STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, ) DEPARTMENT OF EDUCATION, )

STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1910

)

JERE L. HOUGH, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-styled case, after due notice, at Miami, Florida, on December 12, 1977, before the undersigned Hearing Officer. This case was consolidated for hearing with that of School Board of Dade County Florida v Hough, Docket No. 77-1536.

APPEARANCES

For Petitioner: Robert Vossler, Esquire

110 North Magnolia Tallahassee, Florida 32303

For Respondent: Elizabeth J. du Fresne, Esquire

1809 Brickell Avenue, Suite 208

Miami, Florida 33129 ISSUE PRESENTED

Whether Respondent's Florida teaching certificate should be revoked pursuant to Section 231.28 and 231.09, Florida Statutes, and Rule 6A-4.37, 6B-1, and 6B-5, Florida Administrative Code.

At the commencement of the hearing, counsel for the respondent announced that she had been unable to communicate with the respondent concerning the hearing in spite of the fact that she had directed various letters to him and attempted to reach him by telephone. Her motion for a continuance of the hearing due to absence of the respondent was denied, because he had been informed by counsel of the pending charges of the petitioner and should have maintained contact with his attorney concerning the matter. (Respondent's Composite Exhibit 1)

FINDINGS OF FACT

1. Federal narcotics agents of the Drug Enforcement Administration made arrangements with the respondent to purchase five pounds of cocaine from him. The respondent promised to deliver one pound of cocaine at his residence located at 10850 SW 24th Street, Miami, Florida, on May 3, 1977. On that date, special

   agents Mazilli and Carew placed respondent under arrest after he turned over to them at his residence a quantity of a white powdery substance. A "field test" of the substance was made by placing some of the material into a small vial of acid which caused it to turn purple, thus indicating that it was cocaine. Carew searched the person of the respondent incident to the arrest and found a single shot, .22 caliber revolver, a .22 caliber derringer pistol, a knife and $3,380 in cash. While the agents were at respondent's residence, a phone call was received from a person identifying himself as "Carlos," who advised that he could deliver the other four pounds of cocaine. An agent requested that he do so and, sometime after midnight, two individuals arrived in front of the residence and were thereafter arrested. Approximately two pounds of a white powdery substance contained in a plastic bag was found in the trunk of the automobile. A search of the premises resulted in the seizure of other firearms, a large quantity of marijuana, other plastic bags containing a white powdered substance, and a large number of capsules and variously colored pills. The sum of $5,000 cash U.S. currency was found in a brief case. All of these items were seized by the narcotics agents and the suspected drugs were turned over to a forensic chemist for analysis and identification. The laboratory report revealed that the 510.5 grams of material turned over to the agents by respondent consisted of 42 percent pure cocaine hydrochloride and the 1,079.8 grams seized from the automobile was 100 percent pure cocaine hydrochloride.

   The items seized during the search of the house proved to be cocaine hydrochloride, marijuana, and various other drugs. (Testimony of Carew, Petitioner's Composite Exhibit 1)

   
   

2. Respondent was hired as a teacher with the Dade Country public school system in August, 1970, and, in May, 1977, was employed as a teacher at the W.

   R. Thomas Junior High School under continuing contract. The Assistant Superintendent of Schools, Personnel Division, is of the opinion that if the charges against the respondent are established, such conduct would be grossly immoral and sufficiently notorious to bring the individual and the education profession into public disrespect. (Testimony of Moore)

   
   

3. Respondent was suspended without pay from his position as a teacher by the Dade County superintendent of schools on August 8, 1977, pursuant to Section 230.33(7)(h), Florida Statutes. Respondent thereafter requested a hearing on his suspension and his request was referred to the Division of Administrative Hearings by the Dade County Public School Board on August 24, 1977. Specific charges were filed by the Board against the respondent on October 10, 1977.

   
   

4. On July 29, 1977, the Professional Practices Council, Department Of Education, State of Florida, filed a petition for the revocation of respondent's teaching certificate, pursuant to direction of the State Commissioner of Education. Respondent thereafter requested that the matter be heard before a Hearing Officer of the Division of Administrative Hearings. The two cases were consolidated for hearing purposes by order of the Hearing Officer on October 31, 1977.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Professional Practices Council has petitioned for the revocation of respondent's teaching certificate based on alleged conduct in violation of Sections 231.28 and 231.09, Florida Statutes, and Section 6A-4.37, 6B-1 and 6B- 5, Rules of the State Board of Education, which is inconsistent with good morals and the public conscience, not a proper example for a student, and which is sufficiently notorious to bring respondent and the education profession into public disgrace and disrespect.

