The Issue The issue in this case is whether petitioner's application for licensure as a professional teacher should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, respondent, Doug Jamerson, as Commissioner of Education, has proposed to deny an application for a teaching certificate filed on behalf of petitioner, Bryan S. Frederick, a thirty year old graduate of Elon College in North Carolina. As a ground, respondent contends that on applications filed with the Department of Education in 1991 and 1993, petitioner failed to disclose the fact that in December 1990 he had been arrested for possession of marijuana, and in January 1991 he had pled guilty to that offense. Petitioner disputed this allegation and timely requested a hearing. The critical facts giving rise to this dispute are as follows. Respondent has prepared an Application for Florida Educator's Certificate which must be completed and filed by those persons desiring a teaching certificate. On page 3 of the form is found the following question: Have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to S. 943.058 F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida law. On applications dated August 29, 1991, and April 2, 1993, which were filed with respondent, petitioner answered the foregoing question by checking the "NO" box. He also certified that all information in the two applications was "true, correct, and complete." With the assistance of the Florida Department of Law Enforcement, in late 1993 respondent conducted a law enforcement background check on petitioner. The search revealed that on December 22, 1990, petitioner was arrested by the Brunswick, Georgia police department for possession of marijuana. On January 8, 1991, the solicitor for the state court of Glynn County, Georgia, filed an affidavit and accusation pertaining to that charge. On January 31, 1991, petitioner pled guilty to possession of marijuana, a misdemeanor. For this, he was adjudicated guilty and was sentenced to 12 months in jail, with all time suspended except for the one day served in jail. When he was assessed a fine in the amount of $300 plus costs, and he could not pay the fine, petitioner was sentenced to a week in jail. According to petitioner, however, no fine was ever paid, and except for the day when he was arrested, no time was served. After learning this information, respondent issued a Notice of Reasons on June 13, 1994, proposing to deny petitioner's most recent application for a teaching certificate for failing to disclose the arrest and conviction. Petitioner did not deny that the above events occurred. He explained, however, that on the day in question, he and a friend, Glenn Brinson, were driving to South Carolina for the Christmas holidays and stopped to eat at a fast food restaurant in Brunswick, Georgia (Glynn County) just off Interstate 95 (I-95). When returning onto I-95, Brinson was stopped by a law enforcement officer for making an illegal turn. After Brinson stepped out of the automobile, he was asked to show his driver's license and vehicle registration. Petitioner, who was a passenger, reached in the vehicle's glove compartment to retrieve the vehicle's registration and observed three marijuana joints. Having no prior knowledge that they were there, and being in what he describes as a state of panic, petitioner unwisely placed the three joints inside his hat. When the police officer noted that the license tag and registration had expired, he asked petitioner to step out of the car and submit to a search for weapons. Thereafter, the officer discovered the marijuana. Although petitioner denied that the contraband belonged to him, both he and Brinson were arrested for possession of marijuana. No traffic citations were issued. At hearing, Brinson acknowledged that the marijuana belonged to him, and not petitioner. Petitioner admits that he intentionally failed to disclose the arrest and conviction on his applications because he knew it would "blow his career" as a teacher. He says he could not afford an attorney to fight the charge and believed that by entering a plea of guilty with an explanation to the judge, the charge might be dropped. As it turned out, however, the judge simply accepted the plea and adjudicated him guilty of the offense. Petitioner does not work in the teaching profession at the present time but says he has a pending job opportunity should his application be approved. He desires a five-year professional teacher's license so that he can begin a full-time teaching career. Up to now, he has worked as a substitute teacher on a part-time basis. Except for this isolated incident on the part of petitioner, there is no evidence of any other misconduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a period of one year. Thereafter, and upon reemployment, a license shall be issued but the first three years shall be on a probationary status. DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4263 Respondent: 1-5. Partially accepted in finding of fact 3. 6-11. Partially accepted in finding of fact 2. 12. Partially accepted in finding of fact 5. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or cumulative. COPIES FURNISHED: Bryan S. Frederick 10960 Beach Boulevard, #10 Jacksonville, FL 32246 Robert J. Boyd, Esquire 3121 Killearney Way, Ste. G Tallahassee, FL 32308 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue Is Petitioner qualified for practice as a real estate sales associate, when considering his criminal history record in its substance and point in time?
Findings Of Fact Petitioner was born on September 18, 1975. Petitioner applied to the Commission to become an associate. The application was received August 5, 2005. Petitioner made application to become an associate on the form provided by DBPR. In response to a question about his background, Petitioner revealed information concerning crimes he was accused of committing. On May 27, 1994, Petitioner was arrested by the Panama City Beach, Florida, Police Department and charged with marijuana possession over 20 grams, marijuana possession with intent to deliver, and marijuana sale or purchase, all under authority set forth in Section 893.13, Florida Statutes. The original marijuana case involved arresting charges for felonies. This case was assigned upon charges in the Fourteenth Judicial Circuit, Case No. 9401076CFA. On September 18, 1995, the case was disposed of when it was dropped/abandoned. On October 28, 1996, Petitioner was arrested by the Seminole County Sheriff's Office in Seminole County, Florida, on three counts of fraud related to checks written upon insufficient funds. One check from May 30, 1996, was for $40.00 to Bayou George Rainbow, two additional checks in the amount of $75.50 each from the date June 7, 1996, were written to Publix. When Petitioner was charged there were three counts, a single count for each check. This case originated in Bay County, Florida. On November 8, 1996, the Petitioner pled guilty to Count I within the charges. He pled nolo contendere to Counts II, III, and IV within the charges. He was assessed $149.00 in relation to Count I. The fourth count within the charges is of unknown origins, when considering the proof at hearing. Adjudication was withheld in relation to all counts. This disposition was made in Case No. 96004585MMMW. On May 14, 1997, Petitioner was arrested by the Pensacola Police Department for possession of marijuana, in an amount under 20 grams, pursuant to Section 893.13, Florida Statutes. This case was brought before the Escambia County Court, Case No. 9720966MMA. On June 4, 1997, Petitioner pled nolo contendere to a first degree misdemeanor pertaining to the marijuana possession. The adjudication was withheld. Petitioner was placed on probation for six months and required to pay $160.00 in court costs. On April 24, 1998, Petitioner was arrested by the Panama City Police Department for marijuana possession with intent to distribute, a felony under Section 893.13, Florida Statutes. He was also arrested for narcotic equipment possession under Section 893.147, Florida Statutes, a misdemeanor. He was charged before the Circuit Court of the Fourteenth Judicial Circuit, in Case No. 9800991CFA. On December 15, 1998, Petition pled nolo contendere to possession of a controlled substance and adjudication was withheld. He pled to what has been described in the proof as controlled substance possession, sell etc., a felony. He received four years' probation. Petitioner also pled nolo contendere to the narcotic equipment possession or the possession of paraphernalia on the same date, for which he was found guilty/convicted, with terms of probation for one year to run concurrent with the probation associated with the other offense. In relation to the present case, where Petitioner pled to offenses involving marijuana, information provided indicated that he was called upon to abide by any court restrictions placed on him. On November 26, 2002, Petitioner was arrested by the Walton County