STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. )

)

DAVID J. SULDO, )

)

Respondent. )

Case No. 02-3133PL

)

RECOMMENDED ORDER

Pursuant to notice and in accordance with Sections 120.569 and 120.57(1), Florida Statutes, a formal hearing was held on December 5, 2002, in Sebring, Florida, before Fred L. Buckine, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: Gary E. Doane, Esquire

Accident Attorneys Association of Hightower & Doane

738 West Colonial Drive Post Office Box 577 Orlando, Florida 32802-0577

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of gross immorality or an act involving moral turpitude or an immoral conduct because the State Attorney's Office filed a misdemeanor

charge of possession of controlled substance, and Respondent entered and completed a pre-trial intervention program and the State Attorney nolle prosequi the criminal charge. The Board of Education is now prosecuting Respondent for possession of a controlled substance. In a possession of controlled substance charge, there shall be proof of two distinct elements. The Board of Education must prove that: (1) Respondent had knowledge of the presence of the controlled substance, and

(2) Respondent had knowledge of the illicit nature of the controlled substance.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 25, 2001, Petitioner alleged that Respondent was in unlawful possession of

1. grams of marijuana when a law enforcement officer stopped him for an expired tag.

   The Administrative Compliant alleged that on or about

   
   

   May 17, 1998, the State Attorney's Office charged Respondent by Information with Possession of 20 grams or Less of Cannabis and Possession of Drug Paraphernalia.

   The Administrative Complaint alleged that on or about September 15, 1998, the State Attorney's Office nolle prossed the case after Respondent completed a pretrial diversion program.

   The Administrative Complaint alleges that Respondent was guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; of possession of a controlled substance in violation of Rule 6B- 1.006(5)(m), Florida Administrative Code; and of gross immorality or an act involving moral turpitude, in violation of Section 231.2615(1), Florida Statutes. Petitioner informed Respondent of its intent to take action against Respondent and his teaching certificate for possession of a controlled substance. Respondent, by letter of November 17, 2001, requested a 45-day period to try to negotiate a settlement. On August 9, 2002, Petitioner referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge and scheduling of a formal de novo hearing; filed therein was Respondent's Motion to Dismiss the Administrative Compliant, dated January 30, 2002. The Notice of Hearing, scheduling the final hearing for October 4, 2002, in St. Cloud, Florida, and the Order of Pre-Hearing Instructions were entered September 11, 2002. Petitioner's Motion for Continuance, filed October 22, 2002, was granted by Order dated October 30, 2002, rescheduling the final hearing for December 5, 2002, in Sebring, Florida.

   At the final hearing, Petitioner offered the deposition of Officer Donald Minervino, Osceola County Sheriff's Department,

   the policeman responsible for executing the 1998 stop of Respondent and his wife as its case in chief, and offered two exhibits (P-1 and P-2) in evidence without objection.

   Respondent offered 12 exhibits (R-1 through R-12) in evidence without objection. Respondent's Motion to Dismiss Petitioner's Administrative Complaint for legal insufficiency was denied.

   The Transcript was filed on January 2, 2003, and the parties were given until January 24, 2003, to submit proposed recommended orders. By these arrangements, the parties have waived the requirement that the Recommended Order be entered within 30 days of receipt of the hearing Transcript. Rule 28- 106.216, Florida Administrative Code. Petitioner's Proposed Recommended Order was filed on January 24, 2002. Respondent's Proposed Recommended Order was filed on January 27, 2003. Both parties' proposals have been considered in preparing this Recommended Order.

   FINDINGS OF FACT

   
   

   Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence in evidence deemed relevant and material, and the entire record complied herein, the following relevant and material facts are found:

   1. At all times material and pertinent hereto, Respondent, David J. Suldo, a state-certified teacher, had worked 21 years with the Osceola County School District and had been appointed

      Director and Coordinator of Human Relations Issues. Respondent was born and reared in Osceola County and, after attending college, returned to enter the school system. He and his wife own a five-acre homestead in Osceola County where they, along with their family, enjoyed a long and friendly relationship with many of his students and their parents in the small community of Sebring, Florida. He is currently employed by the Orange County School Board. Respondent holds a Florida Educator's Certificate No. 378761, covering the areas of Administration/Supervision and Psychology, which is valid through June 30, 2005.

