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
Findings Of Fact Willie Norman, Jr. d/b/a Paradise Cafe holds 2-COP beverage license and was so licensed at all times here relevant. In August, 1977 Willie Norman was in the hospital where he had a gall bladder operation. During this time on August 7 and 14, Gainesville police officers observed the Paradise Cafe open after hours on consecutive Sunday nights. Gainesville City Ordinance No. 2082 (Exhibit 9) prohibits the sale of alcoholic beverages on Sundays after 11 p.m. in the city of Gainesville. On 7 August 1977 the police found the establishment open at approximately 3 a.m. with 30 to 40 patrons in the premises and Ike Norman apparently in charge. The following Sunday night on August 14 the police raided the premises at 11:30 p.m. on Sunday night and found 40 to 50 patrons in the establishment with Ike behind the bar and Manuel Norman serving beer. When Manuel Norman was arrested, Ike stated that he (Ike) was running the business because the licensee was sick and that if anyone was to be arrested it should be him. After receiving the police reports, the premises were inspected by beverage agents on 30 August 1977 and Ike Norman told the agent that he was running the business for his son, the licensee, who was home sick. On 7 October 1978 two beverage agents entered the Paradise Cafe on a routine inspection, and, while looking in the men's room, one of the agents observed a brown paper bag, the contents of which he found suspicious. A subsequent analysis of the contents disclosed that the bag contained 14 grams of cannabis. No evidence was presented that licensee or any employee of licensee knew or should have known that the cannabis was on the premises. Willie Norman, Jr., Ike Norman and Manuel Lee Norman are brothers. Ike was the licensee of the cafe several years ago when it was named the Red Top Cafe. In 1973, Ike was convicted of possession of alcoholic beverages for sale without a license. He sold the business to his brother, Willie, who took over the lease and first became licensed in 1975-76. According to Willie's testimony, while he was in the hospital during the month of August, 1977, he left Manuel Norman in charge. He was aware that Ike could not legally be employed at the business because of Ike's criminal record. Willie expressed no knowledge of any of the other charges preferred against his license.
Findings Of Fact Sonny's Italian Restaurant and Pizzeria, Inc., d/b/a Sonny's Italian Restaurant, at 247 23rd Street, Miami Beach, Florida, Respondent or Sonny's, holds Beverage License No. 23-2197 Series 4-COP. Acting upon the request of, and in concert with, the Miami Peach Police Department, the Division of Alcoholic Beverages and Tobacco instituted an investigation of Sonny's during the period of April 25, 1981 through May 13, 1981. Much of the investigation was conducted by beverage officers performing undercover surveillance. On April 25, 1981, while operating undercover, Beverage Officer Luis J. Terminello, while in the lounge area at Sonny's, was offered oral sex by a patron known as "Wallflower" for $45. On April 26 Terminello engaged in a conversation in Sonny's lounge with a black female patron known as "Sherrill" who offered to commit oral sex for $25. On April 29 he again was approached in Sonny's by "Sherrill" who offered oral sex for $25. Later that same evening he engaged in conversation with a female patron known as "Lisa," who offered oral sex for $40. On the same evening, while engaged in conversation with a patron known as "Annette," he was offered oral sex for $50. On April 30, 1981, Terminello engaged in conversation with "Sherrill" in Sonny's lounge and was offered oral sex for $30. On May 2 Terminello engaged a patron known as "Maxine" in conversation and was offered oral sex for $20. He later learned Maxine is a male. On May 3, 1981 in Sonny's lounge Terminello engaged in conversation with Annette who offered him sexual intercourse for $50. All these conversations took place at the bar or in the vicinity thereof while the lounge and bar area were crowded with customers. These acts of prostitution were offered to be committed in Terminello's automobile or in the restroom at Sonny's. While Terminello was in Sonny's lounge during the investigation period he observed the females who had solicited him talking with other male patrons. He also saw them leave the lounge with male patrons and return some 45 minutes later. On the April 25 visit Terminello observed the barmaid, Susan, snorting a white power from a spoon, and, on at least three other occasions, he observed patrons at the dark part of the bar snorting a white powder. At other times he noticed what was recognized by him as marijuana smoke in the bar, lounge and restrooms and saw patrons smoking what appeared to him to be marijuana cigarettes. During the period of the investigation Terminello became known in Sonny's as a purchaser of controlled substances. On April 30 Robert Jones, a beverage officer, and