STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-5861

)

STEVE SCHEER, )

)

Respondent, )

)

RECOMMENDED ORDER

An administrative hearing was conducted on March 21, 1997, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Frank Kruppenbacher, Esquire

Kruppenbacher and Associates

105 East Robinson Street, Suite 201 Orlando, Florida 32801

For Respondent: Joseph Egan, Esquire

Egan, Lev and Siwica, P.A. 918 Lucerne Terrace

Orlando, Florida 32806

STATEMENT OF THE ISSUE

The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1995),1/ to terminate Respondent's employment as a classroom teacher.

PRELIMINARY STATEMENT

On September 24, 1996, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing. Petitioner referred the matter to the Division of Administrative Hearings to conduct the hearing.

At the hearing, Petitioner presented the testimony of two witnesses and submitted two exhibits for admission in evidence. Respondent testified in his own behalf, presented the testimony of one of Petitioner's witnesses, and submitted four exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on April 25, 1997. After two uncontested extensions of time, Petitioner did not file a proposed recommended order ("PRO"). Respondent timely filed his PRO on June 4, 1997.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner since 1985 as a classroom teacher pursuant to a professional service contract defined in Section 231.36(1). Petitioner terminated Respondent's employment for events that occurred on August 3, 1996, which Petitioner alleges constitute misconduct in office, wilful neglect of duty, and violations of professional ethics.

2. On August 3,1996, Respondent was arrested by the Oviedo Police Department for possession of marijuana and drug paraphernalia in violation of Section 893.147(1). The prosecutor entered a nolle prosse to the latter charge.

3. On September 5, 1996, Respondent entered a plea of nolo contendere to possession of marijuana. The court withheld adjudication, fined Respondent $100, and assessed costs of $230.

4. On the evening of August 2, 1996, Respondent dated Ms. Tara Schutz for the first time. Respondent met Ms. Schutz through a dating service.

5. Respondent is a single parent with custody of his two minor children. Ms. Schutz is also a single parent with two minor children.

6. Respondent took Ms. Schutz to dinner at the Boston Lobster Feast. They spent approximately two hours at the restaurant. Respondent had one beer with his dinner.

7. After dinner, Ms. Schutz asked Respondent to drive her to a friend's house in Oviedo to pay the friend some money she owed. Respondent had never been to Oviedo before and was unfamiliar with the area.

8. As Ms. Schutz gave directions, Respondent drove to her friend's house. He stopped the car in front of the house.

9. Ms. Schutz left Respondent in his car while she went into the house. After a few minutes, she returned to the car, and Respondent drove onto State Road 419.

10. A police officer stopped Respondent because of an irregularity in Respondent's license plate. At that point, Ms. Schutz informed Respondent that she had marijuana with her.

11. The police officer approached the driver's side of the car and asked Respondent to accompany him to the rear of the car.

    Respondent exited the car and accompanied the officer to the rear of the car.

12. Respondent and the police officer stood between the rear of Respondent's car and the front of the police officer's car for about five minutes. During that time, the police officer gave Respondent a field sobriety test. Respondent passed the test, and the officer determined that Respondent was sober.

13. The police officer called for assistance. Another patrol car arrived in about 10 minutes.

14. One of the officers asked Respondent if there was marijuana in the car. Respondent stated that there was, but that it was not his.

15. One of the officers assisted Ms. Schutz from Respondent's vehicle and searched her purse. Until that time, Ms. Schutz had been left alone in Respondent's car.

16. Ms. Schutz was not kept under close surveillance while she was alone in the car. She had sufficient time and opportunity to place marijuana and paraphernalia under the driver's side floor mat. Her purse was large enough to hold marijuana and drug paraphernalia without it being detected by Respondent or the police.

17. An officer asked for permission to search the car, but Respondent refused to give his permission. The officer requested a K-9 unit from the Casselberry Police Department, a neighboring community police department.

18. The K-9 unit searched Respondent's vehicle and found

    marijuana and a pipe under the driver's side floor mat. The investigating officers did not ask Ms. Schutz if the illegal drug and paraphernalia was hers.

19. The officers did ask Ms. Schutz if Respondent used drugs. She said, "No he didn't."

20. Unknown to Respondent, Ms. Schutz has a history of drug use including a criminal conviction. Ms. Schutz informed the police of her drug history at the scene.

