STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1536

)

JERE L. HOUGH, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on December 12, 1977, at Miami, Florida, before the undersigned Hearing Officer. This case was consolidated for hearing with the case of Professional Practices Council, Department of Education, State of Florida, Petitioner, vs. Jere L. Hough, Respondent, Docket Number 77-1910.

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr., Esquire

Dade County Public Schools 1410 Northeast 2nd Avenue Miami, Florida 33132

For Respondent: Elizabeth J. du Fresne, Esquire

1809 Brickell Avenue, Suite 208

Miami, Florida 33129 ISSUE PRESENTED

Whether Respondent should be discharged from employment with the School Board of Dade County, Florida, for alleged immorality, pursuant to Section 231.36(6), Florida Statutes.

At the commencement of the hearing, counsel for the respondent announced that she had been unable to communicate with the respondent concerning the hearing in spite of the fact that she had directed various letters to him and attempted to reach him by telephone. Her motion for a continuance of the hearing due to absence of the respondent was denied, because he had been informed by counsel of the pending charges of the petitioner and should have maintained contact with his attorney concerning the matter. (Respondent's Composite Exhibit 1)

FINDINGS OF FACT

1. Federal narcotics agents of the Drug Enforcement Administration made arrangements with the respondent to purchase five pounds of cocaine from him. The respondent promised to deliver one pound of cocaine at his residence located

   at 10850 SW 24th Street, Miami, Florida, on May 3, 1977. On that date, special agents Mazilli and Carew placed respondent under arrest after he turned over to them at his residence a quantity of a white powdery substance. A "field test" of the substance was made by placing some of the material into a small vial of acid which caused it to turn purple, thus indicating that it was cocaine. Carew searched the person of the respondent incident to the arrest and found a single shot, .22 caliber revolver, a .22 caliber derringer pistol, a knife and $3,380 in cash. While the agents were at respondent's residence, a phone call was received from a person identifying himself as "Carlos," who advised that he could deliver the other four pounds of cocaine. An agent requested that he do so and, sometime after midnight, two individuals arrived in front of the residence and were thereafter arrested. Approximately two pounds of a white powdery substance contained in a plastic bag was found in the trunk of the automobile. A search of the premises resulted in the seizure of other firearms, a large quantity of marijuana, other plastic bags containing a white powdered substance, and a large number of capsules and variously colored pills. The sum of $5,000 cash U.S. currency was found in a brief case. All of these items were seized by the narcotics agents and the suspected drugs were turned over to a forensic chemist for analysis and identification. The laboratory report revealed that the 510.5 grams of material turned over to the agents by respondent consisted of 42 percent pure cocaine hydrochloride and the 1,079.8 grams seized from the automobile was 100 percent pure cocaine hydrochloride.

   The items seized during the search of the house proved to be cocaine hydrochloride, marijuana, and various other drugs. (Testimony of Carew, Petitioner's Composite Exhibit 1)

   
   

2. Respondent was hired as a teacher with the Dade County public school system in August, 1970, and, in May, 1977, was employed as a teacher at the W.R. Thomas Junior High School under continuing contract. The Assistant Superintendent of Schools, Personnel Division, is of the opinion that if the charges against the respondent are established, such conduct would be grossly immoral and sufficiently notorious to bring the individual and the education profession into public disrespect. (Testimony of Moore.)

   
   

3. Respondent was suspended without pay from his position as a teacher by the Dade County superintendent of schools on August 8, 1977, pursuant to Section 230.33(7)(h), Florida Statutes. Respondent thereafter requested a hearing on his suspension and his request was referred to the Division of Administrative Hearings by the Dade County Public School Board on August 24, 1977. Specific charges were filed by the Board against the respondent on October 10, 1977.

   
   

4. On July 29, 1977, the Professional Practices Council, Department Of Education, State of Florida, filed a petition for the revocation of respondent's teaching certificate, pursuant to direction of the State Commissioner of Education. Respondent thereafter requested that the matter be heard before a Hearing Officer of the Division of Administrative Hearings. The two cases were consolidated for hearing purposes by order of the Hearing Officer on October 31, 1977.

