STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1718

)

HOWARD W. ADAMS, )

)

Respondent. )

) PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1719

)

RANDY D. WARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a consolidated public hearing in the above styled cases on 12 February 1980 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Vossler, Esquire

Suite 224, 110 North Magnolia Avenue

Tallahassee, Florida 32301

For Respondent: Philip Padovano, Esquire

Post Office Box 527 Tallahassee, Florida 32302

By Petition for Revocation of teacher's certificate dated 20 July 1979, the Professional Practices Council seeks to revoke, suspend, or otherwise discipline the teaching certificates of Howard W. Adams and Randy D. Ward, Respondents. As grounds therefor it is alleged that on or about April 1, 1979, Respondents were found in possession of marijuana and arrested on a charge of felony possession of marijuana, which charge was later nolle prossed because of lack of evidence. These acts are alleged to constitute gross immorality, conduct inconsistent with good morals and not a proper example for students. The Petition further alleges that Respondents' conduct was sufficiently notorious that the effectiveness of Respondents in the school system has been seriously impaired.

On 11 October 1979 a hearing was held on Respondents' motions to suppress evidence and, by Order entered 2 November 1979, the motion to suppress the

evidence of marijuana taken by the police from Respondents' property was granted.

At this hearing Petitioner offered into evidence the testimony of the witnesses who testified at the 11 October motion hearing and when an objection thereto was sustained a proffer of this testimony was made. The parties stipulated that if these witnesses were allowed to testify, their testimony would be the same as given at the motion hearing. A transcript of that proceeding was admitted into evidence as Exhibit 1. Thereafter, two witnesses were called by Petitioner and three additional exhibits were admitted into evidence.

FINDINGS OF FACT

1. At all times here relevant, Respondent, Howard W. Adams, held Florida teaching certificate number 237388, Graduate, Rank III, and Randy D. Ward held Florida teaching certificate number 404713, Graduate, Rank III.

   
   

2. On or about 1 April 1979 Respondents were arrested by the Fort Myers police and charged with possession of marijuana. Respondent Adams, who was on continuing contract, was suspended without pay from his position in the Lee County school system and Respondent Ward, who was on annual contract, was fired from her position in the Lee County school system.

   
   

3. Considerable publicity was given to the arrests and school board actions resulting therefrom.

   
   

4. The criminal charges against these Respondents were subsequently dropped by the State Attorney's office for lack of evidence. This too received publicity in the local press. Suffice it to say the arrest and subsequent release of Respondent Adams was well-known by both faculty and students at Cypress Lake Middle School, where Adams taught orchestra, and by the adult population of Fort Myers with children attending the Lee County public schools.

   
   

5. Both of the witnesses called by Petitioner testified that Respondent Adams' effectiveness in the school system had been seriously reduced as a result of the marijuana incident. This loss of effectiveness was caused by the belief that Adams had, in fact, violated the law by having in his possession marijuana. Since Adams was suspended from his position on the faculty at Cypress Lake Middle School as soon as the newspapers published the circumstances surrounding his arrest, no specific incidents to show how Adams' effectiveness had been reduced was available, let alone presented, to support these conclusions.

   
   

6. No evidence regarding the loss of effectiveness of Respondent Ward was submitted.

   
   

7. Fort Myers and Lee County are populated predominantly by residents with a conservative outlook on morals and moral values. As a result, possession of marijuana is deemed a more serious offense in Lee County than in more cosmopolitan areas. Students found in possession of marijuana on school premises are routinely expelled. Possession of drugs of any sort is deemed immoral in this area, and marijuana is included in the definition of drugs.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

9. Section 231.28, Florida Statutes, provides that the Department of Education shall have authority to suspend or revoke the teaching certificate of any person provided:

   
   

   1. It can be shown that such person . . . has been guilty of gross immorality or an act involving moral turpitude . . . or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board . . . or has otherwise refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed.

      
      

10. Here the sole basis for finding either Respondent guilty of gross immorality or an act involving moral turpitude is the marijuana incident. Assuming for the purpose of this proceeding, but without deciding, that possession of marijuana involves moral turpitude, the evidence that Respondents possessed marijuana is wholly lacking.

