Judges: MARY CLARK
Agency: County School Boards
Latest Update: Feb. 22, 1990
Summary: The parties' prehearing statement filed on November 6, 1989, appropriately identifies the controversy as follows: Whether the evidence to be presented by petitioner establishes that respondent was in actual and/or constructive possession of more than twenty (20) grams of cannabis (marijuana), which is a felony violation of Section 893.13, F.S., and drug paraphernalia, which is a misdemeanor violation of Section 893.147, F.S., on November 19, 1988. If proven, do these acts constitute immorality a
Summary: The parties' prehearing statement filed on November 6, 1989, appropriately identifies the controversy as follows: Whether the evidence to be presented by petitioner establishes that respondent was in actual and/or constructive possession of more than twenty (20) grams of cannabis (marijuana), which is a felony violation of Section 893.13, F.S., and drug paraphernalia, which is a misdemeanor violation of Section 893.147, F.S., on November 19, 1988. If proven, do these acts constitute immorality and misconduct in office under Section 231.36(4), F.S.; and Are these acts of such a serious nature that respondent should be discharged from employment and his continuing contract as a teacher with petitioner be terminated.School board failed to prove constructive possession of marijuana paraphernalia by teacher living with his young adult son and son's friends.
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vs. ) CASE NO. 89-2439
ROBERT W. STAFFORD, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on November 7 and 8, 1989, in Cocoa, Florida.
For Petitioner: Joseph D. Miniclier, Esquire
Harold T. Bistline, Esquire Building I, Suite 10
For Respondent: Lisa D. Kahn, Esquire
482 N. Harbor City Boulevard Melbourne, Florida 32905
The parties' prehearing statement filed on November 6, 1989, appropriately identifies the controversy as follows:
be discharged from employment and his continuing contract as a teacher with petitioner be terminated.
On April 14, 1989, the Superintendent of the Brevard County School District recommended that the school board dismiss the Respondent from employment based on charges of misconduct in office. Respondent requested a formal hearing, and on April 25, 1989, the school board suspended him without pay pending the hearing, and referred the case to the Division of Administrative Hearings.
The hearing date was established in a notice of hearing dated June 16, 1989.
On November 1, 1989, Petitioner's motion for continuance was denied. At hearing Petitioner presented testimony of the following: Robert
Stafford; Donald W. Lock, Chief of Police, Melbourne Village Police Department;
Joseph F. O'Brien, Principal, John Turner Elementary School; Christine Walker, Chemist, Florida Department of Law Enforcement; Norman Rudd, Officer, Melbourne Village Police Department; William Morissette, Officer, Melbourne Village Police Department; Donald Hill, Officer, West Melbourne Police Department; Jerry Copeland, Assistant Superintendent for Personnel, Brevard County School District; and Edward C. Midgett, Jr., Principal, Meadowlane Middle School.
Petitioner's exhibits #1-49 and 57-60 were received in evidence. Exhibits #1-33, items seized in a search on November 19, 1988, were returned to the custody of the Melbourne Village Police Department. Photographs of those exhibits are appended to the transcript filed in this proceeding.
Respondent testified in his own behalf and presented the following additional witnesses: Bettye Ellis Yount, Mary Beasom, Christopher Stafford, Thomas Turner, and Larry Peace.
Respondent's exhibits #1-4 and 7-14 were received in evidence. Exhibit #5 was rejected as irrelevant and was marked for identification only; exhibit #6 was withdrawn.
After the transcript was filed, both parties submitted proposed findings of fact and conclusions of law. These, and all evidence admitted in this proceeding have been considered (including the video tape, Petitioner's exhibit #37); specific rulings on the parties' proposed findings of fact are included in the attached appendix.
The Respondent, Robert W. Stafford, is 51 years old. At the time of his suspension in 1989, he had been employed as an elementary school teacher with the Brevard County School District approximately 30 years, and was under a continuing contract.
For the last 20 years Robert Stafford has owned and lived in his residence located at 5645 Crane Road, Melbourne Village, Florida.
He is divorced and, at the time in question, shared the home with his son, Christopher Stafford, and three other young adult males: Martin Lenz, Paul Daniel Butler, and Larry Peace.
Each of these individuals had lived in the home for several months or several years prior to November 1988. Each had his own bedroom and due to varying work schedules, only occasionally interacted.
In lieu of paying rent, the occupants contributed toward food and utilities and the upkeep and maintenance of the house and its 3/4 acre grounds.
