12-000797PL Jeanine Blomberg, As Commissioner Of Education vs. John Mark Pomar Status: Closed Recommended Order on Wednesday, October 24, 2012.

Summary: Petitioner proved by clear and convincing evidence that Respondent kissed a minor student on the lips and thereafter issued inappropriate correspondence in violation of subsections 1012.795(1)(c), (f), and (i), and rule 6B-1.006(3)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEANINE BLOMBERG, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 12 - 0 797 PL

)

JOHN MARK POMAR , )

)

Respondent. )

)

RECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted on

August 16, 2012, before Todd P. Resavage, an Administrative Law

Judge of the Division of Administrative Hearings, by video

teleconference at sites in Port St. Lucie and Tallahassee,

Florida.

APPEAR ANCES

For Petitioner: Ron Weaver, Esquire

Law Office of Ron Weaver

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Joan Stewart, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Fl orida 32301 - 1720

STATEMENT OF ISSUE S

The issues in this case are whether Respondent viola ted

subsections 1012.795(1)(c),(f), and ( i), Florida Statutes ,

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

1.006(4)(c), and if so, the penalty th at should be imposed.

PRELIMINARY STATEMENT

On or about June 27, 2007, Petitioner, Jeanine Blomberg, as

Commissioner of Education, issued an Administrative Complaint

charging Respondent with violations of subsections

1012.795(1)(c), (f), and (i), Florida Statutes , as well as

violations of Florida Administrative Code Rules 6B -

1.006(3)(a),(e),( g) and 6B - 1.006(4)(c). On or about July 26,

2007, Respondent filed an election of rights disputing the

material facts alleged in the Administrative Complaint and

req uesting an administrative hearing.

On June 15, 2009, the case was placed in abeyance per an

order issued by the Education Practices Commission (EPC) . On or

about February 22, 2012, the EPC issued an order lifting the

abeyance. The matter was referred t o the Division of

Administrative Hearings ( " DOAH " ) on February 29, 2012 , and

assigned to Administrative Law Judge John G. VanLaningham.

The final hearing initially was set for May 10, 2012.

Pursuant to Petitioner ' s Motion to Continue, filed on May 2,

201 2, the final hearing was rescheduled for June 20, 2012. On

June 13, 2012, Respondent filed a Motion to Hold Proceeding in

Abeyance. Based on the Stipulation of the Parties Regarding

Abeyance filed on June 15, 2012, the final hearing was again

r escheduled for August 16, 2012. On August 10, this case was

transferred to the undersigned for all further proceedings.

The final hearing was held on August 16, 2012. Petitioner

presented the testimo ny of Ralph Starr, Ashley Kidd, Heather

Keefe, Stephanie Pooley, Patrick Kehoe, and J.K., and offered

Petitioner ' s Exhibits 1 through 11 into evidence. Exhibits 1

through 11 were admitted without objection. 1 /

Respondent offered the deposition transcripts of Stephanie

Pooley ( Respondent ' s Exhibit 2) , Lynn Hailey ( Respo ndent ' s

Exhibit 3) , Marsha Pomar ( Respondent ' s Exhibit 4) , Patrick Kehoe

( Respondent ' s Exhibit 5), and J.K. ( Respondent ' s Exhibit 6),

pursuant to the Stipulation of the Parties Regarding Abeyance.

Respondent ' s Exhibits 2 through 4 were admitted without

ob jection. Respondent ' s Exhibits 5 and 6 were admitted, over

objection, pursuant to the undersigned ' s Order dated August 31,

2012. Respondent offered a document purport ing to be

Respondent ' s resume; however, same was rejected based on

Petitioner ' s objectio n. Respondent offered Exhibits 7 and 8 and

same were admitted over objection.

The Transcript of the final hearing was filed with DOAH on

August 31, 2012. Pursuant to a Joint Motion for Extension of

Time to File Proposed Recommended Order, filed on Sept ember 9,

2012, the undersigned issued an Order Granting Extension of T ime

until September 24, 2012, for the parties to file their p roposed

recommended o rders. The parties timely filed their Proposed

Recommended Orders. Both were considered in preparing t his

Recommended Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged misconduct.

