STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, EDUCATION ) PRACTICES COMMISSION and RALPH D. ) TURLINGTON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1983

)

ALPHONSO J. CLARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on September 12, 1984, in Clearwater, Florida. The issue for determination in this proceeding is whether despondent's teaching certificate should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on May 18, 1984.

APPEARANCES

For Petitioner: L. Haldane Taylor

331 East Union Street Jacksonville, Florida 32202

For Respondent: Ronnie G. Crider

410 South Lincoln Avenue Clearwater, Florida 33516

Pamela L. Cooper

911 East Park Avenue Tallahassee, Florida 32302

INTRODUCTION

By an Administrative Complaint filed on May 18, 1984, respondent is charged with being guilty of gross immorality or an act involving moral turpitude and with having been found guilty of personal conduct which seriously reduces this effectiveness as an employee of the Pinellas County School Board, in violation of Section 231.28(1)(c) and (f), Florida Statutes. Factually, it is alleged that respondent knowingly purchased a stolen Corvette, permitted a stolen Cadillac to be registered in his name, was arrested for the offense of possession of a stolen vehicle, was dismissed from his employment with the School Board of Pinellas County and that his arrest and participation in the stolen vehicle operation became well-known and caused his effectiveness at Clearwater High School to be compromised and resulted in his inability to be a viable employee.

In support of the charges against the respondent, petitioner presented the testimony of Paul Reese and Tom Pailes, Detectives with the Clearwater Police Department; Chalmers Coe, the former Principal at Clearwater High School; Nancy Zambito, the Director of personnel Services with the Pinellas County School Board; and Katri Saari, a former Dean of Students at Clearwater High School.

Petitioner's Exhibits 1 through 10 were received into evidence.

Respondent testified on his own behalf and his Exhibit 1 was received into evidence, as was the parties' Joint Exhibit 1.

Subsequent to the hearing, counsel for both parties submitted proposed findings of fact and proposed conclusions of law. TO the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected as being either unsupported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting legal conclusions as opposed to factual findings.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Respondent Alphonso J. Clark is the holder of Florida teacher's certificate number 129341, valid since July 1, 1971, certifying him in the areas of administrative supervision, science, physical education, and guidance. For a period of approximately sixteen years, he was employed with the School Board of Pinellas County. During the 1982-83 school year, respondent held the position of Dean of Students at Clearwater High School. He was dismissed from employment by the Pinellas County School Board on June 8, 1983. No evidentiary hearing has held prior to that dismissal, and respondent was not questioned by any member of the School Board regarding the acts giving rise to his dismissal.

   
   

2. Some time in 1978, respondent met Marc Hayes for the first time at a hotel lounge in Clearwater Beach. Mr. Hayes told respondent that he was from Michigan and knew executives with automobile manufacturers who received vehicles from their manufacturer and were willing to sell such vehicles at a substantially reduced price. Respondent indicated that he would be interested in purchasing a luxury vehicle at a reduced price. At this time, no formal order was given by the respondent for a specific automobile, nor was any money exchanged. Respondent did advise Mr. Hayes of his place of employment and where he could be located in the event that Mr. Haves was able to find a vehicle that respondent might desire to purchase.

   
   

3. Some time in 1979, Mr. Hayes brought a 1978 silver "anniversary edition" Corvette to Clearwater High School for respondent's inspection to determine if he would be interested in buying it. The odometer on the Corvette indicated that it had been driven approximately 10,000 miles. There was a slight tear in the driver's seat, the interior had been stained and had a bad odor, the right rear fender had been damaged and repaired, the mirror on the driver's side was cracked and the exterior paint had a rough finish. Nevertheless, respondent agreed to purchase the Corvette for $7,000 because he felt he would be receiving a good bargain. Mr. Hayes then went to respondent's home and received a down payment of $1,000 from the respondent. Respondent did not sign any contract or loan agreement reflecting the transaction, nor did he receive any title or other document from Mr. Hayes reflecting his ownership or interest in the vehicle. Respondent told Mr. Hayes that he would pay the remainder of the purchase price upon receipt of the title. Respondent made two

   or three other payments to Mr. Hayes. When he made his final payment, Mr. Hayes gave him a Michigan titled to the Corvette. The title had respondent's name on it with a Michigan address. After asking Mr. Haves why the former owner's name did not appear on the title, it was respondent's understanding that the executive selling the car might get in trouble with his company. The respondent had never before purchased a car in a private transaction and without third- party financing.

