STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1776

)

GLEN PORTER DISMUKES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer, with the Division of Administrative Hearings, on December 16 and 17, 1976, in the Escambia County Health Department Library, 2251 North Palafox Street, Pensacola, Florida.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

LaFace & Baggett, P.A. Post Office Box 1752

Tallahassee, Florida 32302

For Respondent: James A. Johnston, Esquire

One North Palafox Street Pensacola, Florida 32501

INTRODUCTION

By an amended petition dated June 18, 1976, and pursuant to Section 231.28, F.S., Petitioner seeks to revoke Respondent's Florida teaching certificate number 193850 on the grounds that he is guilty of gross immorality and personal conduct which seriously reduces his effectiveness as an employee of the school board. The amended petition is attached to this recommended order.

Summarizing, Respondent is charged with being in possession of a quantity of stolen property as set forth in a list attached to the petition, being aware that said property was stolen, selling two pianos on said list and billing Scenic Heights Elementary School for the tuning of a piano located in Respondent's residence, which piano was also contained on the list of stolen Items. During the course of the hearing three items from the list of stolen items were stricken--the Whirlpool air conditioner, the Coldspot air conditioner and the Bunn-O-Matic coffee maker.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Respondent has been employed by the Escambia County School Board since 1967. On or about October 3, 1973, he was suspended from his position as Principal of Scenic Heights Elementary School because criminal charges had been filed against him.

   
   

2. Sometime during the year 1971, Respondent and Mr. Alfred F. Brown went to an auction of leased office equipment at the Holiday Inn on Highway 29. Items for bids were on display in a room and identical items were in boxes in a trailer outside. Persons in the display room were able to bid on the displayed articles or to purchase boxed items at the same price which the highest bidder had paid. Respondent did not bid at the auction, but he did purchase two Bell and Howell projectors, two Wollensak tape recorders and a Panasonic portable television set. Respondent did not notice any school markings on these items and he kept them in his home from 1971 until October of 1973.

   
   

3. On August 9, 1973, Respondent went to Zoellner Music House to pick up Mr. James Justice, a blind piano tuner, and take him to his residence to tune an eight to ten year old Story and Clark piano located in Respondent's living room. Mr. Justice was under the impression that said piano belonged to Scenic Heights Elementary School, and that the tuning was being done because Respondent was having an open house for the teachers at his school . Mr. Justice was also asked by Respondent to give his opinion as to the condition of a ten to eighteen year old Wurlitzer piano located in Respondent's garage. Pursuant to instructions from Respondent, the secretary at Zoellner's made out the bill for the tuning to Scenic Heights School. Mr. Justice brought said bill to Respondent's residence when he tuned the piano and Respondent signed the bill on the same day. Respondent did not pay for the twenty dollar tuning bill.

   
   

4. In March of 1973, Respondent and his wife purchased a home located approximately one block from Scenic Heights Elementary School. They moved into their new home in July, 1973. Respondent used one of the rooms in the house as an office. In mid-July of 1973, Respondent purchased from Bill Thompson's Office Equipment Center a 30-compartment cabinet, an executive chair, an executive and a secretarial plastic chair mat and a file cabinet. The statement for these items in the total amount of $328.20 was made to Scenic Heights Elementary School. It was the testimony of Respondent and his wife that Respondent told Thompson's that he intended to pay for those items used in his home office, but that he requested Thompson's to sell him the items at the same discounted price which the county schools would be charged. The bill was not paid by Respondent as of October 3, 1973--the date he was suspended by the school board.

   
   

5. On August 11, 1973, Respondent purchased two lawn rakes and the bill in the amount of $17.02 was made to Scenic Heights School. Respondent explained that he purchased these rakes for the Boy Scouts to use when they wished to contribute something for the school. These two rakes were not found at the school.

   
   

6. At the time Respondent and his wife moved into their new home in July of 1973, Respondent owned an old, dark Wurlitzer piano which did not match his wife's new living room furniture. Sometime in July, Respondent and his wife drove over to Santa Rosa County to the Treasure House to look at antiques. While there, Respondent met the owner, Mr. Franklin Willis, and Inquired whether Willis had or ever got any used pianos. Mr. Willis told Respondent that he did not ordinarily stock pianos because of their size, but said he would call Respondent if he ran across any. Respondent left his business card with Willis for that purpose. While Respondent was at the Treasure House, he also saw

   Harley Carmen Phillips, whom he knew previously from having Mr. Phillips work on his cars. Within a week or two after this, Respondent again had Phillips do some work on his car and they discussed the purchase of a fishing boat. On or about August 3, 1973, Respondent bought the boat from Phillips, who delivered it to Respondent's residence. Respondent paid for the boat by a $700 check.

   Phillips had trouble cashing the Respondent's Pensacola bank check at a bank in Milton.

   
   

7. During this period of time, Phillips and Willis were in the business of transporting stolen automobiles from one state to another and selling them. At a later time they were both convicted for violations of the Dyer Act and served time in the penitentiary. Respondent was unaware of the illegal activities engaged in by Phillips and Willis until October of 1973.

