STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3120

)

DANIEL E. MOODY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the Richard R. Daniel Building, 111 Coast Line Drive East, Jacksonville, Florida, on March 3, 1982. This Recommended Order is being entered following the receipt and review of the transcript of proceedings, which transcript was filed with the Division of Administrative Hearings on April 7, 1982. The parties, through counsel, have submitted proposed recommended orders and those matters have been considered. 1/

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: Edward W. Dawkins, Esquire

410 Broad Street, Suite 208 Jacksonville, Florida 32202

The issues presented here concern administrative action taken by the Petitioner against the Respondent calling for the possible revocation or suspension or other appropriate disciplinary action against the Respondent based upon allegations of theft. In particular, it is alleged by Administrative Complaint that Respondent, on November 9, 1980, obtained and attempted to conceal part of an automobile tune-up kit with the intent to remove this item from the merchant's control and possession without paying for it. These acts on the part of the Respondent allegedly violate Section 231.28, Florida Statutes, in that Respondent is guilty of gross immorality or an act involving moral turpitude and has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the Duval County, Florida, School Board. It is further alleged that the conduct is contrary to Subsection 231.09(2), Florida Statutes, in that the Respondent has failed to set a proper example for students.

FINDINGS OF FACT

Case History

1. The Department of Education, State of Florida, has filed an Administrative Complaint against Respondent, Daniel E. Moody, the substance of which Complaint is discussed in the Issues statement to this Recommended Order. Respondent has requested a formal hearing to consider the Administrative Complaint, having denied the material allegations of the Complaint. See Subsection 120.57(1), Florida Statutes.

   
   

2. Following notice, a hearing de novo was held on March 3, 1982.

   
   

3. In the course of the final hearing, Petitioner presented Clarence Newsome, Robert D. Williamson and Dalton Epting as witnesses. Petitioner offered two (2) exhibits which were received into evidence. Respondent testified in his own behalf and offered as witnesses William Benjamin Kyle, William L. Stone, and Rudolph W. McKissick. Respondent had one exhibit, late- filed, which is not granted admission for reasons which will be discussed in the Conclusions of Law section to this Recommended Order.

   
   

   Material Facts

   
   

4. Respondent holds a teaching certificate issued by Petitioner. That certificate is No. 314402, Rank III, certifying Moody in the area of math. The certificate is valid through June 30, 1988.

   
   

5. Respondent is presently employed and was so employed at all times material to the Administrative Complaint as a high school teacher in the public school system of Duval County, Florida, assigned to Englewood High School to teach mathematics. Presently, Respondent is Chairman of the Math Department in that school.

   
   

6. On November 9, 1980, around 9:30 A.M., Respondent entered the Pic-N- Save store located at 7912 Lenn Turner Road, Jacksonville, Florida. Once inside the store, he went to a shopping aisle where automobile tune-up kits were located and picked up a package which had been opened. This package normally contained three (3) tune-up items; namely, points, condenser and rotor cap. The rotor cap in this particular package had been removed and an employee in the store had retaped the package container and placed it on the shelf before this occasion. After examining the package, Respondent replaced it on the shelf and picked up a second package which also was a tune-up kit containing three (3) parts. This package was sealed and had not been opened prior to Respondent's selection of the item. Respondent then began to tear open the cellophane which enclosed the tune-up pieces in the second package, pausing when persons who were in the store would enter the area where Moody was located. At those points in time, Respondent would stop tearing the cellophane and take other auto parts off shelves and then hang them back. Respondent was moving up the aisle as he conducted this process of opening the package. Once the package had been opened, he removed a rotor cap from the package and placed it in the right front pocket of his pants. Respondent then walked back to the area where he had originally picked up the second tune-up kit, laid that package down and picked up the original tune-up kit which had been taped by store employees and which was missing the rotor cap. He then proceeded to a service counter where the store manager, Clarence Newsome, was working.

7. Moody spoke to Newsome and pointed out the fact that a part was missing from the first package and asked Newsome to discount the tune-up kit price, which Newsome agreed to do, discounting the cost from $2.59 to $1.59. This discount was noted by marking down the price on the package and returning it to Respondent.

   
   

8. Robert Dale Williamson, an officer with the Jacksonville Sheriff's Department and part-time security officer at the Pic-N-Save store had observed Moody's activities with the two (2) packages of tune-up parts and had left his concealed observation position and followed the Respondent to the counter where Newsome was located.

   
   

9. Once Respondent had concluded his transaction with Newsome, he turned around and was confronted by Officer Williamson who produced his sheriff's badge and identification card and asked Moody to accompany him to an area in the downstairs portion of the store.