Terminello purchased a substance they thought to be cocaine from a patron known as "Ice Cream." The transaction occurred in the men's room in the restaurant side of Sonny's and, following the transaction, "Ice Cream" lit a marijuana cigarette and passed it around to Terminello and Jones. Subsequent lab reports confirmed the cigarette to be marijuana but the substance bought was not cocaine. On 2 Hay, while in the bar area at Sonny's, Terminello was offered Quaaludes and he purchased six of them from a patron known as Don. On May 3, while engaged in conversation with Annette at the bar, Terminello said he was interested in getting cocaine. Annette told him she could get some from Susan, the barmaid, for $70 a gram. After he agreed on the price Annette went behind the bar, talked quietly to Susan, and both girls left the bar and went into the ladies' restroom. Terminello followed them to the door of the ladies' room and caught a glimpse of a package being handed by Susan to Annette. Terminello returned to the bar, where he was shortly joined by Annette, who delivered one gram of cocaine in exchange for $70. About an hour later, Terminello returned to Sonny's and arranged for another purchase of cocaine from Susan by Annette. After this transaction was completed Terminello, while sitting at the bar, called Susan over to order a beer and say "Thanks." She replied that she wasn't "holding" all the time but when she was he was welcome. Later the same evening in Sonny's, Terminello made two purchases of what he thought was cocaine from patrons "Charles" and "Ice Cream." Subsequent lab analysis of these purchases disclosed they were not cocaine. During the same investigative period Beverage Officer Carmen Gonzalez and Miami Beach Police Officer Joan Donnelly visited Sonny's on several occasions as undercover agents. On April 27, 1981, while seated at the bar Gonzalez and Donnelly negotiated a purchase of marijuana from bartender Gerald (Jerry) Hamburger. He told them he could provide marijuana at $30 an ounce. When they agreed he left the bar and walked toward the restaurant from where he shortly returned saying he would have to send out for it. Thirty to forty-five minutes later Jerry delivered the marijuana at the agreed price. Gonzalez and Donnelly returned to Sonny's on April 30 and told Jerry they would like to purchase marijuana and he introduced them to the pizza delivery man, "Bobby." When Bobby asked if they wanted anything, Gonzalez told him she was interested in purchasing marijuana. Bobby replied that he would have to go out and get it. He returned some thirty minutes later and motioned for the officers to accompany him to the lounge in the ladies' restroom. There he removed a packet of marijuana from his sock and gave it to Gonzalez who paid him $30. On May 1 Gonzalez and Donnelly returned to Sonny's. Jerry wasn't working so they asked the bartender, "Ray", where they could find Bobby. When told he was on the restaurant side of Sonny's, they proceeded to the restaurant area, where they were seen and greeted by Bobby. When Gonzalez asked if they could get marijuana, Bobby replied yes but he would have to go out for it. Some thirty minutes later Bobby took Gonzalez and Donnelly into the ladies' restroom in the lounge area where he delivered one ounce of marijuana and Gonzalez paid him $30. Gonzalez and Donnelly also became acquainted with two band members working in Sonny's called Waco and Termine. On May 3, Termine told them he could got good coke for them; and, when they agreed, he walked to the back of the restaurant and came out with another man. The other man couldn't provide a full gram but could provide three "dimes" for $10 each. He removed these foil- wrapped packets of cocaine from his pocket and handed them to Gonzalez, who paid him $30. On April 30, Gonzalez and Donnelly purchased a white powder, believed to be cocaine, from "Ice Cream." This transaction took place in the ladies' restroom in the lounge; and, following the sale, "Ice Cream" lit a marijuana cigarette and passed it around. While they were in the restroom "Diane" knocked on the door, came in and lit a second marijuana cigarette. The substance purchased from "Ice Cream," when tested, was found not to be cocaine. During the investigation, several patrons at Sonny's approached Gonzalez and Donnelly to sell them controlled substances. Joseph Chierico holds all of the stock in Sonny's. His son, Robert, serves as manager. According to their testimony, both are present at the establishment nearly every evening. Sonny's is open from 4:30 p.m. until 5:00 a.m., with deliveries of food on Miami Beach until 3:30 a.m. Each spends most of his time in the restaurant area but Robert, as manager, walks through the lounge and bar area frequently. Robert spends less than one-half of his time in the lounge side. Each testified he never saw any drugs brought into the licensed premises and when a customer complains about solicitation by a prostitute he tells the prostitute to leave. Richard Chierico