    
    

11. Similarly, under the allegations here involved, any finding that Respondents were guilty of personal conduct which seriously reduced their effectiveness as employees of the school system must be predicated upon a finding that the personal conduct involved possession of marijuana. Absent a finding that either Respondent possessed marijuana, they cannot be found guilty of personal conduct as alleged which seriously reduced their effectiveness as employees of the school system.

    
    

12. There is no dispute with Petitioner's contention that school teachers are required to adhere to a higher standard of conduct and exhibit higher moral principles than do those in other professions who are not shaping the lives of children of impressionable years. Nevertheless, teachers too, are entitled to due process of law.

    
    

13. To find these Respondents guilty of personal conduct which seriously reduces their effectiveness in the school system it becomes necessary to assume, as did the witnesses produced by Petitioner, that Respondents were really guilty as charged, even though these charges were dropped and the cases against them dismissed. Notoriety given to these charges and the possible loss of effectiveness such notoriety may engender cannot substitute for probative evidence that Respondents were guilty of personal conduct to which loss of effectiveness can be attributed. To hold otherwise would allow a teacher to be dismissed if a sufficiently vicious, but unfounded, rumor was circulated which had the effect of seriously reducing the teacher's effectiveness in the school system. This case is no different. As a nation of laws and not of men we cannot say these Respondents were guilty but for a technicality.

    
    

14. The burden is upon the Petitioner to prove Respondents guilty of personal conduct which seriously reduces their effectiveness in the school system. Newspaper articles describing the events surrounding the arrest of Respondents do not meet this standard. Absent probative and admissible evidence to support this charge, the Petitioner has not sustained its burden of proof. cf. Boyette v. Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

15. Petitioner also alleges that Respondents, by these acts involving the marijuana incident, have failed to set a proper example for students. Standards for Competent Professional Performance are established in Chapter 68-5, Florida Administrative Code. Rule 6B-5.10(4), Florida Administrative Code, provides in pertinent part:

    
    

    Competent educators . . . shall provide leadership and direction for others by appropriate example.

    
    

16. Petitioner contends, and properly so, that it is wholly inappropriate to expel a student who is found in possession of marijuana on the school grounds but take no action against a teacher who possessed sufficient marijuana to constitute a felony. Had possession of marijuana by Respondents been proven, disciplinary action for failure of Respondents to comply with Rule 6B-5.10(4) above quoted would be appropriate. The same principles are applicable with respect to the allegations that Respondents failed to provide leadership by appropriate example as exist with respect to Respondents being found guilty of personal conduct which seriously reduces their effectiveness in the school system. The substantive facts relating to each must be proved and the example complained of is the same as the personal conduct complained of. Since the evidence was insufficient to prove Respondents guilty of personal conduct which seriously reduces their effectiveness in the school system, it follows that the evidence is also insufficient to prove failure to provide leadership by appropriate example.

    
    

17. From the foregoing it is concluded that no evidence was presented that Randy D. Ward's effectiveness in the school system was seriously reduced; no competent and substantial evidence was presented to show either Respondent Adams or Ward guilty of an act involving moral turpitude or of personal conduct which seriously reduced his or her effectiveness as an employee of the school board; or that Respondents violated the rules of the Board of Education by failing to provide leadership and direction for others by appropriate example. It is therefore

RECOMMENDED that the charges preferred against Howard W. Adams and Randy D. Ward be dismissed.

Entered this 14th day of March, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Robert Vossler, Esquire

Suite 224, 110 North Magnolia Avenue

Tallahassee, Florida 32301

Philip Padovano, Esquire Post Office Box 527 Tallahassee, Florida 32302

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1718

)

HOWARD W. ADAMS, )

)

Respondent. )

) PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1719

)

RANDY D. WARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, K.N. Ayers, held a consolidated public hearing in the above-styled cases on August 13, 1980, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Robert J. Wossler, Esquire

Suite 224, 110 North Magnolia Drive

Tallahassee, Florida 32301

For Respondents: Philip Padavano, Esquire

Post Office Box 527 Tallahassee, Florida 32302

By Petitions for the Revocation of Teacher Certificates dated July 20, 1970, the Professional Practices Council (PPC or Petitioner) seeks to revoke, suspend or otherwise discipline the teaching certificates of Howard W. Adams and Randy D. Ward, Respondents. As grounds therefor, it is alleged that on or about April 1, 1979, Respondents were found in possession of marijuana and arrested on a charge of felony possession of marijuana, which charge was later nol-prossed because of lack of evidence. These acts are alleged to constitute gross immorality, conduct inconsistent with good morals and not a proper example for students. The petition further alleges that Respondents' conduct was

sufficiently notorious that the effectiveness of Respondents in the school system has been seriously impaired.

