The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes (2003), and is responsible for licensing employees of pari-mutuel facilities. Respondent is a card dealer holding Florida occupational license number 6927724-1012 for employment as a card dealer at the Tampa Bay Downs racetrack. By application filed at the racetrack on December 3, 2003, Respondent applied for the referenced license. Persons unknown apparently conducted the application process for all employees of the facility. Employees completed the applications and submitted them at the racetrack, again to persons unknown. The application includes a section titled "Background Information." Question 1 asks in relevant part the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contender (no contest) to, even if you received a withhold of adjudication? Question 1 further provides as follows: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question in the affirmative. The question provides that if the applicant responds in the affirmative to the question, "form 0050-1" should be completed to disclose additional information about the convictions. Form 0050-1 includes space to list three criminal convictions. The application instructions related to the form state: "[i]f you have more than seven offenses to document on form 0050-1, attach additional copies . . . as necessary." Respondent completed a form 0050-1. On the form, he stated that he had been convicted of a misdemeanor in 1987. The Respondent identified the offenses as "trespassing," "suspended license," and "cashed check." Respondent stated that the penalty had been probation, which was violated, and that he was required to finish the sentence. Respondent initially identified the location of the conviction as Pasco County, but crossed through the writing and changed it to Hillsborough County. Above Respondent's signature on the application is a statement that in material part provides as follows: I hereby certify that every statement contained herein is true and correct and that I understand that any misstatement or omission in this application may result in denial or revocation of my pari-mutuel license. Other than the information on the application, there was no evidence offered at the hearing that Petitioner was convicted of a misdemeanor in 1987 in Hillsborough County. Petitioner asserts that at the time he filed the application, he completed a second form 0050-1 on which he disclosed additional information related to felony convictions. At the hearing, he testified that an unidentified person allegedly involved in the application process instructed him to make the felony disclosures on a second form. Although there is no evidence contradicting Respondent's account of the events, the application submitted through the racetrack to Petitioner did not include a second form 0050-1. In 1983, Respondent was adjudicated guilty of felony charges, including Forgery and Uttering a Forged Check in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8101927CFAWS). In 1990, Respondent was adjudicated guilty of a felony charge of Grand Theft, Third Degree in Hillsborough County, Florida (Circuit Court, Thirteenth Judicial Circuit, Case No. 90-279). In 1991, Respondent was adjudicated guilty of a felony charge of Grand Theft in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8701762CFAWS). A few days after the application was completed, Respondent met with an employee of Petitioner (identified as "Nick") to discuss the felony convictions. "Nick" did not testify at the hearing. As filed with Petitioner, Respondent's application failed to include a second form 0050-1 and did not disclose the felony convictions identified herein. There is no evidence that Respondent has had any involvement in criminal activity since 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order suspending Respondent's occupational license for a period of three months. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of December, 2004. COPIES FURNISHED: Ralf E. Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stefan Thomas Hoffer Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jerry M. Bonett 7801 Willowbrook Court Hudson, Florida 34667 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact On January 3, 1984, the Florida Department of Education issued teacher's certificate no. 346776, Joint Exhibit No. 1, to respondent Henry Willie Williams, who still holds the certificate. Application Inaccurate The form application Mr. Williams completed to obtain his teacher's certificate reached the Department on October 7, 1983. Question V on the application form asked: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Yes No Joint Exhibit No. 2 Respondent checked the blank after "No," before signing and submitting the notarized form, "certify [ing] that all information pertaining to this application is true and correct." Joint Exhibit No. 2. Some three years earlier, on October 28, 1980, Judge John M. Marees had adjudicated respondent guilty of driving while intoxicated in violation of Section 316.193, Florida Statutes (1979), imposed a fine of $150.00, and assessed costs of $9.50. State of Florida vs. Henry Willie Williams, No. 80- 43114-MN (Duval County Court; Oct. 28, 1980). Joint Exhibit No. 3. A witness for the Department testified to his "belief that something of this magnitude, you would know whether you