Turlington v. Zapencki

23 Fla. Supp. 2d 243
CourtState of Florida Division of Administrative Hearings
DecidedSeptember 8, 1986
DocketCase No. 86-1802
StatusPublished

This text of 23 Fla. Supp. 2d 243 (Turlington v. Zapencki) is published on Counsel Stack Legal Research, covering State of Florida Division of Administrative Hearings primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turlington v. Zapencki, 23 Fla. Supp. 2d 243 (Fla. Super. Ct. 1986).

Opinion

OPINION

DIANE A. GRUBBS, Hearing Officer.

[244]*244 RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this cause on July 16, 1986, in Dade City, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

ISSUE

Whether by showing the movies “Death Wish II”, “First Blood”, and “Police Academy”, or portions of those movies, to respondent’s fourth grade students, respondent violated Section 231.28(l)(i), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code.

BACKGROUND

By Administrative Complaint dated March 10, 1986, petitioner instituted disciplinary procedures against the respondent. Respondent disputed the factual allegations set forth in the complaint and requested a formal hearing. The matter was referred to the Division of Administrative Hearings for further proceedings on May 19, 1986.

An Amended Administrative Complaint was filed June 27, 1986, which charged respondent with violating Section 231.28(l)(f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code. The Amended Administrative Complaint alleges that during the 1983-84 school year, respondent permitted his fourth grade students to view the movie, “Death Wish II”, an “R” rated movie, which contained scenes depicting physical violence and rape; that upon learning of the showing of “Death Wish II”, the school principal instructed respondent that “R” rates films are not acceptable for elementary school students and that in the. future, no films could be shown to respondent’s students without having the specific permission of the principal; that following this incident, a new written policy was adopted for the 1984-85 school year which required teachers to obtain special permission from the principal prior to showing any video movies; that the new policy was discussed and explained to all teachers at a faculty meeting which the respondent attended.

The Amended Administrative Complaint further alleges that on June 3, 1985, the respondent permitted his fourth grade class to view the movie “Police Academy” and the first 43 minutes of the movie “First Blood”; that respondent did not first obtain special permission from the principal to show either movie; and that the movies contained scenes involving violence, nudity, profanity and implied sexual acts. Based upon the allegations of misconduct, the complaint alleges that respondent is guilty of personal conduct which seriously reduces his effectiveness as a employee of the school board and that respondent failed to [245]*245make a reasonable effort to protect his students from conditions harmful to learning or to health or safety.

On June 10, 1986, the parties filed a prehearing stipulation which contained the stipulated facts. Those stipulated facts are set forth at the beginning of the findings of fact in this recommended order.

At the hearing the petitioner presented the testimony of the following witnesses: Fred Renninger, former principal at Woodland Elementary School; Christine Cole, a teacher at Woodland; Barbara DeWitt, a teacher formerly at Woodland; Jeannette McClelland Lovelace, the Assistant Principal at Woodland; Randall Belcher, principal of Woodland; Lynn Green, parent of a student in respondent’s class; Dr. John Long, Assistant Superintendent of Administration; and Dr. John Joyce, Director of Personnel. Petitioner’s exhibits 1 through 4 were admitted into evidence, along with the late-filed deposition of Forest R. Kelly, a guidance counselor at Woodland. Respondent presented the testimony of the following witnesses: Kevin Schlieker, one of respondent’s students; Lois Schlieker, Kevin’s mother; Krista Wood, one of respondent’s students; Earl Wood, Krista’s father; Toby Meyer, one of respondent’s students; Debbie Abercrombie, Toby’s mother; Sharon Edge, mother of one of respondent’s students; Ron Stevens, father of two of respondent’s students; and the respondent. Respondent’s exhibits 1 through 7 were admitted into evidence, and ruling on respondent’s exhibit number 8 was reserved and is set forth in this recommended order. Petitioner presented two rebuttal witnesses.

Both parties have timely filed proposed recommended orders and a ruling on each proposed finding of fact has been made in the appendix to this recommended order.

EVIDENTIARY RULING

At the completion of respondent’s case, respondent offered into evidence excerpts of the discovery deposition of David Younglove taken on August 27, 1985. Respondent urged, among other things, that the excerpts should be admitted into evidence because Mr. Younglove was unavailable to testify at the final hearing. However, respondent failed to present evidence that Mr. Younglove was unavailable to testify, and therefore, the excerpts of Mr. Younglove’s deposition are not admissible as an exception to the hearsay rule on that ground. Nevertheless, Section 120.58(l)(a), Florida Statutes, permits hearsay to be introduced into evidence “for the purpose of supplementing or explaining other evidence”. In this case several pages of Mr. Younglove’s deposition supplement and explain the respondent’s testimony concerning his belief that permission had been obtained to show movies [246]*246at the end of the 1984-85 school year and supplement and explain respondent’s testimony that he believed the movies shown were rated “P” or “PG”. Therefore, pages 18, 20, 21, 23, 24, 61, 66, and 68 of Respondent’s Exhibit No. 8 are admitted into evidence. As for the remaining pages, petitioner’s objection to their admissibility is sustained.

FINDINGS OF FACT

STIPULATED FACTS:

1. Respondent holds Florida teaching certificate 367043 covering the areas of Elementary Education, English and Reading. At all times material hereto, the respondent was employed as a fourth grade teacher at Woodland Elementary School in the Pasco County School District. During the 1983-84 school year, the respondent permitted his fourth grade class to view the movie “Death Wish II”, and “R” rated movie. Subsequently, the respondent’s principal instructed the respondent that in the future, no films could be shown to the respondent’s students without first obtaining a specific permission of the principal.

2. Following the showing of “Death Wish II”, the principal adopted a new policy for the 1984-85 teacher handbook which stated, “No video movies are to be shown in the classroom without special permission from the principal.” The new policy requiring special permission from the principal was discussed and explained to all teachers at a faculty meeting on or about August 20, 1984. The respondent was in attendance at the meeting.

3. On June 3, 1985, the respondent permitted his fourth grade class to view approximately forty-three minutes of the movie “First Blood” at which time he stopped the movie due to his concern over the escalating violence depicted in the movie. The respondent also permitted his fourth grade students to view the movie “Policy Academy”. The respondent did not obtain special permission from his principal to show those movies to his students. The movies contained scenes involving violence, nudity, profanity and implied sexual acts.

DEATH WISH II

4. At the end of the 1983-84 school year, the respondent’s fourth grade class joined Mr. Younglove’s sixth grade class to watch video movies in Mr. Younglove’s classroom.

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