Walter v. SCH. BD. OF INDIAN RIVER CTY.

518 So. 2d 1331, 13 Fla. L. Weekly 48, 1987 Fla. App. LEXIS 11692, 1987 WL 3026
CourtDistrict Court of Appeal of Florida
DecidedDecember 23, 1987
Docket87-2131
StatusPublished
Cited by5 cases

This text of 518 So. 2d 1331 (Walter v. SCH. BD. OF INDIAN RIVER CTY.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walter v. SCH. BD. OF INDIAN RIVER CTY., 518 So. 2d 1331, 13 Fla. L. Weekly 48, 1987 Fla. App. LEXIS 11692, 1987 WL 3026 (Fla. Ct. App. 1987).

Opinion

518 So.2d 1331 (1987)

Jannine WALTER, Appellant,
v.
SCHOOL BOARD OF INDIAN RIVER COUNTY, Florida, Appellee.

No. 87-2131.

District Court of Appeal of Florida, Fourth District.

December 23, 1987.
Rehearing Denied February 17, 1988.

Wayne R. McDonough of Saliba & McDonough, P.A., Vero Beach, for appellant.

G. Russell Peterson of G. Russell Petersen, P.A., Vero Beach, for appellee.

*1332 GLICKSTEIN, Judge.

This is an appeal of a final administrative order by the School Board of Indian River County, expelling appellant from school for possession of marijuana. We affirm.

On March 5, 1987, Gregory Pearsaul, the principal of Sebastian River Middle/Junior High School in Sebastian, Florida, was notified by a teacher that a student had reported to her that appellant, a ninth grader, had a cigarette in the restroom and that appellant had told other students that it was a marijuana cigarette. The student who reported the incident to the teacher told her that the cigarette would be in the possession of one of three students. The principal, along with assistant principal Frances Adams, proceeded to investigate the reported incident. Mr. Pearsaul spoke with one of the students, who emptied her purse for the principal to examine its contents. She did not have the cigarette in her possession. This student told the principal that the cigarette was either with appellant or with another student. The principal and assistant principal went to the classroom where these two girls were. While the principal escorted the other student to his office, the assistant principal escorted appellant. As they walked to the office, appellant expressed an interest in knowing where she was going. The assistant principal asked whether she "had something that she shouldn't in school today." Appellant responded that another student had given her something to hold. The assistant principal asked appellant what the object was and appellant responded that it was marijuana. The student then produced the joint from her purse and gave it to the assistant principal, who later testified at the hearing held before the Indian River County School Board that she was familiar with marijuana and that in her opinion the object in appellant's possession was a marijuana joint. The assistant principal notified the principal as to what she had found. The principal saw the object and recognized that it was marijuana. Appellant's mother was contacted at work and asked to come to the school.

Upon arrival at the school, Mrs. Walter was advised that the principal was going to suspend appellant from school for ten (10) days and recommend that there be an expulsion hearing. The principal then completed a "Suspension Notice with Recommendation of Expulsion" stating as grounds for appellant's expulsion that he found what appeared to be a marijuana joint in her possession. By letter, the principal requested the Indian River County School Board to expel appellant from the school system.

On March 26, 1987, an evidentiary hearing in regard to the recommended expulsion of appellant from school was held before a school board hearing officer. The appellant was represented by counsel at said hearing. At the conclusion of the hearing, the school board hearing officer stated that she found that there was a violation of Indian River County School Board rule 6GX31-5.22 as there was "possession" and that she would recommend to the School Board that appellant be expelled. The hearing officer stated "our alternative programs at present as they now exist are for educational deficiencies and not disruptive students" and therefore no such program was available for appellant.

The School Board met on April 14, 1987, and considered the hearing officer's recommendation. After hearing argument from appellant's counsel and testimony of the school superintendent, the board ordered the appellant expelled for the remainder of the 1986-87 school year. This appeal was taken from the Indian River County School Board's Findings of Fact, Conclusions of Law, Recommendations and Final Order dated April 14, 1987. There are two points on appeal.

The first point is whether the School Board erred in expelling the minor student in that there was an absence of competent, substantial evidence to support the findings of fact, conclusions of law, and final order of expulsion. The second point is whether the School Board erred in expelling *1333 the minor student and denying any and all type of public education during the period of expulsion. We conclude the School Board did not err on either point.

Appellant argues that the School Board erred in expelling her as (1) she was charged with being in possession of "what appeared to be" a marijuana cigarette which she contends is not prohibited by any of the applicable school rules and (2) there was a lack of competent, substantial evidence introduced at the March 26, 1987, hearing to substantiate the School Board's findings that appellant was in possession of marijuana.

A review of the charging documents in the instant case shows that the Suspension Notice with Recommendation of Expulsion states the following:

Your child has been involved in infractions of school regulations of such a serious nature that expulsion from school is recommended. The specific nature of these infractions is as follows:
Found what appeared to be a marijuana joint in her possession.

The Notice of Fact-Finding Hearing and Statement of Charges states the following:

The charges are as follows:
That on or about the 5th day of March, 1987, on the campus of the Sebastian River Middle-Junior High School in Indian River County, Florida, Jannine Walter an enrolled student at Sebastian River Middle-Junior High School was found to be in possession of what appeared to be a marijuana cigarette

(Underlining represents blanks on form that school authorities had filled in.)

According to appellant the act of being in possession of what appeared to be a marijuana cigarette is not violative of any of the School Board's rules. Citing to school rule 6GX31-5.38, appellant argues that she was not charged with the use or possession of alcoholic beverages or a narcotic drug, but rather with "possession of what appeared to be a marijuana joint" which is not prohibited by said rule. Rule 6GX31-5.38 is worded as follows:

6GX31-5.38 ALCOHOL, DRUGS AND SMOKING. (1) The use, possession or consumption of alcoholic and intoxicating beverages or a narcotic drug shall not be permitted at any school by any person except where the person has a prescription drug for use as prescribed by a medical doctor.
(a) Where a student is believed to be under the influence of alcohol or any narcotic drug, central nervous system stimulant, hallucinogenic drug, or barbiturate, this suspicion shall be reported immediately to the principal who shall assume responsibility for further action.
(b) If upon further observation and investigation, the principal believes the student to be under the influence of alcohol or a drug as provided above, he shall notify the proper authorities and the parents or guardian of a minor child and take such disciplinary action as he deems appropriate.
(c) Where a student is eighteen years of age or older, the principal shall take such disciplinary action as he deems appropriate or as may be required by law and these regulations.

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Bluebook (online)
518 So. 2d 1331, 13 Fla. L. Weekly 48, 1987 Fla. App. LEXIS 11692, 1987 WL 3026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-v-sch-bd-of-indian-river-cty-fladistctapp-1987.