These cases have endured a ragged history. The initial complaint against Respondent Adams involving these allegations was filed by the Superintendent of Lee County Schools, referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and assigned Case No. 79-958. Prior to holding that hearing, similar charges were proffered by the Professional practices Council against both Respondent Adams and Respondent Ward, referred to this Division for the appointment of a Hearing Officer, and assigned Case Numbers 79-1718 and 79-1719. Since the same factual allegations formed the bases for the complaints against each Respondent, the cases were consolidated for hearing.

Following Motions to Dismiss and to Suppress Evidence filed by Respondents, a hearing was held on October 11, 1979 to consider these motions. The Motion to Dismiss was grounded on the premise that possession of marijuana does not constitute "gross immorality" and thereby provide a basis for taking disciplinary action against Respondents' continuing contract status and certificates by the Petitioner. Following argument of counsel, that motion was denied. Its renewal at this current hearing is also denied.

Respondents' Motion to Suppress Evidence was founded upon an alleged illegal search and seizure by the police from premises of the Respondents.

After considering the evidence submitted at the October 11, 1979 hearing, the undersigned Hearing Officer entered an Order dated November 2, 1979 granting the Motion to Suppress the marijuana seized from Respondents' property by the police without benefit of a search warrant.

By letter dated November 9, 1979, the Superintendent of Schools, Lee County, by and through its attorney, requested the file be returned and advised that further proceedings would be held before the School Board. No action was taken by the Hearing Officer on this request.

Petitioner, Superintendent of Lee County Schools, then filed a petition in the Second District Court of Appeals to review the Order suppressing the evidence entered on November 2, 1979. In Per Curiam Opinion filed on November 30, 1979, in Pottorf v. Adams, Case No. 79-2085, review was denied by the Court "without prejudice to raise on petition for review from final agency action."

Thereafter, that Petitioner, on December 4, 1979, held a final hearing on Adams before the Lee County School Board and in Final Order dated February 11, 1980, adopted the Findings of Fact entered in the Hearing Officer's Order of November 2, 1979, also found Respondents in possession of 52 marijuana plants, entered Conclusions of Law that this conduct and the publicity generated by Respondents' arrest constituted conduct for which Respondents' continuing contract status should be terminated, and dismissed and discharged Respondent Adams for cause and terminated his contract effective April 2, 1979.

By letters dated November 9, 1979 and January 17, 1980, the PPC, by and through its attorney, requested that Cases 79-1718 and 79-1719 proceed to final hearing; and a final hearing was held on February 12, 1980. At that hearing, objection to the admission of the evidence that marijuana and marijuana plants were seized by the police from Respondents' premises in violation of Article I, Section 12, Florida Constitution, was sustained; the testimony presented at the hearing on the Motion to Suppress was proffered and as such, admitted as an exhibit for the benefit of reviewing authorities; and testimony was presented

relative to the effect the arrest of Adams and Ward and notoriety generated thereby had upon their effectiveness in the Lee County school system. Without the evidence that Respondents were in possession of marijuana as alleged, they were found not guilty in the Recommended Order entered on March 14, 1980.

Following arguments before the State Board of Education, that Board, on June 18, 1980, entered an Order reversing the Hearing Officer's Order on the Motion to Suppress dated November 2, 1979, rejected all findings of fact and conclusions of law in the Recommended Order dated March 14, 1980, and remanded the matter to the Hearing Officer for an evidentiary hearing to consider the evidence previously suppressed and to enter a new Recommended Order based thereon.

At the remanded hearing on August 13, 1980, the parties stipulated that all testimony previously presented in these cases at the October 11, 1979 and February 12, 1980 hearings would be considered, that the plants seized by the Lee County Sheriff's deputy from Respondents' greenhouse were marijuana, that the baggies removed from a canister seized on Respondents' property contained marijuana, and that the chain of custody of this evidence from its seizure until the hearing was intact. Thereafter, Deputy Sheriff Cross was recalled for additional cross-examination by Respondents and one additional witness was called by Petitioner.

