STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 98-0571

)

GREGORY RAMPUTI, )

)

Respondent. )

) FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 98-0572

)

JOANNA C. RAMPUTI, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 17, 1998, in Ocala, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Matthew K. Foster, Esquire

Brooks, LeBoeuf, Bennett & Foster, P.A. 863 East Park Avenue

Tallahassee, Florida 32301

For Respondent: David Brooks Kundin, Esquire

Post Office Box 430 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against the Respondents' respective educator's certificates upon proof of violations of Sections 231.28(1)(c), Florida Statutes [gross immorality or acts involving moral turpitude] and 231.28(1)(f), Florida Statutes [personal conduct which seriously reduces effectiveness as an employee of the school board], based upon allegations that Respondents possessed marijuana and drug paraphernalia.

PRELIMINARY STATEMENT

Respondents requested a formal hearing upon the respective administrative complaints against them. Upon referral to the Division of Administrative Hearings, the two cases were consolidated.

At formal hearing, the parties stipulated that Respondents' home was searched on November 3, 1995, instead of November 14, 1995, which in fact was the date of their arrest. The administrative complaints were interlineated/amended accordingly.

Petitioner presented the oral testimony of Edgar R. Leedy, Chris Crandon, David Pistarelli, Brad Smith, Dan Brandt, and Roddy Michele. Petitioner had one exhibit admitted in evidence, for limited purposes.

Both Respondents testified on their own behalf and presented the oral testimony of Dr. James Noell. They also offered two exhibits which were received in evidence.

A transcript of the proceedings was filed in due course, and Petitioner moved for a correction of one word therein. Without opposition, an order was entered September 15, 1998, to effect that change. On September 4, 1998, Petitioner filed a Memorandum of Law in Response to Respondent's Proposed Recommended Order.

This type of pleading is not authorized by the rules of the Division of Administrative Hearings. However, no timely objection was made to this item, and it has been considered with the parties' respective timely-filed proposed recommended orders.

FINDINGS OF FACT

1. Respondent Gregory J. Ramputi, Sr., held Florida educator's certificate 752393, covering Specific Learning Disabilities, which was valid through June 30, 1997. At all times material, he was employed at Forrest Heights High School in the Marion County School District.

2. Respondent Joanna C. Ramputi, holds Florida educator's certificate 734502, covering Elementary Education, which is valid through June 30, 2000. At all times material, she was employed as a Fifth Grade Elementary School Teacher at Maplewood Elementary School in the Marion County School District.

3. In November 1995, the Drug Task Force Headquarters in Marion County received a 50-pound package of marijuana from law enforcement officials in California.

4. The package of marijuana was originally sent by Federal Express and addressed to the Ramputis' home address in Ocala,

   Florida.

   
   

5. After they intercepted the package, Marion County Law Enforcement agents, in a covert operation, delivered it to the Ramputis' address on November 3, 1995.

6. The Ramputis have been married for 18 years and in November 1995 had lived at the same address for approximately 12 years.

7. As of November 3, 1995, Mrs. Ramputi had been certified as a teacher for one school year, and Mr. Ramputi was in his first year of teaching.

8. The Ramputis have three children. On November 3, 1995, Gregory was 14; Jeffrey was 9; and Marina was 7.

9. On November 3, 1995, Mr. Ramputi and his son Gregory left the house by the front door at approximately 7:00 a.m.

10. Respondent Joanna Ramputi left the house by the front door at approximately 8:00 a.m.

11. Marina had spent the night at her grandmother's house and was not there when the other family members left the residence.

12. Jeffrey was the only person remaining at home after Mrs. Ramputi left. He remained at home only a short time until picked up by a second grandmother.

13. Agent Edgar Leedy is employed by the Marion County Sheriff's Office. He has over 14 years' experience in law enforcement and has substantial experience investigating the

    cultivation and sale of marijuana.

