STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS ) COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0900

)

JERRY STINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on August 4, 1988, at St. Petersburg, Florida.

APPEARANCES

For Petitioner: M. Teresa Harris, Esquire

Post Office Box 4688 Clearwater, Florida 34618-4688

For Respondent: Melissa G. Mince, Esquire

501 First Avenue North, Suite 202 St. Petersburg, Florida 33701

By letter dated January 8, 1988, the Superintendent, Pinellas County Schools, on behalf of the School Board of Pinellas County, Petitioner, advised Jerry Stine, Respondent, that he would recommend that the School Board again consider the charge that led to Respondent's dismissal as an employee of the School Board, namely that he had attempted to remove a district-owned five gallon gas can from the campus of Boca Ciega High School (BCHS). Following Respondent's request for an administrative hearing pursuant to Chapter 120, Florida Statutes, the superintendent, by letter dated April 26, 1988, amended the charging letter to include allegations that Respondent removed, without permission, gasoline, motor oil, light bulbs and brushes from the campus of BCHS.

At the hearing, Petitioner called six witnesses, Respondent called two witnesses, including himself, and ten exhibits were admitted into evidence over Respondent's objections on grounds of relevance.

At the commencement of the hearing, Respondent moved to suppress all evidence resulting from a search of Respondent's automobile on September 30, 1987. Ruling on this motion was reserved at the hearing pending receipt of the parties' legal memoranda on the issue. That motion is now granted for reasons noted in Conclusions of Law.

Proposed findings have been submitted by the parties. Treatment accorded those findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Jerry Stine was employed by the Pinellas County School Board as a Groundskeeper II when he was transferred to BCHS in September, 1983.

   
   

2. On September 30, 1987, Jay Kurth, a groundskeeper at BCHS observed Respondent take two paint brushes and four light bulbs from the office at BCHS, put them in a bag and later put them in the trunk of the car he was driving. This information was passed to Charles Yero, the head plant operator at BCHS and the supervisor of Respondent.

   
   

3. Yero passed the information to Don Bryan, Assistant Principal at BCHS, and the school police were notified. Subsequently, the campus police officer, Bryan and Yero approached Respondent and requested he open the trunk of his car. The initial message from Kurth appears to have been garbled because Respondent was told they were looking for paint. Respondent opened the trunk, and the two testifying witnesses who looked in the trunk saw a five gallon gas can and two quart cans of Chevron motor oil. No testimony was presented that paint brushes or light bulbs were found in the trunk.

   
   

4. Neither the police officer nor the school officials removed the gas can or motor oil cans from the trunk of the car, nor was Respondent ever charged by the police for the unauthorized taking or attempting to take school property.

   No evidence was presented that the can in the trunk contained gasoline.

   
   

5. The gas can in the trunk of the car contained no marks identifying it as the property of BCHS or the School Board of Pinellas County. Subsequent to September 30, 1987, a photograph of a paint-spattered five gallon safety gas can was taken (Exhibit 2) and identified by one witness (Yero) as the can in the trunk, but by the witness who took the photograph (Lynd) as a five gallon gas can at BCHS.

   
   

6. Respondent initially stated that the gas can belonged to the owner of the car, but shortly thereafter claimed that the gas can belonged to him and that he had brought it to BCHS shortly after he started work there and used it to mix gas and motor oil for use in the two cycle weed-eaters.

   
   

7. Petitioner contends the gas can was the property of the school board. To support that position, all witnesses agreed that prior to 1982 there were three five gallon safety gas cans at BCHS. Charles Yero testified that around 1982 he bought a fourth gas can. Robert Johnson, a groundskeeper employed at BCHS in August, 1983, testified that when he started at BCHS there were three gas cans and that some three weeks later when Respondent was transferred to BCHS, Respondent brought a fourth gas can which was used to mix oil and gas for the two cycle engine weed-eaters. Respondent testified similarly with respect to the fourth gas can. In June, 1984, a fifth gas can was delivered to BCHS and receipted for on Exhibit 10.

   
   

8. Charles Yero identified Exhibit 3, a photograph of a one or two gallon rectangular-shaped gas can, as a photograph of a gas can of which Respondent had claimed ownership.

9. As further support of the testimony that on September 30, 1987, there were five, five gallon gas cans at BCHS, Petitioner presented Exhibits 4, 5, and 6, which are credit card purchases of 25 gallons of gas, each from a Mobil station. All witnesses agreed that gas and oil purchases made by maintenance personnel at BCHS were made at this Mobil station. Since the motor oil found in the trunk of Respondent's car was Chevron oil and no evidence was presented that Chevron oil was ever purchased for use at BCHS, the ownership of the motor oil found in the trunk can hardly be attributed to BCHS.

