STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF WASHINGTON COUNTY )

)

Petitioner, )

)

vs. ) CASE NO. 84-0203

)

JOSEPH FOREHAND, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, on June 14, 1984 in Bonifay, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: J. David Holder, Esquire

BERG and HOLDER

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Philip J. Padovano, Esquire

Post Office Box 873 Tallahassee, Florida 32302

This cause was initiated on the filing of a Petition for Dismissal by Charles Adams, Superintendent of Schools for Washington County, Florida. In that petition it is alleged that the Respondent is guilty of the manufacture and/or cultivation of approximately ten marijuana plants on or about April 7, 1982, in Bonifay, Florida. It is further alleged that the Respondent is guilty of possessing approximately ten marijuana plants on or about April 7, 1982, in Bonifay, Florida. Petitioner maintains that these facts, if proven, constitute violations of Section 231.36, Florida Statutes, justifying the Respondent's dismissal from employment with the Washington County School Board and the cancellation of his employment contract.

The Respondent, through counsel, filed an answer on or about April 17, 1984, admitting paragraphs one through five of the Petition for Dismissal, but denying the material allegations of misconduct set forth in the petition.

At the hearing, the Petitioner presented the testimony of six witnesses and offered four exhibits which were received into evidence. The Respondent testified on his own behalf and offered five character witnesses.

At the conclusion of the hearing the parties elected to obtain a transcript of the proceedings and to file proposed findings of fact and conclusions of law. These proposed findings and conclusions were timely filed.

All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor asnecessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d, 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383 (Fla. 5th DCA 1983).

The issue to be resolved in this proceeding concerns whether the Respondent committed the conduct alleged in the factual portions of the petition concerning the growing and possession of marijuana plants, and if so, whether that conduct constitutes violations of Section 231.36, Florida Statutes andconcomitantly, what, if any, penalty is warranted.

FINDINGS OF FACT

1. The Respondent was a public school teacher employed by the Washington County School Board under a continuing contract of employment at the time of the events referred to in the Petition for Dismissal. He remained on continuing contract status as a teacher at the Roulhac Middle School until his suspension on November 7, 1983. On the morning of April 5, 1982, William Poole, Chief of Police for the City of Bonifay, responded to a confidential informant's report of suspected marijuana plants growing on property located at 312 Caldwell Avenue, Bonifay, Florida. Chief Poole went to that location accompanied by Assistant Chief of Police Ike Gardner. When he arrived at the scene in the rear of the house located at that address and across the back fence marking the rear boundary of the property, the Chief looked over or through the fence on the rear boundary of the property and observed what he believed to be ten to twelve marijuana plants growing in a garden along the back fence. The house was owned at the time by the Respondent's Mother, Lavada Forehand, who was living in the house with the Respondent at the time the suspected marijuana plants were discovered. Chief Poole took photographs of the property, the garden and the suspected marijuana plants at that time, which were admitted into evidence as Petitioner's Exhibit 1.

   
   

2. An investigation was initiated and in the early morning hours of April 7, 1982, Chief Poole again observed the suspected marijuana plants in the Respondent's garden. Later that day the Chief received a call from a confidential informant to the effect that the Respondent was, at that time, in the garden. Chief Poole proceeded to a residence on adjacent property and viewed the garden, and at approximately 4:00 p.m. that afternoon observed the Respondent watering plants in the garden for approximately 20 minutes. The officers were equipped with a camera with a telephoto lens at the time, and took photographs of the Respondent watering his garden, which were offered and admitted into evidence as Petitioner's Exhibit 2. Based upon his personal observations and the photographs which he obtained, Chief Poole proceeded to the State Attorney's office where he was assisted in the preparation of a search warrant for the subject property, which was duly issued by the Court. That evening of April 7, 1982, the two officers proceeded to the Caldwell Avenue residence owned by Respondent's mother, where the Respondent resided, and served the search warrant. When they arrived the Respondent was present with his

   mother and another lady with several children. The officers served the search warrant and thereupon went to the garden area which they had earlier observed and found it "standing in water." The suspected marijuana plants which they had previously observed were no longer present, and no traces of marijuana could be found in the house or on the grounds.

   
   

3. At the time the premises were searched, and at the time the officers observed the Respondent watering the garden, the Respondent resided at the premises in question with his mother and by his own admission had resided there for approximately the last three weeks prior to April 7, 1982. In addition to the Respondent and his mother residing at the premises, various friends and relatives and other persons had access to the premises and visited there from time to time. Other persons have lived there or been invited there from time to time and his mother had problems during 1982 with trespassers on her property and has complained to the Bonifay Police Department regarding trespassers. Respondent acknowledges that he maintained the garden on the site growing tomatoes, bell pepper and other large and small vegetables including "a couple of hills of squash" and broccoli. On the day in question he was watering tomato plants according to his testimony. The Respondent has a nephew who sometimes resides with Respondent's mother and so do other young persons. The Respondent maintained he did not plant the marijuana plants and does not know who did plant them. In fact it has not been established that the Respondent planted the marijuana plants. The Respondent knows the neighbors who own the property and live adjoining his mother with the exception of neighbors who lived in the house from which the officers conducted the surveillance and from which the photographs were taken, who moved in and out quickly so that the Respondent did not become acquainted with them. The Respondent is active in his teacher's union and has incurred an increasingly hostile relationship with Superintendent Adams since 1981 when the Superintendent ordered interscholastic sports terminated at Roulhac Middle School where the Respondent coached as well as taught Civics.