After reviewing and considering all evidence presented, I submit the following:

FINDINGS OF FACT

1. At all times here relevant, Respondent, Howard W. Adams, held Florida teaching certificate number 237388, Graduate, Rank III, and Randy D. Ward held Florida teaching certificate number 404713, Graduate, Rank III.

   
   

2. The facts surrounding the seizure of the marijuana are not disputed. On April 1, 1979, in response to a call that persons had vandalized an unfinished residence, Lee County Deputy Sheriff William Cross was dispatched to the scene. Upon his arrival some 30 minutes after the vandals had been seen departing the premises, Deputy Cross was told by the owner of the dwelling that the two small boys who had vandalized the dwelling had been seen running from the building in a northwesterly direction toward the adjacent property occupied by Respondents.

   
   

3. Deputy Cross proceeded on to Respondents' property and observed shadows in a greenhouse behind the residence. He went to the door of the greenhouse and while standing in the threshold of the door to the greenhouse, Deputy Cross observed Respondent Adams sitting on a stool talking with another adult male.

   He inquired if they had seen two small boys pass their way and was advised yes. He then observed what he recognized as several (about 50) marijuana plants in the greenhouse within three feet of and on both side of the stool on which Adams was sitting. Cross announced that he was confiscating the marijuana.

   
   

4. About this time, Respondent Ward emerged from the back door of the residence, some 20 feet distant, and told Cross to leave her property as he had no business being there. While Cross was conversing with Ward and telling her he was confiscating the marijuana plants, the man who had been talking with Adams when Cross approached departed.

5. Without placing anyone under arrest because, according to Cross' testimony he had insufficient grounds, he told Adams and Ward to accompany him to the house next door where he called his superior for instructions. Near the completion of Cross' telephone call, Ward told him that she was returning to the house to lock up and went back to the residence. Shortly thereafter, Cross finished his telephone conversation, and he and Adams returned to Respondents' property. Upon arrival, Cross observed Ward exiting from the back door with a red canister in her hand which she placed in a black plastic bag containing potting soil located on the lawn between the back door of the house and the greenhouse. Cross proceeded to the bag, removed the canister and opened it. Therein he found two baggies of marijuana. Cross then arrested Ward and, pursuant to instructions he had received during his telephone call, took possession of the marijuana plants and escorted both Respondents to the police station for questioning.

   
   

6. At no time while Cross was on Respondents' premises did he have a search warrant, nor could he see the door of the greenhouse or anything therein without entering onto the Respondents' property. This greenhouse was a wood- frame structure covered with Visqueen, a translucent plastic through which only vague shadows can be discerned.

   
   

7. Considerable publicity was given to the arrests and school board actions resulting therefrom.

   
   

8. The criminal charges against these respondents were subsequently dropped by the State Attorney's Office for lack of evidence. This, too, received publicity in the local press. Suffice it to say that the arrest and subsequent release of Respondent Adams was well known by both faculty and students at Cypress Lake Middle School, where Adams taught orchestra, and by the adult population of Fort Myers with children attending the Lee County public schools.

   
   

9. Witnesses called by Petitioner testified that Respondent Adams' effectiveness in the school system had been seriously reduced as a result of the marijuana incident. Since Adams was suspended from his position on the faculty at Cypress Lake Middle School, and Ward, who was not on continuing contract, was dismissed from her position in another school as soon as the newspapers published the circumstances surrounding their arrest, no specific incidents to show how their effectiveness had been reduced was presented.

   
   

10. Fort Myers and Lee County are populated predominantly by residents with a conservative outlook on morals and moral values. As a result, possession of marijuana is deemed a more serious offense in Lee County then in more cosmopolitan areas. Students found in possession of marijuana on school premises are routinely expelled. Possession of drugs of any sort is deemed immoral in this area, and marijuana is included in the definition of drugs.

    
    

11. Teachers occupy a position with the potential for greatly influencing ideals and moral values of pupils with whom they come in contact. They often become the personification of the ideal person which the pupil would like to emulate; hence, this great influence. Knowing such a teacher used or condoned the use of marijuana would make its use more acceptable to the pupil.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

13. Section 231.28, Florida Statutes, provides that the Department of Education shall have authority to suspend or revoke the teaching certificate of any person provided;

    
    

    1. It can be shown that such person . . . has been guilty of gross immorality or an act involving moral turpitude . . . or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board . . . or has otherwise refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed.

