STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-2439

)

ROBERT MARSHALL STABLER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Titusville, Florida, on March 7, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

315 Third Street

West Palm Beach, Florida 33401

For Respondent: R. V. Richards, Esquire

1526 South Washington Avenue Titusville, Florida 32780

STATEMENT OF THE ISSUE

Whether Respondent's teaching certificate should be revoked pursuant to Chapter 231, Florida Statutes, as set forth in petition, dated November 8, 1979.

FINDINGS OF FACT

1. Respondent Robert Marshall Stabler holds Florida Teaching Certificate No. 306751, Graduate, Rank III, valid through June 30, 1981, covering the area of elementary education. He was so licensed on May 9, 1979. (Stipulation.)

   
   

2. Respondent was employed in the public schools of Brevard County at Pineda Elementary School, Cocoa, Florida, as a teacher from 1971 to May 1979. Respondent was also employed by Brevard Community College to instruct inmates at the Brevard Correctional Institution at Sharpes, Florida, for several years prior to May 9, 1979. (Testimony of Fisher, Brock, Curtis.)

   
   

3. In late April 1979 a correctional officer at the Brevard Correctional Institution received information from a confidential informant, who was an inmate, that Respondent would bring marijuana into the institution on May 9, 1979. On that date, at approximately 6:15 p.m., Respondent entered the correctional facility and was advised by a correctional officer that college instructors were going to be searched that evening. Respondent was asked to

   submit to such a search and he consented to the same. Respondent was thereupon directed to the nearby "shakedown" room where his briefcase was opened and three packages wrapped in white paper were discovered. At this time, Respondent stated "That's just for my own use." A white envelope containing thirteen five dollar bills was also found in the briefcase. A narcotics officer of the Brevard County Sheriff's Department thereupon weighed and made a standard field test of the material contained in the packages and determined that it was cannabis in excess of 100 grams. The officer then placed Respondent under arrest for introducing contraband upon the grounds of a correctional institution. The packages were thereafter submitted to the Sanford Crime Laboratory for analysis and it was determined that they contained a total of

   106.6 grams of cannabis and that two of these packages contained more than five grams of cannabis leaf material. (Testimony of Fisher, Pierce, Steger, Thomas, Boling, Petitioner's Exhibits 1-4.)

   
   

4. The regulations of the Brevard Correctional Institution authorize a search of visitors which is normally conducted on a random basis. If consent to search is not given, the non-consenting individual is not permitted to enter the institution. (Testimony of Thomas.)

   
   

5. Respondent received outstanding teacher performance evaluations at Pineda Elementary School during prior years and is considered by his principal to be an above-average teacher. Another faculty member at the school characterized him as an "excellent" teacher. He excelled in dealing with students with disciplinary problems and had excellent relations with both students and faculty personnel. He was also considered by his supervisor and a fellow instructor to be the most outstanding teacher at the Brevard Correctional Institution who was highly successful in motivating his students. (Testimony of Curtis, Brock, Walker, Weimer, Respondent's Composite Exhibit 1.)

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner seeks to take disciplinary action against the Respondent pursuant to Section 231.28, Florida Statutes, for "grossly immoral" conduct in that on May 9, 1979, he knowingly possessed more than five grams of cannabis with intent to sell or deliver the same, and that he unlawfully and knowingly introduced such contraband material into or upon the grounds of a correctional institution. The petition also alleges that Respondent thereby violated the provision of Section 231.09, Florida Statutes, and Chapter 6B-1, Florida Administrative Code, in that his conduct was not a proper example for students and was sufficiently notorious to bring the education profession into public disgrace and disrespect. The latter allegations are not considered meritorious because violation of the stated statutory provision does not constitute a separate specific ground for disciplinary action in that it is not a "provision of law, the penalty for (violation of) which is the revocation of the teaching certificate," as provided in Section 231.28(1). Further, there is no evidence or averment that Respondent "refused to comply" with any specific ethical standards of the State Board of Education, as set forth in Chapter 6B-1 and as is required to establish a ground for action under Section 231.28(1) concerning violation of agency rules.

   
   

7. Petitioner established by clear and convincing evidence that on May 9, 1979, Respondent introduced a substantial amount of marijuana into the Brevard Correctional Institution. The evidence showed that he was aware of the presence of such material in his briefcase by his unsolicited comment that it was for his own use after it had been discovered by correctional officers. It further reasonably can be inferred from the evidence that Respondent intended to dispose

   of the contraband within the institution. Such conduct is clearly "immoral" in that it is inconsistent with the standards of public conscience and good morals. The fact that his actions, if successful, could have made the material subject to possible possession and use by inmates, with consequent institutional disciplinary problems that might flow therefrom, is sufficient to characterize his actions as "grossly" immoral in the sense of the statutory ground for disciplinary action.