had or had not been arrested," (T. 62), but conceded it was possible for a person to "read that language that says 'other than minor traffic offense' and not consider a DUI [sic] to be other than minor." Id. Arrest and Conviction While employed by the Duval County School Board, respondent Williams received satisfactory evaluations. (T. 63) He was relieved of teaching duties, however, and reassigned to the Duval County School Board's media center, after his arrest on May 1, 1987, on charges of marijuana, cocaine and drug paraphernalia possession. (T. 56) Officers W. E. Copeland and Ben Moore effected the arrest while executing a search warrant, at an apartment in the 3200 block of Ricky Drive in Jacksonville. Present in the apartment with respondent Williams was Yvonne M. Buggs, who described Mr. Williams as a confidante. Ms. Buggs escaped arrest. Just whose apartment they were in at the time was not entirely clear. On July 23, 1987, Judge Parsons adjudicated respondent guilty of possession of cocaine in violation of Sections 893.03(2)(a) and 893.13(1)(e), Florida Statutes (1987), a felony of the third degree. No. 873999 CF (Fla. 4th Cir.; July 23, 1987) Joint Exhibit No. 4. At the same time, the court also adjudged respondent guilty of possessing less than 20 grams of cannabis, in violation of Sections 893.13(1)(e) and (f), Florida Statutes (1987), a misdemeanor of the first degree. No. 87-3999 CF (Fla. 4th Cir.; July 23, 1987). The court found respondent not guilty on the paraphernalia count, sentenced him to 90 days in the county jail on the marijuana count, and placed respondent on three years' probation on the cocaine possession count, with 90 days' jail time as a special condition of probation. Joint Exhibit No. 4. On appeal, the District Court of Appeal, First District, reversed respondent's conviction on marijuana charges, but affirmed the felony conviction for possession of cocaine. Henry Williams vs. State of Florida, No. 87-836 (Fla. 1st DCA Aug. 10, 1988) (reh. den. Sept. 19, 1988) pet. rev. pnd'g No. 73,180 (Fla; pet. filed Oct. 14, 1988)(pet.'s brief on juris. filed Oct. 26, 1988). The petition for review was filed only after the District Court had issued its mandate. A witness for the Department testified that he "believe[d] the conduct would seriously affect the effectiveness of Mr. Williams as a teacher . . . [because a]t this particular time in history where the drug issue is such a major one, and such a major one in the community, we feel our teachers should be above charges that have been made against them." (T. 59) By "conduct," he meant that respondent "certainly was present, he certainly was involved to some degree with narcotics as well as lying on the record to obtain a certificate." (T. 60)
The Issue The issue in this case is whether the part of Department of Environmental Regulation Rule 17-103.170, Florida Administrative Code, which charges appellants $.50 per page for preparation and transmittal of records on appeal from final DER action, constitutes an invalid exercise of delegated legislative authority.
The Issue Whether Respondent, a certified correctional officer, while under oath, did make false statements, which she did not believe to be true, in an official proceeding regarding a material matter, and, if so, what discipline should be imposed.
Findings Of Fact Based upon observation of the demeanor and candor of each witness; stipulations by the parties; documentary materials received in evidence; and evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2004), the following relevant and material facts, arrived at impartially and based solely on information presented at the final hearing, are determined: Deputy Marvina K. Johnson was certified by the Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), on September 17, 1991; was issued Correctional Certificate Number 62620; and, on June 23, 2000, was issued Instructor Certificate Number 211202. At all times material, Ms. Johnson was employed by the Manatee County Sheriff's Department (Sheriff's Department) until her dismissal in November of 2003. At some time during the month of June 2003, Ms. Johnson met Bruce Straubel in a local gym. Shortly after their initial meeting, the two became romantically involved. This romantic relationship progressed to the point that Mr. Straubel moved into Ms. Johnson's residence; thereafter, they established joint bank accounts and shared housekeeping and household expenses. At all times heretofore, Mr. Straubel was working in the construction industry. The evidence demonstrated that Ms. Johnson did not know and that she was not informed by Mr. Straubel that he was a convicted felon serving five years' probation at the time of their initial meeting in June and throughout the first few months of their relationship. The evidence of record demonstrated that it was not until early August 2003 that Ms. Johnson became aware of Mr. Straubel's criminal past. Sergeant Gaythel Siplin, Ms. Johnson's co-worker, testified that she was invited to Ms. Johnson's residence for a party where she was introduced to Mr. Straubel by Ms. Johnson. Sergeant Siplin, throughout the course of the evening, correctly assumed that Ms. Johnson and Mr. Straubel were seemingly truly romantically involved. From her apparent concern and her 20 plus years as a correctional officer with experiences of potential problems