STATE OF FLORIDA|

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF COLLIER COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0318

)

BEVERLY RICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on June 19, 1985, in Naples, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: James Siesky, Esquire

791 10th Street, South

Suite B Naples, Florida 33940

For Respondent: Ronald G. Meyer, Esquire

911 East Park Avenue Tallahassee, Florida 32301

ISSUES

1. Whether the Respondent, Beverly Rice, should be terminated from her position as a school bus driver for the School Board of Collier County for "use, possession, sale or intention to sell illegal narcotics and/or paraphernalia" in violation of Article VII, Section 7.021(j) of the collective bargaining agreement between the Collier County Association of Educational Supportive Services Personnel and the District School Board of Collier County.

   
   

2. Whether the Respondent, Beverly Rice, is entitled to reinstatement to her position as a school bus driver for the School Board of Collier County.

3. Whether the Respondent, Beverly Rice, is entitled to back pay from the date of her suspension, and if she is entitled to back pay, the amount thereof.

The Petitioner, School Board of Collier County, presented the testimony of Lee Hollander, Dr. Thomas L. Richey, Thomas Storrar, Jr., and Arthur McClellan (by deposition).

Additionally, Petitioner's Exhibits 1-10 were admitted into evidence. Respondent presented her own testimony and that of Tom Grogan and Euleut Lee Rice (by deposition). Respondent's Exhibit 1 was admitted into evidence.

The parties have filed proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent and credible evidence.1

FINDINGS OF FACT

1. The parties stipulated to the following findings of fact which are adopted herein:

   
   

   1. Mrs. Rice had earnings in 1984 of $12,000 (assuming tax return doesn't contradict).

      
      

   2. Mrs. Rice has sought no employment since her suspension other than her employment at Naples Yacht Club.

      
      

   3. One hundred pounds (100 lbs.) of marijuana was present in Mrs. Rice's home on January 3, 1984.

      
      

   4. The Respondent, Beverly Rice, is a non-probationary employee within a bargaining unit represented by the Collier County Association of Educational Supportive Services Personnel and is subject to the terms and conditions of a collective bargaining agreement which became effective July 1, 1983, and remains in effect until June 30, 1986, as amended.

      
      

   5. The charges set forth in the document entitled " In Re: the Superintendent's Recommendation for Termination of Beverly Rice," Case No. 84-114, form the basis for the actions recommended to be taken against Respondent.

      
      

   6. Mrs. Rice was arrested on January 3, 1984, for possession of marijuana with intent to distribute.

      
      

   7. Mrs. Rice has resided at 3525 5th Avenue, N.W., since 1977 and so resided on January 2, 1984, and January 3, 1984.

      
      

   8. Mrs. Rice was employed as a school bus driver by the School Board prior to her suspension.

      
      

   9. The criminal action against Mrs. Rice was dismissed.

   
   

2. Mrs. Rice was employed by the School Board of Collier County as a school bus driver for approximately 10 years until her suspension on January 3, 1984. During this time it has been customary Mrs. Rice to park the school bus at her home when it was not in use. At all time pertinent hereto, Mrs. Rice's home was located 3525 5th Avenue, N.W., Naples, Florida.

   
   

3. During the 1983-84 school year, Mrs. Rice's bus run typically begin at 6:00 A.M. and ended at approximately 9:45

   A.M. She also had a similar bus run in the afternoon.

   
   

4. On January 3, 1984, Mrs. Rice left her home as usual at 6:00 A.M. At approximately 6:13 A.M., police officer served a warrant for trafficking in cocaine on Mr. Euleut Rice at 3525 5th Avenue, N.W., Naples, Florida. Pursuant to that warrant, Mr. Rice was arrested. When police officers entered the residence, the odor of marijuana was strong and pervasive throughout the house. The police officers secured the premises and in doing so found a loaded firearm on the upper level of the dwelling. Upon going to the upper level of the dwelling, officers found a substantial quantity of marijuana spread out for drying. The marijuana was spread throughout the upper level on the floors of the bedroom area and bathroom and was being dried with fans, a dehumidifier, and a heat lamp. Additionally, police officers found numerous shopping bags full of marijuana on the upper floor of the dwelling and found one shopping bag of marijuana in the kitchen on the lower level.

   
   

5. At approximately 9:15 A.M., Mrs. Rice returned from her bus run. She was arrested at approximately 9:18 A.M., when she entered the front yard of the residence. Mr. and Mrs. Rice were arrested and charged with possession and trafficking of marijuana. Additionally, Mr. Rice was arrested pursuant to the warrant for his involvement in the sale of cocaine during the

   summer of 1983. Mrs. Rice was not charged in connection with this earlier matter.

   
   

6. Mr. and Mrs. Rice are co-owners of the home located 3525 5th Avenue, N.W., Naples, Florida, as joint tenants with right of survivorship. They were married in 1970, divorced in 1975, and remarried in 1984. From 1977 to their remarriage in 1984, they cohabitated at the above mentioned residence.

   
   

7. A few days prior to the arrest of Mr. and Mrs. Rice, Mr. Rice was out fishing with friends and found a bale of marijuana floating in the water. Without his wife's knowledge and during her absence from their home, Mr. Rice brought the marijuana to the house and spread it out to dry. Mrs. Rice discovered the marijuana in the house when she returned home that same day. She requested that Mr. Rice remove it from the house and Mr. Rice refused. From that time until her arrest on January 3, 1984, Mrs. Rice continued to reside in the home and took no action to force Mr. Rice to remove it from their home. No fingerprints of Mrs. Rice were located on the bags containing marijuana or on any of the fans or other appliances being used to dry it.