21. Respondent told the police that he was a teacher and begged them not to arrest him. The police huddled together for a few minutes and then arrested Respondent in the early morning of August 3, 1996. The arresting officer concluded that the marijuana and drug paraphernalia belonged to Respondent "because of the location of the marijuana" in the car. 2/

22. Respondent truthfully completed an arrest form and answered all questions from the police truthfully. Respondent cooperated fully with the investigation.

23. The police did not arrest Ms. Schutz. Respondent refused to allow Ms. Schutz to drive his car from the scene. He elected to have the police tow his car.

24. Respondent entered a plea of nolo contendere on advice of his attorney. Respondent has no criminal history, no prior discipline by Petitioner, and believed that he would not be terminated from his employment.

25. The Oviedo Police Department informed Petitioner of the arrest and plea. Petitioner began this proceeding.

26. After learning of Petitioner's intent to terminate his employment, Respondent voluntarily took three drug tests over a three month period. Each test was negative.

27. Even if Respondent had committed the acts alleged in the Administrative Complaint, Petitioner failed to show by a preponderance of the evidence that there is just cause to terminate Respondent's employment and sever his professional service contract. The incident has not seriously impaired Respondent's effectiveness as a teacher.

28. The arrest and circumstances surrounding the arrest were not reported by the press or published by other means. The arrest and surrounding circumstances did not occur during Respondent's employment. They did not occur on school premises or during the term of Respondent's employment contract. They did not involve his official duties as a teacher.

    CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

30. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of the proposed penalty. McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996); Allen vs. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990);

    Dileo vs. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

31. The Administrative Complaint charges that there is just cause to terminate Respondent's employment and sever his professional service contract because Respondent is guilty of "wilful neglect of duty, misconduct in office" and of violating the "Principles of Professional Conduct for the Education Profession in Florida." Petitioner alleges that Respondent was charged with possession of marijuana, entered a plea of nolo contendere, and "gave false information regarding the possession of illegal drugs" and "requested the police [to] destroy the evidence (sic)".

32. It is uncontroverted that Respondent was charged with possession of marijuana and entered a plea of nolo contendere. However, Petitioner cites no authority, and none has been found, to support a conclusion that such a charge and plea constitutes either wilful neglect of duty, misconduct in office, or a violation of the principles professional conduct for teachers in the state.

33. Petitioner failed to show by a preponderance of the evidence that Respondent possessed marijuana and paraphernalia on August 3, 1996. The discovery of marijuana and paraphernalia in Respondent's automobile, without more, is insufficient to show possession when the automobile is shared by Ms. Schutz. T.W. v. State, 666 So. 2d 1001 (Fla. 5th DCA 1996).

34. When a controlled substance and paraphernalia are accessible to two occupants of a car, Petitioner must show by a preponderance of the evidence that Respondent had at least constructive possession of the substance and paraphernalia. T.W., 666 So. 2d at 1002. Petitioner must show that: Respondent had dominion and control over the marijuana and paraphernalia; Respondent had knowledge of its presence; and Respondent had knowledge of the illicit nature of the contraband. Id.

35. The location of contraband on the driver's side of the car does not show by a preponderance of the evidence that the elements of constructive possession have been satisfied. The evidence shows that the only person who had control and dominion over her purse and the inside of the car immediately prior to the search was Ms. Schutz.

36. Ms. Schutz had sufficient time and opportunity to place the marijuana under the driver's floor mat. Petitioner failed to show by a preponderance of the evidence that Ms. Schutz was kept under close surveillance while she was alone in the car. It is uncontroverted that her purse was large enough to hold the marijuana and drug paraphernalia without it being detected by Respondent or the police.

37. Ms. Schutz has a criminal history of drug use. Respondent does not.

38. Respondent did not give false information regarding the possession of illegal drugs. Respondent did not request that the

police destroy the evidence found in the search. Respondent's testimony was credible and persuasive.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of wilful neglect of duty, misconduct in office, or violating the principles of professional conduct, and finding that there is not just cause, within the meaning of Section 231.36(1), to terminate Respondent's employment or sever his professional service contract.

DONE AND ENTERED this 29th day of July, 1997, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ See, Transcript at 75.

COPIES FURNISHED:

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Dr. Dennis M. Smith, Superintendent Orange County School Board

445 West Amelia Street Orlando, Florida 32801

Frank Kruppenbacher, Esquire Kruppenbacher and Associates

105 East Robinson Street, Suite 201 Orlando, Florida 32901

Joseph Egan, Esquire

Egan, Lev and Siwica, P.A. 918 Lucerne Terrace

Orlando, Florida 32806

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005861

Orders for Case No: 96-005861