   2. Currently, Respondent is employed as Dean of Sixth Grade at Westgate Middle School in the Orange County School District. Before the issue raised by the allegation in the case at bar, Respondent has never had a complaint filed against him.

   3. On the weekend of January 30, 1998, Respondent and his wife drove away in their jointly registered family car from a Seven-Eleven parking lot, in Sebring, Highlands County, Florida, and were stopped by Officer, Donald Minervino, for an expired

      tag.

      
      

   4. In response to the Officer's request to produce his

      
      

      diver's license, Respondent produced his Director of Student Services Osceola County School District identification card,1 explaining that he lost his driver's license a few days prior.

   5. Officer Minervino requested that Respondent and his wife exit the vehicle, which they did, and he requested permission to search the vehicle, which was granted. During his search, Officer Minervino found a small baggie containing a suspected controlled substance in the console of the vehicle. Officer Minervino found a small amount of illicit substance in a plastic bag and a broken pipe. Also found in the console was a St. Cloud High School, 1995-96, I.D. card of Scott Suldo, a tenth grader, who is Respondent's son.

   6. During his interrogation, Officer Minervino asked Respondent if he would like to make a statement regarding the suspected illicit substance in the baggie and the broken pipe. Respondent answered "NO," and made no statements regarding knowledge of the presence of the illicit substance or knowledge of the nature of the illicit substance recovered from the console of the family car.

   7. Officer Minervino observed two beer bottles, one of which was open, in the vehicle. Because of this traffic stop, vehicle search, interrogation of vehicle occupants, and observation of their movements and speech patterns, Officer Minervino concluded neither was intoxicated and no roadside sobriety tests were taken. The Officer issued Respondent two citations: (1) warning citation for the expired tag, and

      1. citation for having an open container (beer bottles) in the vehicle.2 Officer Minervino did not arrest Respondent on a charge of possession, but filed an Affidavit Prosecution Summary (APS) with the State Attorney's Office regarding the baggie of illicit substance and the broken pipe,3 in accord with the Osceola County Sheriff's Department's policy.

   8. On Monday following the January 30, 1998, traffic stop incident, Respondent met with Dr. Thomas L. McCarley, superintendent of the Osceola County School District, and they mulled over and discussed the situation. Dr. Thomas L. McCarley offered Respondent the opportunity to transfer to another school district pending the outcome of the ongoing investigation, specifically, the potential outcome regarding the content of the plastic bag, i.e. whether the State Attorney would or would not file criminal charges.

   9. Having considered his career opportunities, his family, and his lifetime residency in Sebring, Florida, Respondent opted to retire from the Osceola County School District and did so on or before February 13, 1998.4

   10. Sebring, Florida, is a small community and community members of long standing know each other well. The community knew of Respondent's long association with and his position within the school system; they knew also of his traffic stop by the local police and the police finding illicit materials in

       Respondent's family car. The Sebring local newspaper ran, almost daily, updates and recounts of this incident over an extensive period. Respondent is of the opinion that the prolonged newspaper publicity created public pressure on the State Attorney's Office, who, months after the incident, filed misdemeanor criminal charges against Respondent.

   11. At some undetermined time before September 1998, the State Attorney for the Ninth Judicial Circuit, in and for Osceola County, Florida, filed a two-count misdemeanor criminal charge of Possession of Cannabis and Possession of Drug Paraphernalia against Respondent.

   12. On or about September 1, 1998, the State Attorney for the Ninth Judicial Circuit, in and for Osceola County, Florida, in open court filed nolle prosequi5 of the two-count misdemeanor criminal affidavit. Listed as "Exculpatory information received" was checked the statement: "Defendant completed pre- trial diversion program."