female correctional officers may encounter when involved with males of unknown background, Sergeant Siplin inquired if Ms. Johnson had conducted a background check on Mr. Straubel, to include AIDS testing, credit check, and criminal background check. The answer given, as recalled by Sergeant Siplin, was negative. On another occasion, unidentified in the record but believed by the witness to have been during the month of July 2003, Sergeant Siplin testified that she again advised Ms. Johnson to "check out" Mr. Straubel; meaning do a medical, credit, and criminal background check because in her mind "Mr. Straubel was too good to be true . . . like he fell from heaven." Sergeant Siplin testified that Ms. Johnson told her on or about the first of August that "Bruce" was involved in construction and building houses and that he was involved in a situation where he was charged with false imprisonment. Sergeant Siplin knew for a fact that false imprisonment is a violent offense, and she told Ms. Johnson to check into Mr. Straubel a little bit further. Ms. Johnson was not certified to make inquiries through use of the Department of Law Enforcement's NCIC computer connection to ascertain the identity of a person with a felony conviction. According to Sergeant Williams, information about Mr. Straubel was available to Ms. Johnson through the internet by connecting to the Department of Correction's website. Sergeant Siplin related her "concerns about Ms. Johnson's relationship with Mr. Straubel" to other members of the Sheriff's Department. This "concern" founded its way into the Internal Affairs (IA) Office during August 2003. During a conversation between Lieutenant Smalls and an unnamed probation officer, the lieutenant was told that "one probationer [unnamed] was seeing a fellow employee." On or about August 19, 2003, Lieutenant Smalls met with and informed Captain Williams of the information taken from an unidentified probation officer. Captain Williams checked and affirmed that Mr. Straubel was a convicted felon. The IA investigation team, consisting of Major Potts, Captain Williams, Captain Smith, Lieutenant Smalls, and Carolyn Smith, summoned Ms. Johnson into the IA office and asked whether she knew Mr. Straubel was a convicted felon, to which Ms. Johnson answered "No." Not withstanding Ms. Johnson's denial of "knowledge that Mr. Straubel was a convicted felon," she was told by a [unnamed] superior officer of the Sheriff's Department to "cease and desist her relationship or any other contact with Mr. Straubel because of his criminal history." Ms. Johnson gave undisputed testimony that during her interview, her superior officer told her, "[I]f you had married him all of this would not be in play, you should have married him." Ms. Johnson complied with the "cease and desist her relationship or any other contact with Mr. Straubel" order of her superior officer from August 19, 2003, until sometime beginning in late October or early November 2003. Ms. Johnson gave undisputed testimony that she paid for Mr. Straubel to move into another living facility, establishing separate residence. She deposited money into his bank account and made a valid effort to "discontinue seeing Mr. Straubel." However, her efforts failed, and she first began calling Mr. Straubel; the repeated calls led to meetings outside her home; the meetings outside her home led to her going to his motel for overnight visits; the overnight motel visits led to Mr. Straubel coming over and spending nights at her home. Sergeant William Diamond testified that on or about November 14, 2003, Mr. Straubel called IA and asked to meet and did meet with IA members on or about November 17, 2003. According to Sergeant Diamond, during the meeting, Mr. Straubel acknowledged that he and Ms. Johnson were still "having an affair." Although available, Mr. Straubel did not testify. Because IA got its information from a probation officer, and, thereafter, the probationer presumably called IA and volunteered to meet with IA, the logical and most reasonable assumption is that the convicted felon, Mr. Straubel, was prompted by his probation officer to contact IA. However, the Commission chose not to call Mr. Straubel to testify. Therefore, testimony of Sergeant Diamond, purporting to be "statements made by Mr. Straubel to IA on or about November 17, 2003," which are hearsay upon hearsay statements, is insufficient to establish the truth of the matter asserted therein, is insufficient to establish the truth of the allegations sought to be established, and is, therefore, rejected by the undersigned. On November 24, 2003, Ms. Johnson was called in by IA and questioned regarding her knowledge of Mr. Straubel and his criminal history and her relationship with him. There was testimony regarding "dates phone calls were made to and from Respondent's phone"; however, there is no written evidence of record of the alleged phone calls or the dates they were made, if made. There was testimony regarding some questions asked of Ms. Johnson by the IA team members regarding motel rental payments and bank deposits. Again, there is no written evidence of record of the motel rental payment, or bank deposit slips, etc., that was produced by Petitioner. Accordingly, the testimony regarding or relating to documentation not of record is insufficient alone to establish a firm belief as to the truth