    
    

14. Agent Leedy is familiar with marijuana and is able to recognize harvested marijuana and marijuana plants.

15. In conducting surveillance of the Respondents' residence on the morning of November 3, 1995, Agent Leedy

    
    

    observed a Ford Explorer arrive at the residence, park in the garage, and wait.

16. The Ramputis' two boys "appeared" on the Ramputis' front lawn between the surveillance car's pass-bys. Gregory had been picked up at school, and both boys were dropped off by the second grandmother. No officer observed any communication between the children and the occupants of the Ford Explorer, but they were not continuously observed.

17. It is not clear from the surveillance officers' testimony whether any of the Explorer's occupants had an opportunity to enter the house.

18. The occupants of the Ford Explorer accepted the 50- pound package of marijuana from a law enforcement officer posing as a Federal Express driver and left the residence within seconds after receiving the package.

19. The Explorer was immediately stopped by Special Agent Chris Crandon, and the package of marijuana was found unopened inside the vehicle.

20. The occupants of the Explorer, including Mark Erp, were

    arrested.

    
    

21. When asked where he was living, Mr. Erp indicated an address in Ocala different than the Respondents' address. He never indicated he was residing at the Respondents' home.

22. Mark Erp is the son of Mr. Ramputi's female cousin. He is in his early twenties. He has a criminal record for dealing illegal drugs, as does his father. The father and mother, Mr. Ramputi's cousin, are divorced. Both live in Ocala, Florida.

    Mr. Ramputi has assisted Mark in a quasi-parental manner in the past and was aware of Mark's and his father's criminal records.

23. Upon approaching the Respondents' residence, Agent Leedy immediately noticed a marijuana plant growing in a pot standing by the front door in plain view.

24. Agent Leedy and Agent Brandt secured the residence to ensure that any potential evidence was not altered while a search warrant was being procured. The front door was opened to them by one of the Respondents' sons.

25. After a search warrant was procured, the house was searched. Mr. Ramputi was telephoned at his school shortly after lunch and was requested to return home. He returned in mid- search.

26. Agent Leedy was present in the living room, kitchen, and master bedroom suite in the course of about an hour. He conducted a search of the kitchen area of the Respondents' home. In the kitchen, he located an old meat scale with no marijuana

    residue on it. He also located a platter containing rolling papers and marijuana in the cabinet above the refrigerator in the kitchen. Agent Leedy was able to identify the marijuana and paraphernalia on the platter by sight and smell, but testified that no scent of marijuana use (smoke) was anywhere in the house. The platter and its contents were consistent with what law enforcement officers understand to be a "personal use platter."

27. Agents Leedy and Crandon noted that marijuana cigarettes/roaches (partially burned marijuana cigarettes) were located throughout the house, including the living room.

28. Agent Crandon has been employed by the Marion County Sheriff's Office for over 16 years and has been in the field of narcotics and narcotic detection since 1990. He has substantial experience in dealing with marijuana cases and is able to detect marijuana by sight and/or smell. He assisted in searching the master bedroom suite, which included two closets, a master bedroom, and a master bath. He also was responsible for collecting, testing, and documenting all seized evidence, wherever originally located throughout the house. Another phrase for his involvement would be "collecting, bagging, and tagging."

29. Agent Crandon located a marijuana cigarette in plain view on top of the master bedroom dresser and a "bong" in plain view sitting on the bathroom counter. A "bong" is a pipe commonly used for smoking marijuana. The bong contained marijuana residue.

30. Also found in the master bedroom were 175 grams of marijuana in the Respondents' dresser in two separate bags. This amount of marijuana is consistent with a "stash" for sale to others in smaller amounts. Marijuana possession in excess of 20 grams constitutes a felony.

31. Also found in the master bedroom were approximately six quarter-ounce bags of marijuana, located in the bottom drawer of the night-stand next to Respondents' bed, together with a ledger which the officers interpreted as describing transactions of drug sales. This method of packaging is consistent with amounts for individual use sales.

