vs. ) CASE NO. 80-1597
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a public hearing in this cause on December 16, 1980, in Ocala, Florida.
For Petitioner: Stanley E. Marable, Esquire
For Respondent: Phillip J. Padovano, Esquire
Whether Respondent's alleged possession of marijuana and paraphernalia commonly associated with its trafficking and sale justifies suspension or revocation of his Florida teaching certificate.
Petitioner has established that Respondent's possession of marijuana and paraphernalia commonly associated with its trafficking and sale violates Section 231.28, Florida Statutes (1979). Permanent revocation of his teaching certificate is warranted.
By petition dated July 29, 1980, Petitioner, Florida Professional Practices Council ("COUNCIL"), accused Respondent, Clinton Baker ("BAKER"), of engaging in conduct which warrants the revocation of his Florida teaching certificate. More specifically, the COUNCIL alleges that BAKER's involvement with the Club Aquarius, an Ocala nightclub, his possession of marijuana and paraphernalia associated with its trafficking and sale, and his plea of guilty to the criminal charge of possession of marijuana, constitutes immorality, moral turpitude, and
personal conduct which seriously reduces his effectiveness as an employee of the School Board.
On August 22, 1980, BAKER moved to dismiss the petition on constitutional and statutory grounds. On August 27, 1980, the COUNCIL forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57 hearing. Thereafter, by order dated September 16, 1980, BAKER's motion to dismiss was denied.
On September 22, 1980, BAKER moved to suppress certain tangible evidence and statements obtained by Beverage officers when they searched the Club Aquarius on January 24, 1980. As grounds, BAKER asserted that the search violated State and Federal Constitutions, and that the resulting evidence could not be used against him in this proceeding. By order dated October 27, 1980, ruling was reserved pending presentation of evidence at final hearing.
On November 21, 1980, the COUNCIL moved for summary judgment on the ground that BAKER pled guilty to the charge of possession of marijuana. By order dated December 9, 1980, the motion was denied.
At final hearing, the COUNCIL called as its witnesses, Homer Scroggin, Robert R. Jones, Michael E. Imperial, Thomas F. Deen, and Eugene Broxton; it offered into evidence Petitioner's Exhibit 1/ Nos. 1 through 4, inclusive, each of which was received. Respondent called no witnesses and offered no documentary evidence in his behalf.
The parties requested and were given the opportunity to file memoranda of law and proposed findings of fact within thirty days from the filing of the hearing transcript. Ruling on BAKER's motion to suppress was reserved for disposition in the Recommended Order.
I.
BAKER holds Florida teaching certificate No. 403108. From 1976 to 1980, he taught fourth and fifth grades at Fessenden Academy, an elementary school located in a rural area of northern Marion County. He was a competent classroom teacher. In 1979, upon recommendation of his school principal, the Marion County School Board granted him continuing contract status--a form of tenure. (Testimony of Broxton, Prehearing Stipulation.)
II.
In the early part of 1979, BAKER--against the advice of his school principal--became involved in helping operate a small nightclub in Ocala known as the Club Aquarius ("Club"). Although there was no School Board policy against part-time employment by teachers, BAKER's principal advised against becoming involved with the Club because of its poor reputation in the community. However, BAKER's subsequent operation of the Club Aquarius did not adversely affect his teaching performance. (Testimony of Broxton.)
During his employment at the Club, several members of the community informed BAKER's school principal that they suspected illicit drugs could be
obtained there. In response to his principal's inquiry, BAKER repeatedly denied that anyone at the Club was involved in drug dealing. (Testimony of Broxton.)
II.