Sheriff's Office under Section 784.03, Florida Statutes, for battery, cause(d) by bodily harm associated with domestic violence, a first degree misdemeanor. He was charged in the County Court of the First Judicial Circuit, in and for Walton County, Florida, in Case No. 021299MM. On March 24, 2003, Petitioner pled no contest to simple battery. Adjudication was withheld and he was required to pay $301.00 in costs and to attend and complete an anger management course and have no violent contact with the victim. On January 17, 2006, the Commission entered a Notice of Intent to Deny Petitioner a license to become an associate based upon the criminal violations that have been described. The Notice of Intent established specific reasons for the denial that will be discussed in the Conclusions of Law. To place the criminal offenses in context Petitioner, his mother, step-father and a family friend testified about Petitioner's life. Petitioner began to have problems with his conduct when his parents had their marriage dissolved. Around that time Petitioner was in the transition between late adolescence and his teenage years. Eventually his mother remarried and the two families combined. That arrangement was difficult because of conflict between Petitioner and a step-brother. Petitioner concedes the problems that he had with marijuana. When Petitioner was charged with 20 grams of marijuana on one occasion, he admits to having seven grams on his person. In addressing the problem he participated in separate court-ordered drug programs which he completed. His drug abuse entered into the decision to write checks for insufficient funds. Concerning the incident involving the charge of domestic battery, which was resolved by a no contest plea to simple battery, Petitioner without contradiction, testified that this situation came about on the basis of an argument with his girlfriend, a verbal exchange not involving physical contact. The situation that led to his arrest for domestic misconduct took place when Petitioner and his girlfriend had an argument at the beach. He was arrested the next day. Petitioner attended the anger management course that he was ordered to attend. Petitioner indicated that there were no further confrontations with the girlfriend. Petitioner satisfactorily complied with the terms of his probation in each criminal case. Petitioner reports that he has been drug-free since 1998. Jimmy Ruthven, Petitioner's stepfather, described the family issues and conflict in the beginning of the relationship between the witness, Petitioner and their respective families. Mr. Ruthven has been the step-father for 15 years. He describes Petitioner in more recent times, as doing better, as being stable without problems. Brenda Ruthven, Petitioner's mother, identified the divorce from her former husband as the beginning point for Petitioner's problems. In this period Petitioner was rebellious, used drugs, had undergone counseling and so forth. During the last four or five years she has seen a turnaround in Petitioner's conduct. Over the last four years Petitioner has been more responsible. Renee R. Willoughby, a family friend who has been familiar with Petitioner over time, has noticed in the last six or seven years that Petitioner has improved in his conduct and has shown himself to be a person of intelligence and integrity. Petitioner attends Florida State University. He is a Dean's list student in Business Administration and Marketing. He served on the Student Council and the Campus Improvement Board at the Panama City, Florida, campus of the university. He expects to graduate in December 2006. Petitioner has worked at Criolla's Restaurant at Santa Rosa Beach, Florida, since February 2002, as a server and bar tender.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner a license as an associate. DONE AND ENTERED this 14th day of July, 2006, 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 14th day of July, 2006. COPIES FURNISHED: James D. Veal 209 South Cove Lane Panama City, Florida 32401 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Nancy B. Hogan, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is subject to the sales tax imposed on controlled substances by s. 212.0505, Florida Statutes, and if so, what is the appropriate tax.
Findings Of Fact On September 12, 1989, a search and destroy team assembled in Sebring, Florida, to survey Highlands County for evidence of the growing or possession of illegal drugs. The survey team consisted of a helicopter, pilot and crew chief from the Florida National Guard; and the ground crew of representatives from the Highlands County Sheriff's Office, State Highway Patrol, Fish and Game Commission, Florida Law Enforcement Officers and federal agents. The search commenced in the southwest quadrant of Highlands County with the helicopter and trained spotters flying a search pattern so as to view from the air any illegal substances being grown. On one, if not the first, leg of the search pattern, the helicopter, flying at an altitude of 500 feet, passed over the property on which Petitioner lives; and one of the observers spotted what he identified as marijuana growing near one of the outbuildings on this property. The marijuana patch was circled for both spotters as well as the pilot and crew to better see the growing marijuana. The ground party was alerted by radio of the find. They proceeded to the location and entered onto the property. There they met Petitioner, proceeded to the area where the marijuana was growing, and cut down the marijuana plants. Some 171 cut plants were counted, wrapped in bundles of approximately 10 plants each, and loaded into the back of a pickup truck. The deputies asked Petitioner if he would unlock the building next to where the marijuana plants were growing and he, knowing they could get a search warrant if necessary, unlocked the door. Inside they found some lights obtained for the purpose of growing marijuana indoors and other material listed on Exhibit 3A, all of which were confiscated. Petitioner was placed under arrest and the marijuana and other property seized was taken to the sheriff's office. The vehicle carrying the marijuana was weighed before the marijuana was unloaded and again immediately following the unloading. The difference in the weight of the vehicle with and without the marijuana was 450 pounds. Subsequent thereto, someone from either the sheriff's office or the Florida Department of Law Enforcement advised the Department of Revenue Collections and Enforcement agent in Lakeland, Florida, and the Notice of Assessment was prepared and served on Petitioner. To establish the value of the marijuana seized, the agent preparing the assessment used information received from the FDLE that the average street price in the district in which the marijuana was seized was $600 per pound in 1989. The document containing this information was admitted into evidence as Exhibit 6 after testimony was presented that each year the FDLE directs its five regional offices to submit street prices for various illegal drugs sold on the streets during that year. Exhibit 6 shows the marijuana street price at $600 per pound in the Tampa district (which includes Highlands County) as of June 7, 1989. To obtain the estimated retail price of the marijuana seized, the agent multiplied $600 per pound by 450 pounds. This price is for marijuana which has been processed and is ready for use. No evidence was submitted showing what parts of the marijuana plant are used in preparing the marijuana rolled into "joints" or smoked in a pipe. Nor was evidence presented showing how many pounds of processed and ready-to-use marijuana can be obtained from a given number of pounds of growing marijuana plants. In his testimony, Petitioner readily admitted that he had planted and cultivated the marijuana seized on September 12, 1989. He also testified that this is the first and only time he has ever attempted to grow marijuana; that he obtained the marijuana seeds and a book on how to grow marijuana from an advertisement in a magazine; that he had never sold marijuana in the past; that he had made no effort to locate a purchaser; or that he had any inkling of how to find a buyer for the plants after they were harvested or how much such plants were worth for use by marijuana users. Petitioner also testified the marijuana was planted a long distance from the nearest traveled road and from the nearest boundary of Petitioner's property; and that there was a canopy provided by trees among which he had planted the marijuana plants, and he didn't think the plants would be readily visible from the air. Petitioner's testimony that the helicopter passed over his property at tree top level, which he estimated at less than 75 feet, is rejected as being in conflict with the altimeter height provided by the helicopter pilot. In the U. S. District Court, Southern District of Florida, Petitioner pleaded guilty to possession of more than 100 marijuana plants.
