The Issue The issue in this case is whether Petitioner, Lee County School Board (School Board or Petitioner), has just cause to dismiss Respondent, Maria Burns, from her employment as a school teacher for immorality and misconduct in office.
Findings Of Fact Respondent holds a Florida Educator Certificate and has been a teacher at Pine Island Elementary School in Lee County since August 27, 1990. Prior to that, she taught for four years in DeSoto County. The evidence was that she has been a good and effective teacher. On May 21, 2012, Respondent resided with a female housemate in a home Respondent owned in Charlotte County. The two women had a disagreement or altercation, and the housemate threatened Respondent, who left the premises to get help from the housemate's mother. When her mother arrived, the housemate became more violent and threatening. The Charlotte County Sheriff's Office (Sheriff's Office) was called and responded to the home. The housemate barricaded herself in the house, fired shots, and stood off law enforcement for several hours. When the stand-off ended, and before Respondent returned to the house, the Sheriff's Office arrested the housemate and executed a warrant to search the premises. During the search, law enforcement found 25 to 30 small suspected marijuana plants in five flower pots in open view on chairs on the second floor balcony of the house. The plants tested positive for cannabis. It appeared to law enforcement that the plants were being tended by someone and that leaves were being harvested from the plants. A cigar-type box was found on a kitchen counter amid debris from the stand-off, during which tear gas canisters were shot through the windows of the home. The box had a hinged lid and contained suspected marijuana residue and seeds and a glass smoking pipe (drug paraphernalia). Because Respondent was the owner and a resident in the house, she was arrested and charged with marijuana possession, marijuana cultivation, and possession of drug paraphernalia. Respondent entered into a pre-trial diversion agreement, which she completed by the time of the hearing in this case. On February 25, 2013, the charges against her were dropped by nolle prosequi. No other evidence was presented from which it could be inferred that Respondent knew the marijuana plants were in her house. When found, the plants were in an open and obvious location, but there was no evidence how long they had been there prior to their discovery by law enforcement. The cushions of the chairs they were on were not designed to be left outside in the elements. There was no evidence as to where the plants were kept when not on the chairs on the balcony. Even if the plants were seen by Respondent, there was no evidence that she knew they were marijuana plants. There was no evidence that Respondent tended to the plants, harvested leaves from them, or used the leaves in any way. There also was no evidence that the drug paraphernalia belonged to Respondent, or that she knew the drug paraphernalia was in the house. No inferences are drawn simply from Respondent's decisions, made on advice of counsel based on Fifth Amendment privilege, not to appear at the final hearing and not to address certain aspects or give her explanation of the incident during the pre-determination hearing. The local media reported Respondent's arrest. The reports gave Respondent's name, age, and Charlotte County address, and included a photograph, but did not identify her as a teacher. Pine Island is a small community, and everyone at Respondent's school and in the community probably knows about her arrest and prosecution. There was no other evidence as to any adverse effect that knowledge might have on Respondent's service to the community or effectiveness as a teacher. Lee County School Board Policy 5.02 requires the School Board to "establish high standards and expectations for its professional faculty and staff, including: (1) Compliance with applicable federal and State laws, rules, codes, regulations and policies concerning professional credentials and employment; (2) Dedication to high ethical standards; [and] (3) Establishment of high standards in educational practice." It also requires employees to meet the standards and expectations established by the School Board. Lee County School Board Policy 5.04 requires criminal background checks to determine suitability for employment and provides that failure to be truthful on an employment application about prior criminal history will be grounds for ineligibility or dismissal from employment. Id. § (1)(a). It also provides that the School Board will not hire a teacher: who is "on probation or has a pending case"; with "[o]ther offenses listed in §§ 435.04 and 1012.315, Florida Statutes" (which includes, under section 435.04(2)(rr), Florida Statutes, a chapter 893 felony drug prevention and control offense, such as cultivation of marijuana); or with a misdemeanor drug and/or drug paraphernalia offense less than five years old. Id. § (7)(a)-(c). Lee County School Board Policy 5.29(1) provides that "[a]ll employees are expected to exemplify conduct that is lawful and professional " Lee County School Board Policy 5.37(2)(a) "prohibits the use, distribution, manufacture, possession, sale, cultivation, or attempt to sell illegal controlled substances at any time whether on or off duty . . . ." Violation of the prohibition subjects an employee to "disciplinary action up to and including termination." This policy is set out in the School Board's Employee Handbook. There is a Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County. It prohibits possession, consumption, or being under the influence of illegal drugs on the job or in the workplace. It does not negate Lee County School Board Policy 5.37(2)(a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: finding no just cause for dismissal on charges of immorality or misconduct in office; and reinstating Respondent with back pay from February 26, 2013, forward. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2013.