   13. Subsequent to September 1, 1998, the Orange County Superintendent of Public Schools asked Respondent to apply for employment with the Orange County School Board because there existed a need for someone with Respondent's particular expertise and training in "student issues." After completion of the Orange County School Board's application form, Respondent was interviewed by the Orange County School Board. During his

       interview, Respondent informed the Orange County School Board of the circumstances, from the initial traffic stop, retiring from Osceola County School District, the misdemeanor criminal charges filed against him, his retaining counsel, his entering and completing the pre-trial program, and his having taken several independent and successful drug tests since the incident to demonstrate that he was not a user of drugs.

   14. On August 5, 2002, the Orange County School Board offered Respondent a 196-day, 2000-2003 school year, professional Instructional Personnel contract of employment with the Orange County School System. Respondent accepted the Orange County School Board's offer and formally executed his employment contract on December 5, 2000.

   15. Mrs. Joy Suldo, wife of Respondent, took the vehicle in question to Circuit City for a stereo upgrade and repair then to Addison's Body Shop for minor repair work picking up the care on or about January 27, 1998. From the body shop, she took the car to the upholstery shop for a day and a one-half day. At these several service location, employees had access to the vehicle. Mrs. Suldo did not open or check the console when she returned the car home.

   16. Respondent's son also had access to the vehicle, along with his friend and fellow band members. Respondent recalled seeing several of them sitting together in the car listening to

       the enclosed sound car stereo. His son and his friends had unlimited access to the vehicle. Multiple accesses to the vehicle by persons other then Mr. Suldo created, not an inference of solo possession by Mr. Suldo, but rather created the burden of upon Petitioner to reinforce the inference of constructive possession by Mr. Suldo. There was no evidence was presented by Petitioner from which circumstantial constructive possession by Respondent could in inferred.

   17. At all times material to the case at bar, there was no teacher's labor union contract between teachers and the Osceola County School Board.

   18. Petitioner has offered no evidence to prove the allegation contained in its letter dated October 25, 2001, to wit: possession of a controlled substance.6

   19. No evidence was offered to prove that Respondent knew of the illicit nature of the substance or that Respondent knew of the presence (in the vehicle) of the illicit substance. Therefore, Petitioner has failed to prove Respondent actually possessed or constructively possessed a controlled substance. Petitioner's substantial evidence failed to demonstrate that from the circumstances of this incident that Respondent is guilty of gross immorality or an act involving moral turpitude.

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the Parties and over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

   21. Section 231.2615(1)(c) and (i) provides:

       
       

       1. The Education Practices Commission may suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to impose any other penalty provided by law, provided it can be shown that the person:

          
          

          * * *

          
          

          (c) Has been guilty of gross immorality or an act involving moral turpitude.

          
          

          * * *

          
          

          (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

   22. Rule 6B-1.006, provides in part:

       
       

       1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

          
          

       2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

          
          

          * * *

          
          

          (m) Shall self-report within forty-eight

          (48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self- report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendere for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), Florida Statutes.

          
          

   23. Petitioner's Administrative Complaint alleged that Respondent was in unlawful possession of 2.5 grams of marijuana when a law enforcement officer stopped him for an expired tag. Petitioner must prove those material allegations by clear and

       convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996); Ferris v. Trulington, 510 So. 2d 292 (Fla. 1987).

   24. In this case, Petitioner offered in evidence the deposition of the police officer that stopped Respondent and issued two citations: (1) warning for expired tag, and (2) open container in the vehicle. Petitioner offered in evidence copies of the charges filed by the state attorney and dismissal of those charges by the nolle prosequi entered by the state attorney.

   25. In Scott v. State, 808 So. 2d 166 (Fla. January 3, 2002) (rehearing denied February 11, 2002), the Florida Supreme Court, Quince, J. writing for the Court, held that a possession of controlled substance charge, guilty knowledge could not be inferred. Placing the burden on the State, the Court held that to prove possession of a controlled substance, the State had the burden to prove guilty knowledge which consisted of two separate but essential elements: (1) knowledge of the presence of the substance, and (2) knowledge of the illicit nature of the substance. The Court went on to state that the lack of knowledge of the illicit nature of the substance is not an affirmative defense to be raised and proven by the defendant.