   The Respondent conducted a campaign to reinstate athletics at the school at the behest of many of the parents of students at the school, and in the course of this campaign engendered a relationship of animosity with Superintendent Adams.

   
   

4. The Respondent maintains that he cannot identify the plants depicted in the photos considered by the officers to be marijuana plants. He once smoked marijuana 14 years ago when in college but has not smoked it since and once taught a drug abuse course for the Northwest Florida Drug Abuse Council. He agrees with Superintendent Adams' view that a teacher using drugs should be dismissed but he denies doing so since becoming a teacher. Although it was established that the Respondent was likely capable of identifying marijuana by sight in view of his prior experience with the drug education course, it was not established that in fact he knew the marijuana was in the garden on his mother's property, nor was it established that he had sole access to or control of his mother's property, including the house and surrounding grounds, and particularly, the garden in question.

   
   

5. Chief Poole had no doubt that the plants he observed, and which were photographed and are depicted in Petitioner's Exhibit 1, were marijuana plants. The Chief could not establish however, that the plants that Forehand was observed and photographed watering were actually marijuana plants as opposed to tomatoes, bell peppers, squash or some other vegetable which were present in the garden. Both Chief Poole and Agent William Fisher of the Florida Department of Law Enforcement are trained to make visual identification of marijuana. Chief Poole, however, is not trained to make a chemical analysis in identification of controlled substances, including marijuana, nor is he trained to give a positive identification of marijuana based upon other forms of testing, aside from visual

   identification. Agent William Fisher is very familiar with marijuana and testified that the plants depicted in Exhibit 1 "appeared" to be marijuana. Agent Fisher was shown the photographs of the plants the Respondent was watering but could not identify that the plants he was watering were actually marijuana. Agent Fisher testified that there was a "strong probability" that the plants depicted in Petitioner's Exhibit 1 were marijuana plants but added that he was not trained to make a positive identification of marijuana plants and did not consider himself qualified to do so. He was unable to perform any sort of "presumptive test" as for instance, by smell or taste or touch, because he was only shown a photograph of the plants in question. Chief Poole has had 11 years of law enforcement experience and attended numerous classes concerning drug enforcement and drug identification, and has served as a drug-handler for a "drug dog." In his years of law enforcement experience he has sent numerous samples of suspected marijuana to the FDLE Crime Lab in Tallahassee and Pensacola, and none of his samples have ever been confirmed as anything other than marijuana. Chief Poole, however, did not succeed in obtaining the plants he observed growing in the subject garden upon his search of the premises, however, because they had "disappeared." Thus, no chemical or other positive identification test has been performed on anymarijuana seized on the premises in question, because none was seized at all. The officers performing the search did not know whether other people might have access to the house and garden in question, and Chief Poole admitted he did not know who else might have access to the garden. The Respondent called five "character witnesses" (four teachers and one parent) each of whom had had acquaintance with the Respondent for a substantial period of time and had knowledge of his reputation in the community for truth and veracity. The Respondent has a reputation for being truthful.

   The Respondent has never before been subjected to disciplinary action during his career as a teacher.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Section 120.57(1), Florida Statutes.

   
   

7. Section 231.36(4)(c), Florida Statutes, provides that any member of the instructional staff of a school district may be suspended or dismissed at any time during the school year, provided that the charges against him are based upon "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction involving moral turpitude."

   
   

8. Rule 6B-4.09(2), Florida Administrative Code defines "immorality" as follows:

   
   

   (2) 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 disrespect and impair the individual's service in the community.

   
   

9. Rule 6B-4.09(3), Florida Administrative Code, defines "misconduct in office" as follows:

   (3) 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.

   
   

10. It is well established that cases such as this are penal in nature. See School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980). In such penal proceedings the charges at issue must be proved by clear and convincing evidence. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966). Cf. also Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), which references an elevated standard of proof being required in penal proceedings such that "the critical matters in issue must be shown by evidence which is indubitably as `substantial' as the consequences." Bowling at 172. In the case at bar, the officers, although they testified to the effect that they had " no doubt," that there was a "strong probability" and that the substance they saw in the garden "appeared" to be marijuana, made no positive identification and proof that the substance they believed they observed in the garden was indeed marijuana.

