STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-056

)

DAVID MICHAEL KNOX, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tampa, Florida, on April 23, 1981, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Slepin, Slepin and Lambert 1114 East Park Avenue Tallahassee, Florida 32301

For Respondent: No representation

ISSUE PRESENTED

Whether Respondent's teaching certificate should be suspended or revoked, or Respondent otherwise disciplined for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B-5, Florida Administrative Code, as set forth in the Administrative Complaint, dated October 21, 1980.

This proceeding commenced with the Filing of an Administrative Complaint by the Commissioner of Education alleging that Respondent's teacher's certificate should be revoked or suspended, or other action taken, pursuant to Chapter 231, Florida Statutes, for gross immorality, moral turpitude, and engaging in conduct which seriously reduced his effectiveness, by reason of the alleged sale of cocaine to Tampa Police Department Detectives on November 16, 1979. The complaint also alleged that the Respondent was in violation of Section 231.09, F.S., in that he failed to provide a proper example for students, and of Chapter 6B-5, Florida Administrative Code, in that he had not practiced his profession at the highest ethical standard.

The complaint was filed on October 21, 1980, and by an "election of rights" form received by the Professional Practices Services Section of the Department of Education on December 29, 1981, Respondent disputed the allegations of material fact of the complaint and requested a formal hearing before this Division. The case was thereafter referred by the Education Practices Commission to this Division by letter of January 6, 1981.

By Order, dated January 15, 1981, the parties were advised of various procedural matters by the Hearing Officer, and paragraph 7 thereof quoted Model Rule of Procedure 28-5.104, F.A.C., concerning representation in administrative proceedings.

Notice of Hearing was issued on February 4, 1981, for final hearing on April 23, 1981. Due to the fact that it was later determined that an incorrect address had been used on the notice for Respondent, an Amended Notice of Hearing was issued on March 11, 1981. On April 20, 1981, a letter from Respondent to Petitioner's counsel dated April 12, 1981, was received in this Division after referral by said counsel. The letter requested that Petitioner's counsel inform him of a court appointed attorney to represent him since he could not afford to hire an attorney to defend him. He further asked that he be granted a continuance until the problem could he resolved. Petitioner's counsel informed Respondent, by letter dated April 16, that he was unable to assist him in his request. On April 22, the Hearing Officer advised Respondent telephonically that there was no provision for "court appointed counsel" in administrative proceedings and that due to the lengthy period of time since Respondent had been aware of the pendency of the proceeding and of his rights to representation, and because Petitioner's counsel had orally communicated objection to any continuance, that his request was denied. Respondent stated that he did not intend to appear at the hearing and, in a later telephone conversation on the same date, stated that he was transmitting a telegram withdrawing his request for hearing. Since no such communication was received on April 22, the hearing commenced as scheduled. At that time, Respondent appeared at the hearing and renewed his motion for continuance over objection of Petitioner, and the prior denial was reaffirmed. Upon inquiry by the Hearing Officer, Respondent stated that he did not wish to represent himself and that he would not participate in the proceedings other than to submit a letter and accompanying copy of the decision of the Third District Court of Appeals in the case of Pearl v. Florida Board of Real Estate, Case No. 80-347, opinion issued February 17, 1981. In his letter, Respondent requested that consideration be taken of his record as a counselor for seven years at Sligh Junior High School in Tampa, Florida, and that his certificate not be revoked. (Hearing Officer's Exhibit 1)

Respondent was thereupon advised of his rights in administrative proceedings, but although he remained in the hearing room during the course of the hearing, he took no further part in the proceedings.

Petitioner filed prehearing discovery requests which were not responded to by Respondent. Petitioner thereafter Filed a Motion for an Order Compelling Discovery and Respondent failed to respond thereto. By Order dated March 26, 1981, the motion was granted and Respondent was provided a period of ten days to either respond to Petitioner's discovery requests or to assert any rights against self-incrimination as to individual requests. Respondent did not respond to the foregoing order and therefore, a subsequent order was issued on April 8, 1981, wherein it was ordered that pursuant to Rule 1.370(a), Fla.R.Civ. P., the matters of which Petitioner's First Requests for Admissions were requested were deemed admitted by the Respondent for the purpose of this proceeding.

