The Issue The issue in this case is whether Petitioner may terminate the continuing teaching contract of Respondent on the grounds that she has been guilty of misconduct in office, immorality, breach of contract, and other just causes for dismissal. Petitioner alleges that Respondent had in her possession two pipes for the purpose of smoking marijuana.
Findings Of Fact Respondent is a 37 year-old second-grade teacher. She has continuing contract status. She has taught continuously for 10 years in the Osceola County School District, until she was suspended in early January, 1992, as a result of the subject incident. At the time of her suspension, she was completing her third year at Ventura Elementary School, which has only been open for three years. She taught the prior five years at Boggy Creek Elementary School. Respondent has always had good relations with principals, fellow teachers, and parents. Her students stand out when they enter third grade. Respondent has a unique ability to maintain rapport and control in the classroom. She is an enthusiastic teacher who invests considerable energy in teaching. Respondent has enjoyed excellent evaluations. The most revealing indicator of her exceptional value as a teacher rests in the fact that other teachers with children entering second grade select Respondent much more frequently than they select the other second-grade teachers. Respondent has consistently produced students better prepared than their counterparts to meet the academic and social demands of third grade. Since being divorced several years ago, the center of Respondent's life has been teaching. About a year prior to the subject incident, Respondent met Richard Kenny. Mr. Kenny, who apparently lives out of town, shares Respondent's residence when he visits. On December 20, 1991, Mr. Kenny and Respondent invited four casual acquaintances over to Respondent's home for a barbecue. Respondent invited her guests to make themselves at home. At some point after the party began, Respondent and Mr. Kenny re-entered the house. Respondent smelled burning marijuana and, although she saw no one smoking it, immediately informed her guests that she would not tolerate the consumption of marijuana in her home. Offended, the guests left. The following day, Respondent and Mr. Kenny were cleaning the house. Winter break had already begun, and they were planning to drive to New Hampshire to visit Mr. Kenny's family. In the course of cleaning the living room, Respondent found two marijuana pipes that had been left by her guests the prior day. There was no more than trace amounts of marijuana residue in the pipes so, without considerable thought, Respondent took them into her bedroom and placed them on the dresser. It is unclear what Respondent intended to do with the pipes. Her focus at the moment was on completing a hurried housecleaning, so she and Mr. Kenny could get on the road and begin their vacation. She typically placed in her bedroom all misplaced items found during housecleaning. On the evening of December 21, Respondent and Mr. Kenny went out to eat. When they returned, Respondent changed and went to the utility room to turn on the water heater, which she turned off when unneeded in order to save money. She noticed that a window had been broken in the utility room in an apparent attempt to burglarize her home. Respondent called the police. A female sheriff's deputy arrived about five minutes before a male deputy arrived on the scene. The deputies, who are young and inexperienced, remained on the scene together. The male deputy arrived while Respondent was showing the female deputy the utility room, which was at the other end of the house from Respondent's bedroom. Because the house was in the male deputy's territory, he assumed the primary responsibility of investigating and filling out the police report. The male deputy and Mr. Kenny sat down in the living room to fill out the police report. Respondent went back to her bedroom to find a sweater and a lighter in order to smoke a cigarette. Unknown to her, the female deputy had followed her. Standing in the doorway, the deputy saw one of the pipes on the dresser. Returning to the living room, the deputies conferred momentarily about the pipes. The female deputy returned to the bedroom, seized the pipes, brought them out to the living room, and confronted Respondent with them. Respondent initially denied ownership of the pipes. In the course of questioning, Respondent became emotionally upset and, defying the instructions of the deputies, kept walking back into her bedroom. Exasperated, the male deputy, who is 21 years old and had been in law enforcement less than one year, handcuffed Respondent. He and possibly the female deputy expressed a concern, unfounded as it turned out, that Respondent might be returning to her bedroom to destroy evidence. Neither deputy could give credible testimony as to when Respondent was given her Miranda rights. In fact, she was advised of her rights as the handcuffs were applied. The details are unclear as to how an investigation of a house burglary transformed into the arrest of the homeowner without any criminal record for possession of drug paraphernalia in the form of two empty pipes (except for residue) commonly available in the Central Florida area. At some point prior to being handcuffed, Respondent "admitted" that the pipes were hers. But the admission was induced by what can be characterized as nothing less than a fraudulent inducement on the part of one or both deputes, who assured Respondent that if she admitted to ownership of the pipes, nothing would happen. Numerous material inconsistencies exist between the stories of the two deputies. Based on all of the circumstances, the State Attorney's office agreed that Respondent could enter a pretrial diversion program designed to leave Respondent without a criminal record. After being booked and obtaining release on bail, Respondent returned home in the early morning hours of December 22. She and Mr. Kenny proceeded to leave town on their trip. When she returned, Respondent learned that Petitioner had been advised of her arrest. On the second day of school following Winter break (car trouble had delayed Respondent's return by one day), Petitioner informed Respondent that she was suspended without pay due to the incident. Considerable evidence was produced at the hearing concerning a teacher's effectiveness following two versions of the subject facts. The first version is that Respondent possessed the pipes without any intent to smoke marijuana. This is the version adopted in the present case in which one or more guests had, without permission, lighted the pipes to consume marijuana, had been told to leave, and had left the pipes. There was no evidence that such innocent possession of the pipes, together with a subsequent arrest, would impair Respondent's effectiveness as a teacher, constitute immorality, jeopardize the welfare of Respondent's students, or establish other grounds for the cancellation of Respondent's contract. The second version is that Respondent possessed the pipes with an intent to smoke marijuana. Petitioner has failed to establish such guilty possession. Even if Respondent had been guilty of possession of the two pipes with an intent to smoke marijuana, Petitioner has failed to establish, absent any evidence suggesting that this would have been more than an isolated incident, that Respondent's effectiveness as a teacher would be impaired, the welfare of her students would be compromised, or that prevailing community standards of morality would be violated. Petitioner has undertaken considerable efforts at eradicating drug abuse among students. Justifiably concerned that the subject incident could undermine these critically important efforts, Petitioner prudently decided to initiate a process that would trigger an administrative factfinding process in which both sides could present evidence for impartial consideration under principles of law. Not surprisingly, there is no uniformity of opinion as to Respondent's fitness as a teacher had been she been proved to have had guilty possession of the two pipes in an isolated incident. However, several critical facts emerge. First, Respondent is an outstanding teacher. There is no evidence that any aspect of her personal life has ever had an adverse bearing on her ability to teach. Second, Respondent's effectiveness as a teacher would be unaffected, even if Respondent were found guilty of possession of the two pipes with an intent to smoke marijuana in an isolated incident. Respondent has for many years maintained firm control of her classroom. There is no evidence that her effectiveness in this regard, especially given the tender age of her students, would be impaired if she were to return to the classroom, even after having been found guilty of possessing the pipes with an intent to smoke marijuana. The majority of parents and fellow teachers would not be troubled by Respondent's return to the classroom even if she had possessed the pipes with an intent to smoke marijuana in an isolated incident. To the contrary, with the exception of managerial-level school administrators, the evidence suggests that all components of the relevant