    
    

11. The most obvious frailty in the prosecution's case is that the officers failed to secure physical possession of the suspected plants, such that a positive identification could be made through chemical or other testing. The plants were apparently uprooted and disposed of by persons unknown. While it may not be necessary to prove the identity of the substance by physically bringing it to the courtroom for introduction into evidence, nor even by chemical testing, some positive identification must be made that the substance was indeed marijuana as opposed, for instance, to some other plant which might resemble marijuana at the same stage of growth. Testimony that the substance "appeared" to be marijuana or that there was a "strong probability" that it was marijuana, or testimony that the officer "had no doubt" that it was marijuana is not a sufficient establishment of positive identification of the substance to meet the elevated standard of proof required in such cases by the above authority. Compare Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980) and State

    v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981). It is illogical to assume that the Bowling and Reid standards have been met in a case such as this where the Petitioner's own witnesses have admitted that they are unqualified to make positive identification of marijuana. Both Chief Poole and Agent Fisher candidly testified that the extent of their expertise in marijuana identification was to make preliminary identifications for the purpose of establishing probable cause to obtain warrants. Testimony about which there is a "strong probability" or which "appears" to be true or about which the declarant testifies that he has "no doubt" is not sufficient to establish the positive identification of the substance in question. It simply could not be done in this case because the officers were unable to obtain the plants which aroused their suspicions. Thus, the Petitioner failed to establish the identity of the substance as marijuana by clear and convincing evidence.

    
    

12. Even had the marijuana been properly identified through actual introduction or through introduction of test results or testimony concerning test results which led to a positive identification, the prosecution herein must fail in any event because of a failure to establish that the Respondent actually possessed the contraband substance. The evidence adduced by Petitioner succeeds

    in establishing no more than the fact that the Respondent had access to the garden in question where the supposed marijuana was observed. The Petitioner did not establish that the Respondent had exclusive access to or control of the garden, the house or surrounding premises. Thus, Petitioner has failed to make a valid circumstantial case that Respondent is guilty of possession.

    
    

13. It is well settled that joint occupancy of premises where marijuana is found is insufficient to sustain a possession charge in the absence of direct evidence of knowledge and ability to maintain control over the contraband (even if marijuana had actually been proven to have been "found" on the premises.) Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Brown v. State, 428 So.2d 250 (Fla. 1983). In Baker v. School Board of Marion County, 450 So.2d 1194, 9

    F.L.W. 1090 (May 10, 1984) the 5th District Court of Appeals applied this principle to an administrative charge of possession of marijuana against a public school teacher. Applying the rationale from the Brown decision the court held that the teacher's joint occupancy of a building in which the marijuana was found was insufficient to sustain the charge. In the instant case, as in the Baker case, the Respondent's joint occupancy of his mother's house and surrounding premises does not, in and of itself, provide clear and convincing evidence that he possessed the contraband and thus committed an act of immorality as charged under the above-cited authority. There was no evidence to show that his occupancy of the premises was exclusive. In fact, the record establishes that he shared the house with his Mother and that other persons were present at the time of the search and that other persons had access to the house and to the garden from time to time and even lived with the Respondent's Mother from time to time, including Respondent's nephew.

    
    

14. The fact that the Respondent was observed watering the vegetable garden does not establish that he was watering marijuana plants nor that he had knowledge that marijuana plants were in the garden. Thus, based upon this ground alone, the charges in the administrative complaint have not been sustained by clear and convincing evidence and the complaint should be dismissed.

    
    

15. The Respondent has raised the additional defense of laches against the school board, alleging that the delay of 15 months between the Superintendent learning of the incident and the filing of the charges is inexcusable. Respondent maintains that the Superintendent knew that the law enforcement officers had the subject photographs as early as June of 1982 but did not file the charge until November, 1983, although he did report the incident to the Commissioner of Education when he first learnedof it. Apparently the Superintendent waited on prosecuting the Respondent because he believed the Commissioner of Education was proceeding with the prosecution, which ultimately failed for a lack of finding of probable cause. Upon learning of the lack of finding of probable cause, the Superintendent referred the matter to the Board's counsel for investigation of the efficacy of filing charges.

    
    

16. This engendered a delay of approximately nine months or until early September, 1983, whereupon the charges were ultimately filed in November, 1983. The Respondent thus maintains that this delay prejudiced Respondent by the loss of an apparently available eye witness (a neighbor who moved away) during the intervening period of time. Be that as it may, although the interest of justice might mandate some consideration of the defense of laches in this proceeding,

such a defense has been held not to apply in administrative disciplinary proceedings such as this. See Alan Farzad, M.D. vs. Department of Professional Regulation, Board of Medical Examiners, 443 So.2d 373, (Fla. 1st DCA 1983) and cases cited therein. Thus, the defense of laches is inapposite in this proceeding.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the Administrative Complaint filed by the Petitioner herein should be DISMISSED and the Respondent should be reinstated with full back pay from the date he was suspended without pay.

DONE and ENTERED this 18th day of December, 1984 in Tallahassee, Florida.

P. MICHAEL RUFF, 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 20th day of December, 1984.

COPIES FURNISHED:

J. David Holder, Esquire BERG AND HOLDER

Post Office Box 1694 Tallahassee, Florida 32302

Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302

Charles Adams, Superintendent of Schools

Washington County School Board

206 North Third Street Chipley, Florida 32428

Docket for Case No: 84-000203

Orders for Case No: 84-000203