   
   

8. Respondent objected to the admission in evidence of Petitioner's Exhibits 1 through 3, consisting of the packages of marijuana confiscated from his briefcase at the correctional institution on May 9, 1979, on grounds that a proper predicate had not been laid, insufficient showing of chain of custody, and irrelevancy. The exhibits were provisionally received pending submission of further evidence. Petitioner thereafter did not establish a continuous chain of custody in the handling and submission of the confiscated property. Specifically, the evidence shows that Agency Pierce of the Brevard County Sheriff's Department turned the packages in question over to Agent Connie Smith for delivery to the Sanford Crime Laboratory. However, Agent Smith did not testify at the hearing and there was no evidence presented as to the circumstances surrounding this possession of the material, even though the laboratory report (Petitioner's Exhibit 4) indicates that the packages were

   hand-carried to the laboratory by Smith. However, the packages were identified by both Agent Pierce and the laboratory analyst at the hearing. They also testified that Exhibits 1-3 were in basically the same condition as when they had originally seen them. In the absence of a showing by Respondent that the packages were tampered with, it cannot be concluded that the material received at the laboratory was not in the same condition as that turned over by Agent Pierce to Agent Smith. Accordingly, Petitioner's Exhibits 1-3 are properly in evidence. Carey v. State, 3452.2820 (Fla. 3d DCA 1977). In addition, the field test of the material in the packages conducted by Agent Pierce at the correctional institution at the time they were seized is deemed sufficient to establish that it consisted of marijuana, in the absence of any challenge to the agent's qualifications or validity of the test. See Westfall v. State, 365 So.2d 171 (Fla. 1st DCA 1978).

   
   

9. At the hearing, Petitioner sought to elicit the testimony of Lieutenant Robert Fisher, a shift supervisor at the Brevard Correctional Institution, concerning information provided him by an inmate concerning prior activities of Respondent in the purported sales of marijuana at the correctional institution, and as to the time when Respondent would next be introducing the same into the correctional institution. Although Respondent objected on the grounds of hearsay, the Hearing Officer permitted the line of inquiry after advising the parties that a finding of fact could not be based solely on hearsay evidence. Upon cross examination by Respondent wherein he sought to learn the identity of the inmate in question, Petitioner objected to such disclosure on the ground that protective measures were necessary to safeguard the individual. The hearsay testimony of the officer as to the inmate's disclosures concerning Respondent's alleged prior sales of marijuana is disregarded and not made the subject of a finding of fact herein. There was no competent evidence presented at the hearing to establish any prior sales, nor was such alleged in the complaint. It was unnecessary for the identity of the informant, who was not produced as a witness at the hearing, to be disclosed since it was not shown by Respondent to be required in order to maintain his defense, nor was it relevant to his guilt or innocence of the charges in the complaint. Treverrow v. State, 194 So.2d 250 (Fla. 1967); Pearson v. State, 221 So.2d 760 (Fla. 2d DCA 1969); State v. Matney, 236 So.2d 166 (Fla. 1st DCA 1970); State v. Anderson, 329 So.2d

   424 (Fla. 3d DCA 1976). The information provided by the inmate that Respondent

   would bring marijuana to the institution on the date it was seized simply showed the reason why law enforcement authorities conducted the consent search on May 9, 1979. No objection was raised by Respondent as to the legality of the search nor did he move to suppress the seized material for that reason.

   
   

10. It is considered that Respondent's conduct warrants revocation of his teaching certificate, but in view of his prior good teaching record and the absence of any competent evidence showing previous disciplinary problems, it is considered that revocation for a period of four years is an adequate and appropriate penalty.

RECOMMENDATION

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

DONE AND ENTERED this 12th day of May 1980 in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

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

Filed with the Clerk of the Division of Administrative Hearings this 12th day of May 1980.

COPIES FURNISHED:

Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street

Tallahassee, Florida 32301

Craig Wilson, Esquire

315 Third Street

West Palm Beach, Florida 33401

R. V. Richards, Esquire

1526 South Washington Avenue Titusville, Florida 32780

Docket for Case No: 79-002439

Orders for Case No: 79-002439