Robert Stafford rarely had occasion to enter the bedrooms of the young men. They did their own cleaning. From time to time he would close a window, or put clean laundry in Christopher's room, but generally, the bedrooms, including Robert Stafford's, were considered the private domain of the occupant.
On Friday night, November 18, 1988, Robert Stafford left the house around 8:00 or 9:00 p.m. to go to the movies.
Larry Peace was at home entertaining his girlfriend. After the elder Stafford left, Peace and the girl smoked marijuana in his room and in the living room. They used a bong (type of water pipe) that he ordinarily kept in his room under his bed. They also burned incense throughout the house. To Peace's knowledge, no one else was home except Martin Lenz, who always kept to himself in his own room, upstairs above the main area of the residence.
At some point the couple retired to Robert Stafford's room, leaving the bong in the living room. Although they did not have permission to use the room, the bed was bigger.
Christopher Stafford works as custodian in a 2:00 p.m. to 10:00 p.m. shift at Roy Allen Elementary School. He returned home after 10:00 p.m. on the night of November 18, 1988. His father was still out and the others were apparently asleep. He rolled a marijuana cigarette in his room and smoked it outside. When he returned to the house he lit various kinds of incense in the living room and throughout the house. He ate dinner and settled in watching television.
Shortly after midnight he heard the dogs barking. When he went out to the backyard, two police officers jumped him and served a search warrant.
The Stafford residence had been under surveillance by the Melbourne Village Police Department for several months.
Prior to the surveillance, on April 20, 1987, Chief Donald Lock, who was then an officer with the Melbourne Village Police Department, searched the room of Larry Peace, the suspect in a crime which had occurred earlier. The search was pursuant to Peace's written consent and Robert Stafford's verbal consent.
The officer was looking for certain clothing, and found, in addition to the clothing, a shotgun, a tray with some marijuana seeds and a waterpipe or bong. After the search was completed, Robert Stafford signed the property receipt for the items.
The surveillance was conducted by Officer Norman Rudd with the Melbourne Village Police Department, who at the time of hearing, in November 1989, was 22 years old and had been with the department for two and a half years.
Periodically, from February 1988 until November 1988, Officer Rudd viewed the backyard of the Stafford residence from a vantage point in a highly vegetated area behind the property line. He claimed, at various times, to have observed a garden patch of 1-inch marijuana seedlings outside the property line but on a beaten path leading to the property, four males inside the house smoking a bong, a large party in progress with some people smoking marijuana in the backyard, and black plastic pots with larger marijuana plants in the wooded area behind the Stafford property line.
Seven or eight police officers converged on the Stafford house the early morning of November 19, 1988. This included the entire 3-man Melbourne Village Police Department and assistance from neighboring Palm Bay and West Melbourne Police Departments. This was the first search warrant executed by Melbourne Village, in the experience of Chief Lock. The search took approximately 5 1/2 hours, and was videotaped (approximately 50 minutes) by an officer from the Palm Bay department.
Robert Stafford returned home around 1:00 a.m. and was detained in the living room with the other residents as the search continued.
The search revealed Larry Peace's black bong in the northeast corner of the living room. Other paraphernalia and contraband were found in the various bedrooms, including a marijuana pipe with residue and a marijuana cigarette butt and rolling papers on or near Paul Butler's dresser; numerous pieces of drug paraphernalia, hashish oil, cocaine residue, and marijuana, primarily in the form of stems, seeds and parts of discarded cigarettes, in Christopher Stafford's room; a bong and pieces of a bong, marijuana seeds, leaves and butts, a pipe and miscellaneous paraphernalia in Larry Peace's room; and baggies with marijuana residue, a brass pipe with residue, a marijuana butt and tongs in Martin Lenz' room.
One item of interest in the search was found in Robert Stafford's room: approximately 27.2 grams of marijuana in two plastic baggies rolled into another baggie and stashed behind a picture on the wall. No other residue, paraphernalia or devices were found in that room.
In contrast to Robert Stafford's room, which was neat and uncluttered, the rooms of the young men were messy and filled with books, clothes, posters, papers and debris. Two of the rooms contained wire animal cages, for snakes, rabbits or other small animals. The rooms were small, except for Christopher's, and appeared to be partially make-shift renovation.
Most of the items confiscated in the search were either completely hidden in closets or drawers, or were behind beer bottles, books or other clutter.
Other items were found (the discarded stems, seeds, and butts) with other refuse in trash cans.
The visual effect portrayed in the video tape was such disarray that it would be difficult to focus on a single item of contraband without specifically looking for that item.
