STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, BETTY )

CASTOR, as Commissioner of )

Education, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2864

)

GEORGE RAYMOND RHOAD, )

)

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 14, 1987, in St. Petersburg, Florida. The issue for determination in this proceeding is whether disciplinary action should be taken against respondent's Florida teaching certificate for the reasons set forth in the Administrative Complaint dated May 7, 1987.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: George Raymond Rhoad

3900 60th Way North

St. Petersburg, Florida 33709 INTRODUCTION

By an Administrative Complaint dated May 7, 1987, respondent George Raymond Rhoad is charged with violations of Florida Statutes, Section 231.28(1)(b), by being incompetent to teach or perform his duties; Section 231.28(1)(e), having been convicted of a misdemeanor, felony or other criminal charge; and Section 231.28(1)(f), by being guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Factually, it is alleged that while employed as a math teacher, respondent reported to school with the smell of alcohol on his breath, that he was absent excessively during the 1984-85 and 1985-86 school years, and that he was found guilty of the criminal offense of driving while impaired by alcoholic beverages on two separate occasions in September and October of 1985.

In support of the charges against the respondent, the petitioner presented the testimony of Detective Mark Franklin, Deputy Shirley Rahrer, Deputy Linda Hilliard, Raymond V. Tampa, Herbert Dixon, Jack Stabler, Johnny E. Singletary, and Nancy Zambito. Petitioner's Exhibits 1 through 14 were received into evidence.

Respondent testified briefly in his own behalf, but presented no other witnesses or documentary evidence.

Subsequent to the hearing, only the petitioner filed a proposed recommended order. The petitioner's proposed factual findings have been accepted and are incorporated herein, except as noted in the appendix.

FINDINGS OF FACT

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

1. The respondent George Raymond Rhoad holds Florida Teacher's Certificate Number 191715 in the areas of bookkeeping, mathematics and administration and supervision. At all times relevant to this proceeding, respondent was employed as a mathematics teacher at Meadowlawn Middle School in Pinellas County and taught summer school at Northeast High School.

   
   

2. The average number of teacher absent days per year in Pinellas County is seven (7) days. During the 1984-85 school year, respondent was absent twenty-four (24) days. These absences necessitated the use of numerous substitute teachers and were disruptive and detrimental to the classroom

   learning process. The school administration received many requests from parents that their children be transferred from respondent's classes. The respondent's supervisors repeatedly expressed their concerns regarding respondent's numerous absences and offered to assist him in any way possible.

   
   

3. During the summer of 1985, respondent taught summer school at Northeast High School. The Principal and Assistant Principal received a number of complaints from students, parents and other teachers regarding the smell of alcohol on respondent's breath. The Assistant Principal smelled alcohol on respondent's breath. When confronted by the Assistant Principal, respondent admitted that he had reported to work with the odor of alcohol on his breath, but stated that he intended to bring the situation under control.

   
   

4. The respondent did not attend a mandatory staff development meeting on August 21, 1985. He first claimed to have been present, but later admitted that he had been untruthful.

   
   

5. On August 26, 1985, the Personnel Services Director with the Pinellas County School Board met with the respondent and his Principal and Assistant Principal. Respondent's absentee problems from the prior school year were discussed, and the need for students to have their teachers present was stressed. Respondent acknowledged having a drinking problem but stated that he did not need a medical leave of absence. Respondent expressed his commitment to perform his duties consistently well during the upcoming school year.

   
   

6. On September 3, 1985, at approximately 10:15 a.m., respondent was arrested in the Meadowlawn Middle School parking lot and charged with driving while impaired by alcoholic beverages. At the time of his arrest, respondent's appearance was disheveled and he was wearing house slippers. The arresting officer smelled the odor of alcohol on respondent's breath. The respondent was unable to perform or complete any of the field sobriety tests and had difficulty standing without support. Intoxilizer tests administered to respondent at the police station about one hour later resulted in blood alcohol levels of .30.

   The presumed intoxicated level in Florida is .10. On September 17, 1985, the

   respondent pled and was found guilty as charged. The Court sentenced the respondent to jail for sixty days but suspended the imposition of that sentence, and imposed a fine of $1,129.50, costs of $118.50, placed respondent on probation for one year and revoked or suspended his driver's license for one year.

   
   

7. Respondent missed fourteen (14) days of work between September 3 and September 23, 1985.

   
   

8. On October 13, 1985, respondent was again arrested and charged with driving while impaired and with an unlawful blood alcohol level. He entered a plea of nolo contendere, was found guilty, and was sentenced to twenty (20) days in jail. In addition, the Court imposed a fine of $1,130.50, costs of $120.50, placed him on probation for one year and suspended or revoked his driver's license for one year.

   
   

9. After learning of respondent's September arrest in the school parking lot, the Personnel Services Director recommended to the Pinellas County School Board Superintendent that some definitive action be taken with regard to the respondent. Thereafter, in late October, 1985, the respondent entered into a "Stipulation of Agreement" with the Pinellas County School Board. In that stipulation, respondent acknowledged that he has a problem with alcohol and gave his commitment to attend work regularly in the future and to conduct himself in a profession manner. To demonstrate this commitment, respondent agreed to surrender his continuing contract, effective the second semester of the 1985-86 school year, and to teach on one-semester contracts until the end of the 1987-88 school year, upon the recommendation of his Principal. The parties agreed that these stipulations were in the best interests of Pinellas County students.

   
   

10. The respondent was offered another one-semester contract to begin the 1986-87 school year. He resigned toward the end of that first semester.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Education Practices Commission has the authority to suspend, revoke or impose other penalties against individuals holding a Florida teaching certificate when such individuals have committed any of the acts enumerated in Section 231.28(1), Florida Statutes. Here, the following violations are charged:

    
    

    (b) Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school;

    1. Has been convicted of a misdemeanor, felony or any other criminal charge, other than a minor traffic offense;

    2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board.

    
    

12. The evidence adduced in this proceeding clearly demonstrates that respondent has violated the above-quoted provisions of Section 231.28(1),

Florida Statutes. His excessive absences from school during the 1984-85 and 1985-86 school years necessitated the use of substitute teachers, thus disrupting the continuum of instruction within his mathematics classes. A teacher cannot be effective or perform his duties as a teacher if he is not present. Respondent's two driving under the influence of alcohol convictions not only are grounds for disciplinary action against his teaching certificate, but are also indicative of his inability to address his attendance and alcohol- related problems. Appearance at school with the smell of alcohol on his breath, as noticed by students, other teachers and administrators, seriously reduced his effectiveness as a teacher. Respondent was offered assistance and understanding by his supervisors and the Pinellas County School Board on many occasions during 1985 and 1986, but was unwilling to or incapable of addressing his problems.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 231.28(1)(b), (e) and (f), Florida Statutes; that his teaching certificate be suspended for a period of three (3) years; and that, if the certificate is reinstated after three years, respondent be placed on probation for a period of one additional year.

Respectfully submitted and entered this 20th day of November, 1987, 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 20th day of November, 1987.

APPENDIX

The petitioner's proposed findings of fact are accepted and incorporated herein, with the following exceptions:

24. Last portion of sentence rejected as hearsay.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

George Raymond Rhoad 3900 60th Way North

St. Petersburg, Florida 33709

Betty Castor, Commissioner of Education

The Capitol

Tallahassee, Florida 32399

Karen Wilde, Executive Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Marlene T. Greenfield, Administrator Professional Practices Services Section

319 West Madison Street, Room 3 Tallahassee, Florida 32301

Docket for Case No: 87-002864

Orders for Case No: 87-002864