STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-4178

)

TIMOTHY BEV, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on December 10, 1997, a final hearing was held in this case. The authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes (1997). The hearing location was the St. Johns County Judicial Center, St. Augustine, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

Appearances

For Petitioner: Robert W. Lloyd, Esquire

Cobb, Cole and Bell Post Office Box 2499

Daytona Beach, Florida 32115-2491

For Respondent: David Brooks Kundin, Esquire

Post Office Box 430 Tallahassee, Florida 2302

STATEMENT OF ISSUES

Should Petitioner discipline Respondent for violation of its School Board Policy File GBEB: Drug-Free Workplace? In particular, should Respondent be disciplined for his conduct that

allegedly occurred on or about June 26, 1997, in which the Respondent was said to be in possession of alcohol he was serving to students on school board property?

PRELIMINARY STATEMENT

According to correspondence from counsel for the Petitioner dated July 24, 1997, Respondent had been suspended with pay on July 11, 1997, for the alleged violation of the school board policy previously described. Per that correspondence, the Respondent was suspended without pay on July 15, 1997, upon the recommendation of the superintendent and action by the school board.

On July 22, 1997, counsel for Respondent had given notice that Respondent intended to pursue his remedies in association with Section 120.57(1), Florida Statutes, to contest action by the school board that would lead to Respondent's possible termination from his employment with the school board.

On September 3, 1997, the dispute between the Petitioner and the Respondent was forwarded to the Division of Administrative Hearings to be resolved through the assignment of an Administrative Law Judge to conduct a formal hearing. That hearing ensued on the aforementioned date, following the continuance of a hearing scheduled for November 4, 1997, upon a joint motion filed by the parties.

On December 1, 1997, Petitioner moved for leave to file an Amended Petition against Respondent. By its terms, the Amended

Petition accused Respondent of violating the same school board policy as has been referred to before, through conduct on

June 26, 1997, in which Respondent is alleged to have served wine containing alcohol to his Regional Italian Cooking class. The Amended Petition calls for the dismissal of Respondent as an instructor employed by Petitioner, should the allegations be proven. At hearing, Respondent consented to the filing of the Amended Petition as it would tend to make clear the Petitioner's accusations against Respondent and intended disposition in the case should the allegations be proven. At hearing, Respondent denied the pertinent claims in the Amended Petition, that Respondent had served wine containing alcohol to his class.

Petitioner had requested costs and attorney's fees in accordance with its Amended Petition. At hearing, the request for costs and attorney's fees was withdrawn.

Respondent's assertion to the entitlement of attorney's fees under Chapter 448, Florida Statutes, was dismissed for reason that an administrative law judge is without jurisdiction to entertain respondent's claims under that statute.

The details of Respondent's entitlement to back wages and other benefits, in the event that Respondent succeeded in the defense of the action, were matters to be considered on a future date. Petitioner did not contest the basic right to entitlements, if the Respondent prevailed in the disciplinary case.

The parties propounded requests for admissions to their opponents. In some respects the parties affirmatively responded to the requests for admissions. Those affirmative responses

could be used for fact finding. Likewise, Respondent admitted facts in paragraphs 1 through 4 to the Amended Petition, while denying paragraphs 5 and 6.

At hearing, Petitioner called as witnesses Clayton Wilcox, Bonnie Leeann Pennington, Margaret Miller, Charles Cox,

Roy Smith, David Stark Bearl, Anthony Lowman, and Christine Cothron. The Respondent testified for himself and called Clinton Ross, Chad Norman, and Zachary Boyer as witnesses. Jo Jean Ponce and Charles Cox were called as rebuttal witnesses by Petitioner. Petitioner's Exhibits 1 and 2, and 4 through 18, were admitted.

Petitioner's Exhibits 12 through 15 were admitted as demonstrative exhibits. Respondent's Exhibits 1 through 6 were admitted; Respondent's Exhibits 7 and 8 were admitted for demonstrative purposes; and Respondent's Exhibit 9 was denied admission.

On December 24, 1997, the hearing transcript was filed with the Division of Administrative Hearings. On January 16, 1998, the parties filed proposed recommended orders. Those proposed recommended orders have been considered in the preparation of the recommended order.