The Issue The issue in this case is whether petitioner's application for licensure as a professional teacher should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, respondent, Doug Jamerson, as Commissioner of Education, has proposed to deny an application for a teaching certificate filed on behalf of petitioner, Bryan S. Frederick, a thirty year old graduate of Elon College in North Carolina. As a ground, respondent contends that on applications filed with the Department of Education in 1991 and 1993, petitioner failed to disclose the fact that in December 1990 he had been arrested for possession of marijuana, and in January 1991 he had pled guilty to that offense. Petitioner disputed this allegation and timely requested a hearing. The critical facts giving rise to this dispute are as follows. Respondent has prepared an Application for Florida Educator's Certificate which must be completed and filed by those persons desiring a teaching certificate. On page 3 of the form is found the following question: Have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to S. 943.058 F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida law. On applications dated August 29, 1991, and April 2, 1993, which were filed with respondent, petitioner answered the foregoing question by checking the "NO" box. He also certified that all information in the two applications was "true, correct, and complete." With the assistance of the Florida Department of Law Enforcement, in late 1993 respondent conducted a law enforcement background check on petitioner. The search revealed that on December 22, 1990, petitioner was arrested by the Brunswick, Georgia police department for possession of marijuana. On January 8, 1991, the solicitor for the state court of Glynn County, Georgia, filed an affidavit and accusation pertaining to that charge. On January 31, 1991, petitioner pled guilty to possession of marijuana, a misdemeanor. For this, he was adjudicated guilty and was sentenced to 12 months in jail, with all time suspended except for the one day served in jail. When he was assessed a fine in the amount of $300 plus costs, and he could not pay the fine, petitioner was sentenced to a week in jail. According to petitioner, however, no fine was ever paid, and except for the day when he was arrested, no time was served. After learning this information, respondent issued a Notice of Reasons on June 13, 1994, proposing to deny petitioner's most recent application for a teaching certificate for failing to disclose the arrest and conviction. Petitioner did not deny that the above events occurred. He explained, however, that on the day in question, he and a friend, Glenn Brinson, were driving to South Carolina for the Christmas holidays and stopped to eat at a fast food restaurant in Brunswick, Georgia (Glynn County) just off Interstate 95 (I-95). When returning onto I-95, Brinson was stopped by a law enforcement officer for making an illegal turn. After Brinson stepped out of the automobile, he was asked to show his driver's license and vehicle registration. Petitioner, who was a passenger, reached in the vehicle's glove compartment to retrieve the vehicle's registration and observed three marijuana joints. Having no prior knowledge that they were there, and being in what he describes as a state of panic, petitioner unwisely placed the three joints inside his hat. When the police officer noted that the license tag and registration had expired, he asked petitioner to step out of the car and submit to a search for weapons. Thereafter, the officer discovered the marijuana. Although petitioner denied that the contraband belonged to him, both he and Brinson were arrested for possession of marijuana. No traffic citations were issued. At hearing, Brinson acknowledged that the marijuana belonged to him, and not petitioner. Petitioner admits that he intentionally failed to disclose the arrest and conviction on his applications because he knew it would "blow his career" as a teacher. He says he could not afford an attorney to fight the charge and believed that by entering a plea of guilty with an explanation to the judge, the charge might be dropped. As it turned out, however, the judge simply accepted the plea and adjudicated him guilty of the offense. Petitioner does not work in the teaching profession at the present time but says he has a pending job opportunity should his application be approved. He desires a five-year professional teacher's license so that he can begin a full-time teaching career. Up to now, he has worked as a substitute teacher on a part-time basis. Except for this isolated incident on the part of petitioner, there is no evidence of any other misconduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a period of one year. Thereafter, and upon reemployment, a license shall be issued but the first three years shall be on a probationary status. DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4263 Respondent: 1-5. Partially accepted in finding of fact 3. 6-11. Partially accepted in finding of fact 2. 12. Partially accepted in finding of fact 5. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or cumulative. COPIES FURNISHED: Bryan S. Frederick 10960 Beach Boulevard, #10 Jacksonville, FL 32246 Robert J. Boyd, Esquire 3121 Killearney Way, Ste. G Tallahassee, FL 32308 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