FINDINGS OF FACT

1. Petitioner is the head of the Florida Department of

Education, the state agency charged with the responsibility of

investigating and prosecuting complaints of violations of

section 1012.795, Florida Statutes, against teachers holding

Florida educator ' s certificates.

2. John Mark Pomar, Respondent in this proceeding, hold s

Florida Ed ucator ' s Certificate 386817, covering the area of

physical education, which was valid through June 30, 2008.

3. At all times material to the allegations of this case,

Respondent was employed as an agriculture teacher at Vero Beach

High School in the India n River County School District.

4. During the 2004 - 2005 school year, J.K. 2 / was a tenth -

grade student in Respondent ' s A griculture Tech I class. In

addition , J.K. was a member of Future Farmers of America

( " FFA " ).

5. J.K. was actively engaged in Respo ndent ' s agriculture

class room and would assist Respondent in a variety of practical

duties and assignments including hatching chicks, cleaning pens,

harness training of bulls and cows, and feeding and cleaning

animals. 3 / J.K. was considered Respondent ' s a ide and " right - hand

man. "

6. Over the course of the tenth - grade year, J.K. and

Respondent had almost daily contact and developed a close

relationship, both i n and outside of the classroom. Respondent

invited J.K. to assist him with duties outside of th e school

environment such as purchasing seed. On at least one occasion ,

she accompanied him to Punta Gorda , Florida , to acquire game

b irds to be raised at the school.

7. At the conclusion of the 2004 - 2005 school year, during

the summer break, J.K. and several other students continued to

care for the agriculture class animals. The students were paid

for their time.

8. J.K. enrolled in Respondent ' s Agriculture II class for

the 2005 - 2006 school year . J.K. remained actively involved in

Respondent ' s clas s and the FFA. Likewise, her close

relationship with Respondent continued.

9. On March 15, 2006, members of the agriculture class and

FFA, including J.K., were present at the Indian Ri ver County

Firefighter ' s Fair. During this annual fair, the student s would

participate in the showing of various animals. On that date,

J.K. had a disagreement w ith her younger sibling. C onsequently,

her father informed J.K. that she was not allowed to attend the

fair. J.K. ' s parents were divorced, and, therefore, she

contacted her mother and requested that she drive her to the

fair. J.K. ' s mother acquiesced and ultimately dropped J.K. off

at the agriculture pavilion section of the fairgrounds. While

en route, Respondent called J.K. on her cellular phone to

determine if she was going to attend the fair.

10. Once at the fair, J.K. congregated with several of her

friends in an area set apart from the general public for those

participating in the showing of animals. J.K. was still visibly

upset from the domestic quarre l and was venting.

11. On the same date, Respondent consumed several

alcoholic beverages before and/ or during dinner at home with his

wife and family. Thereafter, Respondent a nd his family went to

the fair. On this occasion, Respondent was not attending the

fair in a teaching or chaperon capacity.

12. Shortly after arriving at the fair, Respondent

approached J.K. , who was still with her group of friends . J.K.

had not yet gained her composure and had been recently crying.

Respondent asked to speak wi th J.K. alone and she followed him

to a separate area behind the " show animal " pens. As they were

walking, Respondent inquired as to whether J.K. was upset , and

she advised him of the disagreement with her family.

13. Once apart from the group, Responde nt advised J.K.

that he was concerned about her. He then gave J.K. a hug that

she reciprocated.

14. Thereafter, while J.K. was standing directly in front

of Respondent , he grabbed her with both of his hands on either

side of her shoulders, pulled her t o him and held her there as

he kissed her on the lips. 4 / J.K. observed the odor of alcohol

on Respondent ' s breath.

15. Prior to this occurrence, Respondent had never kissed

J.K. on the lips or even the cheek. J.K. conceded that they had

probably hugged on a few limited occasions; however, even these

embraces were characterized as a " one - hand kind of good job "

hug.

16. When Respondent released J.K. from the embrace, she

immediately returned, by herself, t o her friends. Witness A.K.,

who was J.K. ' s be st friend at the time, was among the group.

17. A.K. observed J.K. return from her private encounter

with Respondent at a fast pace, crying and very upset.