FINDINGS OF FACT

1. Petitioner is a school board as defined in Fla. Const. art. IX, Section 4, and Section 230.01, Florida Statutes.

2. At times relevant to this case, Respondent was employed by Petitioner as an instructor in the Culinary Arts Department in the St. Augustine Technical Center, a post-secondary vocational center located in St. Johns County, Florida.

3. In particular, Petitioner taught a class entitled Regional Italian Cooking at the school.

4. Respondent was aware of Petitioner's Drug-Free Workplace Policy, as that policy prohibited the use, or possession of alcohol on the property where the St. Augustine Technical Center is located. Respondent was also aware that alcohol could not be used as part of any school activity. Respondent was aware that a violation of these strict prohibitions could subject Respondent to disciplinary sanctions, including discharge from his employment.

5. The exception to the prohibition against the use or possession of alcohol on school property, was that alcohol could be used in preparing food, in contrast to the use of alcoholic beverages for consumption in the ordinary sense.

6. On June 26, 1997, Respondent taught the Regional Italian Cooking class at the St. Augustine Technical Center. On that evening he allowed the brother of one of the class members to bring a bottle of red and a bottle of white wine into the class. Both bottles of wine contained alcohol. The brother was affiliated with the Sans Sebastian Winery, a local winery in St. Augustine. Respondent opened and used some of the red wine in

   preparing a meat course as part of the class activities. The use of the wine in the preparation of that dish was in keeping with the policy to allow the use of alcoholic beverages in food preparation. Inconsistent with that policy, Respondent placed the remaining contents of the bottle of red wine, and the white wine, on the dinner table where Respondent and class members were dining as part of class activities. Respondent then poured wine that had been brought to the class by the guest from Sans Sebastian Winery. Respondent personally consumed the wine and allowed class members to consume the wine. The class members were persons under twenty-one (21) years of age.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case, pursuant to Section 120.57(1), Florida Statutes.

8. Section 231.36(1)(a), Florida Statutes, allows Petitioner to discipline Respondent as an instructional staff employee for "just cause," related to alleged misconduct in office.

9. Petitioner has a Drug-Free Workplace Policy that prohibits the use or possession of alcohol (alcoholic beverages) on school premises or as part of any school activity. An instructional employee violating that policy is subject to disciplinary action, to include possible discharge from employment.

10. To prove that "just cause" exists to discipline Respondent in accordance with Section 231.36(1)(a), Florida Statutes, for misconduct in office and in accordance with the Drug-Free Workplace Policy against use and possession of alcohol on school premises or as part of any school activity, Petitioner must prove its allegations in the Amended Petition by the preponderance of the evidence. McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 2nd DCA 1996); Dileo vs. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990); and Allen vs Dade County School Board, 571 So. 2d 568 (Fla. 3rd DCA 1990)

11. "Just cause" exists to discipline Respondent based upon the violation of the Drug-Free Workplace Policy, a policy Respondent was acquainted with. Respondent allowed alcoholic beverages to be brought into the classroom, part of the school premises, personally possessed and used the alcoholic beverages as part of the school activity, and allowed class members to use the alcoholic beverages, including class members who were minors. Respondent's actions constituted misconduct in office as contemplated by Section 231.36(1)(a), Florida Statutes, as well as a violation of the specific school board policy against the possession and use of the alcoholic beverages in the workplace. The use and possession of the alcoholic beverage described here is in relation to the possession for purposes of the direct consumption, not in association with the authorized use of wine

to prepare the meat course.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED: That the Petitioner enter a Final Order finding that Respondent committed misconduct in office by violating Petitioner's Drug-Free Workplace Policy, and discharging Respondent from his employment with Petitioner.

DONE AND ENTERED this 27th day of February, 1998, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1998.

COPIES FURNISHED:

Robert Lloyd, Esquire

150 Magnolia Avenue

Daytona Beach, Florida 32115-2491

David Brooks Kundin, Esquire Post Office Box 430 Tallahassee, Florida 32302

Clayton Wilcox Director of Personnel

St. Johns County School Board

40 Orange Street

St. Augustine, Florida 32084-3833

Hugh Balboni Superintendent of Schools

St. Johns County School Board

40 Orange Street

St. Augustine, Florida 32084-3833

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: 97-004178

Orders for Case No: 97-004178