The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. 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 20th day of April, 1992.
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
The Issue Whether disciplinary action should be taken against Respondent's license no. 15-02311, 4COP, based on the violations of Sections 893.13, 561.29, and 823.13, Florida Statutes, as charged in the Second Amended Notice to Show Cause filed against Respondent in this proceeding.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT). Respondent is Manos, Inc., d/b/a Sea Port Restaurant and Lighthouse Lounge. Respondent holds Beverage License No. 15-02311, 4COP, and is located at 680 George King Boulevard, Cape Canaveral, Florida 32920. Raymond J. Cascella is the president, vice-president and secretary of Respondent. Cascella indicated that his wife, Eileen Cascella, was the manager of Respondent's restaurant and lounge during the period of June through August 2001. A customer going by the name of "Red" had been at the establishment three or four times a week for a couple of years. Mahatha Brownlee is the individual who goes by the nickname "Red" and frequents Respondent's establishment. An individual going by the name of "Diamond" had been at the establishment frequently over a period of six months. Ronald Carlson, caretaker of the premises during the relevant time-period of June through August 2001, became aware that drug usage was occurring on the licensed premises when two bartenders of Respondent complained to him. Carlson also observed that whenever uniformed officers came into the establishment, many of the customers would get up and leave. Deputy Thomas D. Rodgers made two arrests on drug warrants inside the licensed premises during 2001, both of whom were employees of Respondent. On July 31, 2001, Special Agent Bethany Driggers, DABT, while in the licensed premises overheard a conversation whereby a customer asked a bartender about the availability of crack cocaine at the licensed premises. Stephanie Farrington, a bartender employed by Respondent, gave a statement to law enforcement under oath, which Special Agent Richard Waters, DABT, signed as a witness. The sworn statement of Stephanie Farrington was introduced as a business record exception. Respondent's qualified representative waived any objection to its introduction. Sometime in July 2002, Farrington confronted Cascella about the drug abuse in his business and the obvious drug dealing going on in the establishment. Cascella told her to go speak to the suspect known as "Red" to let "Red" handle it. Farrington had spoken with the manager, Eileen Cascella, as well, who indicated that she was aware that drug dealing was going on in the premises. Richard Hurlburt is a Special Agent with DABT. He is an 18-year veteran agent and has prior law enforcement experience. Agent Hurlburt was found, without objection, to be an expert in conducting undercover operations. Agent Hurlburt, based on his training and experience, believed that there was rampant drug dealing going on at the licensed premises, during the months of June through August 2001. Agent Hurlburt began his investigation during the daytime hours in June 2001, so that he could have more of a one- on-one contact with the employees. As a result of the violations he observed occurring during the day, Agent Hurlburt was able to conduct the investigation during the day and avoid the violence that frequently occurred at the premises in the later hours. Agent Hurlburt indicated that a suspect's exchange of a wad of money with an employee and receiving a large bill in return is consistent with the actions of drug dealers. In June 2001, Agent Hurlburt observed suspect "Red" exchange a wad of money with Cascella and receive a large bill in return. On June 27, 2001, Agent Hurlburt was served a beer by suspect "Red" while on the subject premises. On June 27, 2001, Agent Hurlburt purchased drugs twice from suspect "Big Mama," a person not further identified. Agent Hurlburt turned both samples of suspected crack cocaine over to Special Agent Roy Dotson, DABT. Agent Dotson is a ten-year law enforcement veteran with over 1,500 hours of specialized training. Agent Dotson has field-tested suspected crack cocaine over 500 times and has never had a field test result invalidated by later testing. Agent Dotson field-tested the suspected crack cocaine turned over to him by Agent Hurlburt on June 27, 2001, and the results were positive for the presence of cocaine. Special Agent Gregory Aliberti, DABT, secured the suspected crack cocaine purchased by Agent Hurlburt on July 11, 2001. Kim Poon, employed by the Florida Department of Law Enforcement (FDLE) as a crime laboratory analyst, was recognized, without objection as an expert drug analyst. Poon used two separate instrument tests, the mass spectrometer, as well as a gas chromatograph. Poon indicated that when the instruments are used correctly and in conjunction, the instruments are foolproof, there is no room for error. None of the drugs in