According to A.K. , J.K. was hyperventilating, advised A.K. that

she was going to vomit, and that Respondent had kissed her on

the lips . J.K. then proceeded to the bathroom where she became

ill.

18. As a result of the kiss and embrace, J.K. felt

shocked, confused, disgusted, betrayed, and uncomfortable.

Aside from her best friend , A.K., however, s he did not

immediately tell anyone about the incident.

19. When J.K. returned to school the following week, she

remained uncomfortable and there was clearly a rift in the

formerly close relationship. J.K. no longer desired to speak or

be in close proxim ity to Respondent and attempted to avoid him.

Respondent advised J.K. that, if she did not want to attend the

agriculture class, she could co me between classes and pick up an

excuse pass that would be available on his desk. J.K. utilized

that option. 5 /

20 . On one such occasion, in addition to the pass, J.K.

observed on Respondent ' s desk an envelope with her name

handwritten in blue ink . 6 / The envelope contained an unsigned,

undated, computer generated letter addressed to J.K.

21. The contents of the subject letter are set out, in

full, as follows:

[J.K.],

Friday and Saturday a week ago were two of

the best days I have had in a while, it

began by taking you to your mother ' s where

we talked about your being unhappy and why

you were unhappy, and what I could (wanted

to) do to help. That day I came away with,

" she is not going to Montana, she will be

here for another 3 years. No!!! It was no

coincidence I was in Sebastian Saturday and

brought you b ' fast Ï I drove up there made an

excuse to see if the t winkle was still

there --- it was.

Then all hell broke loose on Sunday Ï problem

after problem Ï all personal with - in my

family. When things that are near and dear

to me are not right I sometimes can not

handle it. I have a problem when I am

angered, not irri tated Ï not just mad, but

angry. When angry I sometimes can not see

the forest for the trees. Wednesday was the

hell day to try and forget and over - come, 2

drinks did not help. Although most was

vivid some was a blur Ï that blur must have

been when I did wh atever it was to hurt you,

I remember the hug/kiss/and you not wanting

to talk about it anymore. No excuse for the

drinks I am not presenting that as a defense

nor justification; just how it did not help Ï

not drunk just a combination when alcohol,

anger me ets my body chemistry something is

not cool. Although, I can not turn back the

hand of time I want you to know " I wish I

could " .

I know this for sure I would never hurt you

in any way intentionally or otherwise. My

actions and feelings for your are true and

sincere Ï not like a father Ï not like a

boyfriend ' s passion Ï not like a friend Ï

different all together but true and sincere Ï

Some kinda special Luv.

You bring out the " best and the worst in me Ï

when you hurt I want to hurt Ï when the

twinkle is there, there i s no mountain to

high I cant climb, you make me want to be

the best I can be!!!

I will honor my arrangement for A - 2, if

needed there will be a pass filled out and

signed all you have to do is fill in where

you are going, if not you are welcome to

stay out here do your work or chill and

expect very little, if any, contact from me Ï

the same applies for B - 3. This I hope will

minimize the pain for both of us.

My old Bud I have revealed to you some

weaknesses, faults, chinks in my armor none

of which I am ash amed or proud of Ï just

chinks I must fight to control. Although I

have no problem owning up to you for them Ï it

is hard to swallow to know I have to fight

to control them and sometimes lose the

battle.

Regardless of how you take this, laugh at

it, choke on it or other as K ing Preamm told

Achilles " there is respect between enemies "

(you are/never will be an enemy just a

saying). I will never reveal or betray the

times we talked about our lives, friends,

and family Ï those conversations will never be

shared wi th anyone no matter what Ï in return

I ask that you do the same and destroy this

note it is for you eyes and thoughts only.

If this became known to the wrong people my

children could feel the shame and hurt Ï they

do not deserve that, plus you are the only

on e who knows what is being said.

[J.K.], I am not offering this as an excuse,

explanation or apology just merely the

" truth " .

I am at peace with myself Ï now Ï knowing you

know the truth.

Closing Ï always know our fondest times and

memories, my prayers and my heart will

always travel with you.

Bye, Bud

22. During the pertinent period, several school district

computers were located in Respondent ' s agriculture classroom.

One of the computers was issued solely for the educator ' s use.