testified that on many occasions he escorted patrons off the restaurant premises for use or sale of narcotics. If they hear about someone attempting to sell narcotics on the premises, they tell them to leave and not come back. Both Chiericos testified that they did not know Wallflower, Sherrill, Annette or Maxine; however, they did know a transsexual named Lisa who was not allowed on the premises because of suspicion of solicitation. Joseph Chierico testified he hired a band leader on a contract basis for a specified number of players and had nothing to do with the individual members of the band. Exhibits 5 and 6 were admitted into evidence as business records purporting to show the employees of Sonny' a each week. No hours worked are shown on these exhibits, and Joseph Chierico, through whom the exhibits were offered, could not explain them. These records are maintained by the bookkeeper who did not testify. He prepares the payroll from which Chierico writes the employee's checks on Sunday nights. These exhibits indicate that Jerry was on duty only one day during the week ending 2 May 1981; but, without a witness to verify the accuracy of this record, they are insufficient to rebut the testimony of Gonzalez and Donnelly that Jerry was on duty as bartender on at least two nights when marijuana was purchased. Joseph Chierico became the sole shareholder of Sonny's on 30 October 1980 and executed the Personal Questionnaire (Form UBR 710-L), (Exhibit 4), on 31 October. However, the Certificate of Incumbency and Declaration of Stock Ownership (Form DBR 759-L), (Exhibit 1), was not filed wish the petitioner until April 9, 1981. Joseph Chierico testified that he has been the operator of Sonny's off and on for the past 25 years; that if he suspects any employees of using or selling drugs he gets rid of the suspected employee; that he sees many patrons using drugs and when he does, he tells them to leave; and that he vaguely recalls an incident involving the license several years ago but nothing came out of it. On rebuttal, Exhibits 7 and 8 were introduced into evidence. In Exhibit 7, the licensee was charged with changing corporate officers in 1969 without notifying the Beverage Department and with failing to disclose that Joseph Chierico held an interest in the business. Exhibit 8 is a STIPULATION executed June 21, 1971 in which Barbara Chierico, President of licensee and estranged wife of Joseph Chierico, agreed to pay a $500 fine and submit a management contract to the Beverage Department for approval.
The Issue The issue for determination in these proceedings is whether the Petitioner, the Department of Insurance and Treasurer, should discipline the Respondent, Warren Scott Jackman, under Section 633.351(2), Fla. Stat. (Supp. 1990), on an Administrative Complaint charging that he has pled nolo contendere to a felony charge.
Findings Of Fact At all times pertinent to this proceeding, the Respondent has been certified as a firefighter, certificate #44701. On or about March 7, 1990, a two-count criminal information was filed against the Respondent in Case No. CF-90-0604 charging the Respondent with two counts of committing a lewd act in the presence of a child. The information alleged that, on two occasions, the Respondent did handle, fondle or make an assault in a lewd, lascivious or indecent manner or knowingly commit a lewd and lascivious act in the presence of a sixteen year old girl in that he did allow, permit or engage her to fondle, touch or rub his penis, but without committing sexual battery. On or about August 24, 1990, the Respondent entered a plea of nolo contendere to the charges. Adjudication was withheld, but the Respondent was sentenced to one year of community control, followed by four years probation for each count, to be served concurrently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order revoking the certification of the Respondent, Warren Scott Jackman, as a firefighter. RECOMMENDED this 11th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 11th day of February, 1991. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-3. Rejected, as stated, as contrary to facts found and the greater weight of the evidence. (The Respondent, not the Petitioner, was charged and entered the plea.) 4. Accepted and incorporated. COPIES FURNISHED: Lisa S. Santucci, Esquire Department of Insurance and Treasurer Division of Legal Services Room 412, Larson Building Tallahassee, FL 32399-0300 Warren Scott Jackman 1569 Churchill Court Lakeland, Florida 33801 Tom Gallagher State Treasurer, Insurance Commissioner and Fire Marshall The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue in this case is whether the Criminal Justice Standards and Training Commission (Petitioner) should take disciplinary action against the certificate of Bradley W. Carlton (Respondent) based upon his alleged failure to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, including specifically the requirement that a law enforcement officer have good moral character.