       
       

14. Gross immorality and moral turpitude involve similar acts; however, more judicial definitions exist of the latter than the former. In State ex rel. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933), the Court stated at p. 661:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or man to society. It has also been defined as anything done contrary to justice, honesty, principle or good morals, though often it involves

    a question of intent as when unintentionally committed through error of judgment when wrong was not anticipated. (Citations omitted).

    
    

15. In 93 ALR 2d Section 1938 at p. 1403, it is stated:

    
    

    While offenses arising out of laws relating to alcoholic beverages have seldom been considered to involve moral turpitude, violations of narcotics acts are usually considered to do so, the few exceptions being where there has been a violation of federal law by an act which would not

    have been a crime under state statutes then in effect.

    
    

16. In Kiner v. State Board of Education, 344 So.2d 656 (Fla. 1st DCA 1977), the Court held that a plea of guilty to manslaughter was prima facie evidence that appellant was guilty of an act involving moral turpitude.

    
    

17. Chapter 893, Florida Statutes, includes cannabis as a controlled substance, the possession of which constitutes a crime. Possession of more than

    20 grams of cannabis constitutes a felony.

    
    

18. Here, due primarily to the separate proceedings held in which quantity was not relevant in the suppression hearing and the parties stipulated the material seized was marijuana in all hearings, the weight of the cannabis found in the canister was not shown. Nor was evidence presented of the weight of the marijuana contained in the 52 plants seized. Nevertheless, it is concluded that

    possession of 52 marijuana plants and two baggies of marijuana constitutes an offense involving moral turpitude.

    
    

19. Respondents cite Robert Dee von Durjais v. Board of Trustees, Roseland School District, 148 Cal. Rptr. 192; 83 Cal. App. 3d 681 (CA 1st Dist. Div. 1, 1978) for the proposition that a finding of possession of marijuana--without more--does not constitute immoral conduct as a matter of law. Under the facts here presented, that case is not persuasive. Although the weight of the marijuana seized from Respondents was not shown, the fact that 52 plants were seized, plus a quantity of smokeable marijuana, lends credence to the allegation and testimony that Respondents were charged with felony possession of marijuana. The quantity, viz. 52 plants, is that "more" which the facts here distinguish this case from von Durjais, supra.

    
    

20. The notoriety given to the arrest of Respondents and subsequent administrative proceedings held on the charges proffered against Respondents by newspaper coverage of these incidents has made these charges well known in Fort Myers and generally in the Lee County school system. This general knowledge of Lee County parents with children in the Lee County schools that Respondents were found in possession of marijuana growing in their greenhouse has seriously reduced their effectiveness in the Lee County school system.

    
    

21. Petitioner has also alleged that Respondents, by these acts involving the marijuana incident, have failed to set a proper example for students. Standards for Competent Professional Performance are established in Chapter 6B- 5, Florida Administrative Code. Rule 6B-5.10(4), Florida Administrative Code, provides in pertinent part:

    
    

    Competent educators . . . shall provide leadership and direction for others by appropriate example.

    
    

22. Teachers who grow marijuana set a poor example for students in a school where a student found smoking marijuana is expelled. In fact, because of the great potential for influencing pupils that adheres to teachers, it is more serious in the eyes of parents of school-age children for a teacher to violate drug laws than it is for one not so positioned to influence young minds.

From the foregoing, it is concluded that Respondents, Howard W. Adams and Randy D. Ward, are guilty of acts involving moral turpitude and that as a result of the commission of these acts, their effectiveness in the Lee County school system has been seriously impaired, and that they have failed to provide leadership and direction for others by appropriate example.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that their teaching certificates numbered 237388 and 404713 be

revoked.

DONE and ENTERED this 27th day of August, 1980, in Tallahassee, Leon County, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1980.

COPIES FURNISHED:

Robert J. Vossler, Esquire

110 North Magnolia Dr., Ste. 224 Tallahassee, FL 32301

Philip Padavano, Esquire

P. O. Box 527 Tallahassee, FL 32302

Docket for Case No: 79-001718

Orders for Case No: 79-001718