this case that were in Poon's possession were tampered with to his knowledge. The three exhibits were tested and came back positive for cocaine, using the aforementioned two tests. The drugs purchased by Agent Hurlburt on June 27, 2001, were tested and the results came back positive for cocaine. On June 29, 2001, Agent Hurlburt purchased $20 of crack cocaine from suspect "Big Mama" and turned these drugs over to Agent Aliberti. These drugs were subsequently tested positive for cocaine. On or about July 2001, Agent Hurlburt, DABT, while in the licensed premises overheard a conversation between a bartender, Elaine, and another bartender, Jason, in which they indicated that Farrington had come into the establishment and named the names of people who were dealing drugs. They went on to say that Farrington named specific individuals "Moo-Moo," "Red" and "Diamond" as drug dealers. Farrington stated that there is a black male known as "Red" who hangs-out in the bar five out of seven days a week and she believed he was selling crack cocaine. Suspect Ray Charles was observed exiting the kitchen on numerous occasions. Agent Hurlburt asked suspect Ray Charles if he was an employee and he indicated that he cleaned up or did whatever Ray wanted him to do on the premises. On July 10, 2001, the agent made three separate drug purchases from suspect Ray Charles. The suspected crack cocaine was turned over to Agent Dotson who subsequently conducted a field test. It rendered a positive result for the presence of cocaine. The three separate samples of suspected crack cocaine purchased from suspect Ray Charles by Agent Hurlburt were subsequently tested positive for cocaine. Agent Hurlburt established that after meeting with support personnel the packages in which the suspect crack cocaine was stored in were marked with the date of the purchase, Agent Hurlburt's initials, which purchase it was for that day, and the suspect's name. On July 11, 2001, Agent Hurlburt purchased a $100 piece of crack cocaine from suspect Ray Charles. Ray Charles is the same individual as Ray Charles Mitchell, who is a felon on probation for possession of cocaine at the time of the formal hearing in this matter. Agent Hurlburt made a second purchase from Ray Charles on July 11, 2001. The suspected crack cocaine purchased from suspect Ray Charles on July 11 by Agent Hurlburt was subsequently tested positive by Poon of the FDLE. Agent Hurlburt also purchased crack cocaine on July 11 from the suspect known as "Red." The suspected crack cocaine purchased from suspect "Red" by Agent Hurlburt subsequently tested positive after analysis by Poon. On July 13, 2001, Agent Hurlburt purchased a $20 piece of crack cocaine from suspect "Red." On July 13, 2001, Agent Hurlburt made a second purchase of suspected crack cocaine from "Red." The suspected crack cocaine subsequently tested positive for cocaine. On July 17, 2001, Agent Hurlburt made two purchases of suspected crack cocaine from suspect "Red" and both subsequently tested positive for presence of cocaine. On July 20, 2001, Agent Hurlburt returned to the premises and purchased suspected crack cocaine from suspect "Red." Poon tested the crack cocaine purchased from "Red" on July 20 and it tested positive for cocaine. On July 24, Agent Hurlburt purchased suspected crack cocaine from suspect "Red" on two occasions and turned over the drugs to support personnel. The drugs purchased by Agent Hurlburt on July 24, 2001, subsequently tested positive for the presence of cocaine. Agent Dotson field-tested the drugs purchased from suspect "Red" on July 24 with a positive result for cocaine. During some of the drug purchases from suspect "Red" on July 24, 2001, Cascella was in the bar area. On July 25, Agent Hurlburt purchased suspected crack cocaine from a suspect known only as Rudy and turned the substances over to Agent Dotson, who subsequently field-tested it with a positive result. The drugs purchased by Agent Hurlburt on July 25, 2001, were subsequently tested positive for the presence of cocaine. Cascella was in the bar area on July 25, 2001. On July 27, 2001, Agent Hurlburt purchased two pieces of suspected crack cocaine. The drugs purchased by Agent Hurlburt were subsequently tested by Poon with the FDLE and tested positive for cocaine. On July 31, 2001, Agent Hurlburt overheard a conversation between two suspected narcotic dealers talking about a sale of crack cocaine to an individual bartender named Jason. On July 31, 2001, Agent Hurlburt purchased suspected crack cocaine from an individual on the licensed premises. The drugs purchased subsequently tested positive for the presence of cocaine. Agent Scott Behringer of the Brevard County Sheriff's Office (BCSO), Special Investigation Unit, secured the suspected crack cocaine purchased by Agent Hurlburt on July 31, 2001. Agent Behringer has been employed by the BCSO for approximately 13 years. He has been involved in several hundred investigations and has specialized training in narcotic identification schools including DEA basic