To l og on to the schoo l district ' s network computer, Respondent

was required to enter a unique user name and password . All

documents saved by Respondent while using said computer were

automatically routed to his " home folder " on the District

server. When not in use, Responden t was to log off or lock the

computer to prevent others from accessing the same.

23. In August 2006, Ralph Starr, a network analyst for the

Indian River County School District, was requested to search

Respondent ' s assigned computer for any documents addr essed to,

or referring to J.K. or " Dear Friend. " The computer was

delivered to Mr. Starr. Mr. Starr ' s analysis revealed that no

such correspondence was located physically on Respondent ' s C -

drive (the hard drive) ; however, the above - referenced

corresponde nce was found saved on the school district ' s server,

in Respondent ' s home folder . 7 /

24. Respondent ' s computer was located on a desk in the

classroom. Conceivably, another individual who possessed

Respondent ' s user name and password could access his com puter in

his absence. A lternatively, if Respondent failed to follow the

procedure of logging off or locking the computer, another could

utilize the computer. 8 /

25. J.K. credibly testified , however, that she had never

used Respondent ' s computer for any reason and that the style of

writing contained in the subject correspondence was not her s .

J.K. ' s testimony was bolstered by that of A.K.

2 6 . J.K. showed the correspondence to A.K. and advised her

that same was from Respondent. At the time A.K. review ed the

letter , she was J.K. ' s best friend and they had been friends

since sixth grade. In the course of their friendship, A.K. had

an opportunity to review J.K. ' s writings. She confirmed that

the subject correspondence was not J.K. ' s words or writing

sty le.

2 7 . The undersigned finds that the above - referenced

correspondence is genuine , and in light of the circumstances,

logically indicates the correspondence was drafted by Respondent

with J.K. as the intended recipient.

2 8 . Respondent ' s admission s to al cohol usage and kissing

J.K., the request for secrecy, coupled with p hrases such as

" [s]ome kinda special Luv, " " to see if the twinkle was still

there, " and " my heart will always travel with you, " support

J.K. ' s credible testimony that the embrace and kiss on the lips

were romantic and transcend s the competing interpretation that

the same was merely of a consoling nature.

29 . A few weeks after the incident and recei ving the

letter from Respondent , J.K. finally confided to her mother the

events of March 15 , 2006. Her decision was prompted by several

factors: Respondent informing A.K. that he had lost respect for

J.K.; Respondent informing other students that J.K. was not

welcome at agriculture; and Respondent informing fellow students

that J.K. had change d her interests and had " blown all of them

off. "

3 0 . The incident of March 15, 2006 , and Respondent ' s

subsequent conduct , which J.K. internalized, negatively affected

her mood , behavior , and relationship with her father. A few

days after school recessed, J.K. finally advised her father that

Respondent had kissed her.

3 1 . J.K. ' s father subsequently sought legal counsel , a nd

upon the advice of counsel, notified the school board attorney.

3 2 . Facing an investigation concerning the allegations

forming th e basis of the Administrative Complaint, o n or about

August 8, 2006, Respondent re signed from his teaching position.

3 3 . J.K. returned to Vero Beach High School for her senior

year. While J.K. desired to remain in the agriculture program,

she perceived resentment from certain classmates in retaliation

for the allegations against Respondent that had become public

over the summer break.

3 4 . Consequently, school administrators encouraged J.K. to

remain in the program albeit with different classmates. J. K.

remained in the agriculture curriculum and enrolled in a class

entitled Advanced Pl acement Environmental Science. J.K.

graduated from Vero Beach High School in 2007, with honors.

3 5 . Prior to the incident that is the subject matter of

this case, Re spondent consistently obtained " highly effective "

or " ex emplary " performance appraisals. For Respondent ' s last

appraisal, concerning the 2005 - 2006 school year, he was given an

exemplary rating, with a score of 50 out of 52.

3 6 . Respondent was instrumen tal in the development and

execution of a successful agriculture program and agribusiness

opportunities for those students enrolled in the program.

CONCLUSIONS OF LAW

3 7 . DOAH has jurisdiction over the parties and the subject

matter of this proceeding pu rsuant to section 120.569 and

subsection 120.57(1), Florida Statutes.