   
   

10. In May, 1987, Respondent was suspended without pay for five days upon his admission of taking home school equipment for personal use and for poor attendance and punctuality (Exhibit 9). In Exhibit 9, Respondent acknowledged that future infractions of policy or continued problems with attendance or punctuality may result in termination of his employment.

    
    

11. On September 30, 1987, Respondent was not given authority to remove school equipment from BCHS.

    
    

12. No personnel directives or manuals relating to disciplining school board employees were presented, and Respondent was not charged with violating any specific directive.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

14. The issue in this case is whether Respondent removed, or attempted to remove, school board property from the campus of BCHS without permission. Although the school board personnel policy manual (which I am sure a school system with the number of employees employed by Pinellas County School Board has promulgated) was not produced to show the alleged offense as grounds for dismissal, larceny, or attempted larceny, of school property, will be accepted as grounds for dismissal of an employee.

    
    

15. In order for the warrantless search of Respondent's automobile to be sustained, it must have been predicated upon (a) a search incident to a lawful arrest; (b) a search based upon probable cause; (c) a search based upon an emergency situation; or (d) a search based upon consent. Bailey v. State, 295 So.2d 133, 135-6 (Fla. 4th DCA 1974), 319 So.2d 22 (Fla. 1975). At no time was Respondent arrested, and Petitioner does not contend that the search was incident to a lawful arrest.

    
    

16. The general rule concerning vehicular searches made without a warrant and not as part of a valid arrest is to the effect that such a search will be deemed reasonable if the searching officer, prior to making the search, had probable cause to believe the contents of the automobile offends against the law. Section 933.19, Florida Statutes, adopting as the statutory law in Florida the decision of the United Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct 280, 69 L.Ed 543 (1925), which recognized a necessary difference between a search of a store, dwelling house or other structure and a boat, ship or automobile which can be moved before a warrant can be obtained.

    
    

17. Before allowing such a search of a vehicle, the officer making the search must be prepared to convince the court that the information he possessed was sufficient basis for the issuance of a warrant had he applied for one. Miller v. State, 137 So.2d 21, 23 (Fla. 2nd DCA 1962). Here the officer

    conducting the search did not testify. However, from the testimony of others, it is clear that, at best, the information received by the police officer upon which probable cause was based was based upon what Yero and/or Bryan had been told by Kurth--and that information was apparently garbled. Thus, the information relied upon by the police officer to sustain probable cause was hearsay once removed or double hearsay. Cf Sagonias v. State, 89 So.2d 252, 253 (Fla. 1956). Not only does this evidence fail to sustain a finding of probable cause, but also the officer who requested Respondent to open the trunk of his car told Respondent that he expected to find paint therein. Once the trunk was opened, the gas can and motor oil were observed. There was certainly no probable cause shown which would have authorized seizure of these items.

    
    

18. No emergency situation was here present to preclude obtaining a warrant. This leaves only the issuance of consent by Respondent to justify the search. In order for one to be found to have surrendered his constitutional right against an unreasonable search, the consent must be freely and voluntarily given and the evidence that it was so given must be clear and convincing.

    Padron v. State, 338 So.2d 216, 218 (Fla. 4th DCA 1976). As stated by the U.S. Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct 2041, 36 L.Ed

    2d 854 (1973):

    
    

    ... when the subject of a search is not

    in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was

    in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

    
    

19. Respondent was told the officer suspected he had paint in the trunk of the car and was asked to open the trunk to show his denial of this accusation was meritorious. Such an accusation implied the officers would take additional steps to search the trunk if Respondent's consent was not given. Under all of the circumstances here involved, it is found that Petitioner has failed to prove by clear and convincing evidence that Respondent freely and voluntarily consented to the search of the trunk of his car.

    
    

20. Nevertheless, for the purpose of determining whether Respondent was wrongfully dismissed from his employment by the Pinellas County School System, it is immaterial if the evidence obtained as a result of this unlawful search be considered.

    
    

21. The Petitioner has the burden to prove, by a preponderance of the evidence, that the gasoline, gas can and motor oil found in the trunk of Respondent's car was the property of BCHS. South Florida Water Management District v. Caluwe, 459 So.2d 390 (Fla. 4th DCA 1984).