   
   

8. A week or two after his visit to the Treasure House, Respondent received a telephone at the school from Mr. Willis. Willis informed Respondent that he had a piano he thought Respondent would be interested in. Respondent said he would have to see it first. About noon, Mr. Phillips brought in Willis truck a Story and Clark piano to Respondent's residence. Respondent called Willis to negotiate the price he would pay. Respondent thought he could sell his old Wurlitzer for about $400 and he therefore offered Willis $400 for the Story and Clark. Willis agreed. Due to the trouble Phillips had had previously cashing the Respondent's check for the boat, Respondent paid for the piano in cash. Phillips helped Respondent move his old Wurlitzer into the garage. When the Story and Clark piano was being delivered, Respondent's maid, Ms. Magnolia Long, now deceased, told Respondent that she would like to have a cheap piano for her child. Respondent therefore told Willis on that same day to be "on the lookout" for a piano costing $100 or $125.

   
   

9. On or about August 17, 1973, Willis called Respondent at school and told him he had a piano for Respondent's maid. Respondent told him to bring it to his residence around 3:00 p.m. and he and the maid would look at it. Again, Phillips was driving Willis' truck with two pianos on it. Ms. Long said she wanted the piano so Respondent called Willis to negotiate the price. They agreed upon a price of $125. While on the phone, Willis offered to sell the other Wurlitzer piano on the truck to Respondent. Respondent said he would buy it for a good price, figuring that he could sell it at the same time that he sold his old Wurlitzer. He thus bought the second piano on the truck for $225 by a check made out to cash. That piano was placed in Respondent's garage along with the originally owned Wurlitzer, and the $125 piano was taken to the home of Ms. Long. Respondent told Ms. Long that he would deduct any profit he made on the sale of the $225 piano from the cost of the $125 piano he bought for her.

   
   

10. Respondent then placed a classified ad in the Pensacola News Journal advertising the two Wurlitzer pianos for sale. He sold them both, receiving

    $350 from John Boazman for the piano Respondent had paid $225. Thus, Respondent did not charge Ms. Long anything for the $125 piano. Mr. Boazman testified that Respondent had told him at the time that he was selling this piano for a friend, and went to the house to call said friend to see if he would accept $350.

    
    

11. Sometime thereafter and at the request of Ms. Long, Respondent called Willis and inquired about obtaining another piano for Ms. Long's church. This time, Willis himself brought the piano to Respondent's residence. Respondent thought that Ms. Long's church could raise the money for the piano and, if not, Respondent could get the P.T.A. to buy it for his school.

12. With the exception of the Wurlitzer piano originally owned by Respondent, all of the other pianos were stolen from churches outside the Pensacola area. The only evidence that Respondent had knowledge that these pianos were stolen came from Mr. Willis, who testified that Respondent told him to get the pianos from areas other than Pensacola.

    
    

13. Respondent purchased from Willis a riding lawn mower for $140 and approximately 54 bundles of shingles. These items were also stolen by Willis.

    
    

14. Sometime in late September of 1973, Mr. Willis was arrested and charged with receiving stolen property and possession of a firearm by a convicted felon. He also had federal charges pending against him for transporting stolen automobiles across state lines. In exchange for information on Respondent, the State granted Willis immunity on the stolen property charge. The possession of a firearm charge was dropped for insufficient evidence. The State also agreed to help Willis on the federal charge by explaining to the judge that Willis had given information regarding Respondent.

    
    

15. Based upon information from Willis that certain reported stolen items were located in Respondent's home, a search warrant was executed on October 1, 1973. Respondent was not home at the time, and law enforcement officers seized the Wurlitzer piano located in Respondent's garage, the Story and Clark piano located in Respondent's living room and a Zenith radio having a school board property number on it. Respondent was arrested on the same date while at a conference in Santa Rosa County.

    
    

16. Another search of Respondent's residence was conducted on or about October 19, 1973, and the following items were found: two tape recorders, two projectors, a Panasonic television set and a riding lawn mower. There was evidence that the television set had the name of Fideles School written on it in indelible ink. The shingles were found in the carport at a rental home owned by Respondent or his wife.

    
    

17. During October 22-24, 1973, three tape recordings of conversations between Respondent and Willis were taken with the consent of Willis and without the knowledge of Respondent. Respondent's attorney had advised him to talk with Willis and to obtain any information he could from him regarding the charges against Respondent. Respondent had many conversations with Willis between October 1 and the dates of the tape recordings. At the time of the recordings, Respondent had already been told by Willis that the items sold to him had been stolen.

    
    

18. Respondent explained that he had taken the Zenith radio from the school in order to listen to the election returns at his home. He further explained that it was always his intention to personally pay for the piano tuning and the office equipment in his home. His suspension on October 3, 1973, prevented him from doing so.

    
    

    CONCLUSIONS OF LAW

    
    

19. As noted above, Petitioner seeks to revoke Respondent's teaching certificate on the grounds that he is guilty of gross immorality and personal conduct which seriously reduces his effectiveness as an employee of the school board. More specifically, Respondent is charged with having in his possession a quantity of stolen property and selling certain stolen property, both with knowledge that the property was stolen, and with billing the school for the tuning of a piano located in his home.