   
   

8. Mrs. Rice was suspended from her employment as a school bus driver on January 3, 1984. In October, 1984, pursuant to a plea bargain agreement, Mr. Rice pled guilty to the charges pertaining to both the cocaine and possession or trafficking of marijuana. As part of that plea bargain, the criminal charges against Mrs. Rice were nolle prossed and she was permitted to keep the marital home. Upon the charges against her being nolle prossed, Mrs. Rice requested reinstatement to her employment as a school bus driver. The School Board then determined to proceed with dismissal charges against her.

   
   

9. For approximately seven years prior to her suspension, Mrs. Rice had worked part-time as a waitress at the Naples Yacht Club. During 1984 after her suspension, Mrs. Rice increased the number of hours which she worked at the Naples Yacht Club. During 1984, Mrs. Rice received a total of $11,908.46 in wages as a waitress at the Naples Yacht Club. After her suspension, she worked 41 noon hour shifts and was paid $25.00 per noon hour shift, for a total of $1,025.00 earned for the noon hour work after her suspension. The balance of the wages which Mrs. Rice earned in 1984 was for waitressing during a 5:00 P.M. to 10:00

   P.M. shift. This is the shift she had worked for a number of years prior to her suspension. While Mrs. Rice was working as a school bus driver, she missed 30 minutes each evening shift.

   Because Mrs. Rice was paid an hourly rate plus a percentage of. her total table receipts, it is impossible to determine the exact amount of income earned during the 30 minutes of the evening shift mentioned above.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Section 120.57(1), Florida Statutes (1983).

    
    

11. Pursuant to Section 230.22 and 230.23, Florida Statutes (1983), and Article VII of the collective bargaining agreement between the School Board of Collier County and the certified bargaining agent for Educational Supportive Services Personnel, the Superintendent and the School Board have certain powers and duties in conjunction with the suspension and termination of non-probationary employees. Within this authority, the Superintendent made a recommendation to the School Board that Mrs. Rice's employment be terminated as a result of a violation of that collective bargaining agreement. Specifically, Paragraph 7.021(j) of that collective bargaining agreement provides that non-probationary employees may be terminated for "use, possession, sale or intention to sell illegal narcotics and/or paraphernalia." The School Board of Collier County has the burden of proving that Mrs. Rice violated this provision.

    
    

12. It is concluded that the School Board has carried its burden. Specifically, the School Board charged Mrs. Rice with possession of a quantity of marijuana in her home on about January 3, 1984. Possession of a controlled substance can be either actual or constructive. Marijuana is a controlled substance under Section 893.03, Florida Statutes (1983), and is therefore illegal. The question is whether Mrs. Rice actually or constructively possessed the marijuana which was discovered in her home. In Brown v. State 428 So. 2d 250 (Fla. 1983), the Florida Supreme Court held that ownership and joint occupancy of premises where illegal drugs are discovered in plain view, in the presence of the owner, constitute sufficient evidence to support a conviction for constructive possession as to the owner. There the Court stated:

    
    

    Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability

    to maintain control over said controlled substance.

    
    

13. Here, Mrs. Rice admitted to knowledge of the presence of the marijuana for a few days before her arrest. The marijuana was in plain view. Mrs. Rice is the joint owner of her home, is a resident of that home, and had control over the common areas. Mrs. Rice took no action to vacate the premises while the marijuana was in the home and she took no action to have the marijuana removed from her home. These facts are sufficient to satisfy the requirements of Brown and to establish constructive possession on the part of Mrs. Rice. The facts are also sufficient to infer that Mrs. Rice had dominion and control of the marijuana.

    
    

14. Additionally, Mrs. Rice is not entitled to reinstatement to her position as a school bus driver or the School Board of Collier County, nor is she entitled to back pay from the date of her suspension. Mrs. Rice has violated the provisions of the collective bargaining agreement by her possession of marijuana.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is

RECOMMENDED:

That the School Board of Collier County enter a Final Order terminating Beverly Rice as an employee effective January 3, 1984, and denying her request for reinstatement and back pay.

DONE and ENTERED this 5th day of September, 1985, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1985.

ENDNOTE

1/ The proposed findings of fact of Petitioner are not set forth in numbered paragraphs and are not in a form conducive to specific rulings on each proposed findings of fact. Respondent's proposed findings of fact 1-6, 8, 9, 11, 23, and 29-31 are adopted in substance. Respondent's proposed findings 10, 12-14, 17-20, 24-28, 32, and 33 are modified. Respondent's proposed

findings 7, 15, 16, 21, and 34 are rejected as not being Supported by competent and credible evidence. Respondent's proposed finding 22 is rejected as being immaterial.

COPIES FURNISHED:

Ronald G. Meyer, Esquire 911 East Park Avenue Tallahassee, Florida 32301

James Siesky, Esquire 791 10th Street

Suite B

Naples, Florida 33940

Thomas L. Richey Superintendent

Collier County Public Schools 3710 Estey Avenue

Naples, Florida 33942

Docket for Case No: 85-000318

Orders for Case No: 85-000318