The owners of the Club (Mr. and Mrs. Clyde Howard and Dr. Ernest Lamb 2/ ) applied for and were issued a "2-COP" license by the Department of Business Regulation, Division of Beverage, in 1977. Only beer and wine may be sold under such a license. Possession of distilled liquor on the premises is not allowed. In accordance with the Division's requirements, a "Sketch of the Licensed Premises" was made by the Division of Beverage agent, verified by one of the owners, and attached to the application. The owners also executed an attached affidavit swearing that the sketch was "substantially a true and correct representation of the premises to be licensed and . . . [agreeing] that the place of business, if licensed, may be inspected and searched during business hours . . . without a search warrant . . . ." (P-1.) The sketch depicts those portions of the Club Aquarius building where the license is intended to be in effect-- where routine beverage inspections may be conducted without a search warrant. The owners understood that adjacent property which they controlled and which was accessible by passage from the nightclub was considered part of the licensed premises and subject to warrantless search under the Beverage Law. In order to remove such adjoining property used for residential purposes from the licensed premises (and sketch attached to the application) they understood that the passage way must be permanently sealed. (Testimony of Scroggin; P-1.)
The sketch shows the licensed premises of the Club consists of two floors. The first floor includes the main bar, dance floor, kitchen, restrooms, storage room, and package sales area. Stairs on each side of the dance floor lead to the second floor, which consists of restrooms, a balcony overlooking the dance floor, and several additional rooms, one of which contains a wooden bar. The second floor area provides a quiet atmosphere for customers preferring to enjoy drinks and dance floor entertainment from the overlooking balcony. The second floor area permits free passage and is directly connected to the Club's first floor business area. (Testimony of Scroggins, Jones, Imperial; P-1.)
III.
At approximately 4:45 p.m., on January 24, 1980, Richard Jones and Michael Imperial--Beverage officers employed by the Florida Division of Alcoholic Beverages and Tobacco--began an inspection of the Club Aquarius to determine compliance with the Beverage Laws. Neither officer suspected or had reason to believe that illegal alcohol or illicit drugs might be found on the premises. The last time Agent Jones had inspected the Club to ascertain compliance with the Beverage Laws was in February, 1979; during that inspection, no illegal alcohol or illicit drugs had been found. Agent Imperial had inspected the Club early in 1978, and found nothing out of order. The practice of their Division was to routinely inspect the premises of licensed alcoholic beverage establishments at least once per year. On that afternoon of January 24, 1980, the Beverage agents decided on their own initiative to inspect the Club because they were in the vicinity and had time to conduct a periodic routine inspection. (Testimony of Jones, Imperial, Deen.)
After identifying themselves, the two Beverage officers informed BAKER and his brother, Clyde Baker--who were operating the Club--that a routine beverage inspection would be conducted. The officers then inspected the cooler, bar, and surrounding first floor area. After finding some empty cognac bottles
in a trash can, Officer Jones informed Clyde Baker that the presence of such bottles on the premises was unlawful. Jones then asked him to show him the upstairs part of the Club. Together they climbed the stairs to the second floor. There, Officer Jones observed that a door, with an "Office" sign on it, was ajar. He entered the room and observed two bottles of distilled liquor in plain view on a bar: that bar is depicted on the "Sketch of Licensed Premises" attached to the beverage license application, infra. After placing Clyde Baker under arrest for allowing distilled liquor on an establishment with a 2-COP license, Officer Jones continued to inspect the room for additional contraband. He searched a chest of drawers and found in the bottom drawer a triple beam balance scale and approximately 40 small paper envelopes commonly referred to as "nickel bags" --paraphernalia commonly used by drug dealers to measure and sell illicit drugs. He also discovered two plastic bags--one, 6" x 6", and another, 10" x 10". The smaller bag contained what appeared to be marijuana; the other contained what appeared to be marijuana residue. Upon discovery of what appeared to be marijuana, Officer Jones exclaimed "marijuana". BAKER, who had just come upstairs with his wife, entered the room and responded: "That's not marijuana, that's just my seeds." (Tr. 43.) Agent Jones immediately arrested BAKER for possession of marijuana, and escorted him downstairs. After resuming his search of the second floor area, Jones entered another room depicted on the "Sketch of Licensed Premises"; there he found a metal can--approximately 10" x 12"--which appeared to contain marijuana residue. (Testimony of Jones; P-1.)