20. With regard to the possession of stolen property charge, it is incumbent upon Petitioner to prove that Respondent had either actual knowledge or that he should have known that said property was stolen. While Petitioner has presented substantial evidence that a quantity of the property in question was indeed stolen merchandise, Petitioner has failed in its burden to prove that Respondent knew or should have known said property was stolen at the time it was in his possession. There was no evidence presented as to the actual value of the property in question; thus, no inference of knowledge can be drawn from the prices paid by Respondent. The mere fact that four pianos, a riding mower and some shingles came into Respondent's possession during a relatively short span of time does not, in itself, prove Respondent's knowledge of the property having been stolen. The only credible evidence against Respondent with respect to the pianos came from the purchaser of one piano who testified that Respondent told him he was selling the piano for a friend. This testimony, even if true, does not establish knowledge on the part of Respondent that it was stolen merchandise. In conclusion, with respect to the four pianos, the shingles and the riding lawnmower, Petitioner, has failed to establish that Respondent had knowledge that said items were stolen at the time they were in his possession. While the taped conversations between Respondent and Willis indicate that at the time of the conversations Respondent knew that some property had been stolen, they do not demonstrate that Respondent had such knowledge before he was arrested on October 1, 1973, or before the property was found by law enforcement officers.

    
    

21. The undersigned Hearing Officer reaches the same conclusion with respect to the two projectors, the two tape recorders, the portable television and the two rakes. There was no testimony as to whether or not the rakes were ever used for school purposes and they were not found in Respondent's possession. The Respondent's testimony concerning his possession of the projectors, tape recorders and television was supported by the testimony of the man accompanying him to the auction of leased equipment. Even if the name of Fidelis School were written on the television set at the time it was in Respondent's possession, that would not be inconsistent with its purchase at a sale of leased office equipment.

    
    

22. There was no evidence as to how long the portable radio belonging to the school system had been in Respondent's home. Absent such evidence no conclusion of guilt can be drawn.

    
    

23. A different result obtains with respect to the piano tuning and the office equipment located in Respondent's home, for which Scenic Heights Elementary School was billed. Respondent's explanation that he intended to personally pay for these bills is inconsistent with the time span elapsing between the dates of purchase and the date he was suspended. A principal of a school who has the authority to purchase a certain amount of goods without prior approval should not use this position of trust and responsibility to obtain school system discounts on items for his personal use. Nor should he, of course, use his position with the school system to obtain property for his own use at the expense of the school system. This constitutes personal conduct which reduces his effectiveness as an employee of the school board and provides grounds for the revocation of his teaching certificate under Section 231.28, F.S.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that Respondent's teaching certificate be revoked for a period of six years, effective August 31, 1973.

Respectfully submitted and entered this 10th day of February, 1977, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire P. 0. Box 1752

Tallahassee, Florida 32302

James A. Johnston, Esquire One North Palafox Street Pensacola, Florida 32501

Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street

Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: GLENN PORTER DISMUKES DOAH CASE NO. 76-1776

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Thomas E. Benner, Jr., as Vice Chairman of the Professional Practices Council for the revocation of the teacher's certificate of the Respondent, GLENN PORTER DISMUKES, Department of Education Certificate Number 193850.

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon and having reviewed the findings of fact and the recommendation of the DOAH Hearing Officer and further having reviewed the entire record, the Board makes the following findings of fact and conclusions of law.

1. The Respondent presently holds Florida Teacher's Certificate Number 193850, valid until June 30, 1989.

   
   

2. The Respondent used his position of trust and responsibility to obtain school system discounts on items for his personal use; and

   
   

3. The Respondent used his position with the school system to obtain property for his own use at the expense of the school system.

   
   

4. The above constitutes personal conduct which reduces his effectiveness as an employee of the school board.

   
   

5. Pursuant to Section 231.28 (1), Florida Statutes, the Florida teacher's certificate of any person who has been found guilty of personal conduct which reduces his effectiveness as an employee of the school board is subject to revocation.

ORDERED AND ADJUDGED that the teacher's certificate of GLENN PORTER DISMUKES, Respondent, Department of Education Certificate Number 193850, be and same is hereby revoked for a period of four years, commencing October 2, 1973 and ending October 2,

DONE AND ORDERED at the State Board of Education meeting in open session at Tallahassee, Florida, as of the 19th day of July, 1977.

Reubin O'D. Askew, Governor; Chairman

Bruce A. Smathers, Secretary of State

Robert L. Shevin, Attorney General

Gerald a. Lewis, Comptroller

Bill Gunter, Treasurer

Ralph D. Turlington, Commissioner of Education; Secretary-Executive Officer

Doyle Conner, Commissioner of Agriculture

As and constituting the State Board of Education of Florida, as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida.

I HEREBY CERTIFY that the foregoing Order in the matter of Glenn P. Dismukes was finalized and copies were mailed to Glenn P. Dismukes, Mallory Horne, and Superintendent Charles Stokes this 21st day of September, 1977, by U.S. Mail.

Hugh Ingram, Administrator Professional Practices Council

Docket for Case No: 76-001776

Orders for Case No: 76-001776