of the matter sought to be established. Ms. Johnson never denied not seeing Mr. Straubel. When questioned whether she had "seen Mr. Straubel" after the August 19, 2003, order to cease and desist her relationship with Mr. Straubel, Ms. Johnson answered "no" but continued her answer to explained her temporary successful attempt to discontinue her relationship and her subsequent relapse back into the relationship with Mr. Straubel, after passage of time. During questioning by IA, Ms. Johnson admitted paying Mr. Straubel's motel bill after he moved out of her residence; she acknowledged that she was aware that in his past Mr. Straubel had gotten into "some trouble"; but she denied knowing, at that time, his trouble was a felony conviction. After IA presented her unidentified documentation that Mr. Straubel was a convicted felon, Ms. Johnson accepted IA's documentation as evidence of Ms. Straubel's criminal background. Her mere acknowledgement of the documentation presented to her by IA does not establish, as fact, she had knowledge of this information prior to IA's interrogation. Mr. Strabuel was not called to testify, and the tape recording of his earlier interview with IA was not introduced into evidence. The witnesses' recollection, made from repeated references to summation notes of tapes and other documents not in evidence, purporting to be statements Mr. Straubel voluntarily made to IA about what Mr. Straubel may or may not have told Ms. Johnson in June 2003, is hearsay upon hearsay and not acceptable as evidence to prove the truth sought to be established. For that reason this testimony is rejected in toto. The Sheriff's Department terminated Ms. Johnson's employment at the conclusion of the IA investigation, the exact month and date are not in evidence of record. After her termination by the Sheriff's Department, Ms. Johnson entered college and, as of this proceeding, had earned 46 credits toward her college degree. Subsequent to the close of this proceeding Ms. Johnson and Mr. Straubel were married on August 16, 2004, in Manatee County, Florida. The evidence of record is neither clear nor convincing that on November 24, 2003, while under oath Ms. Johnson intentionally made a false statement(s), which she did not believe to be true. The testimony of Sergeant Diamond alone, based upon summation notes purportedly taken from two tape recordings of an interview between Lieutenant Smalls and Mr. Straubel and three tape recordings purportedly containing interviews with Captain Smith, Sergeant Siplin, Deputy Eleanor Mays and Ms. Johnson, is neither clear nor convincing when transcription summaries of the tape recordings and not the tape recordings themselves where introduced into evidence. There is no evidence of record of the specific question(s) asked Ms. Johnson and no evidence of record of her specific answer to each question regarding her relationship with Mr. Straubel after August 19, 2003. The evidence of record regarding the November 24, 2003, interrogation episode, viewed most favorably, is not clear. When questioned by the IA committee and/or members regarding specific bills she allegedly paid, phone calls she allegedly made, and bank deposits she allegedly made; those phone bills, telephone logs, and bank deposit slips are not of record. Accordingly, an objective evaluation of Ms. Johnson's answer to each question regarding each specific document can not be made. Thus, Ms. Johnson's knowledge at the time each answer was given, her intention when an answer was given to a specific question, and whether her answer was true or false, can not be objectively made or reasonably inferred from the nonspecific summation testimony of Sergeant Diamond. Assuming Sergeant Diamond's entire testimony was accurate, the ambiguity created by the absence of dated documents and the absence of accurate transcripts of the several tape recordings upon which he based his testimony must be resolved in favor of Ms. Johnson. Other than the faulty memory of Sergeant Diamond, refreshed from an unauthenticated 19-page summation report, there is no substantial and specific evidence of all specific questions asked of Ms. Johnson or the specific answer to each question given under oath by Ms. Johnson. Sergeant Diamond's testimony consisted primarily of debatable expressions announced prospectively that may result in the loss of a valuable license. Viewed most favorably, the testimony of Sergeant Diamond, taken from a 19-page unauthenticated summation report of tape recordings and alleged confessions and admissions by other parties, is lacking in "specificity" and fails to produce a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Ms. Johnson's denials of essential elements in the Administrative complaint, even if unbelievable, does not prove the accusations. The Commission failed to prove by clear and convincing evidence that on or about November 24, 2003, Ms. Johnson, did unlawfully make a false statement, which she did not believe to be true, under oath administered by Sergeant Diamond and Investigator Nancy Schoff in an official proceeding, to wit: internal investigation, in regard to a material matter as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order dismissing the Administrative Complaint against Respondent, Marvina K. Johnson. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 30th day of November, 2004.
