." J.M. testified that

S.W. told him Respondent locked the bedroom door, "tried to

reach into [S.W.'s] pants, like touching his pubic area."

32. S.W. did not tell J.M. that Respondent kissed his

stomach.

33. Sometime during the school day, Respondent saw S.W.

and urged him not to quit the wrestling team. According to

Respondent, S.W. told Respondent he was not quitting the team

because of t he incident at Respondent's house, but because of

other "personal reasons."

34. Later that day, Respondent telephoned S.W. According

to Respondent, he called to tell S.W. that S.W. was mistaken

about Respondent's head hitting S.W.'s lap, that his head on ly

hit S.W.'s leg. According to S.W., Respondent asked S.W. to

keep the incident a secret and "he'd do anything." Respondent

admits that he told S.W. during this telephone conversation not

to report the incident, but did so "because I thought it was

sill y."

Wednesday, February 9, 2005

35. The next evening, S.W. called Laurie Beaudry, his Big

Sister from the Big Brother/Big Sister Program and told her he

was quitting the wrestling team. According to Ms. Beaudry, S.W.

told her of an "inappropriate touchin g" incident. Because he

was upset, Ms. Beaudry offered to pick him up so they could

talk. She picked S.W. up and returned to her house. On the way

to pick up S.W., Ms. Beaudry called Respondent on her cellular

telephone and asked Respondent whether he k new why S.W. was

upset and wanted to quit the wrestling team. Respondent told

her he did not know.

36. After S.W. and Ms. Beaudry arrived at her house, S.W.

told her that on Monday he was giving Respondent a massage,

"then Mr. Lewis was kissing on his st omach, and then he pulled

his pants and grabbed his thing."

37. Later that evening, Respondent telephoned J.M.

Respondent and J.M. had a close relationship, and J.M. said he

thought of Respondent as a big brother. Respondent asked J.M.

what S.W. was t elling people about the incident. J.M. asked

Respondent to tell his side of the story first. Respondent

admitted at the hearing that what he then told J.M. was a lie.

He told J.M. that he and S.W. had been practicing a wrestling

move, and S.W. got upset when his pants came down. Respondent

claims that what he described to J.M. actually happened at

Dunbar, a week earlier.

38. According to Respondent, J.M. told him S.W.'s account

of the incident was that Respondent made S.W. give him a

massage, and Respo ndent's head fell in S.W.'s lap. According to

J.M., he told Respondent that S.W. accused Respondent of trying

to touch S.W. in his pubic area. Respondent denies that J.M.

said anything about S.W.'s accusing Respondent of touching

S.W.'s "private area."

3 9. According to J.M., he told Respondent he did not

believe Respondent's account of the incident. Respondent began

to cry during their telephone conversation and said, "this can't

get out" and "this could ruin my life." Respondent asked J.M.

to tell S.W . that Respondent would "do anything," such as leave

Dunbar or the wrestling team, if S.W. did not report the

incident. Respondent denies that he cried or made these

statements to J.M.

40. Immediately following his telephone conversation with

Respondent, J.M. called Mr. Dukes to discuss the incident.

Based on what J.M. told him, Mr. Dukes understood S.W.'s story

to be that Respondent fondled S.W. J.M told Mr. Dukes he was

also going to quit the wrestling team because of the incident.

41. Shortly after the conversation between Mr. Dukes and

J.M., Respondent and Mr. Dukes talked by telephone. Respondent

denied J.M.'s account of the incident. Respondent admitted at

the hearing that he told Mr. Dukes the same lie he told J.M.,

that he and S.W. had been p racticing a wrestling move and S.W.

got upset when his pants "came down" and Respondent's head "went

towards his crotch."

42. Respondent asked Mr. Dukes to accompany Respondent to

Ms. Beaudry's house to see S.W. and "get to the bottom of what

was going on ." Respondent knew S.W. was at Ms. Beaudry's house

because he had called for S.W. at S.W.'s house and had spoken to

S.W.'s foster mother. During the drive to Ms. Beaudry's house,

Respondent and Mr. Dukes discussed the allegations made by S.W.

According to Mr. Dukes, Respondent said, "S.W.'s story is true."

Mr. Dukes became upset and Respondent said "he didn't blame [Mr.

Dukes] for being mad at him." Respondent denies that he told

Mr. Dukes that S.W.'s account of the incident was true.

43. When Respond ent and Mr. Dukes arrived at Ms. Beaudry's

house, Mr. Dukes suggested that Respondent remain in the car.

Inside the house, Mr. Dukes talked with S.W. who was upset and

did not want to see Respondent. According to Mr. Dukes, S.W.

told him Respondent touch ed "his private area."

44. At some point, Ms. Beaudry said she wanted to speak to

Respondent, and Respondent was asked to come into the house.

S.W. went into a bedroom, and S.W. and Respondent did not see or

speak to each other. During the discussion be tween Respondent

and Ms. Beaudry, Respondent began crying. Respondent says he

was crying because he was thinking about how his children would

be harassed when the matter got into the newspaper.