Recommendation It is recommended that the assessment against Joe "Little Joe" Hatch of $270,999.02 plus interest from September 12, 1989, be dismissed. ENTERED this 26th day of March, 1990, in Tallahassee, Florida. K. N. AYERS 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 26th day of March, 1990. APPENDIX Respondent's proposed findings are generally accepted and included in the Hearing Officer's findings of fact, except the following which are rejected. 12-18. Accepted as street value of processed marijuana. 26. Last sentence rejected as contrary to the record that the charge was possession of over 100 marijuana plants. Petitioner failed to timely submit a proposed recommended order. COPIES FURNISHED: Raymond E. LaPorte, Esquire 410 Ware Boulevard, Suite 601 Tampa, FL 33619 Steve Kackley, Esquire 357 S. Orange Avenue Sebring, FL 33870 Lee R. Rohe, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, FL 32399-1050 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 =================================================================
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 The issue to be resolved in this proceeding concerns whether the Petitioner School Board has just cause to terminate the Respondent's employment as a teacher, with reference to a positive drug test for purported use of marijuana.
Findings Of Fact The Respondent has been employed at Dolores S. Parrott Middle School (DSPMS) as a teacher for a total of seven years, including the 2008-2009 school year. The Respondent taught Health, Career Education, and Physical Education. A large component of the Health curriculum is drug use prevention. It includes, as a portion of its curriculum and discussion, the subject of marijuana use. The Respondent was the S.T.A.N.D. (Students Taking Action on Drugs) sponsor at the school for several years prior to the 2008-2009 school year. He was thus responsible for providing students with information about the dangers of using and abusing drugs and the possible consequences related thereto. His position as the Health teacher and the S.T.A.N.D. sponsor made him a role model for students regarding the subject of drug use and drug abuse prevention. The principal at DSPMS for the 2008-2009 school year was Leechele Booker. She has been principal at that school for two years and was an assistant principal and teacher for some twelve years prior to that with the Hernando County School District. In her capacity as principal she is responsible for supervising and evaluating employees, enforcing policy and procedures, as well as investigating alleged violations of policies, law and recommending any resultant disciplinary measures to the District. On March 11, 2009, an unidentified woman called the principal at DSPMS and left a voice mail message identifying herself as "Michelle". She requested that the principal return her call concerning one of the teachers at the school. The principal returned the call to the number that the woman had left. Since no one answered that call, the principal left a message identifying herself. Ms. Booker received a return call approximately thirty minutes later. When Ms. Booker took the call the woman identified herself as Michelle, and acknowledged receiving the message which Principal Booker had left on the voicemail. The person identified as Michelle thereupon informed the principal that she had knowledge of one of the teachers at DSPMS engaging in recent use of marijuana. She claimed to have observed him smoking marijuana over the past weekend and told the principal of her concern at seeing that conduct by one of the teachers. Michelle also advised Ms. Booker that the teacher's fiancée was present when the teacher was smoking marijuana. She identified the teacher's fiancé as a woman named "Brenda." She then stated that the teacher's name was "Mike" and that he was the Health teacher at DSPMS. Ms. Booker then realized that there was only one teacher by that name at the school, the Respondent, Michael Provost. She was already aware that the Respondent's fiancée's name was Brenda, having met her on several occasions. The principal ended the call by advising Michelle that she would investigate the matter and thanked her for the information. She did not request any additional contact information from Michelle. She did not learn additional facts concerning where the Respondent had been seen using marijuana, when it occurred, how Michelle knew the Respondent, or the nature of her relationship with the Respondent. It is likely, although not clear from the record, that Principal Booker did not want to reveal to the caller what her thoughts might be concerning the identity of the teacher who was the subject of the complaint. After ending the phone call with Michelle, Ms. Booker met with Assistant Principals Gary Buel and Nancy Vasquez. She told them of the phone call and the nature of it and they discussed what actions should be taken, based upon the Petitioner's policy 6.33 "Alcohol and Drug-Free Workplace." Ms. Booker then contacted the district office of the Petitioner and spoke with the secretary in "Human Resources." She was thereby advised that an investigation would have to be conducted and that Heather Martin, the Administrator for the Department of Human Resources, would have to be involved. After contact with the district office, Principal Booker and Ms. Vasquez discussed the matter and agreed that they had "reasonable suspicion," under the above-referenced policy, to require the Respondent to take a drug test. The Petitioner maintains that that reasonable suspicion is based upon the information provided in the phone call with Michelle, as well as the fact that the principal was aware that the Respondent was having financial difficulties and needed to be paid for extra-curricular duties immediately, rather than waiting for the normal payment process. He was known to have requested permission to leave work early more frequently than other employees. Ms. Booker called the Respondent to her office to report the allegations lodged against him by the caller. She advised him of the phone call and the reference to smoking marijuana. She informed him that she believed she had reasonable suspicion to have him drug-tested. She told him that Mr. Buel would escort him to the testing facility. The principal then left her office, but was called back because the Respondent had some questions for her. She located a Union representative, Marlene Richie, who accompanied her back to the office to confer with the Respondent. When the principal and Ms. Richie arrived at the office, the principal informed her of the allegations against the Respondent. Ms. Richie made some phone calls to Sandra Armstrong, the Executive Director of the Teachers Association and Joe Vitalo, the Union President. After these phone