The Issue Among the issues in this case are: Whether a court order sealing records of a criminal prosecution bars action by a school board against its employee on account of the facts underlying the prosecution? Whether the evidence showed that what was seized was actually marijuana? Whether the evidence established constructive possession? Whether the evidence showed that respondent's effectiveness as an employee of petitioner had been reduced? Whether petitioner can discipline an employee for "immorality" occurring before employment began? Whether petitioner can discipline an employee for "immorality" now that Section 231.36, Florida Statutes (1981) has been amended to delete "immorality" as such as grounds for dismissal or suspension?
Findings Of Fact After a telephone caller's report that a marijuana plant was visible in an apartment window was relayed by the Clewiston police dispatcher to Corporal Deese and Patrolman Meskin, they spotted the plant through a window on the ground floor of the Von Mach apartment building. Corporal Deese examined the specimen with binoculars, and photographs were taken. That afternoon, a warrant was issued authorizing the search of the corner apartment in which the plant stood. THE ARREST The following day, June 13, 1981, Officers Deese, Meskin and Hand executed the warrant. When they knocked at the apartment door, respondent Walton called out, "Come in." In one bedroom, they found towels lying around and men's clothing. They also found a marijuana plant and another species of plant growing in pots. A mirror had been positioned to reflect the sun's rays onto the plants. The only other bedroom in the apartment seemed to be unoccupied. The mattress in that bedroom lacked sheets. Respondent told them his roommate had moved out. Daniel Fairchild, employed, like respondent at the time, as a teacher at Clewiston High School, lived in the apartment from the beginning of October until mid-December, 1980. Norman Vaughn shared the apartment with respondent from early January of 1981, until June 12, 1981. When patrolman Meskin asked Mr. Walton to produce any other drugs in the house, respondent retrieved a plastic bag containing marijuana from among some newspapers on the floor. The searching party also seized a stained hemostat and a package of rolling papers. EFFECTIVENESS In the spring of 1981, there was "a widespread incident involving students in use of drugs" (T. 111) at Clewiston High School, with which respondent had nothing to do, as far as the evidence showed. Some students were expelled for the remainder of the school year, as a result. Mr. Walton's arrest for possession of marijuana was reported in the Clewiston News, a newspaper of general circulation in Hendry County, and became general knowledge in Hendry County. There was no evidence that any member of the public in Broward County had learned of Mr. Walton's arrest when these proceedings began. Respondent was employed by the Hendry County School Board on an annual contract basis. For reasons unrelated to this case, the 1980-1981 school year was his last as an employee of the Hendry County School Board. He finished working for the Board on June 12, 1981. PROPOSED FINDINGS CONSIDERED Both petitioner and respondent made post-hearing submissions, and their proposed findings of fact have been duly considered and, in large part, adopted in substance. To the extent they have been rejected they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the petition for dismissal filed against respondent. DONE AND ENTERED this 25th day of January, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1983. COPIES FURNISHED: Charles T. Whitelock, Esquire 1244 Southeast Third Street Ft. Lauderdale, Florida 33316 Richard H. Frank, Esquire Mark F. Kelly Law Offices of Frank & Kelly, P.A. 341 Plant Avenue Tampa, Florida 33606 William T. McFatter Superintendent of Schools The School Board of Broward County, Florida 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 =================================================================
Findings Of Fact Respondent is and at all material times has been a licensed physician in the State of Florida. He holds license number ME 0029977. On August 7, 1984, Flo-Nita Spanogle and Mary Willis, investigators of Petitioner, conducted an inspection of Respondent's medical office at 5705 Hansel Avenue, Orlando, Florida. The following day, Ms. Spanogle inspected Respondent's medical office at 201 Hilda Street, Suite 38, Kissimmee, Florida. Respondent had not registered the Orlando or the Kissimmee office with the Drug Enforcement Administration. The Orlando office had only been open for about one week. However, the registration certificate for Respondent's previous Orlando office states clearly on the bottom in capital letters: "This certificate is not transferable on change of ownership, control, location, or business activity." Respondent maintained no biennial record of his stock of controlled substances and had no separate records of the receipt and disposal of controlled substances. Respondent maintained patient records that contained, among other things, copies of all prescriptions. Respondent never charged patients for drugs dispensed from his office. Ms. Spanogle found in the Orlando office about 20 containers of controlled substances. The only Schedule III controlled substances were six 1/2-ounce bottles of Hycomine, two Tylenol 3 tablets, two Fiorinal 2 tablets, 12 Fiorinal #3 tablets, and 18 tablets of