45. According to Mr. Dukes, when Ms. Beaudry confronted

Resp ondent with S.W.'s accusation that Respondent "grabbed his

penis," Respondent's reaction was "mournful." Respondent "said

he was sorry, you know, and he don't know why it happened and

this has never happened before and things like that."

46. According to Ms. Beaudry, Respondent sat in a chair,

held his head in his hands, and rocked back and forth crying and

saying, "I'm sorry. I'm sorry. Is [S.W.] OK? Is [S.W.] OK?"

Respondent did not deny S.W.'s account of the incident or offer

Ms. Beaudry a differen t account of the incident. Respondent

asked Ms. Beaudry and Mr. Dukes not to report the incident and

said, "I'll do anything. I'll move. I'll leave the school or

whatever."

47. About 11:30 that evening, after Respondent returned

home, he told his sis ter, Dr. Lewis, that there had been a

"misunderstanding" with S.W. According to Dr. Lewis, Respondent

told her "he may have inadvertently touched [S.W.] near his

private area." Dr. Lewis noted that Respondent showed signs of

depression in the days that f ollowed.

Thursday, February 10, 2005

48. The next day, February 10, 2005, Mr. Dukes reported

the incident to an employee in Dunbar's Office of Student

Services. From that first contact, a series of contacts were

made with Dunbar officials leading to a fo rmal investigation and

Petitioner's initiation of these termination proceedings against

Respondent.

49. Sometime that same day, Dr. Lewis called Ms. Beaudry

to ask how S.W. was doing and to offer counseling to S.W.

Ms. Beaudry declined the offer. A reas onable inference can be

drawn from Dr. Lewis' offer of counseling for S.W. that she

believed his emotional upset was genuine and not contrived.

Credibility

50. This is not just a case of S.W.'s word against

Respondent's. Respondent's account of the even ts is also

contradicted by J.M. (regarding what J.M. told Respondent about

the incident, whether Respondent cried, and whether Respondent

asked J.M. to keep the incident a secret) and Mr. Dukes (whether

Respondent admitted that S.W. was telling the truth).

Furthermore, Respondent admitted that his first explanation of

the incident to J.M. and Mr. Dukes was a lie.

51. The record evidence does not explain why S.W. would

have become so upset if the only thing that happened was what

Respondent claims -- an ac cidental, brief contact between

Respondent's head and S.W.'s leg or lap.

52. S.W. testified that he loved and respected Respondent

like a brother or father. Respondent did not deny their close

relationship. The record contains no credible evidence to

establish a motive for S.W. to destroy his relationship with

Respondent and jeopardize Respondent's career as a teacher by

falsely accusing him.

53. Respondent removed S.W. as one of the captains of the

wrestling team sometime during the 2004 - 2005 wrestl ing season

for using excessive profanity, but Respondent himself never said

he believed this "demotion" was the reason for S.W.'s accusation

against him. S.W.'s demotion from captain is not sufficient,

standing alone, to support an inference that it cause d S.W. to

become so angry with Respondent that he fabricated the incident

that occurred on February 7, 2005. Moreover, it would not

account for the contradictions between Respondent's account of

his conversations with J.M. and Mr. Dukes and their account of

the same conversations.

54. Respondent had an obvious motive to lie in order to

avoid the adverse professional and financial consequences of

S.W.'s accusation against him. The more persuasive and credible

evidence supports a finding that Respondent's account of the

incident is untrue.

55. The truthfulness of S.W.'s account of the incident is

corroborated by Respondent's behavior in the days that followed.

Respondent exhibited remorse, fear, and shame. This behavior,

while not always reliable a s proof of guilt, was more consistent

with S.W.'s account of the incident than with Respondent's

account.

56. Petitioner has met its burden to prove by a

preponderance of the evidence its factual allegation that on

February 7, 2005, while Respondent was r eceiving a massage from

S.W. in the bedroom of Respondent's home, Respondent reached his

hand into S.W.'s pants and touched S.W.'s penis.

57. Ms. Beaudry and Mr. Dukes stated that the incident

caused S.W. to become more introverted. Mr. Dukes said S.W. a nd

J.M. performed poorly as wrestlers after the incident. The

wrestlers, in general, and S.W., in particular, were teased and

picked on by other students when the incident was reported in

the news and became public knowledge.

58. Respondent's misconduc t undermines the foundation of

the relationship between a teacher and his students, and thereby

impairs his effectiveness in the Lee County school system.

Respondent's dishonesty, which includes some of his testimony

under oath in these proceedings, also impairs his effectiveness

in the Lee County school system.

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57 and

Subsection 1012.33(6)(a), Florida Statutes (2005).

60. No due process or other objection was raised by

Respondent regarding the procedures or actions taken by

Petitioner leading to the referral of this matter to DOAH.

61. Petitioner must prove its factual allegatio ns against

Respondent by a preponderance of the evidence. McNeil v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996);

Sublett v. Sumter County School Board , 664 So. 2d 1178 (Fla. 5th

DCA 1995). Petitioner met its burden of proof.