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on April 7, 1988, and was issued certificate number 12-87-02-03. Respondent was employed as a law enforcement officer by the North Palm Beach Police Department in 1989, and was so employed at all times material hereto. Based upon information received by the North Palm Beach Police Department from two informants concerning the alleged use of controlled substances by the Respondent, on and off duty, a Departmental investigation was conducted on September 13, 1989. During that investigation, the Respondent gave a statement denying the use of any controlled substances or the possession of a "one-hitter" pipe as described by the informants. The Respondent also consented, orally and in writing, to a search of his person, automobile and residence, and he was entirely cooperative during these searches. No contraband was found on his person. During the search of Respondent's vehicle on September 13, 1989, by Captain George Warren and Lieutenant Wilbur Walker, a portion of a marijuana cigarette and a one-hitter pipe were discovered inside a red pouch that was obtained from a gear bag located in his vehicle's trunk. The ashtray in the Respondent's car also had an odor of marijuana. A search of Respondent's bedroom was also conducted on September 13, 1989, by Captain Warren and Lieutenant Walker. Although the Respondent had a roommate, his roommate occupied a separate bedroom. This search uncovered contraband in Respondent's bedroom which included a 35mm film canister containing marijuana seeds which was found in a box on Respondent's closet shelf, a portion of a marijuana cigarette in an ashtray on Respondent's desk, a plastic coaster containing marijuana seeds located on a bookshelf near his bed, and a portion of a marijuana cigarette on the Respondent's desk behind a clock radio. The items found on the Respondent's desk and bookshelf were in open view and were not hidden inside other containers. Captain Warren and Lieutenant Walker have the necessary training and experience to recognize and identify marijuana, marijuana cigarettes and the odor of marijuana. The one-hitter pipe found in Respondent's trunk matches the description of the pipe which one informant claims that the Respondent used in her presence. Pipes such as this are typically used to smoke marijuana. The Respondent admitted the marijuana seeds found in the 35mm canister, the bag containing the pipe and portion of a marijuana cigarette, and the ashtray containing the partial marijuana cigarette were all his. He stated that the ashtray had only gone unemptied for approximately one week. He also admitted that the pipe was probably his because at one time he had one just like it. However, Respondent urges that he had forgotten about these contraband items since he had not used them in a long time, and that at all times material hereto, he did not "knowingly" possess these items. Nevertheless, these items of contraband were Respondent's, and they were found in his vehicle and in his residence. Prior to his employment with the North Palm Beach Police Department, Respondent had used marijuana. He admitted to using marijuana as late as 1982 during the polygraph portion of his employment process. On or about September 19, 1989, Respondent took a drug test at the Toxi-Tech Laboratory in West Palm Beach, Florida. The results of that test were negative, meaning that there was no indication of any controlled substance which exceeded the testing threshold level. This test cannot exclude the possibility of marijuana use by the Respondent, but simply establishes that the testing threshold level for marijuana of 100 ng/ml was not exceeded in the Respondent's test sample. Officers Donald Zimmerman and William McArdle received written statements about the Respondent from the two informants, and were also involved with the internal investigation of Respondent which was conducted by the North Palm Beach Police Department. Respondent claims that there was a personal animosity between Officer Zimmerman and himself, and that this may have lead to these informants giving these statements to Officer Zimmerman since he and Officer McArdle knew both informants personally. Officer Zimmerman denies any animosity between himself and the Respondent. Even if it were shown that such animosity existed, which it was not, that fact would not discredit the results of the searches conducted by Captain Warren and Lieutenant Walker, especially in light of the Respondent's admitted prior use of marijuana and ownership of the items of contraband found in his vehicle and residence. The statements of these two informants clearly constitute hearsay, which alone is not sufficient to establish the above findings of fact. They are considered only to support and confirm other direct evidence in the record which consists, specifically, of testimony and documentary evidence concerning the searches conducted of Respondent's vehicle and residence, and Respondent's admissions.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. RECOMMENDED this 27th day of March, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5013 Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 11. Adotped in Finding of Fact 3. 6-8. Adopted in Finding of Fact 11. 9. Rejected as unnecessary. 10-12. Adopted in Findings of Fact 3 and 11, but otherwise Rejected as unnecessary. 13-15. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Rejected as unnecessary and immaterial. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. 22-25. Adopted in Finding of Fact 5. 26-27. Rejected as unnecessary and immaterial. 28. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary. 29-33. Adopted in Finding of Fact 8. Rulings on the Respondent's Propsoed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, but otherwise Rejected as immaterial. 3-4. Adopted in Finding of Fact 11, but otherwise Rejected as immaterial. 5-6. Adopted in Finding of Fact 3. 7. Adopted in Findings of Fact 4 and 8, but otherwise Rejected as not based on competent substantial evidence. 8-10. Adopted in Findings of Fact 5 and 8, but otherwise Rejected as not based on competent substantial evidence. 11. Rejected as unnecessary and immaterial. 12-13. Rejected as not based on competent substantial evidence and immaterial. Adopted in Finding of Fact 9, but otherwise Rejected as not based on competent substantial evidence and immaterial. Rejected as immmaterial and irrelevant. Adopted and Rejected, in part, in Finding of Fact 10. COPIES FURNISHED: Sharon D. Larson, Esquire P. O. Box 1489 Tallahassee, FL 32302 Stephen W. Foxwell, Esquire P. O. Box 11239 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P. O. Box 1489 Tallahassee, FL 32302
Findings Of Fact During the month of April in 1988, and perhaps also in March of that year, the Petitioner, Sam Anthony Ciotti, conspired with others to purchase 200 pounds of marijuana in Broward County, Florida, for $110,000.00 The conspirators intended to transport the 200 pounds of marijuana to Ohio, where they expected to sell the marijuana to others. Unbeknownst to the conspirators, the persons from whom they arranged to purchase the marijuana were detectives of the City of Fort Lauderdale Police Department. The negotiations for the sale were primarily between the detectives and a conspirator named Klenner. The basic terms of the agreement were that the detectives would deliver 200 pounds of marijuana to Klenner or to someone designated by Klenner, Klenner would then transport the marijuana to Ohio and sell it, and once he received the money for selling the marijuana, Klenner would pay $110,000.00 to one of the detectives. To secure the deal, Klenner agreed that he and the Petitioner, Ciotti, would sign a promissory note for $110,000.00 secured by a boat co-owned by Klenner and Ciotti. On April 14, 1988, one of the detectives met with the Petitioner, Ciotti, at the boat yard where the boat was. docked. During that meeting the detective confirmed with Ciotti that a promissory note would be signed for 200 pounds of marijuana and that the boat would be collateral for the promissory note. On April 15, 1988, the two detectives met with Klenner and Ciotti, at which time Klenner delivered to one of the detectives a promissory note in the amount of $110,000.00 signed by both Klenner and Ciotti. On April 19, 1988, one of the detectives spoke to Klenner and arrangements were made for the marijuana to be delivered to a third conspirator named Bradford. Later that day the two detectives met Bradford at a prearranged location. One of the detectives took possession of Bradford's motor vehicle, loaded it with 200 pounds of marijuana, and returned the motor vehicle and its cargo of marijuana to Bradford. The trunk was opened and Bradford examined the marijuana cargo. Bradford then took possession of his motor vehicle and attempted to drive away with the 200 pounds of marijuana. At that point, he was arrested. Later that same day, the detectives went to the boat yard where the boat owned by Klenner and Ciotti was docked, where they arrested Ciotti and seized the boat owned by Klenner and Ciotti. On June 8, 1989, the Department of Revenue issued a document titled Notice Of Assessment And Jeopardy Findings which assessed tax, penalties, and interest in the amount of $52,534.42 against the Petitioner, Ciotti, pursuant to Section 212.0505, Florida Statutes (1987). The factual basis for the assessment was the Petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following other unsuccessful efforts to resolve the matter, the Petitioner ultimately filed a timely petition seeking a formal hearing. At the formal hearing in this case on September 28, 1990, the Department of Revenue delivered to the Petitioner a document dated September 27, 1990, titled Revised Notice Of Assessment And Jeopardy Findings. The significant difference between the original assessment and the "revised" assessment is that in the latter document the Department seeks to recover less than in the original assessment. Specifically, the "revised" assessment contains a lower estimated retail price than on the original assessment and eliminates a fifty percent penalty that was included on the original assessment. These changes are consistent with the Department's current policies regarding the assessment of taxes, penalties, and interest. The net difference between the two assessment documents is a reduction of $18,809.39 in the amount sought by the Department. The specific amounts assessed in the "revised" assessment are as follows: Tax, $22,000.00; Penalty, $5,500,00; and Interest, $6,225.03; for a total of $33,725.03. Interest continues to accrue at the rate of $7.23 per day. The factual predicate for the "revised" assessment is the same as that of the original assessment.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department of Revenue issue a final order in this case concluding that the Petitioner, Sam Anthony Ciotti, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1987), and assessing the amount of such liability at $33,725.03, plus interest at the rate of $7.23 per day since September 28, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of February 1991. MICHAEL M. PARRISH 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 1st day of February 1991.