The two upstairs rooms where the marijuana and paraphernalia were found were depicted on the beverage license application as a part of the licensed premises. They were unlocked and accessible from the first floor; one room contained a bed, chest of drawers, dresser, clothes, and other personal effects; the other room contained a cot. Both rooms looked as if someone might sleep in them for several hours or an evening. At hearing, the parties stipulated that BAKER sometimes used one of the rooms as his residence. Immediately after the marijuana was found, Clyde Baker stated that he was manager of the Club and responsible for the marijuana and liquor being there. It is concluded that the Club manager exercised dominion and control over the second floor rooms. However, most of the equipment and supplies normally used in the operation of the nightclub, such as beer, wine, coolers, dance floor, and barstools, were located on the first floor. Customers could come and go without entering the second floor area. (Testimony of Jones, Prehearing Stipulation; P-1.)
BAKER was subsequently charged with unlawful possession of less than 20 grams of marijuana pursuant to Section 893.13, Florida Statutes. The School Board of Marion County thereupon suspended him from his teaching duties at Fessenden Academy. Crime lab analysis confirmed that the two plastic bags and metal can contained marijuana residue with a total weight of less than 20 grams. Fingerprints on the metal can, and plastic bags were identified as belonging to BAKER. On May 7, 1980, BAKER pled guilty to the charge of possession of less than 20 grams of marijuana. The County Court of Marion County withheld adjudication of guilt and sentenced BAKER to pay $500 in court costs, and suspended a sentence of one year of imprisonment in the county jail upon the condition that BAKER would commit no further criminal offenses for a period of one year. (Testimony of Broxton, Prehearing Stipulation; P-2, P-3.)
III.
School Board hearings involving BAKER's suspension were televised and his involvement with marijuana has become widely known in the community. Newspapers have published accounts of the criminal charges and their disposition. His arrest and subsequent plea of guilty to the charge of
possession of marijuana have gained notoriety and seriously reduced his effectiveness as a teacher for the Marion County School Board. Parents of children at Fessenden Academy would object to BAKER resuming his teaching duties there. Teachers must serve as examples and impart character and moral values to their students. BAKER's involvement with marijuana has interfered with his ability to effectively carry out this important function. (Testimony of Broxton, Jones.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.57, 231.28, Fla. Stat. (1979).
The Department of Education 3/ has the authority to suspend or revoke BAKER's Florida teaching certificate provided:
"(1) It can be shown that . . .
[he] 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 . . . .
"(2) The plea of guilty in any
court, . . . of offenses listed in sub- section (1) . . . shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certifi- cate holder that his plea of guilty, [was] . . . caused by threats, coercion, or fraudulent means." Section 231.28(1), (2), Fla. Stat. (1979).
Section 231.09(2), Florida Statutes, imposes a duty upon public school teachers to:
"Labor faithfully and earnestly
for the advancement of pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principals of truth, honesty and patriotism and
the practice of every Christian virtue." Id.
The Fourth Amendment to the U.S. Constitution and Article I, Section
12 of the Florida Constitution (1968) , guarantee the right to be secure against unreasonable searches and seizures. Evidence obtained in violation of this right is inadmissible in administrative proceedings which are penal in nature. Fla. Const. (1968), Id.; One Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), Savina Home Industries v. OSHA, 594 F.2d 1358 (10th Cir. 1979), People
v. McGrath, 385 N.E. 2d 541 (N.Y. 1978). A proceeding to suspend or revoke a teacher's license is penal in nature. See, State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973).
