Williams, Terry Z. Albury, and Clyde E. Alderman. Respondent's Exhibit No. 1 was received into evidence.
The transcript of hearing was filed on February 15, 1984; the parties filed proposed findings of fact by March 13, 1984. To the extent their proposed findings are incorporated in this recommended order, they are adopted.
Otherwise they are rejected as unsupported by the evidence, as irrelevant, or as unnecessary to resolution of the issues presented.
Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District.
From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job.
On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or "Garden Shop." Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. He then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him.
Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. He had been her physical education teacher for two years and basketball coach for one year. She considered him a friend.
As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction.
During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown.
Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong.
Mr. Frank Heim, K-Mart's Loss Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store.
Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store.
Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would
have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr.
Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office.
After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately
$30.00 on his person.
The total retail price of the three items, according to the price tags affixed to each, totalled $67.95.
In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up.
Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive.
As a result of this incident, respondent was arrested and charged with the crime of retail theft.
Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft.
Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course.
Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. 120.57(1), Florida Statutes.
Section 231.36(4)(c), Florida Statutes, empowers school boards to suspend or dismiss teachers, under continuing contract, on charges of
professional misconduct, including immorality and misconduct in office. Rule 6B-4.09, Florida Administrative Code, defines immorality and misconduct in office:
Immorality is defined as conduct
that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or dis-
respect and impair the individual's service in the community.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.01, F. A. C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule
6B-1.06, F. A. C., which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.06(3)(h), Florida Administrative Code, states that teachers:
(h) Shall not exploit a professional relationship with a student for personal gain or advantage.
In addition, Rule 6B-1.01(3), Florida Administrative Code, recognizes that an educator "strives to achieve and sustain the highest degree of ethical conduct."
Section 231.36, the statute which governs this case, is penal in nature and must be strictly construed and applied. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980). Charges must be proved by evidence as substantial as the consequences, Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).
This is not, however, a criminal proceeding, and petitioner need not prove that respondent committed the crime of retail theft. What must be shown, by the necessary quantum of evidence, is that respondent committed acts which constitute immorality and misconduct in office within, the meaning of Section 231.36(4)(c) and implementing rules.
Measured by these standards, it is concluded that petitioner has established, by clear and convincing evidence, that respondent violated Section 231.36(4) and Rule 6B-1.06(3)(h). A violation of Rule 6B-1.01(3), however, has not been established. A failure to meet ethical standards does not prove a lack of effort to meet them.
At the time of the transaction, respondent knew that he was receiving merchandise having a price substantially greater than the amount ($6.30) which he paid, that the drill alone cost approximately $20.00; and that what he and his student were doing was dishonest and wrong. In addition, at the time of the transaction, he did not have sufficient funds on his person to pay the price of the merchandise.
His actions involved deceit and dishonesty. He took advantage of a student-teacher relationship for his own benefit. At some point during the transaction, he formed an intent to deceive or defraud the K-Mart store. His actions were inconsistent with those of an innocent person. He did not ask Ms. Grimes to re-ring the merchandise correctly; neither did he refuse to complete the transaction or simply walk away. Instead, he took merchandise which he, knowingly, had not fully paid for, walked several hundred feet, placed the merchandise in his truck, and was preparing to leave before being apprehended by Mr. Heim.
By accepting the merchandise, and knowingly paying less than full price, respondent exposed Jeanette Grimes, a student, to the embarrassment and disparagement of being fired from her job, arrested, and charged with committing a crime. This caused her to flunk her Work Experience class.
As a result of respondent's conduct, his effectiveness as an employee of the Palm Beach County School District has been seriously reduced.
Penalty. Respondent has a good record with the school system, and this is his first incident of professional misconduct. However, his conduct was deceitful and dishonest. Teachers are held to high moral standards in the community. Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3d DCA 1962). He has transgressed those standards and demonstrated his unfitness to continue as a teacher for the Palm Beach County School Board.