The officers described the pervasive odor in the house as marijuana, and one officer became ill during the search and had to leave. Other evidence established the odor as incense, including Christopher's blend of strawberry, musk and sandalwood, and of animals.
Robert Stafford denies knowledge of the presence of the contraband in his home or the plants growing beyond the property line.
He denies that he would have recognized the paraphernalia or the marijuana, except in the form of a plant, which he would recognize from pictures. Sometime prior to the November 1988 incident, Stafford was shown a marijuana plant by the custodian at Turner Elementary School on a morning when he was hurrying to class.
When he signed the property receipt at the time of the search of Peace's bedroom, the marijuana seeds and pipe were not presented to him.
The marijuana stashed in Robert Stafford's room belonged to Christopher, who had secreted it there for safe- keeping when he suspected someone was messing with the things in his room. The youths never used drugs in front of the elder Stafford and burned incense in their rooms and elsewhere to cover the odor.
There is no evidence suggesting that Robert Stafford uses or used drugs or marijuana and he emphatically denies such.
When Robert Stafford failed to report the presence of marijuana at school when it was shown to him by the custodian, he was given a written reprimand. This is the only blemish on his 30-year teaching career. His performance evaluations have been satisfactory or outstanding. He has been commended for setting up a model computer center and for work with difficult children. He has been a regular volunteer in child enrichment activities such as Little League.
In April 1989, the Staffords and other residents were charged with criminal violations arising from the November 1988 search. Robert Stafford's charges were disposed of, nolle prosequi.
The Department of Education found no probable cause to pursue discipline of his teaching certificate.
The evidence in this proceeding failed to establish that Robert Stafford was in actual or constructive possession of cannabis (marijuana) or drug paraphernalia.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.
As a member of the district instructional staff, Robert Stafford may be suspended or dismissed at any time during the school year for charges based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Subsection 231.36(4)(c), F.S.
Respondent's arrest for possession of marijuana and drug paraphernalia is insufficient to justify his dismissal, notwithstanding unrebutted testimony regarding the publicity of the case and attendant concern regarding Respondent's future effectiveness as a teacher. Baker v. School Board of Marion County, 450 So2d 1194 (Fla 5th DCA 1984)
Proof of the underlying charge is essential. In this case it must be proven that Robert Stafford actually or constructively possessed the marijuana or contraband.
There was no evidence of actual possession by the Respondent.
It is well-settled that:
To establish constructive possession, the state must show that the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband.
Brown v. State, 428 So2d 250 (Fla 1983) Soler v. State, 547 So2d 251, (Fla App
252 4th DCA 1989)
As homeowner and head of the household Robert Stafford technically had dominion and control over the contraband. That control, however, was not exclusive, even as to his own bedroom, which the evidence revealed was used by his son and by Larry Peace for their individual purposes.
In Soler v. State, supra, P. 252, the court stated:
Where the premises are in the joint control of two people the knowledge of the presence of the contraband will not be inferred but must be established by proof. That proof may consist either of evidence establishing that the accused had actual knowledge of the presence of contraband or evidence of incriminating statements and circumstances other than the location of the contraband, from which the jury might lawfully infer knowledge by the accused of the presence of the contraband.
Circumstantial evidence of the accused's knowledge of the presence of contraband must be consistent with his guilt, inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. Murphy v. State,
511 So2d 397 (Fla 4th DCA 1987)
No circumstantial evidence was presented regarding Respondent's knowledge of the presence of the plants growing in the rear of the residence outside the property line and within a thicket of bushes.
The bong "in plain view" in the living room was not ;there when Stafford left the house. Most of the items found in the young men's rooms were out of sight and those that were not were obscured by other detritus of male youth culture.
The odor identified by the police as marijuana could as well have been a noxious mixture of incense and animal mustiness, or was mistaken by Robert Stafford for these latter scents.
In the Brown case, supra, the jury inferred possession when the defendant owned the premises and the contraband was literally scattered throughout the house - in the living room, kitchen, family room and garage, and was mostly in plain view.
Although the standard of proof in an administrative case such as this is less onerous than that in a criminal case, the principles described above have been applied by the courts in school board disciplinary cases. Baker, supra; Forehand v. School Board of Washington County, 481 So2d 953 (Fla 1st DCA 1986).
The school board failed to prove Robert Stafford's constructive possession.
That the Petition for Discharge of Robert W. Stafford be dismissed.
DONE AND RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990.