3 8 . Subsection 1012.796(6), Florida Statutes, authorizes

the Commissioner of Education to file a formal complaint and

prosecute the complaint against a teacher ' s certificate pursuant

to the provisions of chapter 120, Florida Statu t es.

39 . Petitioner seeks to take penal disciplinary action

against Respondent ' s teaching certification, and, therefore,

must prove the allegations in the Administrative Complaint by

clear and convincing ev idence. Dep ' t of Banking & Fin., Div. of

Secs. & Investor Prot. v. Osborne Stern, Inc. , 670 So. 2d 932,

935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

1987). Clear and convincing evidence requires that:

[t]he evidence must be found to b e credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a 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).

4 0 . Disciplinary statutes are penal in nature, and must be

construed against the aut horization of discipline and in favor

of the individual sought to be penalized. Munch v. Dep ' t of

Bus. & Prof ' l Reg. , 592 So. 2d 1136 (Fla. 1st DCA 1992). A

statute imposing a penalty is never to be construed in a manner

that expands the statute. Hotel & Rest . Comm ' n v. Sunny Seas

No. One , 103 So. 2d 570, 571 (1958).

4 1 . The Administrative Complaint alleges that Respondent

violated subsections 1012.795( 1)(c), (f), and (i), Florida

Statues, and Florida Administrative Code Rule subsections 6B -

1.006(3)(a) , (e), (g) , and 6B - 1.006(4)(c).

4 2 . Section 1012.795 provides in pertinent part:

Education Practices Commission; authority to

discipline. Ï

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01 (2) or (3)

for a period of time not to exceed 5 years,

thereby denying that person the right to

teach or otherwise be employed by a district

school board or public school in any

capacity requiring direct contact with

students for that period of time, after

which the holder may return to teaching as

provided in subsection (4); may revoke the

educator certificate of any person, thereby

d enying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

s ubsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

sus pend the educator certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; or may

impose any other penalty provided by law,

provided it can be shown that the person:

* * *

(c) Has been guilty of gross imm orality or

an act involving moral turpitude.

* * *

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person ' s effectiveness as an

employee of the district school board.

* * *

(i) Has violated the Princi ples of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

4 3 . Rule 6B - 1.006 contains the Principles of Professional

Conduct and provides, in pertinent part:

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator ' s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student fr om conditions harmful to

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

or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(g) Shall not harass or discriminate

agai nst any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

* * *

(4) Obligation to the public requires that

the individual:

* * *

(c) Shall not use institutional privileges

for personal gain or advantage.

4 4 . The seven - count Administrative Complaint tracks the

language of the above - recited statutes and rules. I t first sets

forth the following material allegations in paragraph 3 of the

Administrative Complaint:

3. During March 2006, Respondent, while

attending an event where several of his

students e xhibited projects and after

consuming several alcoholic beverages,

inappropriately kissed J.K., a seventeen -

year - old, female student, on the lips.

Subsequent to this incident, Respondent sent

J.K. a letter of apology in which he stated,

" My actions and fe elings for you are true

and sincere - not like a father Ï not like a

boyfriend ' s passion - not like a friend -

different all together but true and sincere -

Some kinda special Luv. " On or about August

8, 2006, Respondent retired in lieu of

termination from his teac hing position with

the district.

4 5 . As demonstrated in the Findings of Fact, above,

Petitioner proved the material allegations recited in the

Administrative Complaint. All of the findings were based upon

clear and convincing evidence.

Count 1

4 6 . Count 1 of the Administrative Complaint alleges:

The respondent is 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.

4 7 . The EPC has not defined " gross immorality Ñ for

purposes of section 1012.795(1)( c ). However, Florida

Administrative Code Rule 6A - 5.056 (formerly rule 6B - 4.009)

contains definitions of the terms " immorality " and " moral

turpitude " for use by school districts in disciplining

instructional staff, and these definitions have been used in

agency precendent interpreting section 1012.795. See, e.g. ,

Smith v . Malvar , Case No. 10 - 2784 (Fla. DOAH Sept. 13, 2010;

Fla. EPC Jan. 11, 2011). Rule 6A - 5.056(2) defines " immorality "

as follows:

Immoralit y 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 indi vidual ' s

service in the community.

