STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1786

)

CYNTHIA ANN SHONECK, )

)

Respondent. )

)

RECOMMENDED ORDER

Subject cause came on for hearing pursuant to notice on January 13, 1976, in Key West, Florida, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Michael W. Casey, III, Esquire

Muller and Mintz, P.A.

100 Biscayne Boulevard North, Suite 600 Miami, Florida 33132

For Respondent: Nathan E. Eden, Esquire

Corner of Eden and Duval Streets Key West, Florida 33040

ISSUE

The Petitioner requested a hearing pursuant to Section 120.57 (1)(b)(1), Florida Statutes, and as grounds therefor alleged that the Respondent, Cynthia Ann Schoneck, on or about September 12, 1975, at approximately 11:00 a.m. violated Monroe County District School Board policy rule 2.5.1 "in that the Respondent on said date on school property was in possession of a controlled substance that is categorized as a harmful drug under the provisions of Chapter 893, Florida Statutes. Based on this allegation, the Petitioner seeks to suspend or dispel the Respondent from school.

FINDINGS OF FACT

1. At the outset of the hearing, counsel for Respondent requested from Petitioner's counsel a list of drug(s) that were in the Respondent's possession on the date in question so that he would be prepared to properly defend. Pursuant thereto, counsel for the Petitioner stated that the Respondent had in her possession valium and phenobarbital tablets while she was on the school's property, all in violation of school board policy rule 2.5.1 and which are prescribed by Chapter 893, Florida Statutes. As to the allegation that the Respondent had in her possession phenobarbitol on September 12, counsel for Respondent contended that he was unaware that any charge had been made alleging that she possessed such drugs inasmuch as the drug analysis which was attached to the police report showed or asserted that the Respondent only had in her

   possession the drug valium. The undersigned noted that counsel for the Respondent had filed no motion to compel discovery or for a more definite statement which in his opinion was needed in order to properly prepare his defense and this being the state of the record, the undersigned considered Respondent's counsel's claim of "surprise" to be without merit.

   
   

2. Norman Thomas Lee, an employee of the Monroe County School District and presently a criminologist and a property custodian for the county testified that he is a member of the American Society of Crime Labs and that he has been classified as an expert witness to testify in criminal proceedings in Circuit, County and Municipal courts in Monroe County. Lee testified that on or about September 11, he received from Alfredo Vasquez (phonetic), a patrolman, a sealed envelope which has been marked for identification and received into evidence as Board Exhibit 1. He further testified as to the copy of the report which is an analysis of the contents of Board Exhibit 1. Based on his lab analysis, he was able to determine that the contents of the sealed envelope was negative on all drug or narcotic tests except the spot test and electroscopic test which in fact showed that the drug or the tablets contained valium or diazepan. He testified that he kept the drug under seal while in his possession and thereafter, it was in the custody and control of the sheriff's department at all times in a sealed vault. He further testified that valium is a drug that is not controlled by Chapter 893, F.S. He testified that he conducted no inspection and analysis for phenobarbitol.

   
   

3. Cynthia Ann Schoneck was called and pleaded the 5th amendment to all questions put to her by counsel for the Petitioner with the exception of stating her name and address for the record.

   
   

4. Donna Roberts was called and testified that she is a student at Key West High School and that she knows the Respondent. She testified that on September 11, she complained to officials that the witness attempted to sell or give her "downers." She testified that on September 12, she was absent from school although she vaguely recalled seeing the Respondent briefly during the day because she visited the campus for a short period. 1/

   
   

5. Mary Llewlyn, the dean of girls for approximately 20 years testified that she knows the Respondent and that on or about the date of September 12, Mr. Roberts and Mr. Cebelli (apparently instructors) testified that the Respondent had in her possession pills; she testified that upon learning of this she immediately visited the Respondent's class and asked her to accompany her to the dean's office. She testified that during this period, which was the third period and a morning class, that the Respondent was in a science class. Mrs. Llewlyn testified that the Respondent admitted to her that her parents were in Europe and that she took the pills in question from her father's medicine cabinet. Llewlyn testified that she was given the pills from an open package which was found in the Respondent's purse. She testified that she called the Respondent's uncle and her sister and they were at a loss to explain how the pills got into the Respondent's purse. She testified that she also asked the Respondent how the pills got into her purse and she denied having any knowledge. She also testified that the Respondent stated to her that she was selling pills which she thought to be phenobarbital. Llewlyn testified that she did not recall which specific date that the Respondent had possession of the pills.

   
   

6. Curtis Phelps, a ninth grade student, was called and testified that he was in a class with the Respondent on September 12 and that he also attended the third period lab class with her. He testified that the Respondent gave him a bottle of pills and that she instructed him to "get rid of the pills." He

   testified that he placed the pills in the biology sink and left them there. On cross examination he did not recall any date as to when the incident regarding the pills took place. The Petitioner rested its case.

   
   

7. At the conclusion of the testimony of the Petitioner's case in chief, counsel for Respondent requested the undersigned to take official notice of Florida Statutes, Chapter 593 and also the student rule in question and to note that the possession of valium is not a drug which falls within the guidelines of Chapter 593, F.S. He also provided for the record, the fact that there was no chemical testimony as to any alleged possession of phenobarbital by his client, the Respondent, and that the matter should be dismissed based on lack of evidence. He testified that no creditable testimony and in fact no chemist would testify as to the contents of a particular pill without having subjected it to various chemical tests for analysis. He testified further that in this case, no such finding of phenobarbital had been made and that therefore the case against his client must fall.

   
   

8. The position urged by Respondent's counsel is well taken. The evidence reveals and the statute nor the school rule under which the Respondent was charged does not cite the possession of valium as being a prescribed substance. The proceeding herein involves the interpretation of penal statutes which must be strictly construed. Aside from the poor status of the record which tended to show that Respondent possessed valium on the School's property, Florida Statute Chapter 893 and the school's own rule do not proscribe the possession of valium on school property. This factor plus the record evidence concerning the petitioner's counsel failure to pursue the possession of valium as an act contrary to school rules, puts the matter to rest. The only remaining act which the Respondent allegedly committed and which the petitioner sought to pursue was the alleged possession, by Respondent, of phenobarbital. The record, absent the mere allegation by Mrs. Llewlyn that the petitioner "thought that she was selling phenobarbital," is barren of any creditable evidence.

Accordingly, it is RECOMMENDED that this allegation be DISMISSED due to lack of proof and withdrawal of any proposed suspension of Respondent based on the charges filed herein.

DONE and ORDERED this 29th day of January, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1976.

ENDNOTE

1/ At this juncture counsel for Petitioner advised that the problem with regard to the possession of valium was no longer an issue in this proceeding.

COPIES FURNISHED:

Michael W. Casey, III, Esquire

100 Biscayne Boulevard North, Ste. 600 Miami, Florida 33132

Nathan E. Eden, Esquire

Corner of Eden and Duval Streets Key West, Florida 33040

Docket for Case No: 75-001786

Orders for Case No: 75-001786