community would want Respondent to be able to bring her considerable talents back to the classroom even if she had been guilty of possessing the pipes with an intent to smoke marijuana in an isolated incident. The willingness of the parents and teachers to receive Respondent back in the classroom, even if she had been proved guilty of wrongful possession of the pipes in an isolated incident, is based in part upon the recognition of her unique talents working with students. The opinions of many teachers and parents are informed by a willingness to tolerate a considerable separation between a teacher's private and public lives. These persons focus on the work of the person rather than aspects of her personality or personal life when these latter factors do not impact her teaching. Parents and teachers offered a variety of explanations as to why Respondent should be allowed to return to the classroom, even if she were guilty of wrongful possession of the pipes. The most articulate explanation was offered by Elizabeth Williams, who had a daughter in Respondent's class during the 1991-92 schoolyear. She also has another daughter who will be in second grade in the 1993-94 schoolyear. Explaining why Ms. Williams would want her younger daughter to be taught by Respondent, even if she were guilty of wrongful possession of the pipes in an isolated incident, Ms. Williams first described her older daughter's reaction when Respondent was abruptly suspended in January. The daughter told her mother that she wanted to quit going to school. As a mother residing in the neighborhood served by Ventura Elementary School and a teacher at Ventura, Ms. Williams explained that second graders, unlike older students, are not thinking about drugs. Ms. Williams' attitude toward Respondent's return to the classroom, even if Respondent had possessed the pipes with an intent to smoke marijuana in an isolated incident, reflects conservative values prevalent in the community. Describing herself as a member of a conservative Christian denomination, Ms. Williams, while rejecting a repetitive cycle of sinning followed by repentance, emphasizes the importance of forgiveness in an isolated incident. Expressing this core aspect of the community's moral code, Ms. Williams testified that she would welcome Respondent back to the classroom and send her younger daughter to Respondent's class as long as there was no evidence that the guilty possession was other than an isolated incident. The core community value of forgiveness was recently embraced by the administration in connection with a principal of another school in the district. He was arrested for driving under the influence of alcohol. Unlike Respondent, the principal was convicted of the offense. Petitioner decided in his case to impose a two-week suspension without pay and other relatively minor sanctions. In part, the attitude of the administration, which is an important community with which Respondent must interact in order to be an effective teacher, appears to have been based on a misreading of the attitudes of other members of relevant communities, such as teachers and parents. For example, one representative of Petitioner identified several teachers by name as opponents to Respondent's return to the classroom. But when these persons were called as witnesses, they testified differently. In any event, there is no evidence that Respondent would have trouble working with any member of the administration if she were not found guilty of wrongful possession of the pipes. Even under the guilty-possession scenario, the weight of the evidence is that the administration is properly mindful of the vital need to protect students from the scourge of drug abuse, the support for Respondent from the parent and teaching communities, and the importance of maintaining exceptional teachers. After weighing these factors, even under the wrongful- possession hypothetical scenario, the evidence is that the administration would continue to work professionally with Respondent, despite in an isolated incident, as it has with the principal who was actually convicted of driving under the influence. Petitioner has failed to establish that Respondent was guilty of possession of the two pipes with an intent to smoke marijuana. The evidence shows that she came into possession of the pipes under innocent circumstances so that, notwithstanding her arrest, there is no question surrounding her moral fitness and effectiveness as a teacher or the welfare and safety of her students. Even if Petitioner had proved that Respondent possessed the pipes with an intent to smoke marijuana in an isolated incident, Petitioner failed to prove that, under the circumstances of this case, her contract should be terminated. Even under this scenario, the evidence fails to show that Respondent's effectiveness as a teacher would have been impaired, she would have been guilty of immoral behavior or moral turpitude, or that the safety, health, or welfare of her students would have been imperilled.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Osceola County enter a final order reinstating Lynn Epstein and awarding her full back pay for the time that she would normally have worked following her suspension. ENTERED this 27 day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Chris Colombo, Superintendent Osceola County School Board 817 Osceola Blvd. Kissimmee, FL 34744-4495 Andrew B. Thomas Rowland, Thomas & Jacobs, P.A. 1786 N. Mills Ave. Orlando, FL 32803 Joseph Egan, Jr. Egan, Lev & Siwica, P.A. P.O. Box 2231 Orlando, FL 32802 ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27 day of July, 1992.
The Issue The issue is whether Respondent has failed to maintain good moral character, as required by Sections 943.13(7) and 943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 20, 2000, and issued him certificate 193831. From March 6, 2000, to March 13, 2002, Respondent was employed as a corrections deputy by the Broward County Sheriff's Office. On November 20, 2001, Respondent was ordered to report to the Sunshine Medical Center and submit to a command-referred drug test. The medical review officer at the Sunshine Medical Center was Dr. Alan Roberts, who had received extensive training in the identification of drugs in employees. Respondent submitted a urine sample for testing. Personnel at the Sunshine Medical Center complied with all applicable policies regarding the collection, storage, transporting, and testing of urine, as well as the reporting of results. The procedure of Sunshine Medical Center is to split samples and retain one of them, so that a test subject may later request retesting of the sample, if the split sample sent to the testing laboratory has produced a positive result. At the testing laboratory, American Medical Laboratories, Respondent's urine tested positive for marijuana metabolites--i.e., THC--and benzodiazepines. Respondent had a prescription for Xanax, so the presence of benzodiazepines is irrelevant to this case. The test results for marijuana are at a level--170 nanograms--to preclude passive inhalation of marijuana. The initial screening by an immunoassay test was followed by gas chromatography/mass spectrometry, which is more accurate and quantifiable. This level of marijuana metabolites is inconsistent with ingestion by way of food. A positive reading would result for 30 days after consumption, if the subject is a regular user of marijuana, and three days after consumption, if the subject is a one-time user of marijuana. On November 29, 2001, Dr. Roberts contacted Respondent and informed him of the results. Respondent stated that he had a prescription for Xanax, but did not explain how the marijuana metabolite had appeared in his urine. Dr. Roberts offered to send the split specimen to the lab for testing, but Respondent said only that he would consider that option. Respondent never got back in touch with Dr. Roberts or Sunshine Medical Center and never otherwise indicated a desire that the split sample be tested. After not hearing back from Respondent regarding retesting, Sunshine Medical Center released the official results to the Broward County Sheriff's Office on December 6, 2001. When interviewed by personnel of the Broward County Sheriff's Office, Respondent offered no plausible explanation for the presence of marijuana metabolites in his urine. He provided sketchy details about a party at which he had eaten some chocolate cake that seemed stale, but could not provide the date of the party or any names of persons in attendance. Unless he were a regular user of marijuana, Respondent would have recalled more details about the party, including the approximate date, because it would have taken place just three days before the testing, if Respondent's consumption of marijuana at the party were a singular occurrence. Respondent's explanation of intoxication by beer, cold medication, and Xanax is insufficient to explain his total loss of memory concerning what should have been such a recent event. Under the circumstances, including obvious inferences, Respondent voluntarily consumed marijuana sufficiently close in time to the date of the drug test, which revealed the presence of marijuana metabolites in Respondent's urine.
