dissenting.
This case is the stuff of which personal tragedies are made. The majority’s opinion recites facts, but does not, in my view, fully appreciate what they mean. My own understanding of the facts and their legal significance satisfies me that I do *117not have to participate in the tragedy the majority now completes. I therefore dissent.
For the purpose of this dissent I accept FDAB’s interpretation of “immorality” as including public sexual intercourse. What I do not accept is that petitioner’s activities were public. The majority ignores a large amount of background information, much of which is in FDAB’s findings and conclusions and the rest of which is undisputed in the record. The police observed Ross as part of a general investigation of the adult bookstore, during which they observed a large amount of homosexual activity in the movie arcade area. That area was in a separate room from the rest of the bookstore and was lit by “black lights,” while the lighting in the rest of the store was normal. The owners even provided tissue dispensers in the arcade area to aid in sexual activity. The “glory hole,” on which FDAB and the majority rely to show that petitioner did not assure complete privacy for his activity, was intended for use — and was in fact used — for oral copulation.
There is nothing to be gained from further details. What is clear from the evidence is that the inside of the arcade booth, and possibly the entire arcade area, was adapted to sexual use. To call this area “public” distorts the meaning of the word. It was a place for private viewing of sexually explicit films and for private sexual activity.1 The only “public” who might stand on someone’s shoulders to look over the top of the booth or get down on hands and knees to look up from the bottom or bend down to look through the “glory hole” consisted of others interested in engaging in similar activities or police officers trying to build a case. The Supreme Court has noted that one reasonably expects privacy in a closed toilet stall. State v. Holt, 291 Or 343, 350, 630 P2d 854 (1981). Not only did the arcade booth resemble a toilet stall in appearance, its location and the use to which others commonly put it gave petitioner a far greater basis to expect privacy for his activities *118than he would have had in a public toilet. It surpasses comprehension that the majority can say — as it must, to sustain FDAB’s action — that petitioner engaged in sexual activity publicly.
It is impossible to avoid the conclusion that petitioner is being punished not for having engaged in sexual activity publicly but for having engaged in homosexual activity that eventually became public. The District acted after pressure from parents and that pressure was based, at best, on only a generalized knowledge of what petitioner had done. No parent observed him at the bookstore, which was in a different city from that where he taught. No one claims that he did anything improper at the school where he worked or during working hours or that he abused his position as a teacher in any fashion. Parents simply did not want someone with homosexual tendencies teaching, and the District accommodated them.2 Neither FDAB nor the majority of this court is willing — nor am I willing — to say that homosexual activity per se is immoral under ORS 342.865(1) (b), yet both FDAB and the majority are willing to strain the language of that statute and the the facts in order to justify the dismissal of a teacher whose homosexuality became public and who was hounded out of his job as a result. I cannot participate in this court’s placing its imprimatur on this destruction of a career. I therefore dissent.
According to newspaper stories in the record, the District Attorney did not prosecute petitioner or the others observed in sexual activity in the bookstore for public indecency, ORS 163.465, because he determined that the bookstore was not a public place under the statute. See State v. Brooks, 275 Or 171, 550 P2d 440 (1976). Although FDAB is not limited to the relatively narrow meaning of “public” in the statute, I believe that the fact that the legislature has limited criminal culpability in this way is relevant to determining when sexual intercourse is so public that it is immoral.
The report of an investigator hired by the Teachers Standards and Practices Commission, which is in evidence, notes that, despite the lack of publicity relating petitioner to the nuisance abatement, “knowledge that he has been involved in some homosexual activity is widespread” among students, parents, and District employes. It adds that “[bjecause such information is widely known, and because the conservative people therein react adversely to such knowledge; the District believes the teacher can no longer be an effective classroom instructor.” The letters the District received, and the parents who testified at the hearing, objected to petitioner’s “lifestyle,” in a context where that word could only mean his homosexual activity. None showed any knowledge of the details of that activity. The report and the letters state the real reason for the dismissal, but it is not one FDAB claims the law permits.