and DEA advanced. Agent Behringer observed drug transactions occurring at the licensed premises. Agent Behringer subsequently tested the narcotics purchased by Agent Hurlburt on July 31, 2002, and the field test results were positive. Agent Behringer never had an occasion where he had field-tested a substance and was later disproved by drug analysis. This is despite having conducted approximately 1,000 field tests. On August 2, 2001, Agent Hurlburt and Agent Driggers were sitting at the bar at the licensed premises when they observed suspect "Red" sitting in a booth in the premises as well. Visible from the bar, placed on the suspect's calf was a stack of crack cocaine. Agent Hurlburt proceeded to measure the distance from the bar to a spot parallel to the suspect in order to determine the distance. The distance was estimated to be 155 inches. On August 2, 2001, Agent Hurlburt purchased $100 worth of crack cocaine from suspect "Red." On August 3, Agent Hurlburt purchased $50 worth of crack cocaine from suspect Rudy. The contraband was turned over to support personnel. Agent Behringer secured evidence on August 2, 2001; he field-tested the substance and it was positive for cocaine. It had the appearance of crack cocaine as well. All the evidence that Agent Behringer maintained was kept in a security area until being forwarded to Agent Dotson. Agent Behringer never had drugs in his possession that had been tampered with in any way. Agent Behringer saw Cascella observing drug sales during the relevant time-period late July and early August 2001. Agent Driggers indicated that even though she didn't have a great deal of training, she was able to observe numerous individuals making hand drug transactions in the licensed premises. The crack cocaine purchased on August 2 by Agent Hurlburt from suspect "Red" was tested by Poon and the result was positive for the presence of cocaine. Agent Driggers purchased suspected crack cocaine from suspect "Red" on August 8. The suspected crack cocaine purchased by Agent Driggers on July 31 and August 8, 2001, from suspect "Red" subsequently tested positive for cocaine. On August 10, 2001, Agent Hurlburt entered the establishment, made a purchase and departed the premises. He then went to the staging area where they were subsequently transported and tested by Kimberly Hampton-Sheley of the FDLE crime lab with a positive result for cocaine. FDLE Analyst Kimberly Hampton-Sheley indicated that the two tests that she ran on the substance resulted in a positive reading for cocaine. Further, the accuracy of combined testing in terms of chemistry is 100 percent accurate. Agent Driggers purchased $20 worth of suspected crack cocaine from an employee of the licensed premises, Jason, August 10, 2001. The drugs subsequently tested positive for the presence of cocaine. Shortly thereafter, Agents from the combined task force from the DABT and BCSO reentered the licensed premises in order to arrest those engaging in illegal activity. Agent Dotson searched bartender, Jason Gilroy, on August 10, 2001, at the time of the raid on the licensed premises. Agent Dotson discovered a small napkin with some cocaine in one of his pants' pockets. The drugs discovered on employee Gilroy on August 10, 2001, subsequently tested positive for the presence of cocaine. Another Manos employee, a bartender named Mike, was apprehended with a crack pipe in his manual possession on the night of the raid. Evidence Agents Aliberti and Waters, DABT, secured in this investigation was stored in the trunk of their state vehicle or at the Florida Highway Patrol unit where they have an evidence storage locker until it is forwarded to the BCSO or whatever agency is going to be responsible for the evidence. Agent Waters indicated that at the location of the Florida Highway Patrol is a locker which has their own personal key and they are the only ones with that key. Both Waters and Aliberti indicated that they have never had any evidence that was in their possession tampered with in this case or any other to their knowledge. Agent Aliberti was involved in transporting drugs from the BCSO to the FDLE. Agent Dotson testified that he secured the evidence in an evidence bag. He would initial them and they would be put into an evidence locker in one of their precincts to be forwarded to the Evidence Unit. Agent Dotson has never had any drugs tampered with in any of his cases, including the case at hand. The evidence is clear and convincing that on numerous occasions between June and August 2001, on the licensed premises, agents and employees, while in the scope of their employment, sold or permitted to be sold controlled substances, to wit: cocaine, in violation of Florida law. The evidence is clear and convincing that on numerous occasions between June and August 2001, the licensee, Raymond J. Cascella, permitted others, while on the licensed premises, to violate the laws of this state and of this United States by selling controlled substances, to wit: cocaine. The evidence is clear and convincing