STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. TURLINGTON, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 82-128

)

LEWIS SIMPSON WALTON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pompano Beach, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on September 14, 1982. By order entered March 17, 1982, this matter was consolidated with School Board of Broward County v. Lewis S. Walton, No. 82-027. The parties were represented by counsel:

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

By amended administrative complaint dated May 11, 1982, petitioner alleged that respondent, alleged to be the holder of teacher's certificate No. 303969, "[o]n or about June 13, 1981 . . . had in his possession eight (8) living marijuana plants and five (5) dried marijuana plants, contrary to Florida Statutes, 893.13 . . . [as well as] one (1) plastic bag containing marijuana along with one (1) pack of Job rolling papers and one (1) hemostat."

These allegations were denied and the matter was referred for hearing to the Division of Administrative Hearings. On March 16, 1982, when the final hearing was originally scheduled to take place, respondent filed a motion for summary dismissal of administrative complaint on the grounds that the court order sealing the record of the prosecution that arose out of the events of June, 1981, operated to bar the complaint. The motion was denied, but a continuance was granted to allow respondent to urge this view in the courts.

Thereafter counsel for petitioner filed a "MOTION FOR RE-HEARING/MOTION FOR RECONSIDERATION/MOTION TO UNSEAL RECORD" in County Court for Hendry County, seeking to set aside the record sealing order entered by that court in Case No. M81-303H on March 12, 1982, but the court declined to unseal the records, by order entered May 19, 1982; and no appeal was taken.

Respondent sought to enjoin the final hearing on account of the sealing order in proceedings instituted in the Circuit Court for the Seventeenth Circuit

but that court found venue to be improper and never reached the merits of the claim. Respondent appealed the change of venue order, lost the appeal, and then presented his claim to a county judge in Leon County who sat as a judge of the Circuit Court for the Second Circuit, in the absence of a circuit judge, and entered an order denying injunctive relief. Lewis S. Walton v. Department of Education, etc. et al., Case No. 82-2351 (Fla. 2d Cir.; Sept. 14, 1982).

After the final hearing, time was twice extended for the filing of respondent's proposed recommended order.

ISSUES

Among the issues in this case are: Whether petitioner proved that respondent holds a currently valid teacher's certificate? Whether a court order sealing records of a criminal prosecution bars action by petitioner against respondent on account of the facts underlying the prosecution? Whether the evidence showed that what was seized was actually marijuana? Whether the evidence established constructive possession? Whether the evidence showed that respondent's effectiveness as a school board employee had been reduced?

FINDINGS OF FACT

1. In answering the original administrative complaint, respondent admitted the allegation that he "holds [teacher's] certificate number 303969, rank two (2), valid through June 30, 1981, covering the areas of French, English, and Junior College." The amended administrative complaint alleges that the same certificate is valid through June 30, 1991. Neither the certificate itself nor any other evidence on this point was adduced at hearing.

   
   

   THE MERITS

   
   

2. After a telephone caller's report that a marijuana plant was visible in an apartment window was relayed by the Clewiston police dispatcher to Corporal Deese and Patrolman Meskin, they spotted the plant through a window on the ground floor of the Von Mach apartment building. Corporal Deese examined the specimen with binoculars, and photographs were taken. That afternoon, a warrant was issued authorizing the search of the corner apartment in which the plant stood.

   
   

   THE ARREST

   
   

3. The following day, June 13, 1981, Officers Deese, Meskin and Hand executed the warrant. When they knocked at the apartment door, respondent Walton called out, "Come in." In one bedroom, they found towels lying around and men's clothing. They also found a marijuana plant and another species of plant growing in pots. A mirror had been positioned to reflect the sun's rays onto the plants.

   
   

4. The only other bedroom in the apartment seemed to unoccupied. The mattress in that bedroom lacked sheets. Respondent told them his roommate had moved out. Daniel Fairchild, employed, like respondent at the time, as a teacher at Clewiston High School, lived in the apartment from the beginning of October until mid-December, 1980. Norman Vaughn shared the apartment with respondent from early January of 1981, until June 12, 1981.

   
   

5. When patrolman Meskin asked Mr. Walton to produce any other drugs in the house, respondent retrieved a plastic bag containing marijuana from among

   some newspapers on the floor. The searching party also seized a stained hemostat and a package of rolling papers.