conversations, Ms. Richie informed Ms. Booker that the Respondent wished to speak to her alone. Ms. Booker spoke with the Respondent alone, in her office, and he informed her that he had been smoking marijuana and told her that the test would be positive. The Respondent admitted his marijuana use because he respected the principal, and it was in everyone's best interest for him to be honest and candid about his problem. He was not coerced or under any pressure to make the admission. He made the admission voluntarily. The Union representative, Ms. Richie, then rejoined Ms. Booker and the Respondent in the office, and the Respondent informed Ms. Richie of what he had told Ms. Booker concerning his marijuana use. Ms. Booker informed the Respondent that he would still need to have drug testing, and she also discussed the Employee Assistance Program ("EAP"). The Respondent volunteered to enroll in the EAP program and made an appointment to see a counselor. The Respondent had not requested assistance or a referral to the EAP before the conversation with the principal on this day, when he admitted his marijuana use. There are two means of referring employees to the EAP under the district's drug and alcohol policy; either self- referral by the employee or referral by management. Under this policy, no disciplinary action is taken when an employee self- refers to the program, or when he or she admits to a drug or alcohol problem and is referred to EAP by a manager. The Petitioner maintains that the Respondent did not volunteer that he had a drug or alcohol problem until confronted with the principal's suspicion and direction to take a drug test. At the same time, however, the Petitioner acknowledges that the Respondent's admission concerning his marijuana use was not because he felt coerced. The Petitioner maintains that, in its view, the request for EAP assistance was not a voluntary request and that therefore, under the Petitioner's policy, disciplinary action can still be taken. The preponderant, persuasive evidence, based upon credibility of the witnesses, including the Respondent, demonstrates that the request for EAP assistance was a voluntary one and was done in conjunction with the principal voluntarily discussing the availability of the EAP program to the Respondent. The Respondent was under no pressure or coercion when he made the admission. In fact, the Respondent, as well as the Petitioner, have presented substantial argument concerning whether there was even "reasonable suspicion," under relevant case law, for the principal to order a drug test. Because of the findings made, and conclusions reached herein, the question of whether "reasonable suspicion" for drug testing existed is immaterial, in light of the District's Policy 6.33 and Section 112.0455, Florida Statutes (2008). After meetings and conversations with Union representatives, the Respondent agreed to the drug test and the results were received on March 18, 2009. They indicated that the test was positive for the presence of marijuana. The Respondent was suspended with pay on March 12, 2009, pending the outcome of an investigation. The Respondent was advised in writing of his suspension at the time of his meeting with the principal and through a letter from the Superintendent. A pre-determination conference was scheduled for March 20, 2009, after the receipt of the drug test results. This was to provide the Respondent an opportunity to dispute any of the information collected through the investigation, before discipline was recommended. The Respondent attended the conference and again admitted to using marijuana and stated that he was aware of the Drug and Alcohol-Free Workplace Policy. He explained that his drug use was the result of personal problems he was experiencing. Following the pre-determination conference, and before making a disciplinary recommendation to the Superintendent, Ms. Martin attempted to contact the informant Michelle, to confirm her story. It was important for Ms. Martin to ensure that she had a name and phone number of the informant since the District does not act on anonymous complaints. A complaint is deemed anonymous if the District has no contact information and no name. Ms. Martin called the number that Michelle had left with the principal and the phone was answered by someone who said it was "Chrissy's phone." Ms. Martin asked for Michelle and a different person came on the line and identified herself as Michelle. The phone number and phone in question were registered to a Chrissy Campbell. Chrissy Campbell is married to the Respondent's fiancée's brother. The Respondent and Campbell are acquainted with each other but do not get along. Ms. Martin advised Michelle that she was calling in reference to the complaint received earlier by the principal. She stated that the District was conducting an investigation and asked if Michelle was willing to provide additional information. At that point, Michelle refused to give any additional information. In her conversation with Michelle, Ms. Martin did not use the Respondent's name, nor did she indicate the call concerned a drug test. After her conversation with Michelle, Ms. Martin reviewed the drug test results and the personnel file, including the Respondent's disciplinary history, before making a recommendation for discipline to the Superintendent. The Respondent's personnel file contained three additional discipline records. In 2005, he received a written warning concerning a violation of the Professional Code of Ethics regarding an inappropriate comment. In 2007, he was reprimanded in writing, stripped of his S.T.A.N.D. sponsor duties and suspended without pay for ten days for failing to properly handle a student's reported drug use. In 2008, he received a Letter of Direction for failing to follow the curriculum and being too personal with students. Ms. Martin took that disciplinary history into consideration in making her recommendation to the Superintendent for termination of employment. By letter of March 23, 2009, the Superintendent advised the Respondent of his recommendation to the School Board that the Respondent be terminated from employment. This proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County dismissing its Petition for Termination of Employment and reinstating the employment of the Respondent with attendant provision of back pay and all related benefits. DONE AND ENTERED this 9th day of September, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 9th day of September, 2009 COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Wayne S. Alexander, Superintendent School Board of Hernando County, Florida 919 North Broad Street Brooksville, Florida 34601 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Respondent’s license should be disciplined; and if so, what penalty should be imposed.
