STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1048

)

DARRELL T. COX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on August 26, 1977, in Miami, Florida.

The following appearances were entered: Jesse J. McCrary, Jr., Miami, Florida, for the Petitioner, School Board of Dade County; and Gus Efthimiou, Jr., and Lloyd Marks, Miami, Florida for the Respondent, Darrell T. Cox.

On or about May 18, 1977, the School Board of Dade County ("School Board" hereafter) authorized the suspension of Darrell T. Cox ("Respondent" hereafter) as an instructional employee of the School Board. The Respondent was notified of this decision by letter from the School Board's Assistant Superintendent for Personnel and was advised that unless he requested a hearing the Board would take action to discharge him. By letter dated May 26, 1977, the Respondent officially requested a hearing. By letter dated June 1, 1977 the School Board requested that the Division of Administrative Hearings assign a hearing officer to conduct the hearing. A petition setting out notice of charges was filed on June 27, 1977. The final hearing was thereafter scheduled to be conducted on August 26, 1977.

At the hearing the Respondent moved to dismiss the action, or in the alternative to postpone and continue the hearing on the grounds that the Respondent is charged with a criminal offense in the courts in Dade County, Florida respecting the same factual matter involved in this action. The motion was denied at the hearing. The School Board called the following witnesses: Donald Stokett, a police officer employed by the Dade County Public Safety Department; John F. Allen, the owner-operator of a boat, motor, and trailer sales, service and repair business in Dade County; James C. Casey, a police technician employed by the Dade County Public Safety Department; and William McQuay, a fingerprint technician employed by the Dade County Public Safety Department. The Respondent called the following witnesses: Michael Sasloe, the operator of an auto parts business located in Dade County, Florida; Suzanne Cox, the Respondent's wife; and the Respondent. Respondent's Exhibits 1-20 were received into evidence. The parties were invited to submit Post-Hearing Memoranda of Law, and Proposed Findings of Fact, Conclusions of Law, and Recommended Orders. None have been submitted.

There were sharp conflicts in the testimony given by the School Board's witnesses and the Respondent's witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as demonstrated in part by the witnesses' demeanor on the stand, and the extent to which the witnesses' testimony was corroborated by other evidence.

FINDINGS OF FACT

1. Prior to May 18, 1977, the Respondent was employed by the School Board as a driver education teacher and head football coach at Miami South Ridge High School.

   
   

2. At approximately 3:00 A.M. on May 15, 1977, the Respondent left his home in Miami, Florida, and drove to the back of a business located at 7211 S.

   W. 40th Street in Miami, Florida. John F. Allen operates a boat, motor, and trailer sales, service, and repair business at that location. In the back of the building there is a work area that is surrounded by a chain link fence. Customers' boats and motors are stored in this area while work is done on them in the shop. The Respondent walked down an alleyway along the fenced area, and climbed over the fence. He removed an outboard motor from a boat, and pulled it away from the boat toward the fence. The Respondent did not work in the boat yard, and he was not authorized to be there after regular business hours. There was no direct evidence as to the Respondent's intentions. The circumstance of his being in the fenced in portion of the boat yard at between 3:00 A.M. and 4:00 A.M. and the circumstance of his removing an outboard motor from a boat, and carrying it toward the fence, lead inescapably to the conclusion that the Respondent was seeking to steal the engine. The Respondent did not remove the engine from the boat yard. For unknown reasons, he abandoned his effort to steal the engine and left the boat yard. The Respondent was not armed with any weapon, and no other person was in the boat yard while he was there.

   
   

3. The outboard engine which the Respondent was attempting to steal was a

   40 horsepower Johnson outboard engine. The weight of the engine is approximately 140 pounds. The engine has a wholesale value of approximately

   $250. Even if the engine were in the worst possible operating condition, it would still be worth approximately $150.

   
   

4. While the Respondent was in the boat yard, two police officers employed by the Dade County Public Safety Department were undertaking a routine patrol of the area in an unmarked car. They observed the Respondent's automobile parked adjacent to the boat yard. One of the officers walked along the chain link fence in back of the boat yard and observed the Respondent inside the yard holding an engine. There was heavy vegetation along the fence, but the police officer was able to see through it at one point. The officer went back to his car, and told his partner what he had witnessed. Shortly thereafter the Respondent came out of the alley, got into his car, and drove away. The police officers turned on a flashing light in their car, pulled up behind the Respondent's car, and stopped him. The Respondent was placed under arrest. The police officer read the Respondent his rights from a "Miranda card". During interrogation after the arrest the Respondent pointed out the motor that he had removed from the boat, and told the officers were he had gotten it. The Respondent was then taken to a police station where he was fingerprinted, and later released on bail. A criminal action is now pending against the Respondent in the courts in Dade County.

   
   

5. Tools of a sort which could have been used in perpetration of a burglary were found in the Respondent's pockets and on the floor of the

   Respondent's automobile by the police after they stopped him. There was no evidence presented that these tools were used by the Respondent in breaking into the boat yard or in removing the outboard engine from the boat. There was no evidence that the Respondent intended to use the tools for these purposes.

   There was evidence presented that the tools were put in the automobile by a friend of the Respondent's wife. There is insufficient evidence from which it could be concluded that the Respondent intended to use the tools to commit any trespass or burglary.

   
   

6. The School Board acted promptly to suspend the Respondent from his position at South Ridge High School. The instant proceeding ensued.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Section 120.57(1), Florida Statutes (1976 Supp.).

   
   

8. The School Board has the burden of establishing good and sufficient reasons for the termination of employment of any member of its instructional staff who is employed on a continuing contract basis. Section 231.36(3),(4), Florida Statutes (1975). Section 231.36(6), Florida Statutes (1975) provides in pertinent part as follows:

   
   

   ". . .[A]ny member of the instructional staff. . . may be suspended or dismissed at any time

   during the school year; provided that no such employee may be discharged or removed during the school year without opportunity to be heard at a public hearing after at least 10 days' written notice of the charges against him and of the time and place of the hearing; and, provided further, that the charges must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. . ."

   
   

9. Section 801.02(1), Florida Statutes (1975) provides:

   
   

   "'Burglary' means entering or remaining in a structure or a conveyance with the intent to commit an offence therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain."

   
   

   The statute provides further that burglary is a felony of a third degree if the offender does not make an assault upon any person, is not armed, and if there is no human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance. The conduct of the Respondent set out in the Findings of Fact above constitute "burglary" as defined in Section

   810.02 (1).

10. Section 810.06, Florida Statutes (1975) provides:

    
    

    "Whoever has in his possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree. . ."

    
    

    Insufficient evidence was offered at the hearing from which it could be concluded that tools found in the Respondent's possession were used or intended for use to assist him in committing a burglary or a trespass.

    
    

11. Commission of burglary constitutes immorality within the meaning of Section 231.36(6).

    
    

12. The Respondent should be dismissed from his position as an instructional employee in the Dade County school system.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the School Board of Dade County dismiss the Respondent, Darrell T. Cox, from his position as an instructional employee in the Dade County school system.

RECOMMENDED this 13 day of October, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3050 Biscayne Boulevard

Suite 300-E

Miami, Florida 33137

Gus Efthimiou, Jr., Esquire Alfred I. DuPont Building

169 East Flagler Street Miami, Florida

Docket for Case No: 77-001048

Orders for Case No: 77-001048