   
   

4. After purchasing the Corvette, respondent obtained a Florida registration, secured a Pinellas County license tag, and had the car insured and inspected. He drove the vehicle on a daily basis over the course of the next three years and its appearance was never altered. On two occasions over this approximate three-year period, respondent was stooped by law enforcement officers and the Corvette's registration, license, and vehicle inspection number were checked. On both occasions, respondent was given no indication that anything was wrong with the car. One of these occasions was apparently due to the fact that respondent's ex-wife had reported to the police that the Corvette had been stolen. Respondent explained that this occurred after a domestic dispute with his then wife. When she said "With your luck, the car is stolen," he retorted "if my luck is as good as marrying you, it probably is stolen." Thereafter, she reported the car as stolen.

   
   

5. During the early months of 1983, detectives with the Clearwater Police Department were involved in the investigation of an interstate stolen car ring. A Mr. Raymond Huntley was first arrested for arranging for the sale of stolen vehicles. Apparently, Mr. Huntley obtained the cars from Wade Clark, who is the brother of respondent Alphonso Clark. It was determined that the stolen cars were being delivered to Florida from Michigan through Marc Hayes. A check of police records revealed that Marc Hayes had been arrested in Pinellas County on December 31, 1982, for a traffic law violation while driving a 1982 Cadillac which was registered in the respondent's name. This was the first time in the ongoing auto theft ring investigation that respondent's name had been mentioned. After checking with the National Auto Theft Bureau, it was determined that the vehicle identification number on the Cadillac was invalid, and it was later determined that the Cadillac was a stolen vehicle. The Cadillac itself was never located by the Clearwater Police Department.

   
   

6. While the Cadillac registration was not received into evidence in this proceeding, respondent admitted that it was registered in his name. He explained that Marc Hayes desired to have a car available to him in Florida, and requested respondent to keep the Cadillac at his home, use it when he wanted, but have it available for the use of Mr. Hayes or his friends when they were in Florida. Hayes suggested that the Cadillac be registered in respondent's name since respondent would also be driving it. Respondent had no knowledge as to the whereabouts of the Cadillac, but assumed that Mr. Hayes had taken it, as he had done on other occasions.

   
   

7. After discovering that the stolen Cadillac was registered in the respondent's name, and after arresting respondent's bother, the respondent himself became a suspect in the auto theft ring investigation. The detectives learned that respondent owned a Corvette. After going to the parking lot of Clearwater High School and looking through the windshield on the driver's side, the detectives were able to obtain the vehicle identification number for the Corvette. Further investigation revealed a Florida registration in the respondent's name with the same identification number, but it was discovered that the number was an invalid identification number for the Corvette. The Corvette was thereafter placed under surveillance. After locating the car in an

   open, but wooded area across the street from the respondent's residence, the detectives ordered that the Corvette be seized, and it was towed away for the purpose of inspecting the confidential vehicle identification number. An examination of the back of the confidential identification number plate revealed that the numbers had been altered. After checking the true numbers, the detectives ascertained that the Corvette had been reported stolen in Michigan in 1978.

   
   

8. When the respondent discovered that the Corvette was missing from the lot across from his home, he called the Indian Rocks Beach Police to inquire about it. Be also called the owner of the property upon which the car was parked. Respondent first learned that the Corvette had been impounded when three law enforcement officers came to talk to him at Clearwater High School on or about May 3, 1983. While two of the officers testified that respondent acknowledged during that May 3rd conversation that he knew the Corvette was "hot," respondent denies making such a statement.

   
   

9. Respondent was arrested on May 3, 1983, and was charged with auto grand theft. During the criminal proceedings, the original owner of the Corvette testified that he bought the car in February of 1978. Its sticker price at that time was $12,124, but he was able to purchase it on a company discount for approximately $10,000. The Corvette was stolen from the Ford Motor Company parking lot in Dearborn, Michigan in November of 1978.

   
   

10. After respondent's arrest, a newspaper article appeared in the St. Petersburg Times on May 5, 1983, reporting that respondent was "one of three deans responsible for disciplining students at Clearwater High," and had been arrested and charged with auto grand theft. The same article reported that respondent's brother and others had also been arrested and that one of the cars recovered was the Corvette respondent drives to school. Respondent's arrest also received other coverage by the news media.