   
   

   EFFECTIVENESS

   
   

6. In the spring of 1981, there was "a widespread incident involving students in use of drugs" (T. 111) at Clewiston High School, with which respondent had nothing to do, as far as the evidence showed. Some students were expelled for the remainder of the school year, as a result. Mr. Walton's arrest for possession of marijuana was reported in the Clewiston News, a newspaper of general circulation in Hendry County, and became general knowledge in Hendry County. There was no evidence that any member of the public in Broward County had learned of Mr. Walton's arrest when these proceedings began.

   
   

7. Respondent was employed by the Hendry County School Board on an annual contract basis. For reasons unrelated to this case, the 1980-1981 school year was his last as an employee of the Hendry County School Board. He finished working for the Board on June 12, 1981.

   
   

   PROPOSED FINDINGS CONSIDERED

   
   

8. Both petitioner and respondent made post-hearing submissions, and their proposed findings of fact have been duly considered and, in large part, adopted in substance. To the extent they have been rejected they have been deemed irrelevant or unsupported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner is authorized to "suspend . . . to revoke . . . to revoke permanently the teaching certificate of any person . . . or to impose any other penalty provided by law," Section 231.28, Florida Statutes (1982 Supp.), when the person is shown to be "guilty of gross immorality or an act involving moral turpitude," Section 23l.28(1)(c), Florida Statutes (1982 Supp.), or when the person

   
   

   [h]as been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation; . . . [or] has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; . . .

   [or h]as otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate. Section 231.28(1), Florida Statutes (1982 Supp.).

   
   

   Another "provision of law" pleaded in the amended administrative complaint is Section 231.09, Florida Statutes, which required, among other things, that teachers

   
   

   [l]abor 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 and the practice of every

   Christian virtue. Section 231.09(2), Florida Statutes (1981).

   
   

   Since the administrative complaint was filed, however, this statute has been amended and the language here quoted has been deleted. Ch. 82-242 Sections 8, 28, 31, Laws of Florida (1982).

   
   

10. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980). Unless the fact of licensure is proven in the first instance, moreover, the licensing authority does not establish jurisdiction to impose discipline.

    
    

11. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed acts alleged in the administrative complaint justifying disciplinary action. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970). A necessary element of proof is the fact of respondent's licensure both at the time of the acts alleged, Department of Education, Education Practices Commission v. Thomas Miller, NO. 82-2065 (DOAH Rec. Order; Dec. 30, 1982); cf. Laney v. Holbrook, 8 So.2d 465 (Fla. 1942) (reh. den.) and at the time disciplinary action is to be taken. Here the parties stipulated that respondent was licensed through June 30, 1981, but no evidence showed clearly and convincingly that respondent was licensed thereafter.

    
    

    THE SEALING ORDER

    
    

12. Respondent has consistently contended that petitioner cannot take disciplinary action against him on account of the events or circumstances of June 13, 1981, without violating the court order sealing all records of his arrest and criminal prosecution for those same events and circumstances. This order provided, in part:

    
    

    The Clerk of Court, Hendry County, Florida; the Clewiston Police Department,

    Clewiston, Florida; and the Florida Depart- ment of Law Enforcement, Tallahassee, Florida, are directed to seal all records relating to this cause in their possession. No information shall be utilized by any agency or disseminated to any agency or person except as authorized by Chapter 943, Florida Statutes. Each of the agencies herein involved shall notify and forward copies of this Order to all agencies or persons to whom they have disseminated

    records information relating to this case. (emphasis supplied)

    
    

    In proving allegations of the administrative complaint, petitioner relied on the testimony of two of the arresting officers to establish the circumstances of the arrest.

    
    

13. Officer Meskin admitted, in cross-examination (T. 68-70), that he had refreshed his recollection of what occurred on June 13, 1981, by reading, among other things, an unsigned typewritten draft (typed by a police clerk) of a police report which, although drafted by the witness himself, became or was the basis for a "record" within the meaning of the expunction statute. Section 943.045(7), Florida Statutes (1981). Similarly, Officer Deese testified that he reviewed "his" copy of a typewritten report, prepared by a police typist on a police form and made part of police records in June of 1981 (T. 85-90) before he testified against respondent in the present proceedings.

    
    

14. But for the arresting officers' testimony as to what was present in respondent's apartment when they entered and as to what transpired after their entry, petitioner would not have established the essential allegations of the petition. Once these officers entered his apartment, respondent was under arrest, since he was not free to leave. See Orozco v. Texas, 394 U.S. 324 (1960). The arrest reports must necessarily have covered everything that the arresting officers observed when they entered the apartment, and thought significant.

