STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2925

)

WAYNE MARVIN BYTHWOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on May 19, 1982, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Thomas F. Woods, Esquire

1030 East Lafayette Street, Suite 112

Tallahassee, Florida 32301 For Respondent: (No Appearance)

ISSUE PRESENTED

Whether respondent's Florida teacher's certificate should be disciplined on charges that he committed an act of moral turpitude by dealing in stolen property.

BACKGROUND

By administrative complaint dated October 19, 1981, petitioner Education Practices Commission, Department of Education ("Department"), charges respondent Wayne Marvin Bythwood ("respondent") with "willfully engag[ing] in dealing in stolen property in violation of 812.019, Florida Statutes"; it further charges that "such activity involved students where Respondent held a position as a teacher; and as a consequence. . .[he]. . .committed an act of moral turpitude in violation of 231.28, Florida Statutes." The Department also alleges that respondent's conduct proves he is unfit to teach and perform as an employee of the public school system and that he is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Based on this alleged misconduct, the Department seeks to discipline respondent's Florida teacher's certificate.

Respondent disputed these allegations on October 21, 1981, and requested a formal hearing. On November 18, 1981, this case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer and the conducting of the requested hearing. Hearing was thereafter set for April 8, 1982; then, on the Department's motion, it was continued and reset for May 19, 1982.

At hearing, the Department called no witnesses and offered Petitioner's Exhibit 1/ Nos. 1 and 2 into evidence, each of which was received. Respondent did not attend the hearing and presented no evidence in his behalf.

The transcript of hearing was filed on June 1, 1982. The Department filed proposed findings of fact and conclusions of law on June 4, 1982.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. At all times pertinent to the charges in question, respondent held Florida teacher's certificate No. 442503. He was employed as a teacher at Twin Lakes High School, a public school in Palm Beach County, Florida.

   
   

2. On November 23, 1981, in the Circuit Court of Palm Beach County, Florida, respondent pleaded guilty to the crime of grand theft; the court withheld adjudication of guilt and placed respondent on probation for a period of three years. By his plea of guilty, he admitted the truth of the following:

   
   

   That. . .[he] between the 20th day of MAY, 1981 and the 28th day of MAY, 1981 in the County of Palm Beach and State of Florida, did knowingly obtain or use, or did endeavor to obtain or use, certain property, to-wit: various personal property such as jewelry, electrical appliances and dry goods of the value of $100.00 or more, but less than

   $20,000.00, being the property of PHILLIP MAY and HAZE LATHAM or any other person not the defendant or defendants named herein, with intent to permanently deprive the said PHILLIP MAY and HAZE LATHAM or any other person not the defendant or defendants named herein of the property or benefit therefrom or to appropriate the property to the use of WAYNE MARVIN BYTHWOOD or to the use of any person not entitled thereto, contrary to Florida Statute 812.014(1)(2)(b) [.]

   
   

   (P-2.)

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla. Stat. (1981).

4. Section 231.28(1), Florida Statutes (1981), empowers the Education Practices Commission to suspend or revoke a Florida teaching certificate if, among other things:

   
   

   1. It can be shown that such [licensee]. . . has been guilty of. . .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. . .

      
      

5. Section 812.019, Florida Statutes (1981), makes it unlawful to deal or traffic in stolen property. This statutory offense is committed by one who "traffics" in such property; the term "traffic," as defined in Section 812.012(7)(a) and (b), means:

   
   

   1. To sell, transfer, distribute, dispense, or otherwise dispose of property.

   2. To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.

   
   

   In Coley v. State, 391 So.2d 725, 727 (Fla. 1st DCA 1980), the court concluded that the elements contained in the above definition "are separate and distinct from the essential elements of the crime of theft."

   
   

6. License revocation proceedings are penal in nature. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). In such proceedings, "the term 'substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120." Id. at 171. Violations are

   
   

   [N]ot to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious-minded as the intended penalty is serious.

   
   

   Id. at 172.

   
   

7. Measured by these standards, it must be concluded that the Department has failed to prove its charges with the necessary quantum of evidence. The evidence presented is wholly insufficient to establish that respondent is guilty of willfully dealing in stolen property in violation of Section 812.019. Since the other charges of misconduct depend on a finding that respondent unlawfully dealt in stolen property, they, too, must fail for lack of proof.

8. The Department charged respondent with committing one offense, dealing in stolen property--and proved another, grand theft. One thing was pleaded, another proved. Since the alleged violations have not been established, the administrative complaint must be dismissed. Cf., 215-22nd Street, Inc. v. Board of Business Regulation, Division of Beverage, 330 So.2d 821 (Fla. 1st DCA 1976).

   
   

9. The Department filed three proposed findings of fact, each of which has been incorporated in this recommended order. Respondent did not file proposed findings of fact.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department's administrative complaint dated October 19, 1981, and the charges contained therein, be dismissed.

DONE AND RECOMMENDED this 15th day of June, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1982.

ENDNOTE

1/ Petitioner's Exhibits will be referred to as "P- ."

COPIES FURNISHED:

Thomas F. Woods, Esquire Suite 112

1030 East Lafayette Street Tallahassee, Florida 32301

Wayne Marvin Bythwood 1101 Grant Avenue

West Palm Beach, Florida 33407

Donald L. Griesheimer, Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-002925

Orders for Case No: 81-002925