that the licensed premises was used for the illegal keeping, selling and delivery of controlled substances and is a public nuisance. The evidence is clear and convincing that the licensee, Raymond J. Cascella, maintained the licensed premises for the illegal keeping, selling and delivery of controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered as follows: Finding Respondent guilty of having violated Section 893.13(1)(a), Florida Statutes, as alleged in Counts 1-18 of the Second Amended Administrative Complaint, and imposing a penalty therefor of Revocation of Respondent's license number 15-02311, 4-COP, SRX. Finding Respondent guilty of having violated Section 893.13(7)(a)5, Florida Statutes, as alleged in Count 19 of the Second Amended Administrative Complaint, and imposing as a penalty therefor of Revocation of Respondent's license number 15-02311, 4-COP, SRX. Finding Respondent guilty of having violated Section 823.10, Florida Statutes, as alleged in Count 20 of the Second Amended Administrative Complaint, and imposing as a penalty therefor of an administrative fine in the amount of $250. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of May, 2002. COPIES FURNISHED: Raymond Cascella Manos Inc., d/b/a Sea Port Restaurant 680 George J. King Boulevard Port Canaveral, Florida 32920 Richard J. Dempsey Qualified Representative 223 Columbia Drive, No. 221 Cape Canaveral, Florida 32920 Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard Turner, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, respondent, Reyes P. Ramos, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department), having been issued certificate number 19-83-002-05 on October 29, 1983. On January 30, 1990, respondent, as part of his annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. Upon analysis, the sample taken from respondent proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 55 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. On February 5, 1990, the Opa-Locka Police Department notified respondent that the analysis of his urine sample had proved positive for the presence of cocaine, a controlled substance. In response, respondent offered to provide another sample for further analysis. Later that day, February 5, 1990, respondent provided a second sample of urine to TTS to be analyzed for the presence of controlled substances. Upon analysis, the second sample also proved positive for the presence of the cocaine metabolite, benzoylecgonine, but this time at a concentration of 9.2 nanograms per milliliter. Such reduced concentration is consistent with the initial concentration of 55 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. In concluding that the urine samples respondent gave proved positive for the presence of cocaine metabolite, careful consideration has been given to the collection, storage and handling procedures adopted by TTS, as well as its testing methods. In this regard, the procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable measure of the concentration of cocaine metabolite in the body. 1/ While the testing demonstrates the presence of cocaine metabolite in respondent's system, and therefore the presence of cocaine, it does not establish how ingestion occurred. 2/ It may be reasonably inferred, however, that such ingestion was proscribed by law, absent proof that the subject drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained. In response to the testing which revealed the presence of cocaine metabolite in his urine, respondent credibly denied the use of cocaine, and offered the testimony of a number of witnesses who know him well to lend credence to his denial. Those witnesses, who also testified credibly, observed that respondent is a person of good moral character who, among other qualities has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and could be relied upon in a position of trust and confidence. Moreover, from the testimony of those witnesses who have known respondent for an extended period of time, commencing well prior to the incident in question, it may be concluded that, in their opinions, it is the antithesis of respondent's character to have ingested or used cocaine. Apart from his denial, respondent offered two possible explanations for the presence of cocaine in his system: (1) that, during the week of January 18, 1990, he had been in contact with four to five K-9 training aids, which contained pseudo-cocaine, while cleaning out his dog's possessions, and (2) that he had been in contact with 10 bags of rock cocaine, during the course of duty, in the early part of January 1990. As to the first explanation, the proof demonstrates that respondent was, and had been for some time, a canine officer with the City of Opa-Locka Police Department, and had a dog named "Eagle" as his partner. "Eagle" was a cross-trained drug and work dog. In or about September 1988, respondent and his dog attended narcotic detection training through the Florida Highway Patrol, and received training aids, which contained "pseudo-cocaine," for use in training dogs in the detection of cocaine. These aids were comprised of newborn baby socks, inside of which was placed pseudo-cocaine. The socks were then closed at the top with rubber bands and placed inside a folded towel, which was then rolled and taped. According to respondent, he continued to use these aids 2-3 times a week, after leaving the Florida Highway Patrol course, to keep his dog proficient. Eagle died in early January 1990 and, according to respondent, the week of January 18, 1990, respondent cleared a number of items that were used in the care or training of Eagle from a small aluminum shed in his back yard. Among those items were the training aids, which contained pseudo-cocaine. According to respondent, he disposed of the training aids by cutting the tape from the towels, removed the sock, and then shook the pseudo-cocaine into a trash can, which caused some residue to become airborne and contact him. Respondent's counsel theorizes that such contact with the pseudo-cocaine, as well as the possibility that some residue could have been lodged under respondent's fingernails, when coupled with the fact that respondent occasionally bites his nails, could be an explanation for the positive reading respondent received. Notably, respondent offered no proof at hearing, through representatives from the Florida Highway Patrol or otherwise, as to the chemical composition of the pseudo-cocaine. Under such circumstances, there is no showing of record that the pseudo-cocaine could have resulted in the positive reading he received, and it would be pure speculation to conclude otherwise. As to respondent's second explanation, that in early January 1990, during the course of duty, he had been in contact with 10 bags of rock cocaine, it likewise does not provide a rational explanation for his positive test results. Notably, according to respondent, that rock cocaine was bagged and, necessarily, he would not have had physical contact with the substance. Moreover, even if touched such would not explain its ingestion, and, considering the lapse of time from the event and his testing, is not a rational explanation for the source of his positive results. While the explanations respondent advanced at hearing were not persuasive, such does not compel the conclusion that his testimony is to be discredited. Indeed, if respondent never used cocaine, it is not particularly telling that he could not offer a plausible explanation for what he perceived to be an aberration. Here, while the results of the urinalysis point toward guilt, respondent's credible testimony, the character evidence offered on his behalf, and respondent's employment record suggest otherwise. With regard to respondent's employment history, the proof demonstrates that respondent was on active duty with the United States military from 1966 until 1972, and with the Florida National Guard (FNG) from 1974 until 1983. Prior to reverting to an inactive status with the FNG, respondent attended and graduated from the Southeastern Institute of Criminal Justice, a police academy, and was thereafter certified as a law enforcement officer. Following certification, respondent was employed by the Village of Indian Creek as a police officer for one year, and from January 1985 until his severance in 1990 as a police officer with the City of Opa-Locka. Currently, respondent is employed by the FNG, with the rank of Sergeant First Class, as a military criminal investigator assigned to counter drug programs for the Department of Justice. From respondent's initial employment as a police officer through his current employment, but for the incident in question, respondent has consistently been recognized as a professional, loyal and dedicated police officer who has also dedicated substantial personal time and resources to community service. During this service, he was frequently commended for his performance, and he has further demonstrated dedication to his profession through continued training in the law enforcement field. Among those who testified on his behalf, and spoke approvingly of respondent's good moral character, were Christina Royo, a sworn law enforcement officer with the Florida Department of Law Enforcement, and Alejandro Suarez, a Sergeant First Class with the United States Military, employed as a criminal intelligence analyst, and currently attached to respondent's FNG unit. Each of these witnesses are employed in positions of trust involving sensitive areas of law enforcement, and have known the respondent well for over fifteen years. In their opinions, which are credible, respondent enjoys a reputation reflecting good moral character and, it may be gleamed from their testimony, the use of controlled substances by respondent would be most uncharacteristic. Given the nominal amount of cocaine metabolite disclosed by testing and the credible proof regarding respondent's character, the inference that would normally carry petitioner's burden following proof of a positive test for cocaine metabolite, that such finding reflected the unlawful ingestion of cocaine, cannot prevail. Rather, considering the proof, no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results. Accordingly, such results, standing alone, do not support the conclusion that respondent unlawfully ingested cocaine or that he is lacking of good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint filed against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of March 1995. 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 24th day of March 1995.