    
    

32. Approximately $5,500 in cash was found underneath the bottom drawer of the same night-stand. The envelope had been laid on the floor under the bottom drawer of the night-stand and bore some mathematical computations. The top drawer of the same night-stand contained hemostats a/k/a "clips" (devices commonly used to hold marijuana cigarettes while they are smoked), together with a small amount of marijuana in a plastic bag.

33. Mr. Ramputi's closet was on the right of a small entryway within the master bedroom suite. Mrs. Ramputi's closet was on the left of this entryway. Both closets contained the Ramputis' respective clothing.

34. Approximately $32,000.00 in cash was found in Mr. Ramputi's closet. It was contained in two small brown paper bags

    which were placed inside an unlocked and unlockable white canvas draw-string bag at the bottom of the closet with clothing and Mr. Ramputi's High School Annual. There was no lock on the closet door or any way to secure it.

35. The cash within the two small brown bags was separated into $15,000+ in one bag and $16,000+ in the other. Each bag contained several stacks of $1,000 each, secured with rubber bands. According to the officers who testified, this method of packaging cash in $1,000 stacks is consistent with the way drug dealers keep track of cash transactions.

36. The Respondents asserted ownership of the $37,000 cash found in the master bedroom suite, but denied any knowledge of, or connection to, the marijuana.

    
    

37. However, both Respondents conceded that they had, at all times, access to the master bedroom suite.

38. In addition to the Respondents' cash, many of their personal belongings were located in close proximity to the marijuana in the master bedroom suite. Personal belongings and mail addressed to Joanna Ramputi under her maiden name were in the night-stand in which marijuana was located. Mail in the Respondents' names was located elsewhere in the master bedroom, together with financial documents and tax certificates. An address book with Mark Erp's name inside, giving a Marion County address, was also located in the master bedroom. Presumably,

    this address book belonged to the Respondents. Mr. Ramputi's steroids, in unopened glass vials, and syringes for the administration of the steroids were also located in the master bedroom.

39. A set of electric curlers and a woman's makeup bag were on the bathroom counter next to the bong.

40. Agent Crandon was able to identify the marijuana found in the bedroom by sight and smell.

41. In collecting, tagging, and bagging the two amounts of cash and the marijuana-related items from the house, Agent Crandon handled all of the listed items, including marijuana roaches, clips, the outside of baggies, and the cash with its paper and canvas containers. He did not recall if he wore gloves during this procedure, but related that if he had worn gloves, he would have worn the same pair of gloves the entire time he was in

    
    

    the Respondents' house. He did not open the baggies and actually sift through any marijuana.

42. Agent Crandon conducted field reagent tests upon the marijuana-related items throughout the house resulting in positive findings that the substances were, in fact, marijuana.

43. Agent Crandon dumped the cash out of its respective containers. He counted and photographed the cash from the closet on the bed. He counted and photographed the cash from the night- stand on the floor of the master bedroom suite. He then replaced

    the cash in the brown paper bags and envelope respectively and bagged and tagged them separately from any marijuana-related items.

44. Subsequent testing at the Task Force's offices revealed that latent finger prints had not been recovered or that any fingerprints recovered were of insufficient quality to make a positive identification of anyone.

45. All packages of cash located in the Respondents' residence (the two brown bags from the canvas bag in the closet and the paper envelope under the night stand) were forwarded for testing to the Marion County Sheriff's Office K-9 (dog) Unit. At the Sheriff's Office, the seized cash was stored separately from the seized marijuana.

46. Officer Whitman, who did not testify, purportedly placed seized cash from each of the three separate bundles in three separate bags and neutral cash from the Sheriff's Fiscal Division in three other bags.

    
    

47. The Sheriff's Fiscal Division gets its money from banks and takes no special steps to purify or cleanse the cash.

48. Law enforcement witnesses conceded that a great deal of cash that is in general circulation has marijuana residue on it and further conceded that it is possible, under some circumstances, for someone who has touched marijuana in the course of an investigation to leave marijuana residue on cash

    seized at the same time.