Recommendation It is RECOMMENDED that the Criminal Justice Standards Commission enter a final order finding Respondent guilty of failing to maintain good moral character and revoking his correctional officer certificate. DONE AND ENTERED this 19th day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of November, 2003. COPIES FURNISHED: Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Laurie Beth Binder Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James M. Caruso 401 Northwest 103rd Avenue Apartment 252 South Pembroke Pines, Florida 33026
Findings Of Fact At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida. Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger. On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct. On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper. Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana. Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana. It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana. Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance. When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar. Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it. Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made. After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana. When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed. On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes. When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them. His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons. None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made. With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents. With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope. There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood. Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes. Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause. Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling. He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there. These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment. Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there. Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes. Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms. Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers their names nor does he ask them the stories of their lives. His credibility is not significant. Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of June 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Angus W. Harriett, Esquire 314 St. Johns Avenue Palatka, Florida 32077 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact On January 8, 1980, Johnny L. and Robert J. Mims held license No. 27-75 2COP for the Libra Lounge at 2409 Palafox Street in Pensacola, Florida. Larry Stevens, a beverage officer in petitioner's employ, visited the Libra Lounge in order to make a routine inspection. Accompanying him was James Loman, a deputy sheriff in the Escambia County Sheriff's Department. They arrived about half past one o'clock on the afternoon of January 8, 1980, and found the door standing open. Inside, Carlos Roncelli Mims was standing behind the bar. Carlos Roncelli Mims had spent the night of January 7, 1980, at the lounge, and had been there when Johnny L. Mims closed the place up. Also on the premises were a man and woman drinking beer, who left when Officer Stevens and Deputy Loman began questioning Carlos. Officer Stevens asked for the owner or manager and Carlos Roncelli Mims telephoned Robert Mims, who arrived about 15 minutes later. In the interim, Officer Stevens inspected the premises, and discovered a shallow cardboard box to the left of the cash register. The box was open and in plain sight. It was accessible to someone working the bar but was not accessible to the public. In the box was a clear bag of what appeared to be marijuana, a number of black capsules, and a folded piece of tinfoil, containing some white powder. In a separate room housing the pool table, there was a marijuana cigarette butt. Carlos was arrested for possession of narcotics. When Carlos left the premises, he took money with him. Later, a chemist analyzed the apparent marijuana and confirmed that the substance was cannabis. He also analyzed the contents of the foil packet and established that the powder was a small quantity of phencyclidine. Carlos Roncelli Mims, a nephew of the respondents, was born on March 5, 1962. He is employed by the Pensacola Port Authority. He had his uncles' permission to sleep on the premises of the Libra Lounge, in exchange for cleaning up and doing other chores. Carlos was never paid any money for this work. He was authorized to call the police if somebody should break in. His uncles did not authorize him to open the business himself at any time, nor was he authorized to serve beverages or handle money.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondents' license in the amount of One Hundred Dollars ($100). DONE AND ENTERED this 2d day of October, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Johnny L. and Robert J. Mims t/a Libra Lounge 2409 Palafox Street Pensacola, Florida 32501 James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301
The Issue At issue herein is whether or not the Respondent, Lucille Marie Royce, is guilty of alleged illegal possession of Marijuana, Librium and Darvocet capsules as alleged by the Petitioner's Administrative Complaint dated May 14, 1979, charging that the Respondent, on or about October 20, 1978, was arrested at her home by officers of the Santa Rosa County Sheriff's Department and found to be in illegal possession of Marijuana and the above-mentioned controlled substances, in violation of Subsection 464.21(d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. On October 20, 1978, officers of the Sheriff's Office of Santa Rosa County, Florida visited the Respondent's premises in Santa Rosa County and, pursuant to an authorization to search her (Respondent's) premises, found and seized approximately sixteen items as reflected on Petitioner's Exhibit 14, which is an inventory of items received from Respondent's residence on October 20, 1978. Among these items were Marijuana, three Darvocet 100 tablets and one Librium tablet. The Respondent was placed under arrest; however, the charges of possession of paraphernalia and possession of controlled substances wore nolle prossequi. 2/ Rosa Lee Wier, a Deputy Sheriff of Santa Rosa County, testified that she received a call on or about October 20, 1978, to the effect that there were Marijuana plants growing on the outside of Respondent's residence. Deputy Weir visited Respondent's neighborhood and observed what appeared to be Marijuana plants growing in the front and side of Respondent's residence. Deputy Weir returned to the Sheriff's Office and received assistance from two other deputies who returned to the scene and inquired of Respondent the reason the "flowers" were growing in her front yard. Respondent credibly testified that she did not know what kind of "flowers" there were growing in her front yard but that she suspected that they were Marijuana plants which had been planted by Navy student pilots who were living in the apartment building next door. Following the deputies' discovery that the plants were in fact Marijuana plants, they requested, and obtained, a voluntary search release from Respondent to search her premises for other controlled drugs. Based on the ensuing search, several packets of Marijuana, three Darvocet 100 tablets and one Librium tablet were found. The Respondent is a Registered Nurse and has been since 1977. She has been a Licensed Practical Nurse since 1966. Prior to the subject incident, she has not been involved in any disciplinary actions by the Petitioner. Respondent, since 1977, was employed as a Charge Nurse in the Emergency Room at Santa Rosa Hospital. Respondent's supervisor on the three to eleven shift, Leilanim Fobtanilla, testified that Respondent was a good nurse who renders good health care. In this regard, character letters are introduced reflecting the fact that the Respondent is a person of unquestionable character. (Respondent's Exhibits 1 and 2.) Respondent's supervisor testified that it was not unusual for nurses to withdraw medications intended for patients and and up taking such medications home when patients refuse to take it. According to Ms. Fobtanilla, this situation usually occur when patients refuse to take prescribed medication and the nurse, being busy, forgets to return the medication to the medication drawer. (TR 40-42.) In this regard, Respondent testified that this exact situation occurred to her on October 19, 1978, when she withdrew three Darvocet 100 tablets and one Librium capsule which had been prescribed for a patient who refused to take the medication. Respondent testified that she put the medication in her uniform because she would never leave medication lying around in the Emergency Room due to the large number of patients milling around therein. Respondent took the medication home and while changing clothes, noted that she bad taken the medication home. She put the medication in her purse to return it to the hospital the following day. In this regard, Respondent's testimony was credible and was not attached by Petitioner's counsel. Respondent testified that she inherited the residence at which she is now living from a former patient for whom she had served as a private duty nurse, Elton E. Nichols. Respondent testified that Mr. Nichols and she became lovers while she was caring for him as a private duty nurse. Mr. Nichols died of cancer on September 12, 1978, and willed the property to Respondent based on their relationship. Respondent testified credibly that she underwent a period of grief following Mr. Nichols' demise and that it was months before she could pull herself together to try to rid herself of his personal effects. It was noted that the subject incident occurred on October 20, 1978, which, of course, is approximately five weeks subsequent to Mr. Nichols' death. Additionally, Respondent credibly testified that she has a metabolic disease which prevents her from taking drugs, even for a cold. She testified that she has no use for drugs and per instructions from her physicians, cannot take any narcotics. Respondent testified that she has never used drugs nor has she sold them. In these circumstances, it is the undersigned's considered opinion that the above facts do not warrant disciplinary action as contemplated by Subsection 464.21(1)(d), Florida Statutes, and I shall, therefore, recommend that the Administrative Complaint filed herein be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. RECOMMENDED this 31st day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1983.