State officers and agencies have a duty to exercise their statutory powers in a constitutional manner. Evidentiary objections, on constitutional grounds, are properly raised and considered in proceedings, such as this, which help formulate agency decisions. See, e.g., Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979)
In this proceeding, BAKER moves to suppress certain tangible evidence and statements obtained by Beverage officers during their inspection of the Club Aquarius on January 24, 1980. As grounds, he contends that the inspection was warrantless, nonconsensual, and beyond the scope of the "implied consent" provisions of the Beverage Law. It is undisputed that the inspection was warrantless and that the COUNCIL has the burden of overcoming the presumption that a warrantless search is invalid. See, Mann v. State, 292 So.2d 432 (Fla. 2d DCA 1974). The evidence does not establish that Clinton and Clyde Baker gave free and voluntary consent to the inspection. Their failure to protest the inspection does not constitute consent; neither does their apparent acquiescence to the Beverage officers' authority. See, e.g., Carter v. State, 238 So.2d 681 (Fla. 1st DCA 1970).
The issue, then, is whether the January 24, 1980, inspection of the Club Aquarius was conducted in accordance with Section 562.41, Florida Statutes (1979), the "implied consent" provision of the Beverage Law:
"(1) Any authorized employee of
the division . . . may make searches of persons, places and conveyances of any kind whatsoever in accordance with laws of this state for the purpose of deter- mining whether or not the provisions
of the Beverage Law are being violated.
* * *
"(5) Licensees, by the acceptance
of their license, agree that their places of business shall always be subject to
be inspected and searched without search warrants by the authorized employees of the division . . . during business hours or at any other time such premises are
occupied by the licensee or other persons." Id. (Emphasis supplied.)
BAKER contends that the Beverage officers improperly used the search and inspection authority of Section 562.41 as a pretext to search for evidence of violations of gambling and drug abuse laws. This contention is unfounded. The evidence establishes that the inspection was undertaken and conducted for the purpose of enforcing the Beverage Law, Chapters 561 and 562, Florida Statutes (1979). The officers' discovery of illegal alcohol justified their searching the second floor area of the licensed premises. Their discovery of marijuana and paraphernalia was a by-product of a lawful search for further evidence of Beverage Law violations. When carrying out their duties, Beverage agents may arrest persons who may be violating other laws. Boynton v. State, 64 So.2d 536 (Fla. 1953). That was what was done here. Compare, Carter v. State, supra.
Next, BAKER contends the Beverage officers' search of the Club's second floor exceeded the scope of the implied consent provision of Section 562.41(5), supra. That section allows warrantless searches only of the
licensee's "place of business". BAKER asserts that Club business was not conducted in the second floor rooms where the drugs were discovered. Thus, BAKER argues it was not part of the Club's "place of business" and the warrantless inspection was unlawful.
The Division of Beverage interprets the phrase "place of business" to mean the "licensed premises" as defined by Section 561.01(11):
"(11) 'Licensed premises' means
not only rooms where alcoholic bever- ages are stored or sold by the licensee, but also all other rooms in the building which are so closely connected therewith as to admit of free passage from drink parlor to other rooms over which licensee has some dominion or control and shall include all of the area embraced within the sketch, appearing on or attached to the application for the license involved and designated as such on said sketch,
in addition to that, included or desig- nated by general law." Id.
Under this interpretation, concurred in by the COUNCIL, warrantless searches for the purpose of enforcing the Beverage Law may be conducted within the confines of the "licensed premises", regardless of where alcoholic beverages are actually sold. And since the second floor area was controlled by the licensee, admitted free and unobstructed passage from the drink parlor, and was depicted on the sketch attached to the license application, it is within Club's "licensed premises". The construction of a statute by an agency charged with its enforcement is entitled to great weight and should not be disregarded unless clearly erroneous. United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.
1959); Kirk v. Western Contracting Corp., 216 So.2d 503 (Fla. 1st DCA 1969). It is concluded that the Division's interpretation of Section 562.41(5) is reasonable and should prevail.