4 8 . " Gross immorality " has been described in agency

precedent to mean an act of misconduct that is serious, rather

than minor in nature; it is a flagrant disregard of proper moral

standards. Robinson v. Davenport , Ca se No. 12 - 0270 (Fla. DOAH

June 27, 2012) ; Smith v. Malvar , Case No. 10 - 2784 ( DOAH Sept.

13, 2010); EPC Jan. 13, 2011)( citing Education Practices Comm ' n

v. Knox , 3 FALR 1373 - A (Fla. Dep ' t of Education 1981)); Brogan

v . Mansfield , Case No. 96 - 0286 (Fla. DOAH Aug. 1, 2006; Fla. EPC

Oct. 18, 1996).

49 . Rule 6A - 5.056(6) defines " moral turpitude " as follows:

Moral turpitude is a crime that is evidence

by an act of baseness, vileness or depravity

in the private and social duties, which,

according to the acce pted 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.

5 0 . Moral turpitude has also been defined by the Supreme

Court of Fl orida as " anything done contrary to justice, honesty,

principle, or good morals, although 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. Holl ingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

5 1 . Teachers are traditionally held to a high moral

standard in the community. Adams v. Prof ' l Practices Council ,

406 So. 2d 1170, 1172 (Fla. 1st DCA 1981). As a teacher, it is

not necessary that Resp ondent be charged or convicted of a crime

in order to be disciplined for conduct involving moral

turpitude. Walton v. Turlington , 444 So. 2d 1082, 1084 (Fla.

1st DCA 1984).

5 2 . Considering the material allegations which have been

proven against Respond ent in light of the definition of moral

turpitude, it is found that Respondent is guilty of acts

involving moral turpitude. Respondent ' s conduct towards J.K.

violated accepted standards of society, as well as the higher

moral standards expected of teacher s. His actions were wrong

and Respondent knew it, as demonstrated by his subsequent

correspondence to J.K. attempting to explain or mitigate the

event.

5 3 . Respondent ' s action s , which were proven by clear and

convincing evidence, violated section 1012.7 95(1)(c).

Count 2

5 4 . Count 2 of the Administrative Complaint alleges:

The respondent is in violation of Section

1012.795(1)(f), Florida Statutes, in that

Respondent has been found guilty of personal

conduct which seriously reduces his

effectiveness as an employee of the school

board.

5 5 . Petitioner has demonstrated by clear and convincing

evidence a violation of subsection 1012.795(1)(f) . Respondent,

facing an investigation concerning his alleged conduct, resigned

and thereby reduc ed his effectiven ess as an employee of the

school board. See Winn v. Hernandez , Case No. 08 - 1843 (Fla.

DOAH Aug. 8, 2008).

Count 3

5 6 . Count 3 of the Administrative Complaint alleges:

The Respondent is in violation of Section

1012.795(1)(i), Florida Statutes, in that

Respondent has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

5 7 . As discussed under Count 4 through 6 below, Respondent

violated Principals of Professional Conduct for the Edu cation

Profession set forth in Florida Ad ministrative Rule 6B -

1006(3)(a). Therefore, Respondent violated section

1012.795(1)(i), as alleged in Count 3 of the Administrative

Complaint.

Count 4

5 8 . Count 4 of the Administrative Complaint alleges:

The al legations of misconduct set forth

herein are in violation of Rule 6B -

1.006(3)(a), Florida Administrative Code, in

that Respondent has failed to make

reasonable effort to protect the student

from conditions harmful to learning and/or

to the student ' s mental health and/or

physical health and/or safety.

59 . Rule 6B - 1.006(3)(a) imposes on teachers the

affirmative duty to protect students from harmful conditions.

The standard against which a teacher ' s performance of this duty

is measured is an objective one: he must make a " reasonable

effort. " Rolle v. Crist , Case No. 01 - 2644 (Fla. DOAH Dec. 14,

2001 ; Fla. EPC Feb. 28, 2002 ). A violation of the above -

referenced rule does not require evidence that Respondent

actually harmed J.K. ' s health or safety. Rather, it requires a

showing that Respondent failed to make reasonable efforts to

prote ct the student from such harm. Robinson v. Aydelott , Case

No. 12 - 0621 (Fla. DOAH Aug. 29, 2012).