Findings Of Fact The Respondent, Lashawn R. Williams, was certified by the Petitioner as a correctional officer on May 22, 2001, and was issued certificate number 197081. Eventually, the Respondent was employed as a full-time correctional officer by the Corrections Corporation of America. Sometime prior to June 20, 2004, the Respondent’s apartment received smoke damage from a fire that had occurred in the unit next to her. Because of the damage, she and her two children, ages seven and one, were required to temporarily move while repairs to her apartment were being made. She moved in with Typhrus McNeil and his father, Connie McNeil at 112 Cheri Lane, Parker, Florida. The McNeil residence is a small two-bedroom townhouse of approximately eight hundred square feet. The front door is located about twenty feet from the street. Typhrus McNeil was the Respondent’s boyfriend. At the time, they had been dating for approximately three years. Mr. McNeil was the father of the Respondent’s youngest child and occasionally took care of the Respondent’s children while the Respondent was at work. At the time, Typhrus McNeil was also under community control for a 2004 drug charge. The Respondent Knew Mr. McNeil had a past criminal history, but felt he had changed. On June 20, 2004, Officer Aaron Wilson of the Parker Police Department received a “Crime Stoppers” tip. The tip consisted of an allegation that a male and a female person living at 112 Cheri Lane in Parker were engaged in the sale of narcotics from the residence. The tip also included an allegation that the female subject was conducting hand-to-hand narcotics transactions with the occupants of vehicles that pulled up outside the residence. Over the next two weeks, Officer Wilson conducted approximately six surveillances and observed activities ongoing at the McNeil residence. During his surveillances, Officer Wilson observed the Respondent coming and going from the residence along with her two children. He observed them playing outside. Officer Wilson also observed Typhrus McNeil, whom he recognized from past arrests, and his father Connie McNeil, coming and going from the residence. He observed vehicles driving up to the residence for short stops and leaving. On occasion, he observed people from the residence talking for a short time with the occupants of the vehicles, sometimes going back into the residence and then returning a short time later to talk with the occupants of the vehicles again. The vehicle would then leave the area. Officer Wilson described such activity as indicating drug-related activity was going on at the residence. Officer Wilson only observed the Respondent talk to the occupants of a vehicle one time. During his observation, the Respondent spoke with the occupants for a short while, went into the residence and returned to speak with the occupants of the vehicle some more. The vehicle then left. Officer Wilson did not observe the exchange of any money or drugs. There was no evidence regarding who the occupants of the vehicle were or whether the Respondent knew the occupants of the vehicle. This one observation does not clearly and convincingly demonstrate that the Respondent was engaged in drug related activity. On July 1, 2004, Officer Wilson applied for and obtained a warrant from the Circuit Court in Bay County to search for controlled substances and other related items in the McNeil residence. The warrant also authorized searches of persons and vehicles present at the residence. On July 2, 2004, Officer Wilson, together with several other officers, served the search warrant at 112 Cheri Lane in Parker. Upon arrival at the residence, Officer Wilson knocked and announced his authority and purpose for being there. Present in the residence were Typhrus McNeil, Connie McNeil, the Respondent, her two children and two visitors. Officers located and seized several items in the bedroom shared by the Respondent and Typhrus McNeil. These items were in plain view lying on the headboard of the bed. These included Typhrus McNeil’s wallet, which contained $1704 in cash, another $1335 in loose cash and an open box of clear plastic sandwich bags with $13 in cash protruding from the top of the box. The cash appeared to be in denominations of $20 or less. The Respondent believed the loose cash was from Mr. McNeil’s paycheck, which he had recently cashed. Next to the bed, officers located and seized a closed shoebox on the floor. Inside the shoebox, officers found a set of electronic scales consistent with the type utilized for weighing quantities of illicit drugs for purposes of sale. Also, officers located and seized two plastic bags containing cannabis residue along with two partially burnt cannabis cigarettes in a closed dresser drawer located in the bedroom. The evidence did not demonstrate that the Respondent knew about the contents of the shoebox or the dresser drawer. None of her personal effects were in the dresser drawer. There was no evidence showing the length of time the cigarettes had been in the drawer. In the common living room of the residence, officers located and seized a cannabis cigarette lying on top of the television adjacent to a remote control. The cannabis cigarette appeared to be in plain view of the occupants of the residence. However, there was no evidence of the length of time the cannabis cigarette had been on top of the television or that the Respondent had observed the cigarette there. In fact, the Respondent denies knowing about the activity at the McNeil home or the Marijuana cigarettes in the house. During the course of the execution of the search warrant, officers also located and seized several items in the second bedroom, occupied by Connie McNeil. These items included a box found in Connie McNeil’s closet, which contained suspected cannabis seeds and two partially burnt cannabis cigarettes located inside a nightstand drawer. Officers also located and seized nineteen clear plastic bags, each containing approximately one-half ounce of cannabis. The plastic bags were under the bed in the bedroom of Connie McNeil. Together, such quantities and packaging demonstrate that Connie McNeil was engaged in illicit drug sales and not simply possession of illicit drugs. However, the evidence did not demonstrate that the Respondent was aware of the activities of Connie McNeil or the contents of his room. During the course of the execution of the search warrant, officers also located and seized five partially burnt cannabis cigarettes located inside a closed kitchen drawer. Again, the evidence did not demonstrate that the Respondent was aware of the cigarettes in the kitchen drawer, especially in light of the fact that she was only staying temporarily at the McNeil residence. The McNeils and the Respondent were arrested and charged with drug possession and sale. The Respondent was also charged with child neglect. Eventually, all the charges were dropped against the Respondent. The aggregate weight of the cannabis seized by the officers was in excess of 20 grams. However, in this case, the evidence only raises suspicions that the Respondent may have known about the possession of marijuana in the McNeil residence. At the time, the Respondent was a temporary occupant of the residence, waiting for repairs to be completed on her apartment. The evidence is neither clear nor convincing that the Respondent actually knew of such possession. Likewise, the evidence did not demonstrate that the Respondent was aware of or engaged in any drug sales during her stay at the McNeil residence. The most incriminating evidence was not found in the bedroom where the Respondent slept, but in Connie McNeil’s bedroom or in closed drawers and boxes. The one cannabis cigarette that was in a common area does not clearly or convincingly demonstrate that the Respondent knew it was there or that she knew of any drug activity at the McNeil house. Finally, the evidence did not demonstrate the Respondent criminally neglected her children when she was staying at the home of one of the children’s father. Vague testimony regarding the possibility that living in close proximity to illicit drug activity might cause danger to the occupants of the home is not clear or convincing evidence that the Respondent is guilty of criminal child neglect. Given this lack of clear evidence, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found not guilty of violations of Subsection 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of March, 2006. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lashawn R. Williams Michael Crews, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Teresa A. Collins was certified by the Criminal Justice Standards and Training Commission on April 19, 1985, and was issued Certificate No. 35-85-002- 02. On February 22, 1985, Respondent was employed by the City of Tampa Police Department as a police recruit and commenced training at the Police Academy. At this time, Respondent was considered to be a civilian employee of the police department. When Respondent applied for employment with the Tampa Police Department, a background investigation, polygraph test and physical examination including a urinalysis was done. Respondent acknowledged experimenting with marijuana in 1982 while in college. Following the background investigation and tests, Respondent was recommended as morally fit for duty as a police officer. On an evening in April 1985, Gloria Thomas observed Respondent, who she knew only by sight, sitting at a table in the rear parking lot at McDonald's with another woman. Ms. Thomas saw Respondent pass a cigarette to the other woman who held it between her thumb and forefinger while taking a puff off the cigarette. Ms. Thomas passed within five feet of the table and thought the smoke smelled like marijuana smoke. She did not see Respondent smoke the cigarette and could not definitely state the cigarette was a marijuana cigarette. At the time Respondent commenced her training at the police academy she roomed with Gina Rodriguez with whom she had formerly roomed at Florida State University. Sometime in mid February 1985, Respondent and Rodriguez had a fight during which Respondent struck Rodriguez in the face with her fist breaking her cheekbone. The date of this fight was not clear. Respondent testified it occurred in mid-February and that Rodriguez made demands on her for money for medical bills up to 21 February--the night before she was sworn-in as a police officer. The parties stipulated that Respondent was sworn in April 19, 1985, as a law enforcement officer and she entered the police academy February 22, 1985. Although not completely clear, it appears that Respondent and Rodriguez roomed together in Tampa from February 1, 1985 until the end of March, 1985. Following the fight Rodriguez threatened to see that Respondent never worked in Tampa. Gloria Thomas' observation of Respondent in the parking lot at McDonald's got back to the Tampa police by word of mouth as a rumor and an investigation was launched. On May 8, 1985, Rodriguez was interviewed by the police to inquire if Respondent smoked marijuana while she roomed with Rodriguez. At this interview Rodriguez denied Respondent ever smoked marijuana at the apartment. On May 29, 1985, Rodriguez contacted the police to give another statement about Respondent. At this interview Rodriguez told the police that she saw Respondent frequently use marijuana in late February and March 1985. At the hearing Rodriguez acknowledged making several conflicting statements about Respondent's use of marijuana but insisted that she saw Respondent smoke marijuana at least once in their apartment between February 22, 1985 and the end of March 1985, but could not identify the time of day this occurred, whether anyone else was present, or any detail at all regarding the circumstances in which this event occurred. Rodriguez also acknowledged she had threatened to "get" Respondent after the fight and they are still on unfriendly terms. These factors made her testimony less credible. Elaine Daniels, a friend of Rodriguez at the time of the fight, was interviewed by the police regarding Respondent's use of marijuana. She told the police she traveled in a car one night when Respondent had a package of marijuana with her. The exact date of this trip was not ascertained, but at the time the incidents were related to the police, Daniels was angry at Respondent for hurting her friend Rodriguez, and had been encouraged by Rodriguez to help her "get" Respondent. Daniels testified that she, herself, was stoned most of the time during this period and the only time she could definitely state she saw Respondent smoke marijuana was the end of January 1985. Daniels also testified to a party on Rodriguez's birthday, March 15, at which a marijuana joint was passed around while Respondent was present but she cannot recall Respondent taking a hit. Four women, who associated with Respondent from January through March 1985, never saw Respondent smoke marijuana during that period, but some of them had seen Respondent smoke marijuana a year or so prior to that period of time. In her testimony Respondent categorically denied smoking marijuana in April 1985 at the McDonald's parking lot and could not recall being there at that time; although she has been to this particular McDonald's on several occasions. Respondent acknowledged the "bad" fight she had with Rodriguez and that she had agreed to pay part of the medical bills resulting from that fight. However, Rodriguez never provided her with copies of bills for medical treatment. Respondent categorically denied smoking marijuana or possessing marijuana at any time subsequent to her entry into the police academy on February 22, 1985.
The Issue Whether respondent committed the acts alleged in paragraphs 3-7 of the Administrative Complaint and, if so, whether such acts constitute violations of Subsections 231.28(1)(c) and (f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code.
Findings Of Fact The respondent holds Florida Teaching Certificate No. 259659 covering the areas of biology and science. At all times pertinent hereto, the respondent was employed as a science teacher at Franklin Junior High School in the Hillsborough County School District. In September, 1986, the Tampa Police Department received information from the principal of Franklin Junior High School and the resource officer that two teachers at the school might be involved in the use of cocaine or some other type of drug. Detective Cindy Stanbro was assigned to investigate the allegation. Detective Stanbro worked in an undercover capacity as a student intern teacher at Franklin Junior High School. Detective Stanbro was placed in the classroom of science teacher Keith Layton, who was aware of her true identity. Detective Stanbro initially reported to Franklin Junior High School on Friday, September 19, 1986. On the Friday that she reported to Franklin Junior High School, she was able to meet the respondent and Michael Behl, the two individuals who were the subjects of the investigation. Before the end of the school day, Detective Stanbro invited the respondent to go out for drinks with a group of teachers. The respondent was unable to go, but he told Detective Stanbro he would take a rain check. On the following Monday, September 22, 1986, at about 1:20 p.m., Detective Stanbro went to respondent's classroom and asked him if he'd like to go to Casa Gallardo to have a drink after school. Respondent stated that he had come to work with somebody else, so he would need a ride home. Detective Stanbro told him that she could take him home, and respondent accepted her invitation. Detective Stanbro and the respondent left the school at about 4:30 p.m. in Detective Stanbro's automobile. After stopping at a music store so that respondent could pick up some cassette tapes, respondent and Detective Stanbro went to Casa Gallardo, arriving at about 4:50 p.m. No one else joined them at the restaurant; however, backup surveillance units were at