05-003554 Broward County School Board vs. Alsavion Smith Status: Closed Recommended Order on Tuesday, September 5, 2006.

Summary: Teacher was guilty of immorality and moral turpitude by reason of marijuana posession; there being just cause, termination is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3554

)

ALSAVION SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this case was

conducted on June 8, 2006, by Florence Snyder Rivas, a duly -

designated Administrative Law Judge (ALJ) of the Division of

Administrative Hearings (DOAH) by video teleconfer e nce at

sit e s in Lauderdale Lakes and Tallahassee, F lorida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Mark F. Kelly , Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

At issue is whether there is just cause for Petitioner

Broward County School Board (Petitioner or School Board) to

terminate the employment of Respondent , Alsavion Smith's

(Respondent ) by reason of immorality and moral turpitude as

alleged in the Administrative Complaint dated August 24, 2005

(Complaint) .

PRELIMINARY STATEMENT

By letter dated August 24, 2005 , Superintendent of

Schools , Dr. Frank Till (Till) , acting on behalf of

Petitioner, advised Respondent that he was recommending

Respondent's suspension without pay pending dismis sal from

employment as a schoolteacher. Thereafter Petitioner filed its

Complaint alleging just cause for termination based upon

Respondent's alleged immorality and moral turpitude in

connection with unlawful possession of marijuana.

Respondent timely asse rted his right to an administrative

hearing to challenge the termination. On September 27, 2005 ,

the case was referred to DOAH and was assign ed to ALJ Michael

Parrish . Following discovery, the parties' moved jointly for

an order closing file, which motio n was granted by ALJ Parrish

on January 31, 2006.

On March 29, 2006, the parties moved to re - open the case,

which motion was granted by ALJ Parrish. ALJ Parrish set a

final hearing for June 8 - 9, 2006. The case was transferred to

the undersigned on or a bout June 1, 2006.

The identity of witnesses , exhibits and attendant

stipulations and rulings are contained in the one - volume

transcript of the final hearing, which was filed on June 27,

200 6 . Thereafter, the parties moved for and were granted an

enlarg ement of time unti l July 28, 2006, to file proposed

recommended order(s). The parties represented that they had

personal plans, including vacation, as well as professional

commitments which rendered it impossible to do thorough

prop o sed recommended order s absent the additional time

requested. The parties timely submitted their Proposed

R ecommended O rders, which have been carefully considered.

P ursuant to applicable DOAH rules and policy, the Recommended

Order was due to be released on August 28, 2006. T he

Recommended Order is regrettably tardy due to the

undersigned's previously scheduled August vacation days.

References to Sections are to the Florida Statutes (200 5 ) ,

except as otherwise specified. References to Rules are to the

Florida Administrative Code (200 5 ).

FINDINGS OF FACT

1. Petitioner is the entity constitutionally authorized

to operate, control, and supervise the Broward County public

school system.

2. Respondent was, at relevant times, employ ed by

Petitioner as a teacher pursuant to an ann ual contract.

During the 2004 - 2005 school year he was assigned to Plantation

Middle School.

3. The events giving rise to this case occurred o n

March 10, 2005 . Narcotics officers ( officers ) employed by

the Broward County, Florida Sheriff's Office (BSO) had

received information that a teacher who lived on the third

floor of an apartment complex located at 1442 Avon Lane in

north Fort Lauderdale (apartment complex) , was in possession

of marijuana and also selling marijuana out of his apartment.

Possessio n and sale of m arijuana is illegal in Florida.

4. Upon investigation, BSO officers learned that

Respondent was a teacher and lived on the third floor in Unit

638 (the apartment) at the apartment complex. As the

investigation went forward, the officers k nocked on the door

of the apartment . At th at time, the odor of marijuana was

sufficiently strong that it could be smelled in the hallway

outside the apartment. The knock was answered by an

individual identified in the record as Anderson Carrington

(Carri ngton) . Carrington opened the door and admitted the

officers . The apartment's exterior door , through which

Carrington admitted the officers , opened direct ly on to the

living room /dining area of the apartment. The d ining room

table was located in this ar ea and was immediately visible to

anyone entering. An individual identified in the record as

Vveldress Ingram (Ingram) was seated at the dining room table.