    
    

49. Talon, a trained dog of the K-9 Unit working with Officer Pistarelli, alerted on all three of the bags which Officer Whitman told Officer Pistarelli contained cash seized from the Ramputis' home.

50. The K-9 sniff-test was not conclusive of guilt, nor is it, by itself, sufficient to constitute "probable cause" to arrest the owner of the money on drug-related charges.

51. However, Agent Crandon testified that based upon his experience and the totality of the circumstances of this case, the cash claimed by the Respondents was connected to the drugs located in their master bedroom suite.

52. The search warrant for Respondents' home was ultimately ruled defective. The criminal arrest and prosecution records were ultimately expunged. After the criminal case(s) against them was dismissed, Respondents asserted ownership of the $37,000 in cash, and it was returned to them.

53. At formal hearing herein, Respondents asserted that the cash was not drug-related, but had been intended by them for ongoing repair and construction in their home.

54. Respondents maintained that from the latter part of October until November 3, 1995, they had been sleeping in the living room of their home, and their two sons, Gregory and Jeffrey, had been sleeping in the master bedroom. They asserted that Mark Erp had temporarily moved into the master bedroom with

    their sons 4-6 days before November 3, 1995, because he was "having trouble with his girlfriend." Mrs. Ramputi testified that she provided a roll-out bed for Mark Erp, which normally was kept in her closet within the master bedroom suite.

55. The Ramputis acknowledged possession of the injectable prescription steroid vials and syringes in their bedroom, stating that these had last been used a year before by Mr. Ramputi's mother for Mr. Ramputi's skin condition, but they maintained they had never seen or smelled anything in their home that would indicate marijuana use or possession. They denied any knowledge of the presence of marijuana or drug paraphernalia in their home. Specifically, they asserted that the kitchen was Mrs. Ramputi's territory solely, and each denied ever looking in the kitchen cabinet above the refrigerator, wherein the "personal use" platter had been discovered.

56. It was the Ramputis' mutual contention that at all times material, their master bathroom was under construction with torn-up floor and bad plumbing in the shower, and was unusable; that their clothing had been removed to Marina's room; that their personal toiletries had been removed to the hall bathroom; that the hall bathroom adjoining the boys' bedroom was also under construction; that the rug and a wall of the boys' bedroom had been affected by water leakage from the hall bathroom; that the rug in the boys' bathroom had been pulled up; and that the smell of mildew was noticeable in the boys' bedroom. They further

    contended that all six occupants of the home used the hall bathroom and that no one used the bathroom in the master bedroom suite.

57. According to the Ramputis, they had given up their bedroom for their boys, and ultimately for Mark Erp, because they did not want to have their children sleeping in the living room in the event guests came by and so that their children could go to sleep earlier than the adults did. They contended that the television in the master bedroom did not receive objectionable programming from HBO, whereas adult HBO programs could be viewed by adults on the living room television. According to Respondents, they had slept on the living room couch for some period of time and expected to do so until repairs had been made to the hall bathroom and boys' bedroom.

58. Purportedly, the $32,000 found in Mr. Ramputi's closet was the result of a real estate sale which had closed twenty- three months earlier on December 29, 1993. Purportedly, this amount originally had been deposited into the Respondents' joint bank account in 1993, but Mrs. Ramputi had loaned it to her brother, Sal, in cash, so as to assist him in his business. When her brother repaid Mrs. Ramputi, also in cash, she had turned the cash over to her husband, who, in order to keep his wife from loaning the money back to her brother, had hidden it in the bottom of his closet. Mr. Ramputi stated that his reason for not putting the money in a bank was because he believed his wife was

    more likely to take money out of their joint bank account than out of his closet and that he needed the cash on hand to pay for building permits and construction supplies and to pay contractors during the house renovation.

59. Mr. Ramputi's explanation for the cash under the night- stand was that he had earmarked this $5,500 amount, which the couple claimed had been received in cash accumulated from parental loans and gifts, for new windows.