Vicodin consisting of the remainder of an original prescription of 30 tablets issued by Respondent to Grady Lebbit on June 4, 1984. The remaining controlled substances were listed in Schedules IV and V. Those found in significant quantities were: 80 tablets of Valium (5 mg dosage), 70 tablets of Valium (10 mg dosage), 71 tablets of Valium (2 mg dosage), 40 capsules of Valrelease (15 mg dosage), 60 tablets of Xanex (0.25 mg dosage), 60 tablets of Xanex (0.3 mg dosage), 66 tablets of Dalmane (15 mg dosage), 42 tablets of Dalmane (30 mg dosage), 25 tablets of Limbitrol (varying dosages), 140 tablets of Equagesic (no reported dosage), 23 tablets of Halcion (0.25 ng dosage), five one-ounce bottles of Donnagel PG, and nine one-ounce bottles of Actifed with codeine. With the exception of the Vicodin, the controlled substances described in this paragraph were kept in the office for the purpose of dispensing to patients. Ms. Spanogle discovered in the Kissimmee office only one controlled substance, Valrelease, which is a time-release form of Valium. The total quantity consisted of only three physician's samples, each containing a single 15 mg dose. There is no evidence that the Valrelease was in the Kissimmee office for the purpose of dispensing to patients. None of the above-described controlled substances was kept in a securely locked, substantially constructed cabinet. The controlled substances kept in Orlando were in an unlocked room that was behind the receptionist. Ms. Spanogle confiscated from Respondent's Orlando office numerous legend drugs because they were kept in unmarked or unlabeled containers or bore labels that indicated that their expiration date had passed. With the exception of 18 tablets of Vicodin, none of these drugs was a controlled substance. These drugs were either office stock maintained by Respondent for the purpose of dispensing to his patients or were returned prescriptions from various of Respondent's patients. There was no evidence that Respondent dispensed drugs to other patients from the returned prescriptions. Ms. Spanogle seized the following Orlando office' stock: 297 capsules of Tetracycline contained in an unmarked ziplock plastic bag, eight one- and two-ounce bottles of Kwell lotion either unmarked or marked only with the name "Kwell," 16 tablets of Pyridium (100 mg dosage) with a label bearing an expiration date of February, 1981, 42 tablets of Catapres (0.3 mg dosage) with a label bearing only the drug name and dosage, 111 tablets of folic acid (1 mg dosage) with a label bearing only the drug name, 5 1/2 tablets of Inderal (40 mg dosage) with a label bearing only the drug name, five tablets of Sorbitrate Sublingual with a label bearing only the drug name, eight tablets of Urobiotic (250 mg dosage) with a label bearing only the drug name and dosage, nine tablets of Microdantin (100 mg dosage) with a label bearing only the drug name, 24 tablets of Dilantin (100 mg dosage) with a label bearing only the drug name, 62 tablets of Donnatal (30 mg dosage) with a label bearing only the drug name, 10 tablets of Orinase (250 mg dosage) with a label bearing only the drug name, and three tablets of Microdantin (200 mg dosage) with a label bearing only the drug name. Ms. Spanogle seized from the Orlando office 15 vials of returned prescriptions of legend drugs. None of these was a controlled substance except for a vial containing 18 tablets of Vicodin. All but two of the prescriptions had originally been written by Dr. Tandon. None of the vials, which were the original vials supplied to the patient from the pharmacy, bore a lot number or expiration date. There is no evidence that the returned prescriptions were kept for the purpose of dispensing to patients. Ms. Spanogle destroyed the three physician's samples of Valrelease, as well as three outdated legend drugs found in the office stock of the Kissimmee office. The outdated legend drugs, which were found in a refrigerator in the office, consisted of unreported quantities of Metromycin with an expiration date of April, 1984, Mycostatin vaginal tablets with an expiration date of October 1, 1980, and Permapen Isoject with an expiration date of January 8, 1984. On two occasions prior to the inspection, Respondent had written a prescription for an ampule of Demerol, which Respondent then administered to a patient during an office visit. Demerol is a Schedule II controlled substance. A legend drug is a drug that may be dispensed only by prescription. A controlled substance is a legend drug that is subject to additional regulation due to its potential for creating dependence. Controlled substances listed in Schedule I have the greatest potential for producing dependence. Controlled substances listed in Schedule V have the least potential for producing dependence. A legend drug whose expiration date has passed no longer bears the manufacturer's guaranty as to strength. Lot numbers of legend drugs are used to identify drugs that have been recalled by the manufacturer. Respondent was previously disciplined by Petitioner. By Final Order dated February 27, 1984, Petitioner found Respondent guilty of violating Section 458.331(1)(r), Florida Statutes, by unlawfully prescribing legend drugs to himself. The drugs in that case were Nembutal and Ritalin, which are Schedule II controlled substances. Petitioner imposed an administrative fine of $200 and placed Respondent on probation for a period of one month. He successfully completed the probationary period.