Findings Of Fact Teresa A. Collins was certified by the Criminal Justice Standards and Training Commission on April 19, 1985, and was issued Certificate No. 35-85-002- 02. On February 22, 1985, Respondent was employed by the City of Tampa Police Department as a police recruit and commenced training at the Police Academy. At this time, Respondent was considered to be a civilian employee of the police department. When Respondent applied for employment with the Tampa Police Department, a background investigation, polygraph test and physical examination including a urinalysis was done. Respondent acknowledged experimenting with marijuana in 1982 while in college. Following the background investigation and tests, Respondent was recommended as morally fit for duty as a police officer. On an evening in April 1985, Gloria Thomas observed Respondent, who she knew only by sight, sitting at a table in the rear parking lot at McDonald's with another woman. Ms. Thomas saw Respondent pass a cigarette to the other woman who held it between her thumb and forefinger while taking a puff off the cigarette. Ms. Thomas passed within five feet of the table and thought the smoke smelled like marijuana smoke. She did not see Respondent smoke the cigarette and could not definitely state the cigarette was a marijuana cigarette. At the time Respondent commenced her training at the police academy she roomed with Gina Rodriguez with whom she had formerly roomed at Florida State University. Sometime in mid February 1985, Respondent and Rodriguez had a fight during which Respondent struck Rodriguez in the face with her fist breaking her cheekbone. The date of this fight was not clear. Respondent testified it occurred in mid-February and that Rodriguez made demands on her for money for medical bills up to 21 February--the night before she was sworn-in as a police officer. The parties stipulated that Respondent was sworn in April 19, 1985, as a law enforcement officer and she entered the police academy February 22, 1985. Although not completely clear, it appears that Respondent and Rodriguez roomed together in Tampa from February 1, 1985 until the end of March, 1985. Following the fight Rodriguez threatened to see that Respondent never worked in Tampa. Gloria Thomas' observation of Respondent in the parking lot at McDonald's got back to the Tampa police by word of mouth as a rumor and an investigation was launched. On May 8, 1985, Rodriguez was interviewed by the police to inquire if Respondent smoked marijuana while she roomed with Rodriguez. At this interview Rodriguez denied Respondent ever smoked marijuana at the apartment. On May 29, 1985, Rodriguez contacted the police to give another statement about Respondent. At this interview Rodriguez told the police that she saw Respondent frequently use marijuana in late February and March 1985. At the hearing Rodriguez acknowledged making several conflicting statements about Respondent's use of marijuana but insisted that she saw Respondent smoke marijuana at least once in their apartment between February 22, 1985 and the end of March 1985, but could not identify the time of day this occurred, whether anyone else was present, or any detail at all regarding the circumstances in which this event occurred. Rodriguez also acknowledged she had threatened to "get" Respondent after the fight and they are still on unfriendly terms. These factors made her testimony less credible. Elaine Daniels, a friend of Rodriguez at the time of the fight, was interviewed by the police regarding Respondent's use of marijuana. She told the police she traveled in a car one night when Respondent had a package of marijuana with her. The exact date of this trip was not ascertained, but at the time the incidents were related to the police, Daniels was angry at Respondent for hurting her friend Rodriguez, and had been encouraged by Rodriguez to help her "get" Respondent. Daniels testified that she, herself, was stoned most of the time during this period and the only time she could definitely state she saw Respondent smoke marijuana was the end of January 1985. Daniels also testified to a party on Rodriguez's birthday, March 15, at which a marijuana joint was passed around while Respondent was present but she cannot recall Respondent taking a hit. Four women, who associated with Respondent from January through March 1985, never saw Respondent smoke marijuana during that period, but some of them had seen Respondent smoke marijuana a year or so prior to that period of time. In her testimony Respondent categorically denied smoking marijuana in April 1985 at the McDonald's parking lot and could not recall being there at that time; although she has been to this particular McDonald's on several occasions. Respondent acknowledged the "bad" fight she had with Rodriguez and that she had agreed to pay part of the medical bills resulting from that fight. However, Rodriguez never provided her with copies of bills for medical treatment. Respondent categorically denied smoking marijuana or possessing marijuana at any time subsequent to her entry into the police academy on February 22, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the charges herein, respondent Strickland was an Industrial Arts teacher at Everitt Junior High School in Panama City, Florida. The Personnel Record filed at Everitt contains spaces on the back for "teaching experience and record." Written in pencil for the years 1965 through 1969 is "Macon Co. Bd. of Ed., Tuskeegee, Ala., Ass. Supt., Dir. of Psy." (Exhibit 1) Respondent denies that this was his handwriting. Mr. John T. May, the Principal of Everitt, called the Superintendent at Tuskeegee, a Mr. Byas, to verify this. He was told by Byas that respondent had been a counselor for the Title 1 program there, and had not been an assistant superintendent. A letter from Joe C. Wilson, who is listed as respondent's supervisor for those years on respondent's application for employment with the Bay County Public Schools, states that respondent was employed as a school psychologist. The letter further states: "His specific assignments were to coordinate the statewide testing program, to test students referred to E. M. R. classes, and handle psychological services in the Head Start Program. On occasions Mr. Strickland was assigned other duties, such as repre- senting the school in lieu of the Superin- tendent and the handling of some admini- strative details." (Exhibit H) Respondent submitted to Principal May five "temporary leave" forms requesting sick leave for the following dates: October 30, 1974; January 20, 1975; January 24, 1975; February 28, 1975; and April 11, 1975. Each of the leave forms were submitted from one to three days after the leave was taken. On two of these forms, respondent stated in the space provided for "explanation of request" that he was sick. (Exhibit 2) In reality, respondent was attending personal business in Mobile, Alabama on those dates. (Exhibit 3) In the manual for instructional personnel of Bay County Schools, "sick leave" is defined as "personal illness or disability of the teacher or illness or death of a member of the immediate family." Said manual also provides for personal leave without pay for absences for personal reason, the leave to be requested and approved prior to the absence. Also, it is provided that two days of sick leave may be used with pay for personal business. In such event, the teacher is to notify the principal at least five days in advance, except in cases of emergency. Respondent testified that he told Mr. May that he had personal business to attend to in Mobile, Alabama, and that May instructed him to arrange for a substitute and take sick leave. During a class period, respondent walked by the home economics room when the class was preparing food. The male students in the class were required to wear aprons and hairnets. Respondent was near the window and made remarks to Bobby Golding to the effect that he looked sweet and would make a nice housewife. This disrupted the class and embarrassed Mr. Golding. The home economics teacher, Ms. Collins, testified that other male students in her class had complained that respondent had teased them about wearing hairnets and/or aprons. At a time when a group of students were present, respondent confronted Ms. Collins in the school hallway. She did not wish to talk to him at that time and walked away from him. Respondent pursued her and continued to call her name in a demanding tone. Ms. Shipbaugh, a guidance counselor, also testified that respondent embarrassed her on several occasions in front of other faculty members by either degrading her qualifications as a counselor or by yelling at her. A teacher's aide at Everitt testified that she and respondent, along with about 25 other persons, were standing in line at a post office on a Saturday in January of 1976. According to her, respondent began making remarks about Mr. May being intoxicated at a school Christmas party. While others overheard his remarks, she did not recognize any students, parents or faculty members among those present. Respondent denied this incident at the post office. After several verbal and written announcements had been made to the faculty at Everitt, a faculty meeting was held on the morning of February 3, 1976. The Vice-Principal, Ms. McGill, testified that respondent was not present at this meeting, and she wrote a letter to him reprimanding him for this. (Exhibit L) A speaker at that meeting remembered seeing respondent in the hall after the meeting, but could not recall whether respondent was present during the meeting. No roll call was taken during the meeting. Respondent testified that he did attend this faculty meeting. Principal Mays received several complaints from students regarding remarks made to the students by respondent in his classroom. Two students testified that respondent had put his hand on their chest or his arm around their neck during class. Bobby Golding testified that respondent had made a remark to him in shop class concerning the hair on Golding's head being similar to the hair in respondent's pants. Golding said he knew that at least one other student heard this remark because they discussed it immediately thereafter. Four students who attended Everitt Junior High School testified that they had seen respondent smoke marijuana. Three of these four