The Division's interpretation is supported by the language of Section 562.41(5), supra. After authorizing warrantless searches of a licensee's "place of business", it limits those searches to business hours "or at any other time such premises are occupied by the licensee or other persons." (Emphasis supplied.) Id. By associating the "place of business" with the "premises" occupied by the "licensee", the Legislature intended that the terms be read together and take meaning from each other. Thus, the general phrase "place of business" is defined by the specific statutory definition given to the phrase "licensed premises". See, 30 Fla. Jur. Statutes Section 91 (1974).
The Division's interpretation is also supported by the Legislature's 1957 enactment of Section 561.01(11), which provides a statutory definition of "licensed premises". Previously, in Boynton v. State, 64 So.2d 536 (Fla. 1953), the Florida Supreme Court held a warrantless back room search was not within a beverage licensee's "place of business", and thus was unconstitutional, because
(1) free passage from the drink parlor was not possible, and (2) the licensee had no dominion or control over the back room. Id. at 547. The 1957 enactment of Section 561.01(11) expressly incorporated these two judicial criteria for measuring the validity of a beverage search conducted under the Beverage Law.
The Legislature is presumed to know the construction placed upon a statute by the judiciary. Collins Investment Co. v. Metropolitan Dade County,
164 So.2d 806 (Fla. 1964). By enacting Section 561.01(11), the Legislature adopted the Boynton construction of "place of business" and intended to specify the bounds of the warrantless search authorized by the Beverage Law.
It is concluded, therefore, that the warrantless search of the second floor room of the Club on January 24, 1980, was authorized by and conducted pursuant to Section 562.41. The motion to suppress the results of such search must therefore be, and, is, denied.
"Moral turpitude" has been defined as "anything done contrary to justice, honesty, principle, or good morals." State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933). In Von Durjais v. Board of Trustees Roseland School District, 83 Cal. App.3d 681, the court held that the question of whether possession of a prohibited substance constitutes immoral conduct requires examination of the surrounding facts and circumstances.
In this case, the evidence establishes that BAKER possessed marijuana and paraphernalia commonly used in its trafficking and sale. By virtue of such conduct, it is concluded that BAKER is guilty of committing actions involving moral turpitude within the meaning of Section 231.28(1), Florida Statutes (1979).
BAKER's actions involving marijuana and its paraphernalia render him guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, within the meaning of Section 231.28(1), Florida Statutes (1979). Teachers serve a vital function in imparting moral values to students and teaching them the responsibilities of citizenship in an ordered society. BAKER's ability to successfully carry out this function is now seriously reduced.
Official notice is taken of State Board of Education final orders entered in Professional Practices Council v. Howard W. Adams, Case No. 79-1718, and Professional Practices Council v. Randy D. Ward, Case No. 79-1719. Those cases indicate a Board practice of permanently revoking the teaching certificate of teachers who became involved in possession of marijuana. Here, the marijuana was found with paraphernalia commonly used for its sale and trafficking. In the absence of mitigating or extenuating circumstances, or other reasons justifying deviation from this disciplinary practice, it is concluded that the appropriate penalty for BAKER's actions is permanent revocation of his teaching certificate.
The parties' proposed findings of fact incorporated herein are adopted. All other proposed findings are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the teaching certificate of Respondent, Clinton Baker, be revoked permanently.
DONE AND ORDERED this 23rd day of March, 1981, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
FILED with the clerk of the Division of Administrative Hearings this 23rd day of March, 1981.
3/ Effective October 1, 1980, Section 2, Chnpter 80-190, Laws of Florida (1980), granted the newly created Education Practices Commission the authority to suspend or revoke teachers' certificates pursuant to Section 231.28, Florida Statutes (1979). Section 1 provides for transferral of cases pending before the Professional Practices Council to the Commission.
Stanley E. Marable, Esquire Post Office Box 1357 Leesburg, Florida 32748
Phillip J. Padovano, Esquire Post Office Box 527 Tallahassee, Florida 32302
