STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7063

)

WAYNE THURSTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case on March 9, 1993, at Miami, Florida. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: William T. Jackson, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William du Fresne, Esquire

Du Fresne and Bradley

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, who holds a Florida teaching certificate, on the basis of allegations regarding the Respondent's purchase of crack cocaine.

PRELIMINARY STATEMENT

At the formal hearing on March 9, 1993, the Petitioner

presented the testimony of two witnesses. The Petitioner also offered four exhibits, all of which were received in evidence. The Respondent testified on his own behalf and also presented the testimony of one other witness. The Respondent offered one exhibit, which was received in evidence.

At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript within which to file their proposed recommended orders. A transcript of the proceedings was filed with the Hearing Officer on March 22, 1993. Thereafter, both parties filed timely proposed recommended orders

containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

1. The Respondent, Wayne Thurston, holds Florida teaching certificate number 479646, covering the area of physical education, which is valid through June 30, 1995.

   
   

2. During the period from April 1991 to July 1991, the Respondent was employed as a teacher at James H. Bright Elementary School, in the Dade County School District.

   
   

3. On April 5, 1991, Detective Laurick Ingram was working as an undercover police officer with the Metro-Dade Police Department, assigned to a tactical narcotics team detail. As part of his assignment, Detective Ingram was posing as a seller of cocaine in what is termed a "reverse sting" operation. It was an operation in which several undercover police officers posed as sellers of crack cocaine at premises which were previously know by the police to be the location of frequent drug sales. The reverse sting operation in question took place in the front yard of a house located at 2520 N.W. 159th Street, Miami, Florida.

   
   

4. At approximately 8:00p.m. on the evening of April 5, 1991, the Respondent approached Detective Ingram at the location described above and asked the Detective for $20.00 worth of cocaine. Detective Ingram gave the Respondent two rocks of crack cocaine and in exchange the Respondent gave Detective Ingram

   $20.00. Detective Ingram did not conduct any tests on the substance sold to the Respondent to verify that it was, in fact, cocaine. However, it is the regular and consistent practice of the Metro-Dade Police Department, in conjunction with reverse sting operations, to use genuine cocaine.

   
   

5. Detective Ingram then gave a signal to one of the other police officers and one of the other police officers then arrested the Respondent. The Respondent was processed and was subsequently charged by information in the Circuit Court for Dade County with one count of purchasing cocaine and one count of possession of cocaine. On or about July 11, 1991, the Respondent was accepted into the Dade County Drug Treatment Pretrial Release Program. During the period from February 27, 1992, to May 7, 1992, the Respondent was subjected to urinalysis examinations on eighteen occasions and on each occasion the results were negative for use of drugs.

   
   

6. Ms. Joanne Goberna Molina has been the principal of James H. Bright Elementary School since January 23, 1992. During the year that she has been the principal at that school, the Respondent's performance as a teacher has been acceptable. During that period the Respondent has not been tardy. The fact that the Respondent was arrested has received very little notoriety among the faculty, staff, students, or parents of the school where he works.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

8. In a case of this nature, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing

   evidence. The nature of clear and convincing evidence is described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

   
   

   We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes the foregoing with approval and also includes the following at page 958:

   
   

   "Clear and convincing evidence" is an inter- mediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970)

   
   

9. The Respondent has argued that the evidence in this case is insufficient to prove that the Respondent purchased and possessed cocaine because there is no evidence of any scientific testing to determine that the substance sold to the Respondent actually was cocaine. While evidence of such scientific testing is usually necessary in cases where licensees are charged with possession of controlled substances obtained from non-police sources, in cases involving police reverse sting operations such scientific evidence is not an essential prerequisite to clear and convincing proof that the substances distributed by the police are the controlled substances they purport to be. In this regard it is especially noted that it would be completely pointless for police officers to implement a reverse sting operation without using real controlled substances. Under the circumstances presented in this case, this Hearing Officer is of the view that the uncontradicted testimony of one of the police officers involved in the reverse sting operation is sufficient to constitute clear and convincing evidence identifying the substances being distributed by the police officers.

   
   

10. Section 231.28(1)(c), Florida Statutes, authorizes the Education Practices Commission to take disciplinary against any teacher holding a teaching certificate upon a showing that the teacher "as been guilty of gross immorality or an act involving moral turpitude." It cannot be seriously doubted that the purchase of crack cocaine by a teacher is an act of gross immorality or an act involving moral turpitude. Accordingly, it must be concluded that the evidence in this case is sufficient to establish the violation charged in the Administrative Complaint. What remains to be addressed is the determination of the appropriate penalty.

    
    

11. The evidence shows that the Respondent has continued to teach successfully since the events of April 5, 1991. The evidence also shows that

    the Respondent's arrest has received very little notoriety at his place of employment. Finally, the evidence shows that each time the Respondent was subjected to urinalysis examinations the results were negative for use of controlled substances. All of these circumstances indicate that the best interests of both the public and the Respondent would be best served by a penalty that would tend to assure that the Respondent would not have any involvement with controlled substances, while at the same time allowing the Respondent to continue to work as a teacher.

    
    

    RECOMMENDATION

    
    

    On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the Respondent is guilty of the violation alleged in the Administrative Complaint and imposing a penalty consisting of a three year period of probation, which probation shall include the requirements that the Respondent:

    
    

    1. Shall make arrangements for his immediate supervisor to provide the EPC with quarterly reports of his performance, including, but

       not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent;

    2. Shall make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance;

    3. Shall satisfactorily perform his assigned duties in a competent professional manner;

    4. Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006; and

    5. Participate fully and to its completion in a substance abuse program and submit to random drug testing as directed by his employer or the Education Practices Commission.

DONE AND ENTERED this 27th day of July, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7063

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in whole or in substance.

Paragraphs 8 and 9: Rejected as constituting primarily argument about conflicting testimony, rather than specific proposed findings of fact.

Paragraph 10: Rejected as subordinate and unnecessary details.

Paragraph 11: First sentence rejected as unnecessary procedural details.

Second sentence rejected as subordinate and unnecessary details.

Paragraph 12: Rejected as based on speculation or conjecture, rather than on reliable evidence.

Paragraph 13: Accepted in substance with some unnecessary details omitted. Findings submitted by Respondent:

Paragraph 1: This paragraph is rejected because as stated it is nothing more than an unnecessary summary of the allegations of the Administrative Complaint. (It should be noted, nevertheless, that findings have been made to the effect that the acts alleged in the Administrative Complaint have been proved.)

Paragraphs 2 and 3: These paragraphs are rejected as constituting summaries of testimony, rather than statements of specific proposed findings of fact. (It should be noted, nevertheless, that findings have been made consistent with the testimony summarized in these two paragraphs.)

Paragraph 4: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact.

Paragraph 5: Rejected as constituting a summary of testimony, rather than a statement of a specific proposed fact. Also rejected for the reason that the exculpatory explanation offered by the Respondent has not been credited.

Paragraph 6: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific

proposed finding of fact.

Paragraph 7: The first line is rejected as not supported by persuasive, credible evidence. The remainder is rejected as subordinate and unnecessary details.

Paragraphs 8, 9, 10, 11, and 12: Accepted in whole or in substance.

COPIES FURNISHED:

William T. Jackson, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William du Fresne, Esquire Du Fresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Dr. Karen B. Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Sydney H. McKenzie, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-007063

Orders for Case No: 92-007063