The Issue The issues to be decided are whether Respondent violated sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Findings of Fact below are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a licensed medical doctor holding DOH license number ACN 244. Respondent holds a temporary certification to practice medicine only in areas of critical need (ACN) approved pursuant to section 458.315. Respondent is the owner of and only physician practicing at Gulf Coast Holistic and Primary Care, Inc., a Department- approved ACN facility. Her current primary practice address is 219 Forest Park Circle, Panama City, Florida 32405. Medical Marijuana Regulation in Florida As a preliminary matter, this case is not about the wisdom of the policy decision to allow patients access to medical marijuana in the State of Florida, the efficacy of its use, or the nature of the regulatory scheme to implement the medical marijuana program. Rather, this case involves Respondent’s actions in ordering medical marijuana and whether those actions comported with Florida law as it existed at the time. Generally, at all times relevant to these proceedings, cannabis or marijuana was a Schedule I controlled substance pursuant to section 893.03(1)(c)7., Florida Statutes, meaning that it is a drug with a high potential for abuse and had no accepted medical use in treatment of patients. In 2014, the Florida Legislature created section 381.986, Florida Statutes (2014), which legalized the use of low-THC cannabis for medical use under limited and strictly regulated circumstances. In sum, low-THC cannabis would be available to patients suffering from cancer or a medical condition causing seizures or persistent muscle spasms that would benefit from the administration of low-THC cannabis. The 2014 version of the law is sometimes referred to as “Charlotte’s Web.” Section 381.986(2) contained the requirements that a physician had to meet to be qualified to order low-THC cannabis for his or her patients. A physician had to take an eight-hour course provided by the Florida Medical Association (FMA); register as the ordering physician in the compassionate use registry; and document the dose, route of administration, and planned duration of use by the patient. A physician also had to submit a treatment plan for the patient to the University of Florida. Further, registered physicians could only order low-THC cannabis for Florida residents. In 2016, the Florida Legislature amended section 381.986, effective March 2016, to include use of full-THC medical cannabis, sometimes referred to as medical marijuana, for terminal conditions. In November 2016, Amendment 2 passed, which created Article X, section 29 of the Florida Constitution, providing for the production, possession, and use of medical marijuana in Florida. During the 2017 Special Session, section 381.986 was amended to implement Amendment 2. Ch. 17-232, §§ 1, 3, 18, Laws of Fla. None of the amendments, which were passed in 2016 and 2017, were in place during the period relevant to this case. The first course offered by the FMA pursuant to section 381.986 was available on November 4, 2014. The substance of the course covered the requirements of section 381.986 and the lawful ordering of low-THC cannabis. The Office of Compassionate Use within the Department first allowed physicians to register as ordering physicians on July 1, 2016. On September 8, 2015, Respondent sent an email from her DOH email address to her personal email address with a hyperlink to the FMA course. Instead of taking the course at that time, which she knew to be the required course for ordering low-THC cannabis, Respondent instead took a free online course from an entity called NetCE, entitled “Medical Marijuana and Other Cannabinoids.” Respondent did not complete the required FMA course until August 25, 2016. She is presently an authorized ordering physician. Respondent’s Care and Treatment of R.S. Patient R.S. is a 66-year-old retired physician assistant, who resides in Minnesota. R.S. practiced as a physician assistant for approximately 40 years in Minnesota. For about four years, R.S. spent his winters in the Panama City area. R.S. suffers from a variety of medical conditions, including Stage IV metastatic renal cell carcinoma. When R.S. first presented to Respondent the fall of 2015, he had stopped all treatments for his cancer because he could not tolerate the chemotherapies or the immunotherapy prescribed for him. While wintering in Panama City, R.S. took his dog to a dog park and got to know some people who went there regularly. When some of those people learned that he had metastatic cancer, one person asked him if he had tried medical marijuana, and he told her that it was not then legal in Minnesota. R.S. was told that Dr. Skidmore could provide legal medical marijuana to him. At the time that R.S. presented to Respondent for treatment, it was not lawful to order, prescribe, or dispense medical marijuana in the State of Florida. R.S. called Respondent’s office to obtain an appointment. At the time of his call, he told the receptionist that he had heard Respondent could give him a prescription for medical marijuana. R.S. knew his cancer was incurable, but given his inability to tolerate conventional treatment, he was hoping that the medical marijuana might help reduce the size of his tumors and lengthen his life. R.S. first presented to Respondent on September 28, 2015. He provided to Respondent medical records from his local oncologist, which confirmed his diagnosis of terminal cancer, and contained his most recent laboratory results. Respondent took R.S.’s blood pressure and pulse, and most likely checked his respiration. She listened to his heart and chest with a stethoscope. She did not perform a review of systems, which is review of the patient from the head working down through the different systems of the body. As a physician assistant, R.S. was familiar with the components of a review of systems, and described them in detail at hearing. He testified that Respondent did not check his eyes, feel his lymph nodes, palpate his abdomen, or check his reflexes. R.S. testified that Respondent did not ask him about any history of depression, did not ask him to provide any additional medical records, and did not tell him she wanted to see more lab work than what he had provided to her. R.S. believes that Respondent may have mentioned meditation, which he was already doing, but did not recommend yoga, essential oils, or any modifications in his diet. Had she suggested them, he would have tried them. His testimony is credited. She also did not attempt to place Respondent in a federally-approved experimental marijuana therapy program. Respondent testified and her medical records indicate that she ordered labs for R.S. R.S. testified that no labs were ordered. The medical records indicate that labs were ordered, but do not indicate what tests were actually ordered, an omission that she blamed on her medical assistant. She testified in deposition that she ordered a lipid panel, Vitamin D panel, thyroid panel, and urine panel. The lab tests that R.S. provided to her from his oncologist contained none of these. R.S. never had the tests Respondent claims she ordered because Respondent never actually ordered them. The one treatment that Respondent performed was a form of acupuncture at this first visit. R.S. paid $140 in cash for his first visit to Respondent. R.S. was a cash-pay patient because medical marijuana was not a benefit under his existing insurance plan. Respondent advised R.S. that he would need to be seen three times over a 90-day period in order to obtain medical marijuana. R.S. returned to Respondent on October 19, 2015. R.S. paid $90 for this visit. As with the first visit, Respondent performed only a very limited physical examination, taking his blood pressure, pulse, respiration, and listening to his chest. While the electronic medical records for this visit indicate that labs were pending, none were actually ordered. Despite not having any lab results, the records state “will recommend medicinal marijuana after receiving previous records.” R.S.’s third visit was January 15, 2016. As with the previous visits, Respondent performed only a perfunctory examination, and the charge for this visit was $90. At this third visit, Respondent told R.S. that he had complied with the requirements in Florida to be seen for 90 days, and that she would send in her assistant with the paperwork R.S. would need to obtain medical marijuana from a dispensary in Pensacola. Respondent did not advise R.S. that medical marijuana, as described in the certificate, was not lawful in Florida at that time, and that he could be arrested