STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, ) DEPARTMENT OF EDUCATION, STATE ) OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1217

)

JUDY A. CAIN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Bartow, Florida, on November 26, 1979, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: Wallace L. Store

Post Office Box 796 Bartow, Florida 33830

ISSUE

Whether Respondent's teacher's certificate should be revoked pursuant to Section 231.28, Florida Statutes, for alleged sale of marijuana, as set forth in Petition, dated May 11, 1979.

The parties stipulated to the expected testimony of Petitioner's witnesses, and Respondent did not call any witnesses at the hearing. The parties further stipulated to the admission of Petitioner's Exhibits 1-5 and to Respondent's Composite Exhibit 1.

This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on an allegation the Respondent sold marijuana to a police officer on September 1, 1978. The matter was reported by the Superintendent, Polk County Public Schools, to Petitioner by letter of February 21, 1979. (Petitioner's Exhibit 3) The Petition herein was thereafter filed pursuant to directions of the State Commissioner of Education who on May 11, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes.

Respondent requested an administrative hearing by Answer, dated May 22, 1979.

Respondent filed a prehearing Motion to Strike the Petition on the grounds that the Polk County Superintendent improperly referred the matter to Petitioner

on the basis of Respondent's nolo contendere plea in a criminal proceeding, and had suspended her from employment without an evidentiary hearing. The motion further alleged that Petitioner based its probable cause finding upon hearsay evidence and that it has no authority to make a finding of criminal guilt without a judicial adjudication of the same. Respondent's Motion is denied.

Petitioner's Rule 6A-4.37, Florida Administrative Code, prescribes procedures for revoking or suspending certificates. It provides, inter alia, that when a superintendent has "cause to believe" that a certificate holder is "guilty of any offense" for which the penalty is revocation or suspension, it is his duty to file a "signed report" with any supporting documentation with Petitioner.

Such a report merely triggers an investigation by Petitioner's staff for consideration by its Executive Committee and ultimate finding of probable cause by the Commissioner of Education. All of these procedures are preliminary in nature. No definitive action can be taken against a certificate holder and no final adverse action may be taken without an opportunity for an adversary hearing. The cases cited by Respondent in support of the notion deal with evidentiary standards for the issuance of final orders and do not relate to such preliminary matters. Petitioner observed the requirements of its rules procedurally in this case.

FINDINGS OF FACT

1. Respondent Judy A. Cain holds Florida Teaching Certificate No. 339186, Post Graduate Rank II, valid through June 30, 1983, covering the areas of English and junior college. She was employed in the public schools of Polk County at Wahneta Elementary School as a teacher in September, 1978. (Stipulation)

   
   

2. During the evening of September 1, 1978, a police officer of the City of Dundee, Florida, who was working in an undercover capacity, had a conversation with a woman later identified as Respondent and another woman named "Candy" at Walker's Bar in Dundee. They told the officer that they were going to buy a "bag" and get "high." The officer asked if they knew where he could pick up a "bag," and Respondent told him that she would have to have money to get it herself. The officer gave Respondent $20.00 and the two women left the establishment. They returned a short time later, and the woman known as Candy took a plastic bag containing a brownish vegetable matter from her purse and both women stated that it was "dynamite dope." Thereafter, laboratory tests established that the bag contained 18 grams of marijuana. (Stipulated testimony of Castro, Petitioner's Exhibit 1)

   
   

3. On October 17, 1978, Respondent was arrested for the offense of sale of marijuana. On February 8, 1979, upon Respondent's plea of nolo contendere to sale and possession of a controlled substance, in the Polk County Circuit Court, an order was issued by the Court withholding adjudication of guilt and placing the Respondent on probation for a period of three years. Respondent was dismissed from employment by the School Board of Polk County on May 21, 1979, for immorality based on the sale of marijuana. Evidence concerning the foregoing disposition of judicial and school board proceedings was received at the hearing upon stipulation of the parties, but will not be considered herein for purposes of determining grounds for disciplinary action under Section 231.28, F.S. (Stipulated testimony of Castro, Wilson, Petitioner's Exhibits 1- 2, 5)

   
   

4. In the opinion of Respondent's former principal, the Polk County School Board Director of Employee Relations, the Chairman of the School Board, and several parents, a teacher who commits the offense of sale of marijuana would

   thereby set an improper example for students and seriously reduce the teacher's effectiveness as an employee of the school system. (Stipulated testimony of Miles, S. Wilson, Qualls, D. Wilson, Aggelis, supplemented by Petitioner's Exhibit 4)

   
   

5. During the school year 1975-76 in the Polk County School System, Respondent received a "satisfactory" rating on her annual teacher assessment report. She received the highest rating of "good" during the 1976-77 school year, and a "satisfactory" rating for the 1977-78 year. (Respondent's Composite Exhibit 1)

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 231.28, Florida Statutes, authorizes the Department of Education to suspend or revoke a teaching certificate for stated grounds, including "gross immorality" and "personal conduct which seriously reduces his effectiveness as an employee of the school board." Such grounds are deemed to be properly in issue in this case. Petitioner also alleges a violation of Section 231.09, Florida Statutes, which deals with the duties of instructional personnel including a requirement that a teacher set an appropriate example for students. Although a teacher's failure to perform such a duty might be considered as conduct which reduces the teacher's effectiveness, it cannot serve as an additional ground for disciplinary action. The language in Section 231.28(1) which concerns one who has "otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate," cannot be applied in this instance because Section 231.09 does not provide a penalty for failure to perform the duties enumerated thereunder. Petitioner's allegations of violations of Chapters 6B-1 and 6B-5, Florida Administrative Code, do not specify the particular ethical standards that Respondent may have violated, and therefore cannot serve as a basis for disciplinary action, even if otherwise valid for such a purpose.

   
   

7. Petitioner has presented clear and convincing evidence that Respondent, in conjunction with another, sold marijuana to a police officer in September, 1978. Her actions in this regard became the subject of notoriety in the press, and known in the community and within the school system. It is unquestionable that such misconduct on the part of a teacher seriously reduced her effectiveness to continue as an instructor in the public schools. The term "immorality" is defined in Petitioner's Rule 6B-4.09(2) for the purposes of school board dismissal action as "conduct that is inconsistent with the standards of public conscious and good morals. It is conduct sufficiently notorious to bring the individual concerned with the education profession into public disgrace or disrespect and impair the individual's service in the community." Certainly, the unlawful sale of marijuana meets all the tests of that definition which properly may be carried over to cases involving suspension or revocation of teaching certificates. It is further considered that the term "gross" in the statutory term "gross immorality should be viewed as immorality which involves an act or conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards. Accordingly, it is concluded that Respondent's actions meet the statutory criteria for disciplinary action.

   
   

8. In determining an appropriate penalty, consideration should be given to the fact that no evidence has been presented to indicate that Respondent has been the subject of any prior disciplinary action. Her records indicate that she is an adequate teacher and her misconduct occurred in a setting outside the school without student involvement. In view of all the circumstances, together

with the foregoing considerations, it is believed that revocation of Respondent's teaching certificate for a period of two years is warranted and would constitute an appropriate penalty.

RECOMMENDATION

That Respondent's teaching certificate be revoked for a period of two years.

DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1980.

COPIES FURNISHED:

J. David Holder, Esquire

110 North Magnolia Drive Suite 224

Tallahassee, Florida 32301

Wallace L. Storey Post Office Box 796

Bartow, Florida 33830

Hugh Ingram, Administrator Professional Practices Council

319 West Madison Street Tallahassee, Florida 32301

Docket for Case No: 79-001217

Orders for Case No: 79-001217