   
   

10. Moody and Williamson walked downstairs and once in a room in the downstairs location, Williamson asked Moody to remove the part that he had placed in his pocket. Moody responded that he did not have a part in his pocket and this remark was followed by Williamson's act of "frisking" Respondent and removing the black rotor cap from Moody's right front pocket, which had been taken from the second auto tune-up kit package. Moody made no comment about this item being removed from his pocket. While another employee stayed with Moody in this room, Williamson then went back into the store area where the second package had been left, recovered the package and the two (2) items that remained in that package and subsequently placed those items and the rotor cap which had been removed from Moody's pocket into a bag which was sealed and left with the store manager.

    
    

11. Testimony by Dalton Epting, Director of Certified Personnel for Duval County School System, established that with the exception of a limited number of school personnel, the events of November 9, 1980, related to the alleged shoplifting were not known throughout the school system, either by faculty or students, nor in the general community. At the time of the incident, Epting was Principal at the high school at which the Respondent taught. Epting conferred with Respondent about the incident when it was brought to his attention and the Respondent having professed his innocence, Epting did not recommend further action be taken by the Duval County School Board.

    
    

12. As an educator, Epting testified and accurately stated that a shoplifting incident is a matter which is not an acceptable example for young people and is an immoral act.

    
    

13. In this instance, Epting correctly identified that the school authorities, students and community having not been told of the matters at issue here, Respondent has not lost his effectiveness as an educator, and Moody continues to maintain a good relationship and reputation among other teachers.

    
    

14. During Epting's administration at Englewood High School, Respondent was promoted to Chairman of the Math Department and Respondent has passed a screening process which would allow him to be promoted to an administrative position.

15. William Leon Stone who is the assistant principal for student services at Englewood High School also accurately stated that there has been no loss of effectiveness on the part of Respondent in his abilities as teacher, premised upon a knowledge by the overall community or by faculty members and school officials or students of the incident in question, those various groups having not been given knowledge of the events. Stone has found Moody's performance as teacher at Englewood High School to be in keeping with the standards of the Duval County School System.

    
    

16. Finally, testimony was offered by Rev. Rudolph W. McKissick who is the pastor of Bethel Baptist Institutional Church in Jacksonville, Florida. Respondent is a member of that congregation and is an ordained deacon. Rev. McKissick gave testimony to the effect that Respondent has good moral character and is an active parishioner in church activities.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Following the conclusion of the hearing, a letter from a William Scott, Jr., was received by the Hearing Officer. This letter was dated March 5, 1982, and copies were served on counsel for the parties. This letter has been marked as Respondent's Exhibit 1. No provision having been made for post- hearing exhibits, the exhibit is denied admission.

    
    

19. Respondent has been charged with a violation of Subsection 231.28(1), Florida Statutes, for having been guilty of gross immorality or an act involving moral turpitude. The incident in which he took property of the Pic-N-Save store on November 9, 1980, namely the rotor cap and did so in such a way as to indicate his intent to deprive the owner in a permanent fashion of the owner's interest in that property, indicates that Respondent is guilty of gross immorality and an act involving moral turpitude within the meaning of Subsection 231.28(1), Florida Statutes. Therefore, he is subject to disciplinary action in keeping with the possible penalties set forth in Section 231.28, Florida Statutes.

    
    

20. It is also alleged pursuant to Subsection 231.28 (1), Florida Statutes, that Respondent has lost his effectiveness as a teacher due to the November 9, 1980, incident. The proof offered in furtherance of that allegation is insufficient to sustain the contention, there being no showing that the incident has been publicized in such a way that Respondent's ability to perform his duties as a teacher has been so impaired that he is no longer effective in his instruction and in his relationship with his fellow teachers or with members of the general community. Consequently, Respondent is not answerable for the penalties set forth in Section 231.28, Florida Statutes, related to this form of violation. Likewise, Respondent cannot be said to have failed to set a proper example for students as alleged in the reference to Section 231.09, Florida Statutes, which deals with the subject of establishing such example. The matter of the November 9, 1980, incident not having come to the attention of students by their direct observation nor those students having learned of the incident indirectly, Respondent is not found to be guilty of failing to set a proper example for students as alleged under authority of Section 231.09, Florida Statutes. Thus, Respondent may not be penalized for such violation through the imposition of penalties found in Section 231.28, Florida Statutes.

Based upon a full consideration of the facts and conclusions of law, it is RECOMMENDED:

That a final order be entered by the Education Practices Commission, suspending the teaching certificate of Respondent, Daniel E. Moody, for a period of sixty (60) days, it having been established that he has committed an act which is grossly immoral and involves moral turpitude.

DONE and ENTERED this 4th day of May, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 4th day of May, 1982.

ENDNOTE

1/ The proposed orders having been examined, to the extent that they are in accord with this Recommended Order, they have been utilized. To the extent that they are contrary to the Recommended Order, they are rejected.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

Edward W. Dawkins, Esquire

410 Broad Street, Suite 208 Jacksonville, Florida 32202

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

The Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-003120

Orders for Case No: 81-003120