The Issue Whether or not Respondent falsified his application for employment warranting his dismissal from employment by the School Board.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver since 1989. When Respondent filed his application for employment with Petitioner, he failed to divulge the following arrests: 1983 - Aggravated battery. 1984 - Disorderly conduct and battery. 1985 - Petit larceny. 1985 - Resisting arrest without violence. 1987 - Possession of marijuana. During early 1993, the St. Petersburg Times, a local newspaper, conducted an investigation of Petitioner's employees which included compiling arrest records of all employees. Included within that compilation and investigation were the above-referenced arrests of Respondent which were not noted (by Respondent) on his employment application. Respondent does not contest the fact that he was arrested and found guilty of all the above-referenced arrests. Based on his failure to disclose those arrests, he was dismissed on March 25, 1993 for falsifying his employment application. However, he maintains that one other employee with a similar employment record, Debbie Hillman, was reassigned by Petitioner and maintained her employment, with the result that he was treated differently than other employees. Administrator Barker conducts investigations of employee conduct and at times makes recommendations respecting the employment and continued employment of Petitioner's employees. Mr. Barker recommended that Respondent be terminated when Respondent's arrest records came to his attention. Relying on the number of arrests and the nature of one arrest and conviction, particularly the offense relating to possession of marijuana during 1987, Mr. Barker determined that Respondent would not have been hired as a bus driver. This was so based upon the potential that students would be injured while Respondent drove the school bus if he did so while under the influence of drugs. Mr. Barker was familiar with the Debbie Hillman reassignment. Specifically, employee Hillman approached one of Petitioner's supervisory employees, Dr. Crosby, and advised him of a drug problem that she had and requested treatment. Ms. Hillman was enrolled in a drug treatment program where she was subjected to random and monthly urinalysis. Ms. Hillman was allowed to transfer to another position after her completion of rehabilitation because she came forth with the information and moreover, she did not falsify arrest records on her employment application. Ms. Hillman's case is factually distinguishable from Respondent's case and, therefore, does not show that Respondent was treated differently or more harshly than other employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order sustaining its dismissal of Respondent as a bus driver with the Pinellas County School Board. DONE AND ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. COPIES FURNISHED: Keith B. Martin, Esq. Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942 JAMES E. BRADWELL 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 2nd day of November, 1993. Leroy Brown 12048 135th Avenue North Largo, Florida 34640 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 11, 1990, and issued certificate number 4-90-502-02. On May 31, 1990, Dawn Rees was working in concert with the Police Department of Williston, Florida, and the Florida Department of Law Enforcement as a confidential informant regarding illegal drug activity in the Williston area. In the course of her work, Rees would meet with various individuals and attempt to buy illegal drugs. As a prelude to each of these meetings, Rees would be searched by law enforcement officials to determine that she had no illegal drugs on her person. Then, she would be "wired" or fitted with sonic monitoring equipment and sent to negotiate the illegal drug purchase. Upon her return from the drug rendezvous, Rees would turn over any contraband purchased by her and submit again to a personal search. Rees' conversations with the persons from whom she sought to buy drugs was monitored and recorded by authorities via the broadcast of those communications to them through the "wire" worn by Rees. On the evening of May 31, 1994, Rees went to the residence where Respondent lived and spoke with William Lynch, a friend of Respondent who also resided in the house, concerning the purchase of an ounce of marijuana. The conversation between Lynch and Rees took place on the front porch of the residence. Lynch told Rees that he could get the marijuana for her. Later that evening, Rees, equipped with the hidden listening device described above, returned and entered the residence to get the promised marijuana. Sometime later, Rees left the residence and met with law enforcement authorities. As stipulated by the parties at the final hearing, a field test of the substance obtained from Lynch in the residence by Rees, and provided to authorities that night, identified the drug as marijuana. As established by Rees' testimony at the final hearing, she was involved in several other investigations as a confidential informant during the same general time span that she was also involved in the drug purchase at Respondent's residence. Rees testified