   26. Using the burden of proof standard to prevail on a charge of possession of controlled substance pronounced by the

Scott Court, Petitioner has failed to prove the material allegations against Respondent.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commissioner of Education enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2003.

ENDNOTES

1/ Respondent's Exhibit R-4 consisted of two picture I.D. cards, a photo of David Suldo, Identification Card Department/Facility Student Services, Title: Director, and signed by David Suldo, and the I.D. card of his son, Scott Suldo, a tenth grade student.

2/ Petitioner's Exhibit P-A, Osceola County Sheriff's Department's Evidence Custodial Report, 98I06533, dated 01-30-

98, and signed by Officer J. Udelhoven, listed confiscated items as: one bag of green leafy substance, one pipe, and two beer bottles. Petitioner's Exhibit P-B, Osceola County Sheriff's Department, Request for Examination of Physical Evidence, and FDLE form, received by FDLE on February 6, 1998. A request to examine and ID weight of possible cannabis and pipe. The second sheet of the exhibit was FDLE's reply to the request of February 6, 1998, confirming the plant material submitted to be cannabis, 1.5 grams. The pipe (smoking device) was not analyzed. No fingerprints were lifted from any item submitted. The State Attorney, after receipt of the APR and the FDLE report, made the decision, based upon the evidence, to file a two count criminal misdemeanor charge against Respondent.

3/ FDLE's examination of the materials submitted by Osceola County Police Department revealed: (1) baggie contained an illegal substance, (2) broken pipe had cannabis residue, and

1. Respondent's Exhibit R-10, a letter from Ken F. DeBord, Risk Manager, dated February 13, 1998, advising Respondent that as a retired employee of the School District of Osceola County, he had certain rights should he decide to exercise them, i.e. group health insurance, Medicare, etc.

4/ The record does not contain evidence of the date the criminal charge was filed against Respondent.

5/ The significance of the nolle prosequi, with regard to the case at bar, is the fact that neither the State Attorney nor the County Court Judge conducted a fact-finding inquiry on the issue of Respondent's possession of either the controlled substance or the drug paraphernalia (broken pipe). Had a finding of possession of controlled substance been made in the criminal proceeding, those findings would have been inadmissible in a subsequent civil proceeding, i.e., this administrative hearing. See Scott v. State, 808 So. 2d 166, (Fla. January 3, 2002) (rehearing denied February 11, 2002). The Court in Scott, Quince, J. writing for the court, held that guilty knowledge could not be inferred. Placing the burden on the State, the Court held that to prove possession of a controlled substance, the State had the burden to prove guilty knowledge which consisted of two separate but essential elements: (1) knowledge of the presence of the substance, and (2) knowledge of the illicit nature of the substance. The Court went on to state that the lack of knowledge of the illicit nature of the substance is not an affirmative defense to be raised and proven by the defendant.

6/ Petitioner chose to charge Respondent with "possession of a controlled substance," and not charge Petitioner with "having been charged with possession of a controlled substance." Regarding the charge of possession, and without testimony of actual possession, Petitioner is reduced to presenting evidence to convince the finder of fact of "constructive" possession. In a case of the "constructive" possession, where proof is circumstantial, no matter how strongly evidence suggests guilt of possession, Petitioner's evidence shall demonstrate that such evidence, taken in its totality, is inconsistent with any reasonable hypothesis of Innocence. Ogle v. State, 820 So. 2d 1054 (Fla. 4th DCA 2002). Petitioner's evidence, taken in its totality, is not inconsistent with every reasonable hypothesis of innocence. Had Petitioner charged Respondent with "having been charged with possession," the "charge" and not the "possession" would have established Petitioner's burden of proof.

COPIES FURNISHED:

Gary E. Doane, Esquire Accident Attorneys Association

of Hightower & Doane 738 West Colonial Drive Post Office Box 577

Orlando, Florida 32802-0577

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731-0131

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

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: 02-003133PL

Orders for Case No: 02-003133PL