if he purchased it in Florida. She did not advise him that he was ineligible for low-THC cannabis when it became available because he was not a resident of Florida. Respondent did not discuss the risks and benefits of medical marijuana. Respondent then provided to R.S., through her receptionist/medical assistant Caitlyn Clark, a document that she referred to as a “certificate” or a “recommendation.” The certificate, discussed in more detail below, appears to be a prescription for medical marijuana. It was not for low-THC cannabis. As R.S. described the document, it looked like a prescription to him, just not on a prescription pad. R.S. was required to pay $250 for this certificate, which was in addition to the visit fee of $90. Respondent provided this certificate despite the fact that, according to her records, R.S. had not completed the labs she claimed to have ordered for him, and did not comply with any recommendations for modification of his diet, or use of essential oils, yoga, or meditation. His electronic medical record for this visit included a plan of “1000 mg of canabis [sic] extract oil daily.” In addition to the certificate, R.S. received from Ms. Clark a flyer from an entity called Cannabis Therapy Solutions, with the names of Joe and Sonja Salmons and their telephone numbers. While R.S. received the flyer from Ms. Clark, copies of the flyers were also available on the tables in the reception area of the office. R.S. believed, based on the information given to him from Respondent and Ms. Clark, that he was being referred to Cannabis Therapy Solutions to obtain the medical marijuana, which he believed was prescribed for him through the use of the certificate. R.S. called the numbers on the flyer and was unable to reach anyone. One number was disconnected, and the messages he left on the other number were never returned. When R.S. was unable to reach the Salmons at the numbers listed on the flyer he received at Respondent’s office, he did some research on the Internet. Through this research, he learned for the first time that medical marijuana could not yet be obtained legally in Florida. R.S. felt that he had been “taken” by Respondent, and wanted to get his money back. R.S. returned to Respondent’s office in February 2016, and demanded a refund of the money he had paid. He told Respondent that he was unable to reach the Salmons, and had learned that medical marijuana was not yet legally available in Florida. Respondent told him that she was only trying to help him. She also tried to contact the Salmons, and was unsuccessful in doing so. Respondent’s staff initially offered to refund the $250 R.S. had paid for the certificate, but only if he returned it. R.S. refused to do so, and stated that it was his only proof to present to the Florida Board of Medicine. R.S. admitted at hearing that he was angry and loud when he visited the office to demand his money. He was intentionally loud because he wanted the patients in the waiting area to hear what was going on. While he was loud, he was not violent, and Ms. Clark testified that she did not feel threatened by him. It was only after he stated that Respondent would have to deal with the state licensing board that he was refunded all of the money he had paid to Respondent’s office. R.S. became a participant in the medical marijuana program eventually authorized in his home state of Minnesota. It has not provided the results for which he was hoping, in that his tumors have increased in size and number. “The Certificate” The certificate that Respondent issued to R.S. was on 8 1/2 by 11 inch paper. It was printed on security paper, meaning that when copied, the document is reproduced with the word “void” printed all over it. The document had Respondent’s office name, address, and telephone and fax numbers at the top, along with Respondent’s name, DEA number, and Florida medical license number. It lists R.S.’s name, patient number, and address, along with the date the document was issued to him. At the bottom of the document, there is a blank to fill in how many refills are allowed, and a statement “to insure brand name dispensing, prescriber must write medically necessary on the prescription.” Immediately below the patient name and address, the document reads: RX Allowed Quantity: 1-2 gm/d THCa-THC: CBD concentration in ratio of 1:1 or 1:2 via oral ingestion or vaporization, include plant vaporization. Max allowance 2 gm/d In the center of the document is the following statement: I certify that I have personally examined the above named Patient, and have confirmed that they [sic] are currently suffering from a previously diagnosed medical condition. I have reviewed the patient’s medical history and previously tried medication(s) and/or treatment(s). Based on this review, I feel cannabis is medically necessary for the safety and well- being of this patient. Under Florida law, the medical use of cannabis is permissible provided that it’s [sic] use is medically necessary. See Jenks v. State, 566 So. 2d (1St DCA 1991). In making my recommendation, I followed standardized best practices and certify that there exists competent and sound peer-reviews [sic] scientific evidence to support my opinion that there exists no safer alternative than cannabis to treat the patient’s medical condition(s). In addition, I have advised the patient about the risks and benefits of the medical use of cannabis, before authorizing them [sic] to engage in the medical use of cannabis. This patient hereby gives permission for representatives of GreenLife Medical Systems to discuss the nature if [sic] their [sic] condition(s) and the information contained within this document for verification purposes. This is a non-transferable document. This document is the property of the physician indicated on this document and be [sic] revoked at any time without notice. Void after expiration, if altered or misused. The certificate that R.S. received was signed by both Respondent and R.S. The copy the Department obtained from Respondent is not signed. Respondent testified that she did not want the references to prescriptions to be on the certificates, but was told by the printer she used that the only security paper available was preprinted with that information. This claim is not credible. Much of what is contained on the document is preprinted. Had Respondent objected to the use of the word “prescription” on the document, she could have directed that the references to it be redacted or blacked out. She did not do so. Respondent testified that she issued only three of these certificates, which she referred to as “recommendations.”1/ Ms. Clark, testified that during her employment from May 2015 to April 2016, about 15 certificates were distributed to patients. Ms. Clark testified that the certificates were kept in a folder separate from the patient’s medical records. When Respondent directed that a patient was to receive a certificate, Ms. Clark would type in the patient’s name, patient ID, address and the date issued. She would print it out, making no changes to the allowed quantity, maximum allowance, or any other language in the certificate. Ms. Clark’s testimony is credited. The certificate given to R.S. does not indicate that R.S. would receive medical marijuana by extract oil, as noted in Respondent’s medical records for R.S. nor does it include a route of administration or planned duration for the substance prescribed. The markings and appearance of the certificate are consistent with what a reasonable person would expect to see on a prescription. Here, R.S. did not expect that it would be filled by a pharmacy. Instead, R.S. expected that it would be filled at a dispensary authorized to dispense medical marijuana. At that time, no such dispensary existed. The certificate was given to R.S. simultaneously with the flyer for Cannabis Therapy Solutions. In her deposition, Respondent stated that Joe and Sonja Salmons came to her office and said that they were able to grow a medical grade cannabis with CBD, as well as a concentrated oil, and that they were located in Pensacola. From the more persuasive evidence presented it is found that the coupling of the certificate with the flyer for Cannabis Therapy Solutions was intentional. Respondent only stopped providing certificates to patients when she learned that they could no longer obtain marijuana from the Pensacola dispensary. It is also found that the certificate provided to R.S. and described above is a prescription. DOH’s Complaint and Investigation While Respondent returned all of R.S.’s money, he nonetheless felt that Respondent’s actions were fraudulent. On February 24, 2016, R.S. filed a complaint with the Department, and provided