   
   

   CONCLUSIONS OF LAW

   
   

5. The School Board of Dade County seeks to dismiss respondent from his employment as a teacher for immorality in violation of subsection 231.36(6), Florida Statutes. As grounds for its proposed action, the Board charges that the respondent knowingly and intentionally possessed with the intent to distribute a controlled substance, to-wit: cocaine, on two occasions, and that he knowingly and intentionally distributed cocaine on one of those occasions; in

   violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. It is also alleged that he unlawfully carried firearms during the commission of the felony of knowing and intentional possession with intent to distribute a controlled substance, to-wit: cocaine, in violation of Title 18, United State Code, Section 924(c)(2).

   
   

6. Since the Board has predicated its proposed disciplinary action upon the stated violations of federal law, it has the burden of establishing respondent's guilt of those offenses by clear and convincing evidence. The evidence adduced at the hearing establishes that respondent had agreed to sell a quantity of cocaine to undercover federal agents, and that, pursuant to the agreement, 510.5 grams of a white powdery substance was delivered to federal agents on May 3, 1977, at respondent's place of residence. It further shows that an additional 1,079.8 grams of a white powdered substance was delivered in an automobile to his residence by unknown persons as representing the remainder of the purchase. Although counsel for respondent argues that respondent was never in possession of this latter amount, the circumstances are such to hold him as a principal to the transaction and thus accountable therefor. Further, there is no dispute over the fact that respondent was carrying firearms on his person at the time he delivered the substance to federal agents.

   
   

7. In view of the foregoing, all that is necessary to establish the federal offenses in question is that the substance seized by the authorities was, in fact, the controlled substance of cocaine, the possession and distribution of which is proscribed and made a felony under Title 21, United States Code, Section 841(a)(1) and which constitutes a felony under Title 18, United States Code (1) and Title 18, 841(b)(1)(A), as a Schedule II controlled substance. In this regard, the fact of the agreement, the appearance of the material delivered by the respondent, and the field test thereof, together with respondent's possession of firearms, the discovery of other quantities of the substances in the residence along with pills, capsules, large amounts of currency and a large amount of a substance identified to be marijuana by the testifying agent, combine to present a strong likelihood that the material was indeed cocaine hydrochloride, as alleged. When the above factors are coupled with the admittedly hearsay reports of the chemist's analysis of the substance, which identified it as cocaine hydrochloride, sufficient evidence exists to conclude that the substance in question was cocaine. Counsel for respondent objected to the introduction of the laboratory reports on the ground that they were hearsay and her client was being denied the right of confrontation and cross examination of the chemist who prepared the report. However, Section 120.58(1)(a), Florida Statutes, permits the use of hearsay evidence to supplement or explain other evidence, even though standing alone it would be insufficient to support a finding. Respondent's counsel also objected to the agent's testimony concerning the presence of marijuana in the residence, but such objection was overruled on the grounds that such evidence was competent to show a plan, intent, design, or motive of the respondent with respect to the offenses charged.

   
   

8. It is therefore concluded that the respondent committed violations of the federal law in the manner alleged in the Board's charges, and it is beyond cavil that such conduct constitutes "immorality" in violation of subsection 231.36(6), and as defined in Rule 6B-4.09, Florida Administrative Code, as "conduct that is inconsistent with the standards of public conscious and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." There can be no doubt that respondent's conduct is of such a notorious nature and without question serves to impair his

effectiveness in the school system. Accordingly, dismissal is authorized and warranted.

RECOMMENDATION

That the respondent Jere L. Hough be dismissed from his employment with the Dade County school system.

DONE and ENTERED this 12th day of January, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire Dade County Public Schools 1410 Northeast 2nd Avenue Miami, Florida 33132

Elizabeth J. du Fresne, Esquire Suite 208

1809 Brickell Avenue

Miami, Florida 33129

Docket for Case No: 77-001536

Orders for Case No: 77-001536