6 0 . The clear and convincing evidence demonstrated that

Respondent ' s inapp ropriate conduct created conditions that were

unambiguously harmful and his con duct was patently unreasonable.

As noted above, J.K. testified that she was shocked, confused,

disgusted, and uncomfortable following the subject incident. As

a result of Resp ondent ' s inappropriate conduct, J.K. ' s

relationship with her family members became strained ; she failed

to regularly attend her agriculture class (with Respondent ' s

endorsement); and she felt ostracized by fellow students.

Petitioner established that Resp ondent violat ed rule 6B -

1.006(3)(a).

Count 5

6 1 . Count 5 of the A dministrative Complaint alleges:

The allegations of misconduct set forth

herein are in violation of Rule 6B -

1.006(3)(e), Florida Administrative Code, in

that Respondent has intentionally e xposed a

student to unnecessary embarrassment or

disparagement.

6 2 . The First District Court of Appeal has described

Florida Administ rative Code Rule 6B - 1.006(3)(e) -- which

proscribes the intentional infliction of unnecessary

embarrassment of disparagem ent -- as an " aspirational " rule, the

" violation of which could only justify [a severe penalty] if

there was factual evidence that the violation was so serious as

to impair the teacher ' s effectiveness in the school system. "

Langston v. Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995);

Macmillan v. Nassau Cnty . Sch . Bd . , 629 So. 2d 226, 228 (Fla.

1st DCA 1993).

6 3 . Moreover, to be prohibited by r ule 6B - 1.006(3)(e), the

offending conduct must be committed with a specific intent to

disobey the rule. Accord ingly, " [t]here can be no violation in

the absence of evidence that the teacher made a conscious

decision not to comply with the rule. " Langston , 653 So. 2d at

491. But see , Robinson v. Aydelott , Case No. 12 - 0621 (Fla. DOAH

Aug. 29, 2012)(concluding spec ific intent to embarrass is not

required where " a general intent to act in a way which one could

expect to result in embarrassment or disparagement " ) ; accord

Crist v. Setter , Case No. 03 - 0182 (Fla. DOAH July 2, 2003) .

6 4 . As discussed concerning Count 4, Respondent failed to

protect J.K. from harmful conditions; however, t he undersigned

concludes that Petitioner failed to prove by clear and

convincing evidence that Respondent ' s conduct met the requisite

level of intent required for a violation of r ule 6 B - 1.006(3)(e).

T herefore, t he offense was not established and Count 5 is due to

be dismissed.

Count 6

6 5 . Count 6 of the Administrative Complaint alleges:

The allegations of misconduct set forth

herein are in violation of Rule 6B -

1.006(3)(g), Florida Administrative Code, in

that Respondent has harassed or

discriminated ag ainst a student of the basis

of race, color, religion, sex, age, national

or ethnic origin, political beliefs, marital

status, handicapping conditions, sexual

orientation, or social a nd family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

6 6 . No credible evidence was presented to demonstrate that

Respondent violated r ule 6B - 1.006(3)(g), by harassing or

discri minating against a student on the basis of race, color,

religion, sex, age, national or ethnic origin, political

beliefs, marital status, handicapping condition, sexual

orientation or social and family background. Because no

credible evidence of discrimin ation or harassment on these bases

was demonstrated, Respondent likewise did not fail to make a

reasonable effort to protect J.K. from such harassment or

discrimination. Therefore, Petitioner has failed to prove that

Respondent violated Rule 6B - 1.006(3)(g ), Florida Administrative

Code. Count 6 is due to be dismissed.

Count 7

6 7 . Count 7 of the Administrative Complaint alleges:

The allegations of misconduct set forth

herein are in violation of Rule 6B -

1.006(4)(c), Florida Administrative Code, in

that Res pondent has used institutional

privileges for personal gain or advantage.

6 8 . While the evidence presented a t final hearing

established that Respondent utilized the school district

computer, at a minimum, to save the subject correspondence on

his home f older, Petitioner never pleaded facts that constituted

a violation of Rule 6B - 1.006(4)(c). Indeed, Count 3 of the

Administrative Complaint merely alleges that, " Respondent sent

J.K. a letter of apology. . . . "

69 . A teacher may not be disciplined for an offense not

charged in the complaint. The facts, as pled in the

Administrative Complaint, were insufficient to place Respondent

on notice of a violation of r ule 6B - 1.006(4)(c). Trevisani v.