62. The Petition for Termination of Employment (Petition)

charges Respondent with a violation of Section 1012.33, Florida

Statutes, and Florida Administrative Code Rule 6B - 4.009.

63. The parties stipulated in their August 11, 2005 Joint

Pre - Hearing Stipulation th at "[t]he Respondent's acts, if

proven, constitute 'just cause' for his dismissal pursuant to

Section 1012.33, Florida Statutes and State Board of Education

Rules."

64. Subsection 1012.33(6)(a), Florida Statutes, provides

that instructional staff of the sc hool districts may be

suspended or dismissed for "just cause." "Just cause" is

defined in Subsection 1012.33(1)(a), Florida Statutes, as

including, but not limited to " misconduct in office,

incompetency, gross insubordination, willful neglect of duty, or

conviction of a crime involving moral turpitude."

65. Florida Administrative Code Rule 6B - 4.009, entitled

"Criteria for Suspension and Dismissal," sets forth six bases

for charges upon which suspension or dismissal of a teacher may

be pursued. The bases that are implicated by the factual

allegations of the Petition are immorality and misconduct in

office.

66. Florida Administrative Rule 6B - 4.009(2) addresses the

charge of immorality:

(2) Immorality is defined as conduct that

is inconsistent with the st andards 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.

67. Respondent's n onconsensual touching of S.W.'s pubic

area is inconsistent with the standards of public conscience and

good morals. Respondent's conduct was sufficiently notorious to

bring him into public disgrace and disrespect. Therefore,

Respondent's conduct constitu tes immorality.

68. Florida Administrative Rule 6B - 4.009(3) addresses the

charge of misconduct in office:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule

6B - 1.001, F.A.C., and the Principl es of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B - 1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

69. Florida Administrative Code Rule 6B - 1.001 provides:

(1) T he educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to te ach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of

maintaining the respect and confidence of

one's colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve an d sustain the

highest degree of ethical conduct.

70. Florida Administrative Code Rule 6B - 1.006(3) states

that the obligation of a teacher to a student requires that the

teacher:

(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.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

(c) Shall not unreasonably deny a student

access to diverse point s of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student's academic program.

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or soc ial and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

(h) Shall not exploit a relationship with

a student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or

is required by law.

71. Respondent's nonconsensual touching of S.W.'s pubic

area violated Florida Administrative Cod e Rule 6B - 1.001, the

Code of Ethics of the Education Profession. Respondent's

actions violated the Principles of Professional Conduct set

forth in Florida Administrative Code Rule 6B - 1.006(3)(a), (e),

(f), and (h). Therefore, Respondent's actions constit ute

misconduct in office.

72. Even if S.W.'s inconsistency in describing the

February 7, 2005, incident, sometimes as touching or grabbing

and sometimes as an attempt to touch or grab, were resolved in

Respondent's favor as a mere attempt, the incident wo uld still

constitute misconduct in office.

73. Respondent's effectiveness as a wrestling coach was

immediately impaired when the incident caused S.W. and J.M. to

quit the wrestling team. A teacher's misconduct can be so

serious that it can be reasonably inferred from the misconduct

itself that the teacher's effectiveness in the school system is

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

492 (Fla. 5th DCA 2000); Walker v. Highlands County School

Board , 752 So. 2d 127 (Fla. 2d DCA 2000) . In this case, the

seriousness of Respondent's misconduct in inappropriately

touching S.W., "speaks for itself" because it undermines the

foundation of the relationship between a teacher and his

students. Respondent's dishonesty with a teacher and a stu dent

is also destructive of the trust that is required in

Respondent's relationship with students, teachers, and

administrators. Therefore, it can be reasonably inferred from

the record evidence that Respondent's misconduct impairs his

effectiveness in th e Lee County school system.

74. Respondent's proven immorality and misconduct in

office are "just cause" for his dismissal by the Lee County

School Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat a final order be issued finding

Respondent, Franklin Lewis', misconduct constitutes "just cause"

under Section 1012.33, Florida Statutes (2004), and Florida

Administrative Code Rule 6B - 4.009 to dismiss him from his

employment as a teacher with Petition er, the Lee County School

Board.

DONE AND ENTERED this 31st day of October, 2005, in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 31st day of October, 2005.

ENDNOTES

1/ Unless otherwise indicated, all references are to Florida

Statutes (2004).

2/ Whenever a reference is made to "the incident," it means the

incident involving Respondent and S.W. that occurred on

February 7, 2005.

COPIES FURNISHED :

Victor M. Arias, Esquir e

Arias Law Firm, P.A.

3013 Del Prado Boulevard, Suite 2

Cape Coral, Florida 33904

Jason L. Odom, Esquire

Thompson, Sizemore & Gonzalez, P.A.

501 East Kennedy Boulevard

Suite 1400

Tampa, Florida 33602

Honorable John L. Winn

Commissioner of Education

Tu rlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. James W. Browder, III, Superintendent

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3988

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.