Petitioner presented the testimony of four witnesses and submitted five exhibits in evidence. Additionally, at the request of Petitioner, official recognition was taken of orders issued by the State Board of Education from 1976-1981 relating to drug-related cases in administrative license disciplinary proceedings. (Hearing Officer's Exhibit 2)

FINDINGS OF FACT

1. Respondent David Michael Knox holds certificate No. 325767, postgraduate rank II, which expires on June 30, 1982, covering the areas of biology, science, junior college and guidance. (Complaint)

   
   

2. Respondent's address on December 16, 1979, was 7409 El Encanto Court, Apartment 203, Tampa, Florida. At all times material, Respondent was employed by the Hillsborough County School System as a guidance counselor. As a guidance counselor, Respondent counseled students with drug problems. (Petitioner's First Request for Admissions)

   
   

3. On November 16, 1979, Detective Candice Moore, Tampa Police Department, pursuant to information supplied by a confidential informant that cocaine could be purchased from Respondent, telephoned Respondent to arrange such a purchase. During the course of the conversation, Respondent agreed to sell Moore a quantity of narcotics at his residence that evening. Detective Moore arrived at Respondent's residence at approximately 6:50 P.M. and was invited into the house by Respondent. He then showed her two packages and told her that she could choose the one that she wanted. She selected one of the packages. Respondent then brought out a tray on which there was a substance divided into six "lines." Respondent told Moore that she could sample the first and second lines. She simulated "snorting" the substance and also tasted it. Respondent "snorted" two lines of the substance and then told her to take the last two lines. She again simulated that she was taking the drug. Detective Moore had tasted cocaine before in the course of her duties and had determined that cocaine has a distinctive taste. The substance that she tasted at Respondent's residence tasted like cocaine.

   
   

4. Detective Moore gave Respondent $85.00 in U.S. currency and put the package, which appeared to contain approximately one gram of the substance, in her purse. Detective Moore and Respondent then spoke of the possibility of future transactions, and he told her that if she wanted more cocaine in the future to provide him several days notice since he only kept two to three grams at his home. He further told her not to tell anyone where she had obtained the cocaine and that everything would then be "cool" and they could do business together in the future.

   
   

5. After leaving the apartment, Detective Moore observed another detective at the police station perform a chemical reagent test on the contents of the package which she had purchased. The test was positive for cocaine. The contents of the package was then identified under evidence No. 9E-10250 and a small sample was sent to the State Crime Laboratory for analysis under evidence No. 9E-10251. Laboratory analysis utilizing standard testing procedures established that the substance gas cocaine. (Testimony of Moore, Booth, Wilbarger, Kasten, Petitioner's Exhibits 1-2)

   
   

6. Respondent thereafter was charged with delivery of cocaine and possession of cocaine in violation of Sections 893.13(1)(a)(2), and (1)(e), Florida Statutes. On July 9, 1980, Respondent entered a plea of of nolo contendere to the charges in the Hillsborough County Circuit Court, Case No. 80- 780. The Court entered an order that adjudication of guilt and imposition of sentence be withheld, and Respondent was placed on probation for a period of three years. 1/ (Petitioner's Exhibits 3-5)

   
   

7. Joseph C. Greco, Supervisor of Guidance Services for the Hillsborough County School System, is of the opinion that a high school guidance counselor

   who is arrested for the possession of cocaine would set a poor role model example for students and that his effectiveness in the school system would be diminished. He further is of the opinion that such a person would not have adhered to the highest ethical standards required of personnel in the school system. (Testimony of Greco)

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 231.28, Florida Statutes, provides that Petitioner shall have authority to take specified disciplinary action affecting teaching certificates under the following pertinent circumstances:

   
   

   1. It can be shown that such person .

      has been guilty of gross immorality or an act involving moral turpitude; . . . upon inves- tigation has been found guilty of personal conduct which seriously reduces his effective- ness as an employee of the school board; or has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