Approximately two pounds of marijuana w as located on the

dining room table, together with drug par aphernalia. The

paraphernalia included scales and "baggies." Coupled with the

amount of marijuana present, such paraphernalia suggested that

marijuana was being sold out of the apartment. The officers

thereupon arrested Carrington and Ingram, and undert ook to

secure the premises to assure the safety of the officers and

other individuals in or near the premises. The officers

summoned back - up, and shortly thereafter, additional BSO

officers and a supervisor arrived on the scene , all in marked

patrol cars.

5 . At the precise moment the officers were admitted to

the apartment, Respondent was in his bedroom. The bedroom was

immediately adjacent to the living room /dining area.

Respondent soon emerged from the bedroom and acknowledged to

the officers that the apartment was leased to him. He further

informed the officers that he lived there with three

individuals, whom he variously characterized as "roommates" or

"guests ." These individuals are Carrington , Roderick Simeon ,

and his younger brother James Simeon . James Simeon was known

by Respondent to be a juvenile . Respondent further

acknowledged that he was aware that Carrington and the

juvenile h ad been selling marijuana out of his apartment ; that

a delivery of marijuana for resale from the apartment had be en

made that day ; and that approximately seven grams of marijuana

were in his dresser drawer in his bed room and was for his

personal use. R espondent was thereupon arrested, and asked to

sign a consent form giving BSO permission to search the

apartment . R espondent voluntarily did so.

6. The events surrounding R espondent 's arrest, including

R espondent 's removal from the a partment complex in a BSO

cruiser, were witnesse d by members of the public as a crowd

had gathered in the parking lot of the apartment c omplex to

watch , apparently drawn by the presence of first one, and

thereafter at least t wo more BSO vehicles . Word of the

arrest , including the grounds for the arrest, spread quickly

through the neighborhood, and some individuals who came to

watch became unruly. At least one such person was arrested.

7. At all relevant times, Respondent was treated in a

professional and courteous manner by BSO officers . No

credible, persuasive evidence to the contrary was provided.

R espondent offered only his own t e sti mony in support of his

claim to have been coerced, threatened , or mistreated by BSO

officers . Respondent's testimony is not credited. Based upon

the entire record; which includes prior inconsistent

statements under oath, as well as Respondent's demean or while

testifying , including his nervousness on direct examination

and his evasiveness on cross - examination , i t is specifically

determined that Respondent was not threatened or coerced by

BSO officers on March 10, 2005 . It is further determined that

R es pondent did in fact make the above - noted admissions to the

officers. Four officers testified from personal knowledge

concerning events relevant to this case. The

testimony provided by the officers is, in all material

respects, persuasive and is credited by the factfinder.

8 . O n March 14, 200 5 , Respondent delivered to

Petitioner's duly - designated r epresentative a so - called Self

Reporting Form . Pursuant to Petitioner's policy, a Self

Reporting Form must be submitted promptly by any teaching

professional who has been arrest ed . In his Self Reporting

Form, R espondent made no reference to threats , coercion, or

other mistreatment by the BSO officers , giving rise to an

inference that Respondent suffered no threats, coercion, or

other mistreatment .

C ONCLUSIONS OF LAW

9. DOAH has jurisdiction over the parties and the

subject matter in this case pursuant to Sections 120.569,

120.57 (1), and 1012.33 , Florida Statutes (2006) .

10. In his capacity as superintendent of schools, Till

has the authority to recommend the suspension and dismissal of

employees pursuant to Subsection 1012.27(5), Florida Statutes.

The School Board has the authority to act on such

recommendations of the superintendent and to dismiss school

employees pursuant to Sections 1001.42(5) and 1012.22 (1)(f),

Fl orida Statutes.

11 . Petitioner seeks to dismiss Respondent from his

employment as a teacher and bears the burden of proof by a

preponderance of the evidence. See Allen v. School Board of

Dade County , 571 So. 2d 568 (Fla. 3rd DCA 1990) . Dismiss al

must be based on just cause. Just cause i ncludes, but is not

limited to, the following instances as defined by rule of the

State Board of Education: mis conduct in office, incompetency,

gross insubordination, willful neglect of duty, or conviction

of a crime involving moral turpitude. § 1012.33(1)(a), Fla .