students took industrial arts from respondent. Kenneth Lynch saw respondent smoke marijuana at the Parker ball park and at the home of Vito Knowles. Bobby Golding was present and saw the same two incidents. Gary Guidas saw respondent smoke marijuana at the home of Vito Knowles and behind Guidas' house. The ball park and the Knowles' resident incidents occurred in the presence of other students, who were also smoking marijuana at the same time. During the gathering at the Knowles residence, "mushroom tea," an hallucinogenic substance, was also being consumed by the students. It is not clear from the testimony whether or not respondent was partaking of the "tea." One student testified that respondent supplied him with a marijuana cigarette on one occasion. None of the smoking was done on the school grounds, according to the students. Respondent denied having ever smoked marijuana as related by these students. It was his testimony that he never went to the Parker ball park or to Vito Knowles' home.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness and number of the offenses of which respondent has been found guilty, it is recommended that respondent's Florida teaching certificate be revoked for a period of four (4) years, said period commencing on the date that the final order is rendered by the State Board of Education. Respectfully submitted and entered this 20th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire Barrett, Boyd and Holder Post Office Box 1501 Tallahassee, Florida 32302 Fred Turner, Esquire Post Office Box 1120 Lynn Haven, Florida 32444 Ms. Angela Peterson Professional Practices Council 319 West Madison Street- Room 1 Tallahassee, Florida 32304 Mr. Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32304
The Issue The issue to be resolved in this proceeding is whether there is cause for termination of employment of John Abbott with the employer, Escambia County School Board.
Findings Of Fact The Respondent, John Abbott was employed as a maintenance mechanic helper by Petitioner, the Escambia County School Board. As part of his employment, the Respondent resided in a mobile home at Hallmark Elementary School, 115 South "E" Street, Pensacola, Florida. On or about June 5, 1996, Pensacola police officers received confidential information that John Abbott was growing marijuana at his residence. Police officers went to the trailer and were allowed to enter with the permission of Mr. Abbott's 15-year-old son who also resided in the trailer. Mr. Abbott arrived shortly after the officers arrived. The officers inquired as to the presence and location of marijuana in the trailer. Mr. Abbott told the officers there were marijuana plants in the closet in his bedroom. The officers completed a consensual search of the closet and seized approximately 20 marijuana plants that were growing inside the bedroom closet. The officers also seized marijuana seeds and cardboard planters. The Respondent admitted he knew the marijuana was in the bedroom closet. The marijuana actually belonged to a girlfriend who had left town a few days previous. However, Respondent acknowledged he allowed the marijuana to be brought into his trailer and stored in his bedroom closet. Respondent knew it was there for several days and had taken no action to remove the marijuana from his property. Respondent clearly was in possession of marijuana on school property. Mr. Abbott was arrested for possession of marijuana. Eventually, he entered a plea of no contest to the charge and successfully completed his sentence. When the school board learned of Mr. Abbott's conviction, they terminated his employment with the school board. Mr. Abbott had no prior disciplinary problems. Respondent was considered a good employee by his supervisor. Respondent's supervisor requested that he remain a school board employee and not be terminated. However, at all times material to this action the Escambia County School District has had in force a Drug Free Work Place Program as authorized under Chapter 440, Florida Statutes. The Escambia County School District has also had a policy and practice of zero tolerance for possession and use of controlled substances. Respondent's possession of marijuana violated the Board's policy. The District has consistently terminated employees found in possession of controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed. Given the Board's policy and enforcement of its Drug Free Work Place Program, the evidence demonstrates that the Superintendent's recommendation for termination of Respondent should be upheld.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That a Final Order be entered by the Petitioner, Escambia County School Board terminating the employment of John Abbott. DONE AND ENTERED this 25th day of June, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 COPIES FURNISHED: John T. Abbott 115 South "E" Street Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1997. Pensacola, Florida 32501 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 323990-0400 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470
The Issue Whether or not the Department of Revenue has accurately and appropriately assessed Petitioner tax, penalty, and interest for unlawful production of marijuana.