the restaurant observing Detective Stanbro and respondent. After ordering drinks and engaging in general conversation about the school and why Detective Stanbro wanted to be a teacher, Detective Stanbro brought up the subject of drugs. She asked respondent if he liked to "get high." Respondent said that he did. He said that he liked to smoke marijuana and snort cocaine. Respondent told Detective Stanbro that he had erected a partition in the back of his classroom which allowed him to look out and see his class but did not allow them to observe him. Respondent stated that he had put the partition up so that he could snort cocaine in the back of the room without the students seeing him. Respondent said that he used cocaine during fifth or sixth period because he would be mentally exhausted by the end of the day and he needed something as a "pickup." He stated he used cocaine because he didn't have a coffee maker in his classroom. During the conversation the respondent and Detective Stanbro also discussed prices paid for cocaine. Respondent told Detective Stanbro that he paid $50 for a half gram of cocaine. Detective Stanbro, who acted as if she used cocaine all the time, stated that the price was too high and told respondent that she knew a Colombian dealer from whom she could buy cocaine for $60 a gram. Respondent told Detective Stanbro that when his coke ran out, he would get Detective Stanbro to buy cocaine for him. Detective Stanbro and respondent were not together at the restaurant the entire time, since respondent went to the restroom at some point during the evening. Sergeant Cuesta, who was part of the surveillance unit, happened to be in the restroom when respondent entered. Sergeant Cuesta left the restroom before respondent. Detective Stanbro and the respondent left the restaurant at approximately 6:45 p.m. As they were getting ready to leave the restaurant parking lot, Detective Stanbro asked respondent if he had any cocaine on him. The respondent indicated that he did and produced a small smoke-colored glass vial. Respondent wanted her to snort some then, but Detective Stanbro said she couldn't because she had to go to dance class and she didn't want to be high on cocaine while dancing. She asked him if he would give her some so that she could have it later. She gave him a dollar bill, and he put some of the substance from the vial on the dollar bill. Detective Stanbro folded the bill and kept it. There was approximately a half a gram of cocaine left in the vial. Respondent placed the glass vial back into his pocket. Detective Stanbro took respondent home, then went back to the office and did a Vol-Tox test on the substance provided by respondent. The substance tested positive for the presence of cocaine. Detective Stanbro then placed the dollar bill containing the cocaine into the property room for safekeeping. The evidence was later chemically analyzed by use of ultraviolet spectrophotometry and gas chromatography mass spectrometry tests; which established conclusively that the substance contained cocaine. Detective Stanbro saw respondent the following day at school, September 23, 1986, at approximately 10:20 in the morning. Detective Stanbro was in a little conference room in the back of Mr. Layton's biology class, and respondent came in to see her. Respondent handed Detective Stanbro $60 and stated that he needed to buy a gram of cocaine. Detective Stanbro told him that she would introduce him to the person who was selling the cocaine. However, Detective Stanbro kept the $60. Respondent then left the room. The next contact Detective Stanbro had with respondent was on September 25, 1986, at about 1:45 p.m. Detective Stanbro went to see respondent in his classroom. Respondent was showing a film and the classroom was very dark. Detective Stanbro went to the back of the classroom to talk to respondent. Respondent was at his desk behind the partition. Detective Stanbro asked respondent if he had any cocaine on him, and respondent said that he had a little bit. Respondent stated that she could have a "snoot" if she wanted. Respondent took the glass vial out of his pocket. It was the same vial that he had at the restaurant; however, there was only a small amount of cocaine left in the vial. Detective Stanbro told respondent that she was afraid to snort any cocaine in the classroom because of the children being present, but respondent stated that it was easy and demonstrated by placing the vial, which had a flared screw-in top, up to his nostril and inhaling. Detective Stanbro then took the vial and attempted to put some of the substance in the vial on a Kleenex so that it could be saved for evidence, but there was not enough cocaine in the vial for her to get a sample without scraping the sides, which she thought would look suspicious. During the course of conversation with Detective Stanbro at the back of the classroom, respondent mentioned the $60 he had given her on Tuesday and asked about the gram of cocaine he was supposed to receive. He stated that it was a great deal and that he had never purchased cocaine so cheaply before. He added that the best price he had ever gotten before was $75 a gram. Detective Stanbro told him that they would get the gram of cocaine the next day around lunch time. She left respondent's class at about 2:40 p.m. The next day, Friday, September 26, 1986, at about 10:20 a.m., respondent went to Mr. Layton's classroom to see Detective Stanbro. Respondent acted differently than he had before. He stated that he had just received a $300 electric bill and that he wouldn't be able to buy the cocaine. He wanted the $60 back. He stated that he was being too blatant about his use of cocaine at the school and told Detective Stanbro that he had decided to "cool it" for a while. He also asked Detective Stanbro very specific questions about her college background, including the classes and teachers that she had. Detective Stanbro felt that respondent was acting very suspiciously and concluded that respondent suspected her of being an undercover police officer. After respondent left the classroom at about 10:45 a.m., respondent called Sergeant Cuesta and advised him of the situation. Detective Stanbro went back to the vice office and a decision was made to prepare a warrant for respondent's arrest. At 2:45 p.m. Detective Stanbro returned to the school and placed respondent under arrest for possession and delivery of cocaine of less than a gram in weight. Respondent's arrest occurred during the school day while students were present on campus. The time and place of arrest was the decision of the Vice Control Bureau. Shortly after his arrest, at about 4:15 p.m., Sergeant Cuesta interviewed the respondent after respondent was advised of his Miranda rights and signed a "Consent to be Interviewed" form. Respondent admitted telling Detective Stanbro that he got high on cocaine, but stated that he told her he did not enjoy smoking marijuana. He admitted having cocaine with him and providing some of the cocaine to Detective Stanbro. He admitted to Sergeant Cuesta that he used cocaine at school. He said that working with children was emotionally draining and that he would get very tired at the end of the school day. He stated that because there wasn't a coffee maker in his classroom, he snorted cocaine. Respondent emphasized that he did not use cocaine in front of his students and stated that one of the reasons he put up a screen in front of his desk was to hide his cocaine use from the students. Respondent stated that he bought about a gram of cocaine at a time and it would last him about six months. Respondent became very emotional and stated that he was ashamed of himself for the embarrassment he had caused to his colleagues and to his family. He said he had a drug problem. Respondent's testimony at the hearing was not credible and is rejected. Respondent testified that when he went to the restroom at the Casa Gallardo, there was a stranger in the restroom who offered respondent the vial