      
      

      The evidence clearly establishes Respondent's sale of cocaine to a police officer in November 1979. It is unquestionable that such misconduct on the part of a guidance counselor which becomes the subject of judicial proceedings is bound to seriously reduce his effectiveness to continue in that capacity in the public schools, as the Supervisor of the County Guidance Program testified herein. The term "immorality" is defined in Petitioner's Rule 6B-4.09(2), F.A.C., for the purposes of school board dismissal action as "conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned with the education profession into public disgrace or disrespect and impair the individual's service in the community." Certainly, the unlawful sale of cocaine meets all the tests of that definition which properly may be carried over to cases involving the suspension or revocation of teaching certificates. The term "gross" in the statutory term "gross immorality" should be viewed as immorality which involves an act of conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards.

      
      

9. Petitioner's Rule 6B-4.09(6), which also deals with teacher dismissal criteria, defines "moral turpitude" as "crime that is evidenced by an act of baseness, vileess or depravity in the private and social duties, which according to the accepted standards of the time a man owes to his fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude." Although the recent decision in Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981), held that the conviction of a real estate salesman for mere possession of controlled substances did not evidence moral turpitude under Chapter 475, F.S., the decisions cited therein from other jurisdictions concerning drug offenses indicate that the sale of drugs is a different matter entirely. The prior decisions of the State Board of Education (Hearing Officer's Exhibit No. 1) uniformly support the proposition that the sale of drugs constitutes moral turpitude within the meaning of Chapter 231, F.S. It is concluded that Respondent's action meets the statutory criteria for discipline.

10. The Administrative Complaint also alleges that Respondent's actions were in violation of Section 231.09, F.S., in that he failed to provide a proper example for students, and of Chapter 6B-5, Florida Administrative Code, in that Respondent has not practiced his profession at the highest ethical standards. Section 231.09 deals with the duties of instructional personnel and, although a teacher's failure to perform such a duty might be considered as conduct which reduces the teacher's effectiveness, it cannot serve as an additional ground for disciplinary action. The language in Section 231.28(1) which concerns one who has "otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate," cannot be applied in this instance because Section 231.09 does not provide a penalty for failure to perform the duties enumerated thereunder. Petitioner's allegations of violations of its rules do not specify the particular ethical standards that Respondent may have violated, and therefore cannot serve as a basis for disciplinary action, even if otherwise valid for such a purpose. Further, the same considerations would apply as noted above that there has been no showing that violation of ethical standards constitutes grounds for revocation of a teaching certificate. (See Professional Practices Council v. Judy A. Cain, DOAH Case No. 79-1217, Final Order issued July 11, 1980)

    
    

11. In determining an appropriate penalty, consideration has been given to the fact that no evidence has been presented to indicate that Respondent has been the subject of any prior disciplinary action. Respondent's letter presented at the hearing requests that consideration be taken of his "impeccable record as a counselor for seven years at Sligh Junior High School in Tampa, Florida." However, in view of the serious nature of Respondent's offense, it is considered that permanent revocation of his teaching certificate is warranted.

RECOMMENDATION

That Respondent's teaching certificate be permanently revoked, pursuant to Chapter 231, Florida Statutes.

DONE and ENTERED this 18 day of May, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1981.

ENDNOTE

1/ Respondent's plea of nolo contendere will not be considered as evidence of "guilt" in this administrative proceeding. Holland v. Florida Real Estate Commission, 352 So.2d 914(Fla. 2nd DCA 1977).

COPIES FURNISHED:

George L. Waas, Esquire Slepin, Slepin and Lambert 1114 East Park Avenue Tallahassee, Florida 32301

David Michael Knox

8415 Cerro Circle No. 235

Tampa, Florida 33617

Donald L. Griesheimer, Director Department of Education Education Practices Commission

319 West Madison Street Tallahassee, Florida 32301

Docket for Case No: 81-000056

Orders for Case No: 81-000056