Findings Of Fact During 1988, Petitioner cultivated a patch of marijuana located in abandoned phosphate pits in Loncala, northwest Marion County. On or about September 16, 1988 Investigator Glenn Hurst of the Ocala Police Department discovered and seized the marijuana referred to above. The marijuana seized by Officer Hurst ranged in height from approximately twelve to fourteen feet. The marijuana seized covered a tract of four acres within the above- described land. The seized marijuana when weighed by Officer Hurst weighed 2,910 pounds. The marijuana, when seized, was cut off at the base of each plant with a machete so that the roots were not seized with the plants themselves. The property where the marijuana was seized was under lease to one Sammy Long of Sumter County. At the time of seizure of the subject marijuana, the property under lease to Sammy Long was owned by one Stanley Cowherd of Planters Boulevard, Boca Raton. The property under lease to Sammy Long was being utilized by him for the grazing of cattle. Fred Brown, a longtime friend of Petitioner and of Sammy Long, assisted Petitioner in the cultivation of the subject marijuana. Kim Nixon, or Kim Mixon, was also involved in the cultivation of the subject marijuana with Petitioner and Fred Brown. In early August of 1988, Fred Brown moved a small trailer onto the Cowherd/Long property and lived in it during August and during the fall. The trailer was located approximately a mile from the marijuana patch. There were two electric meters on the property. One of the electric meters served a well pump used to pump water into a cattle trough. The meter and pole were located within several feet of Brown's trailer. The meter was already active when Brown brought in his trailer. The other electric meter and pole were located close to the marijuana patch. The meter served a pump for watering the marijuana patch. The electric meter near the patch had been inactive until March 30, 1988 when Petitioner applied for an electric meter from the Sumter Electric Cooperative (SEC). Petitioner did not have any cattle grazing on the subject property either before or after he applied for the meter. Fred Brown did not have any cattle grazing on the subject property either before or after Petitioner applied for the electric meter. When Officer Hurst arrived at the marijuana patch on September 16, 1988, he found that the meter Petitioner activated served a pump which was connected to an underground sprinkler system. The underground sprinkler system was located within the subject marijuana patch. On the same date, Officer Hurst found an old water trough near the meter activated by Petitioner, but the trough water was stagnant. Thus, Petitioner had not used the meter to fill the trough near the marijuana patch. Petitioner's fingerprints were found on the original of the electric meter application. The fingerprints of Fred Brown were also found on the original of the same application. On April 26, 1986, Petitioner was arrested for cocaine possession. Fred Brown was arrested on August 15, 1985 for possession of marijuana over 20 grams. Petitioner had hunted doves during the 1980's on the Cowherd/Long property and was familiar with the property prior to the September 1988 seizure of the subject marijuana. Fred Brown had also hunted and been familiar with the same property prior to the September 1988 seizure. Petitioner was responsible for cultivating the subject marijuana seized on September 16, 1988 by Officer Hurst. Pursuant to Section 212.0505 F.S., the estimated retail value of the subject marijuana is $244,300.00 as stated on the Revised Assessment dated March 27, 1990, which was introduced as the Department of Revenue's sole exhibit. The Revised Assessment was sent to Petitioner's former attorney, Ed Scott, on March 27, 1990 and received by him on March 30, 1990. The retail price estimated by the Respondent was based upon 12% of the total marijuana weight of 2,910 pounds. The factor of 12% represented that portion of the marijuana plants which is considered, by the Department, as usable for consumption after processing of the plants. The Revised Assessment is mathematically correct. The Revised Assessment is legally valid. Per the Revised Assessment, the 20% tax was imposed upon the estimated retail value to arrive at a base tax of $48,860.00. Per the testimony of Kevin Jackson, the total amount of tax owed by Petitioner to the Department of Revenue amounts to $94,450.42, including penalties and interest, as of March 27, 1990. No surcharge was applicable in this case. Interest on the above amount continues to accrue at a rate of $16.06 per day, making the total as of the date of formal hearing $100,215.96. (TR-12- 13) The Revised Assessment is prima facie correct in these proceedings. It is noted that all of Petitioner's "admissions," upon which many of the foregoing findings of fact were based, were couched in terms of "marijuana," which is not named in any applicable statute. (The genus "cannabis" is defined at Section 893.02 F.S. "Cannabis" is the material to be taxed under Section 212.0505(1) F.S., which statute incorporates Section 893.02 F.S. by reference.) No evidence was presented to establish that "marijuana" and "cannabis" are the same substance and the Department of Revenue made no request to officially recognize that they are one and the same. However, because of Petitioner's admissions to the prima facie correctness of the Revised Assessment, its mathematical correctness, and its legal validity against him, no further findings with regard to the nature of marijuana are necessary.