60. Respondents in these types of proceedings are not required to testify against themselves, but once they elect to take the stand in their own defense, their testimony is subject to the same tests of credibility as that of any other witness. Herein, the greater weight of the credible evidence renders Respondents' denial of knowledge and possession of marijuana and their explanation for the large amounts of cash they kept in their home incredible for the following reasons.

61. Throughout the search, Agent Leedy was, at various times, present in the living room, master bedroom, and master bathroom. He observed no type of construction occurring in the residence, including but not limited to any construction or removed flooring in the master bathroom. Deputy Brad Smith was also present during the search of the Respondents' residence. He did not see any evidence of construction or repairs inside the residence. Officer Crandon saw no construction in the master bedroom.

    
    

62. Mr. Ramputi testified that his brother, Sam Ramputi, had done most of the construction on the home. Sam Ramputi lives in Ocala, Florida, but was not called to verify the existence of construction in the Ramputis' home on or about November 3, 1995. The Ramputis offered no building permits in evidence, although Mrs. Ramputi testified that a new roof had just been completed the week before the search and seizure. They produced no bills for the new roof. Mr. Ramputi produced no estimates for the windows they intended to add.

63. Respondents produced no prescription to verify their testimony with regard to the use of the steroids and did not call the grandmother who allegedly administered the shots.

64. Respondents conceded that the sofa in the living room is not a sleeper sofa.

65. Marijuana roaches were found even in the living room, where Respondents were purportedly sleeping.

66. Three officers testified that they did not observe blankets, pillows, or anything at all to indicate that Respondents' living room was being used as temporary sleeping quarters.

67. Agents Crandon and Leedy, who entered the master bedroom suite, did not observe or locate any children's clothing, toys, comic books, or other items consistent with children residing in the master bedroom suite, but they did locate items

    consistent with access and use by the Respondents, such as makeup, mail, and clothing.

    
    

68. No personal belongings of Mark Erp were located in the master bedroom or anywhere in the house at the time of the search. No roll-away cot was located in Mrs. Ramputi's closet or elsewhere in the house.

69. Mr. Ramputi testified that Mark Erp confessed to him that the marijuana found in the Ramputis' home belonged to Mark Erp. Mark Erp is currently residing in Ocala, Florida. The formal hearing was held in Ocala, Florida. However, Mr. Erp was not subpoenaed to testify.

70. Mrs. Ramputi testified that one of the grandmothers had signed a statement to verify that Mark Erp was residing in the Respondents' home at the time of the search and seizure. However, that grandmother was not called to testify nor was her statement produced at formal hearing. The grandmother's alleged

    inability to speak English is not a credible reason not call her.

    
    

71. Respondents did not call their children to verify their occupancy of the master bedroom, Mark Erp's occupancy of the master bedroom, or the presence of Mark Erp in the house on November 3, 1995. Respondents offered no explanation why their sons, ages 14 and 9, would not have reported to them the presence of a bong, hemostats, and marijuana in the master bedroom suite.

72. Mr. and Mrs. Ramputi both testified that their parents

    had given them cash "for windows" at the end of October 1995. The parents of each of the Respondents live in Ocala. The parents were not called to verify the Respondents' testimony on this issue.

    
    

73. In light of the evidence as a whole, it is not credible that this family, however closely knit, were regularly and legitimately transferring multiple thousands of dollars of cash among themselves. It is likewise incredible that anyone would pay for contracting work on one's home in multiple thousands of dollars in cash.

74. Mrs. Ramputi testified that the federal Internal Revenue Service had investigated the Respondents for 13 months, during which time it had access to all Respondents' financial records and all financial records of Mrs. Ramputi's brother, Sal, and that the Internal Revenue Service then sent the Respondents a letter saying that the Agency was satisfied and was closing the case. However, this alleged letter from the Internal Revenue Service was not produced at formal hearing.

