STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1782

)

THERESA MACKEY BARNES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on October 10, 1979, in Jacksonville, Florida.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: William F. Kachergus, Esquire

603 Florida Theatre Building Jacksonville, Florida 32202

The Professional Practices Council (hereinafter "PPC" or "Petitioner") filed a Petition for the Revocation of Teacher's Certificate ("Petition") against Respondent, Theresa Mackey Barnes ("Respondent") seeking to revoke or suspend Respondent's Florida teacher's certificate alleging that Respondent was arrested on or about June 6, 1978, on a charge of petit theft by shoplifting, which conduct was "grossly immoral", "not a proper example for students and is sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect", and "has seriously reduced the effectiveness of [Respondent] as an employee of the School Board." Respondent answered denying the material allegations of the Petition, and, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, Petitioner requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing in this cause. Final hearing was scheduled for October 10, 1979, by Notice of Hearing dated September 6, 1979.

At the final hearing, Petitioner called Theodore Hugo, Ruby Weldon and Lucy Lias as its witnesses. Petitioner offered Petitioner's Exhibits 1, 2 and 3, each of which was received into evidence. Respondent called Leonard G. Lee, Ann Collins, Sara Potts and Donna Sutton as her witnesses. Respondent offered Respondent's Exhibits 1 and 2, both of which were received into evidence.

Counsel for both Petitioner and Respondent waived the requirement that a Recommended Order be entered by the Hearing Officer within 30 days from conclusion of the final hearing.

FINDINGS OF FACT

1. Respondent currently holds Florida Teaching Certificate No. 162096, Post Graduate Rank II, which is valid through June 30, 1991, covering the areas of elementary education, junior college, reading and guidance. At all times material hereto, Respondent was employed as an elementary school teacher in the public schools of Duval County, Florida, at Garden City Elementary School.

   
   

2. On June 6, 1978, Respondent was involved in an incident at the K-Mart department store located at 9459 Lem Turner Road, Jacksonville, Florida, which resulted in the filing of the Petition herein. On that date, Respondent was observed by the store's Security Manager while she was shopping in the ladies' wear department. The Security Manager was stationed behind one of sixteen observation windows situated in the ceiling of the store. From this vantage point, the Security Manager observed Respondent while she removed an orange bathing suit from a display rack and proceeded with the bathing suit to the infants wear department. Respondent then took the bathing suit off its hanger and placed the suit on top of her purse. Shortly thereafter, the Security Manager saw Respondent fold the swim suit and conceal it in her purse. Respondent then proceeded to the front of the store where she attempted to exit through the front entrance. At no time did Respondent approach the check-out counter prior to attempting to exit the store premises.

   
   

3. The store Security Manager prevented Respondent from exiting the store by calling another store employee located at the front door of the store on the house telephone. The Security Manager advised this employee that Respondent was heading toward the front door, and requested that Respondent be detained. When the employee stopped Respondent, the Security Manager, with the assistance of other store employees, escorted Respondent to the Security Manager's office for further questioning.

   
   

4. Once in the Security Manager's office, Respondent was read the following information contained on a card in the Security Manager's possession:

   
   

   You have the right to remain silent and not to answer any questions. Any statement you make must be freely and voluntarily given. You have the right to the presence of a lawyer of your choice before you make any statement and during any questioning.

   
   

   If you cannot afford a lawyer, you are entitled to the presence of a court-

   appointed lawyer before you make any statement and during any questioning. If any time during the interview you do not wish to answer any questions, you are privileged to remain silent. I can make no threat or promises to induce you to make a statement. This must be of your own free will. Any statement can be

   and will be used against you in a court of law.

   
   

5. After reading this information to Respondent, the Security Manager requested that Respondent give him the bathing suit, but Respondent refused to remove it from her purse. Thereupon, the Security Manager opened Respondent's purse and removed an orange bathing suit which still had tags attached to it.

   During the course of questioning by the Security Manager, Respondent refused to divulge her name, employment or other identification. Additionally, on several occasions Respondent requested that she be allowed to pay for the merchandise, and indicated that she was a professional woman and could not afford to get into any trouble.

   
   

6. The incident was reported to law enforcement officials, and an officer, responding to the call, placed Respondent under arrest and left the store premises with Respondent in custody.

   
   

7. Respondent has an excellent reputation for truth and honesty in the school in which she is employed and in the surrounding community. According to evidence in the record in this proceeding, Respondent had never done anything prior to this incident to bring herself or the education profession into public disgrace or disrespect, and had never failed to set a proper example for students. There is no evidence in the record from which it can be concluded that Respondent's effectiveness as an employee of the School Board has been reduced as a result of this incident. In fact, there is no evidence that any students at the school or any parents of students were aware that the incident had ever occurred. Respondent is a Lead Teacher in the Title I reading program and has demonstrated her effectiveness and creativity in that position, and enjoys an excellent rapport with her pupils.

   
   

8. There is no evidence in this record that Respondent ever pleaded guilty or was convicted of any misdemeanor, felony or other criminal charge. In fact, the only evidence in this regard is an order entered by Judge Louise Walker of the Duval County Court, pursuant to Section 901.33, Florida Statutes, expunging all records concerning the arrest, investigation and prosecution arising from the incident hereinabove described.

   
   

9. Both Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

11. Section 231.09(2), Florida Statutes, provides, in part, that members of the instructional staff of public schools shall:

    
    

    Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism. . .

    
    

12. Section 231.28, Florida Statutes, provides, in part:

    
    

    The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to

    exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (6); or to revoke permanently 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 has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, 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 violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed.

       
       

13. Based upon the foregoing findings of fact, it is concluded that Respondent has been guilty of an act involving moral turpitude in violation of Section 231.28(1), Florida Statutes, and has additionally violated Section 231.09, Florida Statutes, by failing to set a proper example for students. Accordingly, Respondent's teaching certificate should be suspended for a period of one year. However, in light of Respondent's demonstrated ability and continuing effectiveness as a classroom teacher, the suspension of her teaching certificate should itself be suspended, and Respondent should be placed in a probationary status for a period of one year, conditioned upon her compliance with all the rules and regulations of the Department of Education and the Duval County School Board, and the statutes of the State of Florida governing the teaching profession during that probationary period.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law it is: RECOMMENDED:

That a Final Order be entered by the State Board of Education suspending the teaching certificate of Respondent, Theresa Mackey Barnes, for a period of one year, and, in turn, suspending said suspension and placing Respondent on probation for a period of one year subject to the conditions hereinabove set forth.

Recommended this 17th day of December, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

William F. Kachergus, Esquire 603 Florida Theatre Building Jacksonville, Florida 32202

Docket for Case No: 79-001782

Orders for Case No: 79-001782