    
    

15. Judge Parsons' sealing order was entered pursuant to Rule 3.692, Florida Rules of Criminal Procedure, and Section 943.045, Florida Statutes (1981), which authorize criminal history record expunction or sealing in certain limited circumstances. The statute provides, in the event of sealing or expunction:

    
    

    1. The effect of expunction or sealing of criminal history records under this section or other provisions of law . . . shall be as follows:

       1. When all criminal history records, including the records maintained by the Department of Law Enforcement and the courts, have been expunged, the subject of such records shall be restored, in the full and unreserved contemplation of the law, to the status occupied before the arrest,

          indictment, information, or judicial proceed- ings covered by the expunged record.

       2. When all criminal history records, except for records retained under seal by the courts or the Department of Law Enforce- ment, have been expunged, the subject of such records may lawfully deny or fail to acknowledge the events covered by the expunged or sealed records, except in the following circumstances:

          1. When the person who is the subject

             of the record is a candidate for employment with a criminal justice agency;

          2. When the person who is the subject of the record is a defendant in a criminal prosecution;

          3. When the person who is the subject of the record subsequently petitions for relief under this section; or

          4. When the person who is the subject of the record is a candidate for admission to the Florida Bar.

          
          

          The courts or the Department of Law Enforcement may refer to and disseminate information contained in sealed records in any of these circumstances. Subject to the exceptions stated herein, no person as to whom an expunction or sealing has been accomplished shall be held thereafter under any provision of law of this state to be guilty of perjury or to be otherwise liable for giving a false statement by reason of

          such person's failure to recite or acknowledge expunged or sealed criminal history records.

          
          

    2. An order or request to expunge or seal a criminal history record shall be deemed an order or request to seek the expunction or sealing of such record by all other agencies and persons known to have received it. Section 943.058, Florida Statutes (1981). (emphasis supplied)

       
       

       Under this statute, an individual never licensed to teach in Florida could gain licensure and employment as a teacher for the first time without disclosing a criminal prosecution or the underlying events even if asked under oath. He has the legal right to "deny . . . the events." Section 943.058(6)(b), Florida Statutes (1981). The legislature has entrusted the judiciary with the authority and discretion to choose which criminal defendants shall have this special chance for rehabilitation.

       
       

16. Not only did the County Court of Hendry County make an initial determination that society's interests would best be served by removing all traces of respondent's encounter with the criminal law, the court also declined to unseal the records at petitioner's request when apprised specifically of petitioner's efforts to take action against respondent. In their MOTION FOR RE- HEARING/MOTION FOR RECONSIDERATION/MOTION TO UNSEAL RECORD, petitioner and the Education Practices Commission pleaded

    
    

    1. The Court, in its [Sealing] Order of March 12, 1982, made a specific finding

       ". . . that the record of arrest and prose- cution in this cause no longer serves a useful purpose "

       
       

    2. Petitioner avers that said finding is inaccurate, insomuch as the State of Florida, [and the] Broward County School Board are in need of the criminal arrest and prosecution

    records, including the seized evidence, rela- tive to [those proceedings] . . . .

    
    

    The court's decision to keep the records sealed was not appealed and must, therefore, be fully complied with.

    
    

17. Among the papers sealed by court order are the arrest reports used by the arresting officers to refresh their recollection before testifying to the circumstances surrounding respondent's arrest at the final hearing in this case. There are important differences between using documents for this purpose and simply offering them in evidence, see Garrett v. Morris Kirschman & Co. 336 So.2d 566 (Fla. 1976) (reh. den.), but the hearing officer is now persuaded that proving an arrest and the surrounding circumstances in this fashion is inconsistent with Judge Parson's order and recommends that petitioner take no action based on the arresting officers' testimony.

    
    

    OTHER EVIDENCE ALONE INSUFFICIENT

    
    

18. In addition to reconstructing the arrest after consulting the records, the police officers testified that they observed a plant, from off the apartment grounds, through respondent's window the day before they effected the arrests. They thought the plant was marijuana and secured a search warrant on that basis, which reflects a judicial determination that probable cause existed to believe that the plant was marijuana. Less evidence is needed to show probable cause than is needed to meet the preponderance of the evidence standard. In these proceedings no plant nor any scientific testimony was offered in evidence.

    Until the plant was seized, field tests could not be performed. Until a chemist or other qualified scientist analyzed the plant, its identity could not be conclusively established. Testimony based on a glimpse from a distance through a window, even by highly trained policemen, does not suffice to meet petitioner's burden of proof here. See Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

    
    

19. Nor did petitioner prove lack of effectiveness as a school board employee, since respondent had left the school board's employ the day before the arrest. See Boyette v. Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner dismiss the administrative complaint.