Findings Of Fact At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida. Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger. On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct. On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper. Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana. Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana. It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana. Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance. When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar. Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it. Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made. After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana. When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed. On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes. When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them. His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons. None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made. With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents. With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope. There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood. Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes. Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause. Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling. He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there. These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment. Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there. Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes. Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms. Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers their names nor does he ask them the stories of their lives. His credibility is not significant. Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of June 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Angus W. Harriett, Esquire 314 St. Johns Avenue Palatka, Florida 32077 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue to be determined is whether Respondent, Larry A. Labay, failed to maintain good moral character as alleged in the Administrative Complaint, in violation of section 943.1395(7), Florida Statutes (2010), and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). If so, then the appropriate penalty to be imposed must also be determined.
Findings Of Fact Respondent is a certified correctional officer licensed by the Criminal Justice Standards and Training Commission. He received his correctional certificate, number 285033, on July 17, 2009. Respondent was employed by the Clay County Sheriff’s Office (CCSO) from February 16, 2010, through July 18, 2011. Respondent was in a relationship with a woman named Marissa Meszaros. Their relationship began in approximately May of 2011. Ms. Meszaros was the subject of an investigation by the narcotics unit of CCSO, which believed that she might be involved in selling narcotics. A confidential informant had been used to make controlled purchases of controlled substances from Ms. Meszaros. During the course of the investigation into Ms. Meszaros, the drug task force learned that a possible CCSO employee was at the scene of some of the controlled purchases. A video recording of some of the buys showed Respondent directly in front of an illegal drug transaction. As a result, Respondent’s conduct was also investigated. On June 27, 2011, Respondent and Ms. Meszaros were observed riding in Respondent’s red 2000 Dodge pickup truck in the Orange Park area. They were observed leaving the Orange Park mall and going into an area known as a high drug-traffic area, and then south on Blanding Boulevard toward Labay’s residence. Once Respondent left Orange Park and returned from Duval County to Clay County, Detective Mark Maertz stopped Labay’s vehicle because the tag for his truck had expired. Detective Maertz was part of the CCSO’s canine unit. Once the truck was stopped, Detective Maertz deployed his dog, Rex, who alerted to the presence of narcotics. Detective Maertz requested that Respondent and Ms. Meszaros exit the car, and they did so. Ms. Meszaros was found to have crack cocaine in her bra. (A female officer dealt with her at the scene.) Also discovered were trace amounts of a green leafy substance throughout the floorboard on the driver’s side of the truck. The substance was in plain view of anyone getting into the driver’s side of car. As a result of their training and experience, both Detective Maertz, who stopped the car, and Sergeant Shawn Gordon, who actually conducted the search of the truck, recognized the substance as marijuana or cannabis, also referred to as “shake.” Respondent was detained and questioned following the traffic stop. He was questioned after being given his Miranda rights. He also gave consent to a search of his residence. At the beginning of the interview, Respondent denied ever using drugs or seeing Ms. Meszaros using drugs. However, after some questioning, Respondent admitted to giving Meszaros money to buy drugs and seeing her use them. A search of his residence resulted in the discovery of a “bong,” or pipe used to smoke marijuana, in the common bathroom, and a crack pipe in the master bedroom. The marijuana pipe was in plain view in the hall bathroom. The crack pipe was in a cigarette box on the dresser in the master bedroom. Respondent told the detectives who questioned him that they would find the drug paraphernalia in his home. The home was owned by Respondent. Ms. Meszaros had recently moved in with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter an Order finding that Respondent has failed to maintain good moral character as defined in rule 11B- 27.0011(4)(b) in violation of section 943.1395(7), and revoking his certification as a correctional officer. DONE AND ENTERED this 11th day of September, 2013, 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 11th day of September, 2013. COPIES FURNISHED: Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Labay (Address of record) Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services 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 At all times material hereto Barnell and Louise Evans held beverage license No. 62-01451-2-COP for premises