75. Respondents produced no bank records to show withdrawals by Mrs. Ramputi between the December 29, 1993, closing and the November 3, 1995, search and seizure. They produced nothing to document any loans to her brother Sal or his repayments to her. Mrs. Ramputi's brother lives in Ocala but was not called as a witness to verify the several alleged transfers

    of $32,000 in cash from the Respondents' joint bank account to him and back to Mrs. Ramputi. He was not called to verify the Internal Revenue Service's favorable disposition of the situation.

76. Mr. Ramputi's explanation of why he did not return

    
    

    $32,000 cash into the couple's joint bank account lacks credibility. He was aware at all times that it was possible for him to open a bank account solely in his own name so as to prevent withdrawals by Mrs. Ramputi. Unlike the safety of a bank account in Mr. Ramputi's name alone, his unlocked closet was not a reasonable precaution to prevent Mrs. Ramputi from using the cash for her own purposes or to prevent theft by any visitors, most significantly, Mark Erp, if Mark Erp were indeed present.

77. Respondents had access to and control over all areas of the house where marijuana or cash was found. Each testified that s/he had not given Mark Erp a key to the house.

78. Respondents testified that they have had only favorable and supportive comments from all prior educator/employers, community leaders, parents, and students whom they have taught. Mrs. Ramputi has remained employed almost full time as a substitute teacher since the dismissal of the criminal charges in July 1996. Mr. Ramputi has been unable to find employment as a teacher since his arrest.

79. However, upon the testimony of Roddy Michele and James Nowell, it is clear that if the Respondents are determined to be

    guilty of possession of marijuana, their effectiveness as school teachers would be seriously reduced.

80. Although Mr. Michele emphasized that his primary concern was with notoriety through newspaper and other media coverage of the search and seizure, Respondents' arrest, and their subsequent suppression hearing, it remains a matter of law that notoriety, of itself, is not an offense upon which the Respondents' teaching certificates may be disciplined.

    
    

    CONCLUSIONS OF LAW

    
    

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

82. The duty to go forward and the burden of proof by clear and convincing evidence is upon Petitioner. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1997).

83. Upon the facts as found, neither Respondent possessed or had any control over the 50 pounds of marijuana delivered by Federal Express, signed for by Mark Erp and his companions in the Ford Explorer, and removed, unopened, from the Respondents' curtilege before entering Respondents' residence. Likewise, it is noted that the administrative complaints charge Respondents with possession with intent to sell only the 50 pounds of marijuana which never entered the house, and therefore they may not be disciplined pursuant to Rule 6B-11.007(M), Florida

    Administrative Code.

    
    

84. Despite Respondents' admitted possession of unopened steroid vials and of syringes and despite their failure to produce any corroboration of their explanation of legitimate use, the evidence falls short of clearly showing that the vials contained any legend drug. Petitioner's post-hearing proposal seems to abandon possession of the steroids as a disciplinable offense, and Respondents' candor and demeanor in testifying on this single issue satisfies me that the allegations of illegal possession of steroids made solely against Mr. Ramputi have not been clearly and convincingly established. However, this same testimony clearly established that these very personal possessions of Mr. Ramputi were located in close proximity to the illegal marijuana and drug paraphernalia found in the master bedroom.

85. Both Respondents' possession of a growing marijuana plant in a pot by the front door and of marijuana and drug paraphernalia within the residence has been clearly and convincingly proven.

86. There is no serious contention herein that the plant just outside the front door and the substances found in kitchen, living room, and master bedroom suite were not marijuana or that the bong, hemostats, and baggies did not constitute drug paraphernalia. Proof of the identity of marijuana need only be established by lay testimony in administrative proceedings.

    Foreman v. School Board of Washington County, 481 So. 2d 953 (Fla. 1st DCA 1986). Moreover, field reagent tests were positive for the substances found in the house, and the testifying law enforcement officers had the requisite education, training and experience to identify the growing plant, plant substances, and paraphernalia.