    
    

11. After the St. Petersburg Times article appeared, the principal of Clearwater High School, as well as one of the other dean of students, received many inquiries from parents, students and other teachers regarding respondent's arrest. While there was some student support for the respondent, most of the comments from parents were negative. They voiced concern over the propriety of one who is arrested for auto theft having the authority to discipline their children. Prior to the publicity surrounding respondent's arrest, the principal considered respondent an effective employee.

    
    

12. By letter dated May 4, 1983, respondent was notified that the Superintendent of Schools was suspending him from his duties as of the close of the school day on May 4, 1983, as an emergency measure. By letter dated May 9, 1983, respondent was notified that the Superintendent would recommend to the School Board on May 25, 1983, that respondent be dismissed and his contract cancelled on charges of immorality and misconduct in office. Respondent was advised that he was entitled to a hearing, but that the request for a hearing had to be received by May 23, 1983. By Final Order dated June 8, 1983, the School Board noted that respondent's request for a public hearing was not received until May 25, 1983, found that respondent was guilty of immorality and misconduct in office and dismissed him from employment effective May 26, 1983.

13. At a judicial hearing held on January 19, 1984, Circuit Judge Maynard

    F. Swanson of the Circuit Court for Pinellas County granted a motion to suppress the contents of the Corvette, including the confidential vehicle identification number. Judge Swanson found that at the time the vehicle was seized, the law enforcement officers did not have probable or reasonable cause to believe that the Corvette was stolen. The criminal case against the respondent was dismissed by Order dated October 15, 1984, and filed on October 31, 1984.

    
    

    CONCLUSIONS OF LAW

    
    

14. Petitioner seeks to revoke, suspend or otherwise discipline respondent's teaching certificate on the grounds that he has been guilty of gross immorality, an act involving moral turpitude or personal conduct which seriously reduces his effectiveness as an employee of the school board. In order to sustain such charges, the burden is upon the petitioner to demonstrate that the respondent committed the acts alleged in the complaint and to show that such acts seriously reduced respondent's effectiveness as a school board employee. The evidence in support of the charges must be "indubitably as substantial as the consequences" sought to be imposed. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA, 1981).

    
    

15. Factually, respondent is charged with knowingly purchasing a stolen vehicle (the Corvette) and with permitting another stolen vehicle (the Cadillac) to be registered in his name. While dealing in stolen property may certainly constitute immorality and an act involving moral turpitude, it muse first he proven that respondent did knowingly purchase and register in his name stolen vehicles.

    
    

16. With respect to the Corvette, the evidence presented by the petitioner simply did not establish that the respondent knowingly and intentionally purchased a stolen car. This is true whether the quantum of proof required of the petitioner be competent and substantial evidence, clear and convincing evidence or a preponderance of the evidence. While the evidence established that the Corvette had, indeed, been stolen from its owner in November of 1978, there was insufficient evidence to establish that the respondent knew or should have known, either at the time he purchased the vehicle in 1979 or thereafter, that it was a stolen vehicle. Given the condition of the Corvette at the time of its purchase by the respondent, as well as the respondent's understanding regarding Mr. Hayes' acquaintance with executives of automobile manufacturers, the purchase price of $7,000 was not so low as to make one suspicious that something was wrong. While a prudent buyer might have demanded an inspection of title before money exchanged hands, it cannot be concluded that respondent's failure to do so constitutes proof that he knew the Corvette was a stolen vehicle. It was not established that respondent had any reason to believe that Mr. Hayes did not have or could not obtain title to the Corvette. Upon full payment of the agreed purchase price, respondent did receive title to the car. Considering respondent's limited experience of purchasing a car without utilizing third-party financing, it cannot be concluded that the fact that respondent's name appeared on the title with a Michigan address, in light of Mr. Hayes' explanation, demonstrates knowledge that he was purchasing a stolen vehicle. The respondent's actions subsequent to the purchase of the Corvette are not consistent with his alleged knowledge that the vehicle was stolen. Subsequent to his purchase, respondent secured a Florida registration, a license tag, insurance and inspection stickers. He drove the Corvette on a daily basis for a period in excess of three years without altering its appearance. He was stopped on several occasions and there were no indications that there was any problem with his ownership of the car. It was not until the car was seized by