located at 1313 North Greenwood Avenue, Clearwater, Florida. They have held this beverage license since 1980. Following receipt of complaints regarding the sale and use of controlled substances, principally marijuana and cocaine, on the licensed premises, an undercover investigation of Foxy's Den was initiated. Keith B. Hamilton, Department of Law Enforcement (DLE) Investigator, visited Foxy's Den the evening of February 28, 1985, observed patrons smoking marijuana, purchased a $5.00 packet from a patron in the lounge of what was later tested and found to be marijuana, purchased paper to roll marijuana cigarettes from the barmaid after holding up the packet he had just purchased, and observed other transactions in what appeared to be the sale and use of marijuana on the licensed premises. Ira L. McQueen, another DLE Investigator, visited the licensed premises during the evening hours of March 21, 26, and 28 April 9, 10, 16, 18, 24, and 29 May 6, 9, 15, 21, and 22: June 20, 25, and 26: July 1, 8, 18, 23, and 29, 1985. During each of these visits he observed one or more of the following: Patrons smoking marijuana in plain view in the bar area patrons selling marijuana and cocaine to other patrons, including McQueen, in the bar area without much attempt at secrecy: bartenders and barmaids discussing the purchase of controlled substances with patrons and acting as intermediaries in those purchases packets of marijuana and money in exchange therefor passing between patrons in plain view of the bartender patrons obtaining change from the bartender, for example, a $20.00 bill, to purchase a nickel ($5.00) or dime ($10.00) packet of marijuana and McQueen being asked by the bartender if he, McQueen, was interested in buying marijuana or cocaine, and thereafter the bartender participating in the purchase of cocaine or marijuana by contributing money to the purchase and contacting the vendors. During these visits to the licensed premises by McQueen, he observed the licensee, Barnell Evans, on the premises only twice, but on each of these occasions McQueen observed the illegal use or sale of controlled substances on the premises which could also have been observed by Evans. Louise Evans has a full-time job at a local hospital and visits the licensed premises only for the purpose of taking the books and records home where she prepares the payroll, pays bills, and keeps the books for the business. Barnell Evans' principal occupation is construction. He is a stucco subcontractor and has maintained this business in Clearwater for a number of years. He has a good reputation in the building industry for honesty and integrity. Operation of Foxy's Den is a part-time occupation of Evans. Respondents had been told by a friend that controlled substances were being sold in the vicinity of the premises. One bartender and a barmaid were fired by Respondents for involvement with drugs on the premises after being warned that implication in drugs on the licensed premises would not be tolerated by the owners. One witness described Barnell Evans as naive regarding controlled substances. His appearance during these proceedings supports the conclusion that he is more naive regarding how to stop the use or sale of controlled substances than indifferent to such use or sale. The bartender on duty most of the evenings Foxy's Den was visited by McQueen, and who was involved in McQueen's purchases, is June Little, the nephew of Barnell Evans, who had hired Little because he was out of work, living with his mother, and "needed a job." Respondents have negotiated an agreement, Exhibit 4, with Curtis McCoy Security Agency for the latter to provide an unarmed uniform security guard on the licensed premises from 4:00 p.m. until midnight daily to detect and deter violations of the laws regarding sale and/or use of controlled substances on the licensed premises.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Signe Anthony (Anthony), has been employed by the County as a correctional officer for approximately one and one-half years, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Anthony. 3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Anthony had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Anthony and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission'S letter of denial, Anthony filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Anthony denied that she failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Anthony on May 9, 1987, at which time she admitted that she had tried marijuana. Regarding such use, the proof demonstrates that on one occasion, at age 13 and while a student in junior high school, Anthony took three or four "drags" from a marijuana cigarette. Other than that one occasion Anthony has not used marijuana or any controlled substance. In reaching this conclusion, the Commission's contention that Anthony's application with the City of Miami for employment as a police officer was denied in 1985 because her pre- employment urinalysis ostensibly proved positive for the presence of marijuana has not been overlooked. However, the proof offered to demonstrate that her urinalysis proved positive for the presence of marijuana was not credible or reliable. Contrasted to such unpersuasive proof was the credible testimony of Anthony that she had used marijuana on but the one occasion during junior high school. Notwithstanding the County's conclusion, based on its investigation and analysis of Anthony's background, that Anthony possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing events. The Commission's action is not warranted by the proof. Here, Anthony, currently 26 years of age, used marijuana on one occasion approximately 13 years ago when she was 13 years of age. Such an isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Anthony has been employed by the County as a correctional officer, a position of trust and confidence, for approximately one and one-half years. Her annual evaluations have ranged from satisfactory to outstanding, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Anthony has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Signe Anthony, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of June 1989. 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 7th day of June, 1989.