87. Respondents contend rightly that the proof that the cash claimed by Respondents was exposed to marijuana is flawed. The chain of custody of the money to which the K-9 Unit dog alerted is defective. There was no testimony by Agent Whitman to verify that the money he placed in the bags to which Talon "alerted for marijuana" was, in fact, the cash seized from Respondents' residence. Officer Pistarelli took Agent Whitman's word for it, as would the undersigned under similar circumstances, but such hearsay is not the type of evidence which will support a clear finding of fact that the cash claimed by the Respondents was tainted with marijuana. Even assuming, arguendo, that one could conclude that the cash was tainted by marijuana residue, the manner in which the seized cash was counted and photographed (on the bed and on the floor) and handled with the same hands/gloves as the contraband items were handled and tested could have seriously compromised the validity of the dog-sniff test. Therefore, the dog-sniff test is probative of nothing, but the dog-sniff test is not controlling.

88. The potted marijuana plant just outside the front door

    was moveable and Respondents desire the conclusion that Mark Erp brought it with him, but it is incredible that Respondents would not notice it there as they entered and left the house repeatedly over the course of a week and even more incredible that they would not be suspicious of a young man bringing a potted plant with him for a few days' stay after a spat with his girlfriend.

89. As to the contraband found inside the house, Respondents were the sole owners of the residence in which the contraband and cash were located. This is sufficient to establish their knowledge of, access to, and possession of all the contraband in the house, absent evidence of joint occupancy, or at least joint access by another person.

90. Herein, there is no evidence beyond Respondents' self- serving testimony that Mark Erp was jointly occupying the premises. Indeed, even Respondents' testimony fails to establish that Mark Erp had access to the house when Respondents were not also present, specifically on the morning of November 3, 1995.

91. As for November 3, 1995, there is no evidence that a key was ever provided to Mark Erp or that Mark Erp entered the residence after Mrs. Ramputi left at 8:00 a.m. on November 3, 1995. To believe the Respondents' "lack of knowledge" defense concerning the contraband in the living room and kitchen, one would have to also assume that Mark Erp smoked marijuana in the living room, resulting in the roaches and residue, between

    8:00 a.m. and the time the Explorer pulled out of the driveway;

    that this use left no lingering odor of smoked marijuana; and that the personal use platter in the kitchen was hidden by him either that morning or on another occasion when Respondents were not present and exercising control of the kitchen. Given that the living room was purportedly the Respondents' main domain at all times and the kitchen was Mrs. Ramputi's territory, and given all the evidence and time frames, this scenario is also not credible.

92. The Respondents conceded that during all of Mark Erp's purported stay, they had had joint access to the master bedroom suite but had not exercised it, further testifying that all of the contraband found there belonged to Mark Erp and they did not know the contraband was there. There is no supporting evidence of this scenario either.

93. Assuming arguendo, that Respondents' joint occupancy defense has any merit, "If the premises where contraband is found is in joint, rather than exclusive possession, . . . knowledge of the contraband's presence and the ability to control it will not be inferred from the ownership of the property, but must be established by independent proof." Forehand v. School Board of Washington County, 481 So. 2d 953 (Fla. 1st DCA 1986); Baker v. School Board of Marion County, 450 So. 2d 1194 (Fla. 5th DCA 1984).

94. At all times up until 8:00 a.m. November 3, 1995, Respondents had unrestricted access to the master bedroom suite.

    On that day, large quantities of marijuana, some hemostats, and baggies were located in the master bedroom. A roach was in plain view on the master bedroom dresser, and a bong was in plain view in the master bathroom. Mr. Ramputi's steroids were located in the dresser that also housed marijuana. Large quantities of Respondent's cash was located in two separate areas of the master bedroom. The sum of $5,500 was secreted underneath the night- stand in which six quarter-ounce bags of marijuana and a drug ledger were located. Personal papers belonging to the Respondents were in the night-stand and throughout the master bedroom. Only belongings of Respondents were located in the master bedroom suite. Hair curlers and makeup, which logically were not Mark Erp's property, were located next to the bong. The

    $32,000 in cash in the closet and the manner in which it was packaged was consistent with drug dealing. Respondents' testimony alleging legitimate sources for this cash is simply incredible.