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order upholding the Revised Assessment, assessing the Petitioner $100,215.96 as of the date of formal hearing plus statutory interest continuing to accrue from date of formal hearing. RECOMMENDED this 14th day of May, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 14th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1589 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner submitted no PFOF. Respondent's PFOF: 1-37 Accepted as modified to more closely reflect the greater weight of the evidence as a whole. Those matters not supported by the record have been rejected as contrary to the record. COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Robert Maynard Harris 13980 S.E. 80th Avenue Summerfield, Florida 32691 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
The Issue Whether Petitioner, Palm Beach County School Board, has just cause to suspend and terminate the employment of Respondent, Carla J. Holmes, for violations of school board policies resulting from her refusal to take a reasonable suspicion drug test on January 7, 2013.
Findings Of Fact The Board is the duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida (the District), pursuant to Article IX, Florida Constitution, and section 1001.32, Florida Statutes. From 2006 until her termination, Respondent was employed by the District as a food service assistant assigned to Palm Springs Elementary School. The District has a Drug and Alcohol Free Workplace Policy (the Policy) that prohibits staff from coming to work under the influence of alcohol or illegal drugs and provides for the District to undertake "reasonable suspicion" drug testing when warranted by certain circumstances. On January 7, 2013, a cafeteria worker, Rose Niva-Joseph (Niva-Joseph), heard the bell for the cafeteria door ring. When she opened the door, Respondent stumbled into the kitchen. Respondent sat in a chair, fell, and dropped her bag. According to Niva-Joseph, Respondent smelled like alcohol. Niva-Joseph reported her observations to the cafeteria manager, Lisa Rosenthal (Rosenthal). Rosenthal observed that Respondent had fallen and sprayed water all over the floor. Rosenthal went to assistant Principal Andrew Kline (Kline) and reported that Respondent was acting very unusual. She told Kline that Respondent fell and sprayed water all over the kitchen floor. Kline went to the kitchen to investigate. Kline observed that Respondent was swaying back and forth, slurring her speech and had alcohol on her breath. Kline directed Respondent to return with him to his office. Kline contacted Human Resources Manager Britoni Garson (Garson) in the District’s Professional Standards Office to report Respondent's unusual behavior. Garson directed Kline to fill out an Observable Behaviors Checklist (Checklist). On this Checklist, Kline noted that Respondent was argumentative, her speech was slurred, she appeared restless, and had an unsteady gait. Kline also noted that Respondent had an odor of alcohol on her breath, she fell, and appeared agitated and nervous. Kline faxed the Checklist back to Garson who determined reasonable suspicion existed to suspect Respondent was under the influence of alcohol or drugs. Garson contacted the testing technicians to go to the school and collect a specimen for a drug and alcohol test on Respondent. While in Kline's office, Respondent was agitated and belligerent. Because this was not the first time Kline had observed Respondent acting in this manner, he asked for the school district police to send an officer. Kline previously observed similar behaviors from Respondent in September 2008 for which Respondent received a written reprimand for a positive drug or alcohol test. As a result of Respondent's aggressive behavior during the 2008 incident, Respondent also received a verbal reprimand with a written notation for her unprofessional behavior displayed in threatening Kline. Commander Terry Moore (Moore) was dispatched on January 7, 2013, and was directed to stand by because a cafeteria worker appeared to be under the influence of alcohol or drugs, and he was to be present to deter any problems. When Moore arrived, Respondent was in the office with Kline, and Kline was trying to explain to Respondent why she was asked to submit to testing. Respondent was aggressive, resistant, and accused Kline