from the basis of her recollection of events that had occurred several years prior to final hearing. Respondent was present and operating a "Nintendo" game when Rees entered the house. Respondent engaged in conversation with Rees, but did not observe the later exchange of money for marijuana between her and Lynch. The exchange, as established by Lynch's candid and credible testimony, took place in a back bedroom of the house, out of the presence of Respondent. Respondent testified that he had no knowledge of the transaction or the presence of illegal drugs in the house. Accordingly, Rees' testimony, absent further corroboration by other direct admissible evidence, that Respondent knew illicit drugs were on the premises and observed the drug transaction, cannot be credited. A transcript, presented at the final hearing and purportedly derived from the tape of conversations had between Rees and persons in the residence garnered via the "wire" worn by Rees, offers no proof in support of a contention that Respondent was aware of the presence or sale of illegal drugs on the premises. As established by the credible testimony of Respondent, and corroborated by Lynch, Respondent was unaware of the presence of illicit drugs in the residence or the sale of such drugs in the residence at any time, contrary to allegations of the Administrative Complaint. Later, Lynch moved out of the residence. Respondent was arrested several months later in connection with the incident. By stipulation of the parties, it is established that those charges were subsequently nolle prossed by the Office of the State Attorney, 8th Judicial Circuit of Florida. The evidence presented by Petitioner of Respondent's knowledge and possible participation in the possession and sale of an illicit drug, marijuana, as charged in the Administrative Complaint, is met by Respondent's credible denial of any knowledge as to the alleged events. Further, Respondent's assertion of innocence is corroborated by the testimony of William Lynch. It is concluded that there is insufficient evidence to establish that Respondent knew that drugs were in the house on the night in question or that Respondent knew of the drug sale to Dawn Rees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the charges contained in the Administrative Complaint. DONE and ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1994. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1-2 Accepted. 3-4 Rejected, the transcript reference shows that Respondent was arrested on February 5, 1991, following the May, 1990 incident. 5-6 Accepted. 7-8 Subordinate to HO's findings on these points. Specifically, Ms. Rees is found to have been mistaken about the content of her conversations with Respondent and without a basis to draw the conclusion that Respondent was a willing and knowledgeable participant in illegal activity. Subordinate to HO findings. Respondent had the transcript admitted to show its lack of probative value. At no time does Respondent adopt the transcript in order to prove the case against himself. Rejected, relevance. Accepted. Rejected, relevance. Accepted. Rejected, weight of the evidence. Respondent's Proposed Findings None submitted. COPIES FURNISHED: Pauline Ingreham-Drayton Attorney at Law Florida Department of Law Enforcement 711 B Liberty Street Jacksonville, Florida 32202 Richard Bova, Jr. 624 S.W. 70th Terrace Gainesville, Florida 32608 Leon Lowry, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK 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 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
Findings Of Fact Under the provisions of Chapter 494, Florida Statutes, the Department is charged with the responsibility and duty of administering and enforcing the provisions of said chapter, which includes the duty of granting or denying an application for a mortgage broker license, as set forth in Section 494.037, Florida Statutes. Applicant is a resident of the State of Florida and has a present address at 2400 North Ocean Boulevard, Fort Lauderdale, Florida 33305. On November 26, 1985, Applicant submitted a partially completed Application for Registration as a Mortgage Broker (hereinafter Application), under the provisions of Chapter 494, Florida Statutes. From the Application, Applicant was born March 19, 1935. He is a citizen of the United States and is a resident of the State of Florida. The files of the Department indicate that Applicant is not now and never has been granted a license as a mortgage broker by the Department. On February 28, 1986, the Department entered a Final Order Denying the Application for Registration as a Mortgage Broker and Notice of Rights against Applicant (hereinafter Denial Order). Applicant timely requested a hearing and William J. Kendrick, Hearing Officer, was assigned to preside over these proceedings. An administrative hearing was held on August 18, 1986, and on October 22, 1986, said Hearing Officer entered a Recommended Order recommending that Applicant's Application be approved. The Department has reviewed the Hearing Officer's Findings of Fact and adopts and incorporates them by reference with two minor exceptions which are discussed in the Conclusions of Law section herein.
