STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2981

)

NORMAN WHITE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on March 2, 1983, in Miami, Florida.

APPEARANCES

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

3000 Executive Building

3050 Biscayne Boulevard

Miami, Florida 33137

For Respondent: William Du Fresne, Esquire

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131-1370

This proceeding was initiated on a Notice of Charges filed by the Petitioner, wherein it is alleged that the Respondent, an employee of the School Board of Dade County and a teacher at Mays Junior High School, on or about October 13, 1982, pointed a gun at a student, which act allegedly constitutes immorality and misconduct in office as proscribed by Section 231.36(6), Florida Statutes.

At the hearing the Petitioner presented three witnesses who testified regarding the charge and three more witnesses who adopted the testimony of the first three, the Petitioner's counsel proffering the essence of their testimony, with the Respondent's counsel agreeing with that proffer as to the content of it, but not as to its import. The issue to be litigated concerned whether the Respondent actually committed the act of pointing a gun at a student, to wit: Darryl Ward.

FINDINGS OF FACT

1. The Respondent was employed as an instructional employee of the School Board of Dade County at Mays Junior High School on or about October 13, 1982. The Respondent was serving as the Band Director for Mays Junior High School at that time.

2. On October 13, 1982, a group of boys (apparently students) at Mays Junior High School, were engaged in a fight or some such altercation outside the band room where the Respondent engaged in his duties as Band Director. The Respondent went outside to attempt to quell the disturbance and engaged in a discussion of some nature with the students in the group he was trying to disperse. The students would not cooperate and the discussion became heated. The Respondent walked over to his car, parked a short distance away, got in the car and drove it back to the band room. The Respondent got out of his car, which he had parked in the immediate vicinity of the group of boys, and once more asked them to leave the area, or, if they were going to leave. They refused to comply with his direction and so the Respondent went to the trunk of his car, opened the trunk and removed a rifle and, with the rifle in his hand, walked over and began talking to the boys once again.

   
   

3. A teacher, Mrs. Patricia Holland, and a student, Sonia Everett, observed this entire incident, beginning with the point in time when the Respondent first attempted to quell the disturbance before he went to get his car. The Respondent held the gun in his hand as he walked over once more to talk to the group of boys. At all times he held the gun pointed in a downward direction and pointed it at no person. It was not established that the gun was loaded.

   
   

4. Although other witnesses testified they observed the Respondent pointing the gun at student Darryl Ward, witnesses Holland and Everett observed the entire episode and I find their testimony more credible and worthy of belief and accept it over that of the other witnesses after having observed the candor and demeanor of all the witnesses upon direct and cross-examination.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1981).

   
   

6. Florida Statutes 231.36(6) provides:

(6) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. . .

As pertinent hereto, the Respondent is charged with pointing a gun at a student, Darryl Ward, which act is charged to be immorality and misconduct in office.

The Notice of Charges only contains the allegation of the operative, evidential fact of the pointing of a gun. The charge of immorality and misconduct in office is not predicated on any allegation in the Notice of Charges that the Respondent merely had a gun in his possession or displayed a gun or even that he displayed it in a threatening manner while conversing with the students involved. Since the quantity and quality of the evidence necessary to sustain the burden of proof of a prosecuting agency in a penal proceeding such as this, is substantially greater than in other proceedings involving regulatory acts of

a governmental agency, it must be concluded, in consideration of the above Findings of Fact, that the essential fact charged, to wit: the pointing of a gun at Darryl Ward, has not been established. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DC) 1981). Inasmuch as that operative fact is the sole predicate for the charge of immorality and misconduct in office, pursuant to the above subsection, it must be concluded that those charges have not been sustained.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED:

That the charges against the Respondent, Norman White, be DISMISSED and that any and all back-pay be restored to him.

DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 20th day of May, 1983.

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3000 Executive Building

2050 Biscayne Boulevard

Miami, Florida 33137

William Du Fresne, Esquire 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131-1370

Dr. Leonard Britton, Superintendent Lindsey Hopkins Building

1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 82-002981

Orders for Case No: 82-002981