with the substance in it. The stranger said "Your girlfriend seems to be really into doing things. Why don't you give her some of this?" Respondent stated that the stranger wanted him to buy the substance, but when respondent said no, the stranger just gave him the vial with the substance in it. Respondent testified that he didn't know what was in the vial. However, he also testified that he gave the entire contents of the vial to Detective Stanbro the night they went to the restaurant when she asked for cocaine. It is not only beyond belief that a stranger would approach the respondent in a public restroom and simply give him what turned out to be an expensive contraband drug, it is also beyond belief that the respondent would then give the entire contents of the vial to Detective Stanbro, fully believing that she would later consume the substance, when he had no idea what the substance was. About four months after his arrest, respondent went to see Dr. M. K. El-Yousef, a psychiatrist, for the purpose of establishing that he was not a drug abuser. Respondent was given five tests by a substance abuse counselor and had a one hour interview with Dr. El-Yousef. The only information provided to Dr. El-Yousef was provided by the respondent. Based on the results of the five tests and his interview with the respondent, Dr. El-Yousef opined that respondent "is not a substance abuser" and is a "relatively naive adult who means well as a teacher who got set up and fell as he described." (e.s.) Obviously, Dr. El-Yousef believed that respondent was being truthful in describing the events leading up to his arrest. However, the events respondent related to Dr. El-Yousef simply did not occur. Respondent told Dr. El-Yousef that he met a girl at a bar who had approached him and asked him if he wanted to get high; that he "played it cool and said sure"; that he then bought some cocaine from an individual that the girl pointed out to him; and that when the girl and he left to go to his apartment to use the cocaine, the police picked him up outside the bar. Since respondent was not entirely truthful with Dr. El- Yousef, the validity of Dr. El-Yousef's opinion concerning respondent's drug use or abuse is questionable. His opinion that respondent "got set up and fell as he described" is clearly erroneous. From all the evidence presented, it is apparent that respondent's effectiveness as an employee of the school board has been seriously reduced. The respondent's arrest and subsequent trial and sentencing received a good deal of coverage in the local news media. However, it is not only the amount of coverage that respondent's activities received that has reduced his effectiveness as a teacher, it is respondent's own conduct that has seriously reduced his effectiveness as a teacher. By his conduct, respondent has established that he has extremely poor judgment and a total lack of awareness of the responsibilities of a teacher. Student drug possession is considered a serious matter by the Hillsborough County Schools. If a student at Franklin Junior High is caught with drugs in his possession, he is turned over the police for arrest. Approximately 70 percent of the school resource officer's teaching time is devoted to discouraging drug usage among students. Teachers set an example for their students; they serve as role models. By his conduct, respondent showed that he had little concern about the effect his drug use might have on his students. In his proposed findings of fact, respondent suggests that Detective Stanbro "did entice" the respondent to a bar where the respondent "went along with the prompting of the undercover officer . . ." From the evidence presented, it is apparent that respondent has convinced himself that he was simply an innocent victim "set up" by an attractive woman who used the bait of romance to lure him into talking about drug use. However, respondent's rationalization of the events in question simply does not coincide with the facts, and his perception of this matter only emphasizes respondent's lack of awareness of the responsibilities of his profession. Respondent has completely overlooked the fact that throughout this episode he believed that Detective Stanbro was an intern, a college student placed in the school system to learn by experience and by example how to be a teacher. Had respondent possessed the slightest sense of responsibility to the educational process or his school system, he would not have condoned or encouraged an intern's use of drugs, regardless of the amount of "prompting" he received or his own desire for a romantic relationship. The respondent, however, not only indicated to this "intern" that the use of drugs by a teacher was acceptable, he explained how a teacher could use cocaine in the classroom without getting caught by the students and then demonstrated how easy it was by snorting cocaine in front of the intern during one of his classes. This is clearly not the behavior of an educator who has any concern for his profession. Respondent is currently on court-ordered probation for a period of 15 years. One of the conditions of his probation is that he submit to periodic drug testing. The drug abuse screens reported to the Department of Corrections on August 14, September 10, September 25, October 8, November 10, November 20, and December 8, 1987, did not reveal the presence of cocaine or any other drug. The evidence presented did not indicate that respondent was ever a "heavy" drug user. Detective Stanbro testified that her impression was that respondent was a "casual" user. Further, respondent presented the testimony of a great number of his fellow teachers and other school staff, all of whom testified that respondent had never appeared to be disoriented or intoxicated.
Recommendation Based on the foregoing findings of fact and conclusions of law, and pursuant to Section 231.262(5), Florida Statutes, it is RECOMMENDED that a final order be entered revoking respondent's teaching certificate. DONE AND ORDERED this 27th day of April, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 27th day of April, 1988. APPENDIX Petitioner's Proposed Findings of Fact: 1-11. Accepted. 12. Accepted generally as stated in paragraph 12 of the Recommended Order. 13-17. Accepted generally. 18-20. Accepted. 21. Accepted though not as stated. 22-23. Rejected as unnecessary and because of lack of competent evidence regarding the school board's action. Rejected because it is not a finding of fact; further, although the drug screen tests are not relevant to the allegations of the complaint, they may be considered as relevant in considering the penalty. Rejected as not a finding of fact. Rejected as a finding of fact; however, report submitted not relied upon for any factual findings. Accepted that Dr. El-Yousef's opinion is questionable for reasons stated in paragraph 1. Rejected as irrelevant. 29-30. Accepted generally in that despondent was not considered a credible witness. 31. Accepted generally. 32-33. Accepted to the degree it relates findings of fact. Respondent's Proposed Findings of Fact: Respondent's only finding of fact, on page five of his proposed order, is rejected for the reasons stated in the Recommended Order. The evidence does not support a finding that Detective Stanbro "did entice" respondent to a bar. There was no evidence that respondent "went along with the prompting" of Det. Stanbro. Merely asking respondent if he liked to get high is hardly prompting. Respondent admitted to both Det. Stanbro and Sgt. Cuesta that he used cocaine in the classroom and Det. Stanbro observed him doing so. Respondent's admissions and his actions can hardly be classified as "only joking." COPIES FURNISHED: J. David Holder, Esquire RIGSBY & HOLDER 325 John Knox Rd., Suite C-135 Tallahassee, Florida 32303 W. Dale Gabbard, Esquire 412 East Madison Street Suite 901 Tampa, Florida 33602 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Martin B. Schapp Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