95. In light of the evidence as a whole, in a time when all cash transactions in excess of $10,000 are documented by banks and everyone needs proof of payments for home improvements, it is incredible that the Respondents were regularly moving $37,000 in cash around within their family for legitimate purposes or that they needed such large quantities of cash on hand for remodeling their home.

96. All credible evidence points to Respondents' exclusive

    control of the master bedroom suite. This is sufficient proof of constructive possession even without physical possession of the contraband located within. State v. Becker, 559 So. 2d 704 (Fla. 1st DCA 1990), where the contraband was in the defendant's closet in his own room and his knowledge was inferred. Individuals may be guilty of possession where they are in joint constructive possession of a premises. Armbruster v. State, 458 So. 2d 833 (Fla. 4th DCA 1984); Sparato v. State, 179 So. 2d 873 (Fla. 2nd DCA 1965). In Armbruster, two individuals shared the same residence where large quantities of marijuana were located in the master bedroom containing the accused's personal goods, and other contraband was found throughout the house. Joint constructive possession was determined upon circumstantial evidence. Among other things, that circumstantial evidence was that the accused's personal effects were in close proximity to the contraband.

97. I therefore conclude that the Respondents are guilty of possession of marijuana and drug paraphernalia.

98. Possession of marijuana constitutes gross immorality as a matter of law. Adams v. Professional Practices Services, 406 So. 2d 1170 (Fla. 1st DCA 1981); Walton v. Turlington, 444 So. 2d 1082 (Fla. 1st DCA 1984).

99. Respondents' possession of marijuana and drug paraphernalia constitutes an act of gross immorality or moral turpitude, and they have thereby lost their effectiveness as educators.

100. Mere notoriety, without proof of guilt, is not controlling. MacMillan v. Nassau County School Board, 629 So. 2d

     226 (Fla. 1st DCA 1993); Baker v. School Board of Marion County,

     
     

     450 So. 2d 1194 (Fla. 5th DCA 1984). However, media hype notwithstanding, it is axiomatic that school teachers involved with contraband cannot be effective as role models for their students, cannot command the respect of their students, and cannot maintain order in the classroom. See cases supra, and Section 231.28(1)(f), Florida Statutes.

101. Upon authority of Sections 231.28(1)(c) and 231.28(1)(f), Florida Statutes, and Rule 6B-11.007(L), Florida Administrative Code, it is concluded that Respondents' violations warrant revocation of their certificates for two years. In Mr. Ramputi's case, he may be prohibited from applying to renew his certificate for two years.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Agency enter a Final Order that:

1. Finds Gregory J. Ramputi, Sr., not guilty of illegal possession of steroids;

   
   

2. Finds Gregory J. Ramputi, Sr., guilty of possession of marijuana and drug paraphernalia and thus guilty of violating

   Sections 231.28(1)(c) and 231.28(1)(f), Florida Statutes;

   
   

3. Prohibits Gregory J. Ramputi, Sr., from applying to renew his teaching certificate for two years;

4. Finds Joanna C. Ramputi guilty of possession of marijuana and drug paraphernalia and thus guilty of violating Sections 231.28(1)(c) and 231.28(1)(f), Florida Statutes; and

5. Revokes Joanna C. Ramputi's teaching certificate for two years.

DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 23rd day of October, 1998.

COPIES FURNISHED:

Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett

& Foster, P.A.

863 East Park Avenue Tallahassee, Florida 32301

David B. Kundin, Esquire Post Office Box 430 Tallahassee, Florida 32302

Kathleen M. Richards, Executive Director Department of Education

224-E Florida Education

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director Professional Practices Services Dept. of Education

325 W. Gaines St., Ste. 224-E Tallahassee, FL 32399-0400

Michael H. Olenick, General Counsel Department of Education

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

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: 98-000571

Orders for Case No: 98-000571