Stat. Because just cause is not limited to the offenses

specified in the foregoing Section, school boards have

discretion to determine what actions constitute just cause for

dismissal. Carl B. Diet z v. Lee County School Board , 647 So .

2d 217 (Fla. 2 nd DCA 1994). Here, Petitioner alleged and

proved the material allegations of the Complaint by

preponderant, persuasive evidence . Under all the facts and

circumstances, there is just cause to terminate Respondent's

employment based upon the grounds of immorality and moral

turpitude .

1 2 . As previously noted, R espondent stipulated that a

det er mination that the material allegations of the Complaint

were, in fact, true, would constitute proof by a preponde rance

of evidence of immorality and moral turpitude and would ,

therefore , provide just cause to terminate his employment.

Even with out such stipulation, there is just cause for

termination on the basis of immorality and moral turpitude.

13. Florida Admin istrative Code Rule 6B - 4.009 pertains

to criteria for the dismissal of instructional personnel and

provides, in pertinent part :

(2) Immorality is defined as conduct

that is inconsistent with the standards of

public conscience and good morals. It is

con duct sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individuals'

service in the community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of ba seness, vileness,

or depravity in the private and social

duties, which, according to the accepted

standards of the time a man owes to his or

her fellow man or to society and the doing

of the act itself and not its prohibition

by statute fixes the moral tur pitude.

14 . In McNeill v. Pinellas County School Bd. , 678 So. 2d

476, 477 (Fla. 2d DCA 1996), the court said, "[I]n order to

dismiss a teacher for immoral conduct the factfinder must

conclude: a) that the teacher engaged in conduct inconsistent

with th e standards of public conscience and good morals, and

b) that the conduct was sufficiently notorious so as to [1]

disgrace the teaching profession and [2] impair the teacher's

service in the community ." (italics in original) . Here, there

is ample evidence that R espondent 's conduct was contrary t o

standards of public conscience and good morals. Respondent

was in possession of m arijuana in his apartment for -- by his

own admission -- personal use. He was aware that his juvenile

roommate , as well as an adult ro ommate , sold marijuana from

his apartment. At least some members of the community were

aware of the illegal activity in Respondent's apartment prior

to March 10, 2005, and many others became aware of the charges

filed by BSO following its investigation on that date, all to

the detriment of the reputation of teaching professionals.

R espondent 's actions set forth above were sufficiently

notorious to result in public disgrace to the teaching

profession and to impair Respondent's service in the

community. Th e evidence is sufficient to establish just cause

for termination based upon immorality.

15 . Likewise the evidence is sufficient to establish

just cause for termination based upon moral turpitude. In

possessing marijuana for personal use and condoning an d

facilitating the s ale of marijuana out of his residence,

Pet itioner engaged in illegal behavior which evidenced

baseness, vileness or depravity in the private and social

duties, which, according to the accepted standards of the time

a man owes to his or her fellow man or to society in general,

and the doing of the act itself and not its prohibition by

statue fixes the moral turpitude.

16 . In Adams v. Professional Practices Council , 406 So.

2d 1170, 1171 (Fla. 1 st DCA 1981), the court stated, that when

co nsidering whether a teacher is guilty of immorality or an

act involving moral turpitude , it must be remembered that “ .

. . teachers are traditionally held to a high moral standard

in a community ."

17 . It is not necessary for a teacher to be convicted o f

a crime in order to be terminated from employment by his/h er

local school district or disciplined by the state on the basis

of immorality or moral turpitude. Walton v. Turlington , 444

So. 2d 1082 (1 st DCA 1984). In that case, a teacher’s

employment was t erminated and thereaf t er his teaching

certificate revoked upon a finding that the teacher had been

in p ossession of marijuana plants , and for that reason was

guilty of immorality and moral turpitude .

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions

of Law it is recommended that Petitioner enter a final order

terminating Respondent 's e mployment as a teacher .

DONE AND ENT ERED this 5th day of September, 2006 , in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Admi nistrative 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 Ad ministrative Hearings

this 5th day of September, 2006.

COPIES FURNISHED :

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh A venue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Dr. Franklin L. Till, Jr., Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

Honorable John L. Winn

Commissioner of Education

Depar tment of Education

Turlington Building, Suite 1514

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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.