a copy of the certificate he received, as well as a copy of the flyer from Cannabis Therapy Solutions. As a part of its investigation, the Department requested that R.S. provide a copy of his medical records from Respondent. R.S. wrote back, advising that when he requested his records in March 2016, Ms. Clark provided him with the clinical records he had brought with him from his oncologist on his first visit, and advised him that Respondent did not do patient care records on cash-pay patients. At hearing, Ms. Clark testified that Respondent uses electronic medical records for insurance patients and handwritten records for cash-paying patients. To her knowledge, cash-paying patients never had electronic medical records. Respondent’s Medical Records for R.S. On April 11, 2016, the Department issued a subpoena to Respondent, requesting all medical records for R.S. for a stated time period. Respondent received the subpoena on April 13, 2016. The records that Respondent supplied in response to the Department’s subpoena include forms filled out by R.S., prior medical records from R.S.’s oncologist, and electronic medical records from Respondent’s office. Curiously, the office note for R.S.’s visit September 28, 2015, visit is electronically signed by Respondent on April 18, 2016. The record for the October 19, 2015, visit is electronically signed April 19, 2016, and the record for the January 15, 2016, visit is electronically signed by Respondent on April 19, 2016. Also included with the medical records provided to the Department is an “addendum” that references an encounter date of January 15, 2016. In the body of the note, Respondent references R.S.’s visit to the office on February 17, 2016, when he demanded a refund of his money. Respondent described R.S. as having a “violent attitude,” and noted that he was asked to return the “recommendation” and refused to do so. This note was electronically entered on April 19, 2016, and, similar to the other medical records from Respondent’s office, electronically signed April 20, 2016, within a week after receiving the subpoena from the Department and months after R.S.’s last visit to the practice. Respondent is not charged with falsifying medical records. However, the evidence related to the electronic medical records is relevant in assessing Respondent’s credibility with respect to her claims that she completed a full examination of R.S., ordered labs for him, and made several recommendations for alternative treatments that she claims he failed to follow. It is found that Respondent did not complete a full examination for Respondent; did not complete a review of systems; did not order labs for him to complete; did not recommend the alternative treatments, such as yoga, essential oils, or meditation; and did not recommend that he modify his diet. The Advice upon Which Respondent Allegedly Relied The certificate that Respondent provided to R.S., as well as other patients, included a partial citation to Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991). Jenks stands for the premise that the common law defense of medical necessity is still recognized in Florida with respect to criminal prosecutions for possession and use of marijuana where the following elements are established: 1) that the defendant did not intentionally bring about the circumstances which precipitated the unlawful act; 2) that the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and 3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. 582 So. 2d at 679. Respondent relies on the medical necessity defense as justification for her issuance of the certificates, such as the one R.S. received. However, the genesis of her reliance on this defense remains a mystery. In Respondent’s written response to the Department’s investigation, she does not mention seeking the advice of counsel. Instead, she stated: As soon as I open [sic] my practice, I had a visit from a company in Pensacola, that showed me some documents about the medical necessity regulation for medical marijuana and how it was helping so many patients with cancer. One of my patients with cancer, said he was going to wait until it gets legalized and died waiting. The second patient requested the recommendation, and is in remission as we speak. At hearing, however, Respondent testified that she relied on the advice that she received from her lawyer, Billy-Joe Hoot Crawford, about the applicability of the medical necessity defense. Mr. Crawford is a criminal defense lawyer in the Panama City area. His experience in representing individuals in the professional license regulatory area is scant, by his own admission. Both Respondent and Mr. Crawford testified that they met when attending a meeting of people who were working on medical marijuana issues. Both testified that Mr. Crawford provided some advice to Respondent regarding the medical necessity defense. Both testified that Respondent did not pay for the advice. From there, however, their testimony diverges. Mr. Crawford testified that he could not remember the names of the people who attended the meetings, other than Dr. Skidmore. Despite his inability to remember their names, he believed that the group had people in each field necessary to “set up business” should medical marijuana become legal. He believed that there were a couple of meetings before Respondent attended one, but once she did, he met with her in conjunction with the meetings. Mr. Crawford testified that he met with Respondent approximately a dozen times. He said that their discussions were most likely after the meetings, because to discuss issues related to her patients in front of others would not be appropriate. Respondent testified that she met with Mr. Crawford once at a meeting of people discussing the legalization of marijuana, and that he gave her advice in the meeting itself. Her ex-husband also spoke to him on the phone once, to ask for some clarification regarding his advice. Mr. Crawford also testified that he traveled to Orlando to speak to a physician (unnamed), who was recommending marijuana to her patients, and got a copy of what she was using to bring back and provide to Respondent. Respondent testified that she wrote down “word for word” what he had told her that she needed to include in the recommendation and soon thereafter stated that he gave her a sample to use that was not on security paper. Respondent claims that the reference to GreenLife Medical Systems (GreenLife) was on the sample she received from Mr. Crawford, and that she did not know what GreenLife was. Mr. Crawford testified that while he knew about GreenLife before giving Respondent advice, he did not have a reference to GreenLife on the recommendation he provided. Most importantly, Mr. Crawford testified that he advised Respondent that she needed to tell her patients that they could be arrested if they were caught with medical marijuana and that he fully expected them to be. He also advised her that if any of her patients were arrested for possessing marijuana pursuant to her recommendation, then he would represent them for free. Respondent, however, did not remember the conversation that way. She stated, “in my mind, I remember he said, if, not when. ‘If’ was if they get in trouble, we give them free legal help.” She did not advise R.S. that he could be arrested, and when asked at hearing whether it concerned her that her patients might be arrested from what she was doing, her response was, “Yes. But life goes first in my priority algorithm.” She repeated this theme, saying, “my algorithm of priority, health and life go on top. On top of money. I’m sorry, but on top of law.” Indeed, she confessed that she did not read all of the Jenks case, because she found it boring. What is clear from the evidence is that, while Mr. Crawford provided some advice to Respondent regarding the medical necessity defense, he did not provide any advice concerning the impact her actions could have on her license to practice medicine. Equally clear is that Respondent did not seek that advice.2/ Respondent’s contention that she accepted Mr. Crawford’s advice without question and did not concern herself with the technicalities is not credible. At deposition, Respondent was questioned about her blog posts, media interviews, and Facebook posts. What emerges from these documents and from her testimony is a woman who was quite aware of the status of medical marijuana, both in Florida and elsewhere. In fact, a blog she wrote in October 2014 details the requirements of the regulatory scheme for ordering low-THC marijuana. The blog includes the statement, “[a]ll physicians that plan to prescribe medical marijuana are required to keep strict documentation of all