6. The proposed application of the above statutory and regulatory provisions is based upon the Council's allegation that respondent on May 3, 1977, knowingly and intentionally possessed with intent to distribute a controlled substance, to-wit: approximately 452 grams of cocaine, and that he knowingly and intentionally distributed the same on that date, and further that he unlawfully carried two firearms while committing the aforesaid offenses. It further alleges that respondent knowingly and intentionally possessed with intent to distribute approximately 998 grams of cocaine on or about May 4, 1977. Although not specifically alleged in the petition, such conduct would constitute violations of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 924(c)(2).

   
   

7. Since the Board has predicated its proposed disciplinary action upon actions equating to violations of federal law, it has the burden of establishing respondent's misconduct in that regard by clear and convincing evidence. The evidence adduced at the hearing established that respondent had agreed to sell a quantity of cocaine to undercover federal agents, and that, pursuant to the agreement, 510.5 grams of a white powdery substance was delivered to federal agents on May 3, 1977, at respondent's place of residence. It further shows that an additional 1,079.8 grams of a white powdered substance was delivered in an automobile to this residence by unknown persons as representing the remainder of the purchase. Although counsel for respondent argues that respondent was never in possession of this latter amount, the circumstances are such to hold him as a principal to he transaction and thus accountable therefor. Further, there is no dispute over the fact that respondent was carrying firearms on his person at the time he delivered the substance to federal agents.

   
   

8. In view of the foregoing, all that is necessary to establish the misconduct in question is to show that the substance seized by the authorities was, in fact, the controlled substance of cocaine, the possession and distribution of which is proscribed and made a felony under Title 21, United States Code, Section 841(a)(1) and which constitutes a felony under Title 18, United States Code (1) and Title 18, 841(b)(1)(a), as a Schedule II controlled substance. In this regard, the fact of the agreement, the appearance of the material delivered by the respondent, and the field test thereof, together with respondent's possession of firearms, the discovery of other quantities of the substances in the residence along with pills, capsules, large amounts of currency and a large amount of a substance identified to be marijuana by the testifying agent, combine to present a likelihood that the material was indeed cocaine hydrochloride, as alleged. When the above factors are coupled with the admittedly hearsay reports of the chemist's analysis of the substance, which identified it as cocaine hydrochloride, sufficient evidence exists to conclude that the substance in question was cocaine. Counsel for respondent objected to the introduction of laboratory reports on the ground that they were hearsay and her client was being denied the right of confrontation and cross examination of the chemist who prepared the reports. However, Section 120.58(1)(a), Florida Statutes, permits the use of hearsay evidence to supplement or explain other evidence, even though standing alone it would be insufficient to support a finding. Respondent's counsel also objected to the agent's testimony concerning the presence of marijuana in the residence, but such objection was overruled on the grounds that such evidence was competent to show a plan, intent, design, or motive of the respondent with respect to the offenses charged.

   
   

9. Although the Council has alleged that respondent's conduct violates Section 231.09, Florida Statutes, that provision deals primarily with duties of instructional personnel and really has no direct bearing upon the conduct in

question. Section 231.28, however, authorizes disciplinary action against holders of teaching certificates if a certificate holder has, inter alia, been "guilty of gross immorality." In view of the above stated conclusions, it is clear that the respondent was guilty of misconduct in the manner alleged in the petition, and it is unquestionable that such conduct constitutes conduct which is inconsistent with good morals and the public conscience and properly may be termed "gross immorality" within the meaning of the statute. It is further considered that such conduct necessarily brings the individual concerned into public disgrace and reflects unfavorably against the education profession. It is therefore considered that revocation of respondent's teaching certificate is both authorized and warranted under the circumstances.

RECOMMENDATION

That the teaching certificate of respondent Jere L. Hough be permanently revoked under the authority of Section 231.28, Florida Statutes, for gross immorality.

DONE and ENTERED this 12th day of January, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32301

COPIES FURNISHED:

Robert Vossler, Esquire

110 North Magnolia Tallahassee, Florida 32303

Elizabeth J. de Fresne, Esquire Suite 208

1809 Brickell Avenue

Miami, Florida 33129

Docket for Case No: 77-001910

Orders for Case No: 77-001910