Dep ' t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005)(reversin g

final order of Department imposing an administrative fine and

special conditions of probation where administrative complaint

failed to sufficiently put physician on notice of charges);

Cottrill v. Dep ' t of Ins. , 685 So. 2d 1371 (Fla. 1st DCA

1996)(party reversing Department ' s final order and remanding for

reconsideration of penalty, where administrative complaint

merely cited statutes but failed to allege any act or omission

in violation of statues allegedly violated by licensee, thereby

denying licensee reasonable notice of facts or of conduct

warranting disciplinary action). As such, Count 7 is due to be

dismissed.

Penalties

7 0 . The Education Practices Commission has adopted

guidelines for the imposition of penalties for violations under

1012.795, F lorida Statutes, and Florida Administrative Code Rule

6B - 1.006. Rule 6B - 11.007, ent itled " Disciplinary Guidelines "

provides for discipline ranging from probation to revocation for

the statutory and rule violations for which Respondent is

charged in this p roceeding. Rule 6B - 11.007(3), provides a

number of aggravating and mitigating factors that can be

considered in determining the appropriate penalties .

7 1 . The undersigned has carefully considered the above -

factors in crafting an appropriate recommende d penalty.

RECOMMENDATION

Based on the foregoing F indings of F act and C onclusions of

L aw, it is

RECOMMENDED that a Final Order be issued finding that

Respondent, John Mark Pomar, violated the provisions of

subsections 1012.795(1)(c), (f) and (i), Florid a Statutes, and

Florida Administrative Code Rule 6B - 1.006(3)(a), suspending

Respondent ' s Florida educator ' s certif icate for a period of two

years.

DONE AND ENERED this 24th day of October, 2012, in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cler k of the

Division of Administrative Hearings

this 24th day of October , 2012 .

ENDNOTES

1 / Exhibit 1 was jointly submitted by the parties.

2 / J.K. was a minor during all times material to the allegations

in A dministrative Complaint. J.K. was twenty - three years old at

the time of the final hearing.

3 / The agriculture class encompassed classroom instruction and

work on the agriculture farm.

4 / It is undisputed that Respondent kissed J.K.; however, the

na ture of the kiss is the heart of the controversy.

Respondent ' s wife, Marsha Pomar, testified at deposition that

she observed Respondent reach out, hug, and gently kiss J.K., as

he had his own daughters, on the lips. Mrs. Pomar thought

nothing of the enco unter. Similarly, witness Stephanie Pooley

testified at deposition that she observed Respondent with one

arm around J.K. Her recollection was that Respondent then gave

J.K. a peck on the cheek. Ms. Pooley admitted she was neither

close enough to hear the conversation between Respondent and

J.K., nor observe Respondent ' s mouth. When queried concerning

specific details of the incident, Ms. Pooley conceded that, " I

don ' t remember the whole incident to be honest to you. You

know. " Respondent disputed the a llegations of the

Administrative Complaint by executing an Election of Rights

form; however, he was neither deposed nor present at the final

hearing. J.K. ' s testimony, as one of the two participants to

the embrace, is credited over that of the above - refer enced

witnesses.

5 / The record is silent as to the frequency or duration that

J.K. obtained passes to excuse herself from Respondent ' s

agriculture class following the incident of March 15, 2006.

6 / J.K. discarded the envelope prior to leaving school for the

day.

7 / The subject correspondence was printed directly from a tape

backup copy of Respondent ' s home folder. No evidence was

presented concerning when the document was originally saved to

Respondent ' s home folder.

8 / On one occasion, a fell ow student was observed playing a

music video on YouTube from Respondent ' s computer when

Respondent was not present.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Build ing, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

Joan Stewart, Esquire

FEA/United

118 North Monroe Street

Tallahassee, Florida 32301

Lois Tepper, Interim Genera l Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 244 - E

325 W est 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 f iled with the agency that

will issue the Final Order in this case.