    law enforcement officers in 1983 that it became apparent that the Corvette was, indeed, a stolen vehicle. The seizure was prompted, not by the appearance of the vehicle or by any other direct evidence, but by the officers suspicion that respondent was involved in an automobile theft ring due to the arrest of his brother and the fact that Marc Hayes had been arrested while driving another car registered to the respondent. Even after the vehicle was seized, it was only after the confidential vehicle identification plate was removed and examined by law enforcement officers with experience in detecting stolen vehicles that it became apparent that the numbers had been altered. Even then, it took further investigation with a federal agency to determine that the Corvette had been stolen from its owner in 1978. No evidence was presented to demonstrate that respondent knew that the vehicle identification number on the Corvette had been altered in any manner. There was no evidence that respondent even had knowledge that there was a confidential vehicle identification number on the Corvette. In summary, there was insufficient evidence presented to demonstrate that respondent had any knowledge whatsoever of the stolen nature of the Corvette at the time he purchased it from Marc Hayes.

    
    

17. The charge in the Administrative Complaint regarding the Cadillac is somewhat unclear. That charge reads as follows:

    
    

    "That Respondent permitted Marc Hayes to register a 1982 Cadillac Eldorado which had been stolen in Respondent's name with the Division of Motor Vehicles for the State

    of Florida, reflecting that Respondent was the owner of said motor vehicle, when in fact he was not the legal owner."

    
    

    It is not clear whether respondent is being charged with allowing another person to register a stolen vehicle in his name or whether the charge is that respondent unlawfully held himself out to be the owner of the Cadillac when, in fact, he was not the legal owner. Whatever the charge is, the fact remains that there is absolutely no evidence in the record of this proceeding to demonstrate that the respondent knew or had any reason to suspect that the Cadillac was in fact stolen or that respondent was attempting to conceal the true ownership of the Cadillac. The fact that the vehicle was registered in respondent's name is not sufficient to impart to him knowledge that it was stolen. Florida law clearly permits, and indeed requires, a person in charge of a motor vehicle which is to operate in Florida to register such vehicle. Section 320.02, Florida Statutes. There was simply no evidence to sustain the charge of gross immorality or an act involving moral turpitude with regard to either the Cadillac or the Corvette.

    
    

18. The only evidence offered by the petitioner in support of the charge that respondent was guilty of personal conduct which seriously reduced his effectiveness as a Pinellas County School Board employee was that he had been dismissed as an employee as a result of the criminal charges and attendant publicity and that parents, students, and other teachers had voiced concern after reading or hearing of the charges. The attendant publicity surrounding the accusation of a criminal offense cannot alone form the basis for a conclusion that a teacher's effectiveness has been impaired, especially where the criminal charges have been dismissed. Baker v. School Board of Narion County, 450 So. 2d 1195 (Fla. 5th DCA, 1984). Here, there was not sufficient evidence to demonstrate that respondent knew that either the Corvette or the Cadillac were stolen vehicles. There was no evidence that the School Board independently investigated the events which formed the basis of the criminal

charge. The facts that he was arrested, that the arrest received publicity and that he was dismissed as a result of the arrest and publicity do not prove that respondent is guilty of personal conduct which seriously reduced his effectiveness as a School Board employee. The offense requires "personal" conduct. The arrest, the attendant publicity and the dismissal was not conduct which can be attributed to the respondent. To hold otherwise would be to permit the mere accusation of a crime, without sufficient evidence to tie the teacher to the alleged crime, to provide grounds for the revocation of that teacher's means of livelihood. Such a result cannot be sanctioned.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against respondent on May 18, 1984, be DISMISSED.

Respectfully submitted and entered this 29th day of January, 1985, in Tallahassee, Florida.

DIANE D. TREMOR

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 29th day of January, 1985.

COPIES FURNISHED:

Donald Griesheimer Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Fla. 32301

L. Haldane Taylor

331 E. Union Street Jacksonville, Fla. 32202

Ronnie G. Crider

410 S. Lincoln Avenue Clearwater, Fla. 33516

Pamela L. Cooper 911 E. Park Avenue

Tallahassee, Fla. 32202

Docket for Case No: 84-001983

Orders for Case No: 84-001983