of being a racist. Moore smelled the strong odor of alcohol on Respondent's breath from three to four feet away. Principal Kathy Harris (Harris) was starting her first day at Palm Springs Elementary School on the morning of January 7, 2013. She heard yelling from Kline's office, and she looked in to see what was going on. Respondent was talking to Kline in a very argumentative tone. When Harris looked in the office, Kline was on the telephone. He came out to speak to Harris and told Harris that Respondent exhibited unusual behaviors including slurred speech and an unsteady gait. Harris personally observed Respondent being argumentative, belligerent, talking with slurred speech, and not making any sense. She believed these behaviors warranted a drug test. When the technician arrived to take Respondent's specimen, Respondent refused. Harris and Kline told Respondent that refusing to take a drug test constitutes an automatic positive test pursuant to the Board's policies. Harris had not previously met Respondent, and she was unaware that Respondent had a prior positive drug or alcohol test. Kline explained to Respondent that if she refused to take the drug test, she could lose her job. Respondent refused to take the test and walked out of the school. Moore followed Respondent to make sure that she was safe and that she did not drive. Moore observed Respondent boarding a public transit bus. Several days later, the lab sent the District a report indicating that Respondent refused to provide a sample for a drug test. Board Policy 3.96 provides that refusal to take a reasonable suspicion drug test constitutes a positive test and that the appropriate discipline for a positive drug test shall be in conformance with the applicable collective bargaining agreement. Pursuant to notice dated January 28, 2013, Respondent was informed that the District was undertaking an investigation into her actions and that she was scheduled for pre-determination meeting for February 1, 2013. Respondent attended this meeting and offered no explanation for her behavior on January 7, 2013, including her refusal to take the drug test. Respondent denied spraying water on the kitchen floor and stated that, if Kline wanted her to submit to a drug test, everyone else in the kitchen would need to be drug tested because they were using drugs. She denied that she had an odor of alcohol or demonstrated any risky behavior, slurred speech, or increased loud talking. Significantly, prior to January 7, 2013, Respondent never reported to anyone her belief that her co-workers were using drugs or alcohol while at work. No other member of the cafeteria staff was observed engaging in behavior that would suggest that they were under the influence of drugs or alcohol at work. Respondent signed a Drug and Alcohol Free Workplace Acknowledgment form on January 11, 2007, verifying her receipt and understanding of Board Policy 3.96 and that violation of the Policy would result in disciplinary action up to, and including, termination. Respondent signed the Code of Ethics Acknowledgment Receipt on April 24, 2010. The applicable collective bargaining agreement requires progressive discipline, and the District's policy and practice since 2008 has been that every employee who has a second positive drug or alcohol test was terminated for that offense. On August 7, 2013, the Board voted to terminate Respondent's employment effective August 23, 2013, for violation of Board Policy 3.96(2)(v) and (4)(f), Drug and Alcohol Free Workplace Policy; Board Policy 3.02(4)(a), (4)(f) and (4)(h), Code of Ethics; Board Policy 3.10(6), Conditions of Employment; and Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. No evidence was introduced at the final hearing to substantiate Respondent's contention that the request for her to take a drug and alcohol test on January 7, 2013, was the result of a "conspiracy" against her, racism on the part of Kline, or that she was being singled out for testing when other co-workers were allegedly using drugs. Determination of Ultimate Facts The Board demonstrated by a preponderance of the evidence that reasonable suspicion existed on January 7, 2013, to require Respondent to submit to a drug and alcohol test. Respondent's refusal to take such test was not justified and constituted a "second offense" for purposes of the Policy. Accordingly, "just cause" existed to suspend and terminate Respondent's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Palm Beach County School Board, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2014. COPIES FURNISHED: Jean Marie Middleton, Esquire School District of Palm Beach County Office of General Counsel Post Office Box 19239 West Palm Beach, Florida 33416-9239 Carla J. Holmes 615 Mango Drive, Apartment 117 West Palm Beach, Florida 33415 E. Wayne Gent, Superintendent Palm Beach County School Board Suite C-316 3300 Forest Hill Boulevard West Palm Beach, Florida 33406 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
