STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-3570

)

JOHN ABBOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Diane Cleavinger, duly-designated Hearing Officer of the Division of Administrative Hearings, on March 26, 1997, in Pensacola, Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons and Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: John Abbott, Appeared as pro se

115 South "E" Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding is whether there is cause for termination of employment of John Abbott with the employer, Escambia County School Board.

PRELIMINARY STATEMENT

By letter dated June 19, 1996, the Superintendent of the Escambia County School District notified Respondent, John Abbott,

that he would recommend Respondent be terminated at the Escambia County School board meeting on June 25, 1996. The letter also advised Respondent that he could request a formal hearing on the superintendent's recommendation.

By letter dated July 16, 1996, Respondent requested a formal hearing. Respondent's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner presented the testimony of three

1. witnesses and offered three (3) exhibits into evidence. Respondent testified in his own behalf, but did not offer any exhibits into evidence.

   After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on May 7, 1997 and May 15, 1997, respectively.

   FINDINGS OF FACT

   
   

   1. The Respondent, John Abbott was employed as a maintenance mechanic helper by Petitioner, the Escambia County School Board.

   2. As part of his employment, the Respondent resided in a mobile home at Hallmark Elementary School, 115 South "E" Street, Pensacola, Florida.

   3. On or about June 5, 1996, Pensacola police officers received confidential information that John Abbott was growing marijuana at his residence. Police officers went to the trailer and were allowed to enter with the permission of Mr. Abbott's

      15-year-old son who also resided in the trailer.

   4. Mr. Abbott arrived shortly after the officers arrived. The officers inquired as to the presence and location of marijuana in the trailer. Mr. Abbott told the officers there were marijuana plants in the closet in his bedroom. The officers completed a consensual search of the closet and seized approximately 20 marijuana plants that were growing inside the bedroom closet. The officers also seized marijuana seeds and cardboard planters.

   5. The Respondent admitted he knew the marijuana was in the bedroom closet. The marijuana actually belonged to a girlfriend who had left town a few days previous. However, Respondent acknowledged he allowed the marijuana to be brought into his trailer and stored in his bedroom closet. Respondent knew it was there for several days and had taken no action to remove the marijuana from his property. Respondent clearly was in possession of marijuana on school property.

   6. Mr. Abbott was arrested for possession of marijuana. Eventually, he entered a plea of no contest to the charge and successfully completed his sentence.

   7. When the school board learned of Mr. Abbott's conviction, they terminated his employment with the school board.

   8. Mr. Abbott had no prior disciplinary problems. Respondent was considered a good employee by his supervisor. Respondent's supervisor requested that he remain a school board employee and not be terminated.

   9. However, at all times material to this action the Escambia County School District has had in force a Drug Free Work Place Program as authorized under Chapter 440, Florida Statutes. The Escambia County School District has also had a policy and practice of zero tolerance for possession and use of controlled substances. Respondent's possession of marijuana violated the Board's policy.

   10. The District has consistently terminated employees found in possession of controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed.

   11. Given the Board's policy and enforcement of its Drug Free Work Place Program, the evidence demonstrates that the Superintendent's recommendation for termination of Respondent should be upheld.

CONCLUSIONS OF LAW

12 The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

1. In this case, it is undisputed that the Respondent, John Abbott, possessed approximately 20 marijuana plants on Escambia County School District property.

2. Section 231.02, Florida Statutes, provides all school district employees shall be of good moral character.

3. Section 440.102, Florida Statutes, prescribes the Florida Drug Free Work Place Act. Violation of the provisions of that act constitute cause for termination of employment.

4. The Respondent engaged in misconduct sufficient to support cause for termination of his employment with the Escambia County School Board. While the Respondent has no prior disciplinary record and has the support of his supervisor, the Escambia County School Board maintains a policy and practice of

zero tolerance for drugs. There are no exceptions to this policy for any reason. The Respondent violated that policy when he possessed marijuana. Therefore, the Respondent's termination must be upheld.

is,

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

RECOMMENDED:

That a Final Order be entered by the Petitioner, Escambia

County School Board terminating the employment of John Abbott.

DONE AND ENTERED this 25th day of June, 1997, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

COPIES FURNISHED:

John T. Abbott

115 South "E" Street

Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1997.

Pensacola, Florida 32501

Joseph L. Hammons, Esquire Hammons and Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Michael H. Olenick, Esquire Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, Florida 323990-0400

Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-003570

Orders for Case No: 96-003570