    
    

22. In this connection, it must be noted that the charging document was amended to include allegations that Respondent removed gasoline, motor oil,

    paint brushes and light bulbs from the campus of BCHS without permission. Respondent was initially charged with removing a gas can without permission, and all of the evidence presented was to that charge. Not one scintilla of evidence was presented that the gas can (only the ownership of which was disputed) contained gasoline which was the property of BCHS. The most recent credit card receipt for purchase of gasoline (Exhibit 4), was dated May 12, 1986, and the alleged offense occurred November 30, 1987. This is hardly evidence that the can in the trunk of Respondent's car on November 30, 1987, contained gasoline which was the property of BCHS.

    
    

23. No evidence was presented that paint brushes or light bulbs were found in Respondent's car when the trunk was opened to allow the contents therein to be viewed. Nor was any evidence presented that Petitioner ever purchased Chevron motor oil for use at BCHS or that the two cans of Chevron motor oil found in the trunk of Respondent's car ever belonged to BCHS.

    
    

24. The only material found in Respondent's trunk on September 30, 1987, which could have belonged to BCHS was the gas can. The can seen in the trunk was not produced at the hearing, nor was any credible evidence presented establishing by a preponderance of the evidence that the gas can so found was owned by Petitioner and not Respondent. The can in the trunk, in contrast to some of the other cans owned by BCHS, had no marks identifying the can as property of BCHS. Yero is the only Petitioner witness to account for the presence of can number four at BCHS, and he testified he purchased the can in 1982, and the photograph (Exhibit 2) was a photograph of the can in Respondent's car. Respondent's two witnesses testified that prior to Respondent coming to BCHS in September, 1982, there were only three gas cans at BCHS. The witness who took the photograph (Exhibit 2) testified that the can was not the same can that was found in Respondent's car on September 30, 1987.

    
    

25. The preponderance of the evidence standard is not satisfied by proof creating an equipoise. Florida Department of Health and Rehabilitative Services

    v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

    
    

26. From the foregoing, it is concluded that Petitioner has failed to prove by a preponderance of the evidence that Respondent, on September 30, 1987, removed, without permission, a gas can, gasoline, motor oil, light bulbs, or brushes, the property of BCHS, without authority. It is

RECOMMENDED that the charges against Jerry Stine be dismissed and that Stine be restored to his position as Groundskeeper II with the School Board of Pinellas County, and all pay, benefits and emoluments lost by reason of his dismissal be restored.

Entered this 18th day of August, 1988, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0900

Treatment Accorded Petitioner's Proposed Findings

1. Included In H.O. #2.

2. Included in H.O. #1.

3. Included in H.O. #10.

4. Included in H.O. #9.

5. Included in H.O. #7.

6. Accepted. However, see H.O. #5.

7. Rejected.

8. Included in H.O. #7.

9. Accepted only insofar as there were five, five gallon gas cans at BCHS on September 30, 1988.

10. Accepted.

11. Included in H.O. #10 and #11. 12-14. Included in H.O. #2.

1. Included in H.O. #2 and #3.

2. Included in H.O. #3.

3. Accepted.

4. Rejected insofar as consent is concerned.

5. Included in H.O. #3.

6. Included in H.O. #6.

7. Included in H.O. #4.

8. Rejected as unsupported by competent evidence.

Treatment Accorded Respondent's Proposed Findings

1. Included in HO. #1 and #10. 2-3. Included in Preamble.

1. Included in H.O. #7.

2. Accepted.

3. Accepted.

4. Included in H.O. #4.

5. Accepted.

6. Included in H.O. #4.

7. Rejected as immaterial.

8. Rejected as immaterial to conclusions reached.

9. Rejected as recitation of testimony given.

10. Included in H.O. #7.

11. Rejected insofar as inconsistent with H.O. #2.

12. Included in H.O. #7.

13. Included in H.O. #7.

14. Included in H.O. #3. IS. Rejected.

19. Included in H.O. #3.

20-21,23. Included in H.O. #7.

22. Accepted only insofar as included in H.O. #7.

1. Rejected as duplicative of other testimony.

2. Included in H.O. #7.

3. Accepted.

4. Accepted. However, this is immaterial. 28-29. Included in H.O. #9.

1. Accepted.

2. Accepted as testimony of Respondent.

3. Accepted as testimony of Respondent.

4. Accepted.

COPIES FURNISHED:

M. Teresa Harris, Esquire Post Office Box 4688

Clearwater, Florida 34618-4688

Melissa G. Mince, Esquire

501 First Avenue North Suite 202

St. Petersburg, Florida 33701

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Scott N. Rosea Superintendent of Schools

School Board of Pinellas County 1960 East Druid Road

Post Office Box 4688 Clearwater, Florida 34618-4688

Docket for Case No: 88-000900

Orders for Case No: 88-000900