prescriptions and treatment plans and submit them quarterly to the University of Florida College of Pharmacy to maintain proper control.” The reality is that she knew the regulatory scheme to order medical marijuana, with all of its technicalities. She simply chose not to wait for the new law to be implemented. Assuming that Respondent truly believed that the medical necessity defense outlined in Jenks would protect her patients, she did not act to satisfy the three elements required for the defense. First, while the medical necessity defense might protect her patients if arrested, nothing in Jenks negates the regulatory scheme in chapters 456 and 458, or addresses a physician’s ability to prescribe medical marijuana. Second, the evidence indicated that R.S. did not follow through with the recommendations that Respondent claimed would benefit him before providing him with the prescription for medical marijuana. Under these circumstances, ordering medical marijuana would not be the last resort contemplated under Jenks. Most disturbing is the fact that a patient was required to pay $250 for a “recommendation” that the patient obtain a substance that could not be legally provided, with no assurance that he or she would receive anything to address their suffering. While Respondent claimed repeatedly that her goal was to help people, charging for this “recommendation” looks more like exploiting the hopes of those who are desperate for relief for Respondent’s financial gain, and providing nothing to actually ease her patients’ pain. Respondent’s Practice Address Respondent’s address of record, and primary practice address on file with the Department between August 11, 2014, and August 19, 2017, was 756 Harrison Avenue, Panama City, Florida 32401. Between June 2016 and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida 32405. The Department did not send a warning letter to Respondent regarding her address update. However, section 456.035 states that it is Respondent’s responsibility, not the Department’s, to ensure that her practice address on file with the Department is up-to-date. This is especially so where a physician’s eligibility to practice is predicated on practicing in an area designated as an ACN. Section 456.042 requires that practitioner profiles, which would include a physician’s practice location, must be updated within 15 days of the change. This requirement is specifically referenced in bold type on license renewal notices, including notices filled out by Respondent in 2012, 2014, and 2016, and included in her licensure file. On May 22, 2013, Respondent sought and received approval for Gulf Coast to be a designated ACN facility at 756 Harrison Avenue, in Panama City, Florida. On May 16, 2016, she sought and received approval for Gulf Coast to be a designated ACN facility at 105 Jazz Drive, also in Panama City. This approval however, is for the entity, not an individual licensee, and does not automatically update an individual licensee’s primary practice address. Between August 11, 2014, and August 19, 2017, Respondent’s address of record and primary practice address on file with the Department was 756 Harrison Avenue, Panama City, Florida 32401. Sometime between June and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida. Respondent did not update her practitioner profile with the practice address at 105 Jazz Drive. That address never appeared as her primary practice location in her practitioner profile. When Andre Moore, the Department investigator assigned to investigate R.S.’s complaint, went to interview Respondent, he went to her address of record, which was the Harrison Avenue address. When he arrived, he found a sign on the door stating that the practice had moved to 105 Jazz Drive. Mr. Moore went to the Jazz Drive location and interviewed Respondent there. At that time, Mr. Moore told Respondent that she needed to update her address. Normally, physicians can update their practice location address online using the Department’s web-based system. Physicians who hold an ACN license, however, must update their addresses in writing because verification that the new practice address qualifies as an ACN is required before an ACN can practice in the new location. All licensees, including Respondent, can update their mailing address online. Respondent had completed updates of her practice address before by sending a letter and a fax, so she was familiar with the process. The Department’s internal licensure database does not show any attempts made by Respondent between June and August 2016 to access the web-based system or otherwise update her practice address to 105 Jazz Drive. A search of the Department’s licensure information on Respondent, viewing every address change request, indicates that she did not update either her mailing address or her practice location address to list 105 Jazz Drive. On or about August 19, 2017, Respondent updated her mailing address online to 219 Forest Park Circle, Panama City, Florida 32405. The Department received a request from Respondent by mail on or about September 5, 2017, to update her practice location to the Forest Park Circle address. Respondent claims that she tried multiple times to update her address with no success, and when she called the Department, she was told by an unidentified male to just wait and update her address when she renewed her license. This claim is clearly contradicted by Florida law and by multiple notices for renewal that Respondent had received and returned previously. It is found that Respondent did not update her practice address as required with respect to the 105 Jazz Drive address.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015). It is further recommended that Respondent’s license be revoked. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of April, 2018.
The Issue Should discipline be imposed against Respondent's license as a limited surety agent for violation of Section 648.45(2)(a) (e), and (k), Florida Statutes (2006)?
Findings Of Fact On January 6, 2003, DFS issued Respondent a series 2-34 limited surety agent (bail bond) license. That license remains valid. On May 3, 2006, in State of Florida vs. Vincent Lamone Addison, in the Circuit Court, 14th Judicial Circuit of the State of Florida, in and for Gulf County, Case No. 06-0107CF, Respondent was charged by information with: Count I, Possession with intent to sell/deliver within 1000 feet of place of worship or convenience business; Count II, Possession of marijuana in excess of 20 grams, offenses contrary to Section 893.13, Florida Statutes (2005), third degree felonies. In the same information, in Count III, it was charged that he did obstruct (an) officer without violence, a violation of Section 843.02, Florida Statutes (2005), a first degree misdemeanor. On December 18, 2006, the assistant state attorney in Circuit Court Case No. 06-107CF, filed a Motion to Consolidate, asking that the Court enter an order consolidating the count for possession of a controlled substance with intent to deliver, with the count related to possession of more than 20 grams of marijuana. On December 19, 2006, in Circuit Court Case No. 06- 107CF, a Plea, Waiver and Consent was signed by Respondent as defendant in that case, attested by his counsel and the assistant state attorney, and found by the Circuit Court Judge to be a plea freely and voluntarily made and sworn to and subscribed before the court and approved and accepted by the court related to possession of marijuana, a third degree felony with a statutory maximum imprisonment of five years. The plea was made upon the agreement that the adjudication be withheld, with service of three-years' probation, to terminate after 18 months if all conditions were complete and no violations of the probation had occurred. In addition, by order of the Circuit Court Judge, certain charges/costs/fees were imposed in Circuit Court Case No. 06-107CF. When Respondent executed his Plea, Waiver and Consent in Circuit Court Case No. 06-107CF, it reflected that the charge of "Obstruct officer without violence" had been stricken by line and initials provided, by what appears to be the defense counsel and the assistant state attorney in the case. In Circuit Court Case No. 06-107CF, as reflected in an order by the Circuit Court Judge referring to those proceedings, entered December 19, 2006, upon his appearance before the Court with representation, it indicates a plea of nolo contendere was entered. It pertained to Count I. On the form order, it refers to "Sales/Del/Poss/cannis-w/in-100Ft. Church 893.13(1)(a) 3F." Under that reference is found "Poss. Marijuana in Excess 20 grs. 893.13(6)(a) 3F". The numbers refer to Section 893.13(1)(a) and (6)(a), Florida Statutes (2005), and "3F" refers to third degree felony. In this order it was reflected that the adjudication of guilt was withheld, and that the defendant received three-years' probation, to terminate after 18 months upon satisfaction of conditions of probation. The court order refers to fees required by the court to satisfy its terms for accepting the plea. On December 21, 2006, in Circuit Court Case No. 06- 107CF, the Circuit Court Judge entered an Order Withholding Adjudication of Guilt and Placing Defendant on probation. In this order it reflects entry of a plea of nolo contendere to the offense of "Possession of more than 20 grams, 3rd-Degree Felony," for which the Respondent received three years of probation. Other conditions of the probation were reflected in this order, to include the costs and fees imposed by the Court. On January 12, 2007, precisely the same order was entered by the Circuit Court Judge. In addition to the nolo contendere plea in Circuit Court Case No. 06-107CF, Respondent in his testimony at hearing in the present case, acknowledged that the drug offense took place in Port St. Joe, Florida. He was arrested on April 21, 2006. Respondent did not contest the charges because marijuana was found on the console of his car and some was in his front pocket. Respondent's understanding of his nolo contendere plea was that it was to possession of marijuana exceeding 20 grams. The amount was somewhere in the range of 118 to 120 grams. In the present case, Respondent through his testimony, explained that he had been diagnosed with lupus and that he smoked marijuana to help his body function while confronting his disease. Respondent is aware that possession of marijuana in Florida is illegal, even if intended for the purpose he had in mind to provide him relief from the pain of lupus. Respondent is not acting in the capacity of a bail bond agent at this time. That loss of income has had significant impact on his earning capacity. Mr. Tynalin Smiley, who resides in Port St. Joe where the Respondent lives, has known the Respondent from the time Respondent was born. They are good friends. Mr. Smiley belongs to the same church as Respondent. He visits in Respondent's home at times. He believes that Respondent is a respectable person in the community. Mr. Robert Humphrey, who resides in Dothan, Alabama, met Respondent in 1996 when Respondent did an internship from Troy State University. Mr. Humphrey and Respondent worked in the area of juvenile justice, going into schools and providing counseling to students. Over the years Mr. Humphrey has kept in contact with Respondent. Occasionally Mr. Humphrey and Respondent are together socially. They go out to dinner. Respondent has attended Mr. Humphrey's church. Mr. Humphrey looks upon himself as being a big brother to Respondent. Mr. Humphrey has observed that Respondent remains active in the Respondent's community. Mr. Humphrey believes that Respondent regrets his choice that led to the action against him, that involving the marijuana possession that has been discussed.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered Respondent in violation of Section 648.45(2)(a), (e) and (k), Florida Statutes (2006) and revoking Respondent's limited surety agent (bail bond) license. DONE AND ENTERED this 27th day of July, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of July, 2007. COPIES FURNISHED: William Gautier Kitchen, Esquire Gregg Marr, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Vincent Lamone Addition Post Office Box 483 Port St. Joe, Florida 32457 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The capitol, Level 11 Tallahassee, Florida 32399-0307
The Issue The issue is whether the application for Alcoholic Beverage License No. 23-6847 received by the Department on June 21, 1985, should be disapproved: because the application discloses a person with a direct interest in the premises to be licensed (Mr. Farquharson) is ineligible for licensure pursuant to Section 561.15(2) and 561.17(1), Florida Statutes (1985), due to conviction for the sale of marijuana within the last five years, and for violation of Section 559.791, Florida Statutes (1985) for a material misstatement on the application by not disclosing these convictions?
Findings Of Fact An application for an alcoholic beverage license to permit consumption of beer and wine on a restaurant premises was filed by Pauline B. Farquharson which was received by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco on June 21, 1985. "Exhibit 1). The application discloses that Barranett Farquharson born 7/1/52, has a direct interest in the premises to be licensed [Exhibit 1, page 18, Section I(6)(C)]. A personal questionnaire, Department of Business Regulation form DBR 71 OL for Barranett Farquharson was included in the application, which contained the following question and answer: "Have you ever been in this state, any other state, by the United States or by any foreign country: Arrested, charged or convicted of any violation of the law excluding minor traffic violations? Answer: Yes. On or about (1980-81). Arrested, possession of a weapon. Found not guilty." (Exhibit 2) The application also disclosed that the funds for the operation of the business, $60,000, had been obtained from personal funds in the amount of $4,934.09, and $56,065.91 from loans and mortgages. (Exhibit 1, page 11). A mortgage in the amount of $23,446.91 had been received from Standard Federal Loan Association of Gaithersburg, Maryland. A settlement statement included with the application, showed the borrowers as Barranett Farquharson and Pauline Farquharson. (Exhibit 1, pages 12-13). As part of the application, Mr. Barranett Farquharson was fingerprinted and the fingerprints were sent for examination to the Federal Bureau of Investigation. The Federal Bureau of Investigation responded with a report showing that the police department of New York City, New York had recorded the following arrest history, charges and charge disposition for Barranett Farquharson: 11/3/80 - Charged with possession of marijuana. Disposition: conditional discharge. 8/14/81 - Charged with sale of marijuana, possession of marijuana. Disposition: time served on criminal possession of marijuana. l0/14/82 - Charged with criminal possession of marijuana 4th, Criminal sale of marijuana 4th. Disposition: conditional discharge on criminal sale marijuana 4th. 11/3/82 - Charged with criminal sale marijuana 4th, unlawful possession marijuana. Disposition: sentenced to $50/30 days, fine paid on criminal sale of marijuana 4th. (Exhibit 4) A certified copy of the records of the Criminal Court of the City of New York was also entered into evidence as Exhibit 3. It disclosed that Barranett Farquharson, born 7/1/52, had been arrested and arraigned on charges of violating Section 221.15 of the penal law of the State of New York for the unlawful possession of marijuana and was adjudicated guilty of that charge on February 19, 1982. Mr. Farquharson was again arraigned on December 17, 1982 for violation of Section 221.40 of the penal law of the State of New York, criminal sale of marijuana in the 4th degree, and he received a conditional discharge. He was again arrested on November 3, 1982, arraigned on charges of violation of Sections 221.05 and 221.40 of the penal law of the State of New York on November 4, 1982, and he was found guilty of criminal sale of marijuana in the 4th degree and sentenced to pay a $250.00 fine. Section 221.05 of the penal law of the State of New York reads as follows: "Unlawful possession of marihuana. (VIOLATION)I A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter committed within the three years immediately preceeding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period." (Exhibit 6) Section 221.15 of the penal law of the State of New York provides: "Criminal possession of marihuana in the fourth degree. A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than two ounces containing marihuana." Section 221.40 of the penal law of the State of New York provides: "Criminal sale of marihuana in the fourth degree. A/MISD.) A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided on Section 221.35 of this article." (Exhibit 6)
Recommendation It is RECOMMENDED that the application for an Alcoholic Beverage License submitted by Mrs. Pauline Farquharson d/b/a Pauline's West Indian Restaurant be DENIED. DONE and ORDERED this 1st day of August, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1986. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Mrs. Pauline B. Farquharson 104 N. E. 205th Terrace Miami, Florida 33179 James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, Florida 32301-1927
