STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1781

)

RODELL D. TURNER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Melbourne, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 30, 1979. The Division of Administrative Hearings received a transcript of proceeding on January 3, 1980. At the hearing, the parties were represented by counsel:

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: C. Anthony Cleveland, Esquire

208 West Pensacola Street Tallahassee, Florida 32304

By petition for the revocation of teacher's certificate dated July 20, 1979, petitioner alleged that respondent "[o]n or about April 26, 1979,. . .did.

. .fire a shotgun blast at the car of Frank Bell, inflicting numerous small wounds on the victim's left shoulder and the left side of his head and face, this act being witnessed by. . .minors and students." The petitioner alleges that this conduct violates Section 231.28 and Section 231.29, Florida Statutes, and Rules 6A-4.37, 613-1 and 6B-5, Florida Administrative Code, "in that it is conduct which is grossly immoral, inconsistent with good morals and the public conscience, not a proper example for students and sufficiently notorious to bring RODELL D. TURNER and the education profession into public disgrace and disrespect. . .[and] has seriously reduced the effectiveness of RODELL D. TURNER as an employee of the school board." Respondent maintains that no action should be taken against his teacher's certificate, because he acted in self defense and because he was acquitted in criminal court on a plea of self defense when tried on charges arising out of the identical incident.

FINDINGS OF FACT

1. On Tuesday, April 24, 1979, respondent went to the home of Alberta Cross in Melbourne, Florida, to see Ms. Cross' daughter, Sandra Young, mother of his two children. At the time, respondent was having an argument with Sandra Young. Frank Bell, a friend of Ms. Cross for several years, was at her house

   when respondent called on Ms. Young. Mr. Bell pointed a gun at respondent and ordered him off the property. Ms. Young threw herself between respondent and Mr. Bell and then left with respondent in the van in which he had arrived.

   After talking things over with a friend, respondent decided to swear out a warrant for Mr. Bell's arrest. As a result, Mr. Bell was arrested the following day. He was released from jail on bond, on April 26, 1979, a Thursday. Some seven years earlier, Mr. Bell and respondent had confronted one another at Ms.

   Cross' house. On that occasion, too, Mr. Bell pointed a gun at respondent.

   
   

2. Between 5:00 and 5:30 on the afternoon of April 26, 1979, Mr. Bell arrived at the home of Linda Marie Harden. Ms. Harden lived within sight of respondent's father's house. A little before 7:00 o'clock on the evening of April 26, 1979, Mr. Bell left the Harden residence in a 1964 Chevrolet sedan. Both windows on the left hand side of the vehicle were rolled up. The left front door window was held together with tape and could not be rolled down. The left front door could not be opened from the inside of the car. As Mr. Bell turned a corner in front of respondent's father's house, respondent took up position with a shotgun, threw a cinder block at the car, and, when Mr. Bell turned around to see what had caused the noise, fired a single shot which blew out both windows on the left hand side of the car, hit Mr. Bell in the left shoulder, forehead, back of his head, and left eye, knocked him over in his seat, and resulted in his hospitalization for nine days. After the shooting, respondent fled.

   
   

3. Respondent could have avoided a confrontation with Mr. Bell by taking cover. Respondent's father and respondent's son were sitting in the front yard with respondent, beside one of two vans parked in the front yard, when respondent first spotted Mr. Bell's car. Respondent's father grabbed his grandson and ran for the house before the shooting. Instead of making a run for the house or taking shelter behind a van, respondent threw the cinder block and fired the shotgun. When the police arrived, they found a pistol on the right hand side of the floor in the back of Mr. Bell's car. Mr. Bell did not point this gun at respondent on April 26, 1979; Mr. Bell did not even see respondent before the shot was fired.

   
   

4. As a result of these events, respondent was tried on charges of aggravated battery. In those proceedings, as in these, he raised the defense of self defense. The criminal trial eventuated in an acquittal.

   
   

5. Three young people, including two of respondent's former students, witnessed the shooting. News of the incident spread rapidly. The next day, respondent's principal received eight to ten telephone calls from parents with remarks like "Surely you won't let a murderer stay in the classroom." Other parents complained in person and two students mentioned the incident to the principal. Respondent was suspended on April 27, 1979, and subsequently fired, by the Brevard County School Board. After respondent's acquittal, 120 students signed a petition for his reinstatement.

   
   

   CONCLUSIONS OF LAW

   
   

6. At the hearing, and again in a post-hearing brief, respondent renewed the contention, which he originally made by prehearing motion to another hearing officer, that acquittal at the criminal trial bars any disciplinary proceedings against respondent's teacher's certificate. In support of this proposition, respondent cites Ashe v. Swenson, 397 U.S. 436 (1970), United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961), and Standlee v. Rhay, 557 F.2d 1303, 1306 (9th Cir. 1977), among other authorities. Respondent argues that, since the present

   proceedings are penal in nature, State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973), they are barred by the state and federal constitutional prohibitions against double jeopardy, just as a second criminal trial would be. It is not necessary to reach the merits of this contention, inasmuch as the same contention was made to the Division of Administrative Hearings in the form of prehearing motions which were decided unfavorably to respondent; and these rulings have not been reviewed interlocutorily.

   
   

7. The weight of the evidence showed that respondent's shooting of Mr. Bell was not in self defense or otherwise lawful or justifiable. The intentional, unlawful shooting of a human being is grossly immoral, inconsistent with public morals and the public conscience and an improper example for students, as alleged in the administrative complaint. The evidence did not show that respondent's effectiveness as a teacher was diminished by the shooting, however.

   
   

8. Since petitioner established that respondent "has been guilty of gross immorality or an act involving moral turpitude," Section 231.28(1), Florida Statutes (1977), the "Department of Education. . .[has] authority to suspend. .

.[or revoke. . .[respondent's] teaching certificate. . ." Section 231.28, Florida Statutes (1977).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department of Education suspend respondent's teaching certificate for three years.

DONE and ENTERED this 24th day of January, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

J. David Holder, Esquire

110 North Magnolia Drive Suite 224

Tallahassee, Florida 32301

C. Anthony Cleveland, Esquire

208 West Pensacola Street Tallahassee, Florida 32304

Docket for Case No: 79-001781

Orders for Case No: 79-001781