DONE AND ENTERED this 27th day of January, 1983, in Tallahassee, Florida.

ROBERT T. BENTON II

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 27th day of January, 1983.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

Donald Griesheimer, Executive Director

Department of Education Education Practices Commission The Capitol

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA EDUCATION PRACTICES COMMISSION

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. CASE NO. 82-128

LEWIS SIMPSON WALTON,

Respondent.

/

FINAL ORDER

Respondent, Lewis Simpson Walton, holds Florida teaching certificate number 303969. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Panel pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on March 23, 1983 in Tallahassee, Florida to take final agency action. The Petitioner was represented by J. David Holder, Esquire. The Respondent was represented by Mark

1. Kelly, Esquire. The panel has reviewed the entire record in this case.

   
   

   FINDINGS OF FACT

   
   

   1. The panel adopts the Findings of Fact of the Recommended Order.

      
      

      CONCLUSIONS OF LAW

      
      

   2. In the Amended Administrative Complaint the Petitioner corrected an apparent typographical error concerning the expiration of the Respondent's certificate. This changed date was not disputed by the Respondent. In itself this is sufficient to overcome any fundamental issue of whether a certificate exists. The holding of a certificate is the reason there is a case. Beyond that, however, the Respondent did admit the original allegation that he held a certificate, albeit one expiring June 30, 1981. A certificate is more than a piece of paper expiring on a particular date. An individual has a property right in his authority or "license" to teach school. That property right in the authority to teach does not simply disappear into nonexistence upon the expiration of a certificate (although certain steps must be followed to keep that right fully in effect). Since the right does not disappear, the authority of the Commissioner to seek the extinguishment of that right according to law does not disappear, either.

      
      

   3. The Petitioner and Respondent have discussed at length in their submissions the issue of expungement of the Respondent's criminal court records. This Commission concludes that the expungement removes the Petitioner's ability to prove a Respondent has been convicted of a misdemeanor, felony, or any other criminal charge, as provided in Section 231.23(1), F.S. It also removes any ability to utilize the presumption of Section 231.28(2), F.S.

      
      

   4. The expungement of a criminal court record, however, does not prohibit the Petitioner from proving particular facts which might, on the one hand, support the criminal charge that is later expunged, or, on the other hand, constitute a violation of a separate portion of Section 231.28(1), F.S.

      
      

   5. This Commission concludes that a Court order of expungement does not extend beyond court documents and judicial events. A court may justifiably and reasonably convert a person with an arrest and court record to a person without an arrest and court record. To rewrite events prior to arrest is another matter. The Court's authority to expunge cannot interfere with an executive agency's power to apply its own statute to those it regulates, particularly when that statute proscribes activity unconnected to judicial events.

      
      

   6. The Findings of Fact clearly state that the Respondent was the sole occupant of the premises, that marijuana was growing there, that smoking paraphernalia was present, and that the Respondent retrieved a plastic bag of marijuana from the floor when Patrolman Meskin asked Respondent to produce any other drugs in the house. On the basis of those Findings we conclude that the Respondent was in possession of marijuana and therefore is guilty of gross immorality and an act involving moral turpitude. See Adams v. Professional Practices Council, 412 So.2d 463 (Fla. 1 DCA 1981).

   7. The panel concludes that the Respondent's conduct did reduce his effectiveness as a school board employee as a matter of law, irrespective of the existence of a contract. This violation, however, is subordinate to the violation stated above in the determination of a penalty.

IT IS THEREFORE ORDERED that certificate number 303969 of Lewis Simpson Walton is hereby REVOKED for a period of THREE (3) YEARS.

DONE AND ORDERED this 1st day of April, 1983.

Filed in the records of the Education Practices Commission this 11th day of April, 1983.

Donald L. Griesheimer, Clerk

COPIES FURNISHED:

Arthur Walberg, Esquire Attorney General's Office

Ms. Marlene T. Greenfield Professional Practices Services

Ms. Judith Brechner General Counsel Department of Education

Mark F. Kelly, Esquire Frank & Kelly

Richard H. Frank, Esquire Frank & Kelly

Dr. William T. McFatter, Supt. Broward County School System Post Office Box 5406

Fort Lauderdale, Florida 33310

Mr. Robert T. Benton, II Hearing Officer, D.O.A.H.

Docket for Case No: 82-000128

Orders for Case No: 82-000128