Findings Of Fact During the month of September 1988, petitioner, David J. Caplan, agreed with, unbeknownst to him, a special agent with the Drug Enforcement Administration to secure and deliver to the agent 12 kilograms of cocaine for $16,500 per kilogram (kilo). On September 27, 1988, petitioner picked up one kilo of cocaine from his supplier and transported it in his vehicle to his residence. Within his residence, petitioner met with the agent and a confidential informant (CI), and delivered the one kilo of cocaine to the agent in exchange for $16,500. On September 28, 1988, following negotiations regarding the purchase of the balance of the cocaine, petitioner picked up two kilos of cocaine from his supplier, transported it by truck to his residence, and hid it in a garbage can adjacent to his garage. Upon the arrival of the agent and CI, petitioner removed the cocaine from the garbage can, and displayed it to the agent inside his residence. After examining the cocaine, the agent and CI left the residence under the announced intention of going to get the money for the purchase of the two kilos, and once away from the residence the agent gave the signal to other agents for petitioner's arrest. Upon arrest, petitioner cooperated with the agents, and directed them to the two kilos of cocaine, which he had hidden in the rafters of his garage. 1/ Subsequently, petitioner was charged and pled guilty to trafficking in cocaine. On February 21, 1990, respondent, Department of Revenue (Department), issued a Notice of Assessment and Jeopardy Findings which assessed a tax of $9,900, a penalty of $2,475, an additional penalty of $4,950, and interest of $1,589.25, together with interest thereon at the rate of $3.25 per day after February 21, 1990, against petitioner, pursuant to Section 212.0505, Florida Statutes. At petitioner's request, the Department reconsidered such assessment, and on May 7, 1991, issued a revised assessment against petitioner, assessing a tax of $9,900, a penalty of $2,475, and interest of $1,589.25, together with interest at the rate of $3.25 per day after February 21, 1990. The factual basis for the assessment was the petitioner's involvement in the cocaine transactions described in the foregoing findings of fact. Petitioner filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that the cocaine in question was not his, that he merely acted as a go-between for the agent and his supplier, and that he was therefore not involved in any sale, use or distribution of the subject cocaine. Moreover, with regard to the second transaction, which involved the two kilos of cocaine, petitioner contended that no liability for any tax could attach because the sale was not consummated, i.e.: petitioner had not yet actually exchanged the cocaine with the agent for the agreed purchase price. Petitioner's contentions regarding the limited nature of his involvement is contrary to the credible proof, and petitioner's contentions regarding the implications of that participation are contrary to the law, discussed infra. Succinctly, petitioner actively participated in the transportation, storage, distribution and sale of the cocaine, and he is subject to the implications of such activity under the provisions of Section 212.0505, Florida Statutes. Notwithstanding his active participation in the sale of the cocaine, petitioner averred at hearing that such participation was not voluntary. Rather, petitioner contended that his participation resulted from pressure asserted by a friend of long standing (Lupo) who, unbeknown to him, had become a confidential informant. 2/ According to petitioner, Lupo pressured him into locating a supplier of cocaine for the agent and CI involved in the subject transactions, as a consequence of hounding him for an old $1,600 debt petitioner had incurred for purchasing cocaine at a time he was addicted to the drug, and by an oblique remark the confidential informant made that "he knew my kid played outside," which petitioner averred he interpreted to be a threat to do something to his son. Petitioner's contention that his participation in the subject transactions was not voluntary or, stated differently, that he was entrapped, is rejected as contrary to the more credible proof. Here, the proof demonstrates that petitioner's motivation was financial and that he had a familiar relationship of long standing with Lupo and his ultimate supplier (Greenburg) which, coupled with the lack of sincerity and precision to his testimony, make his protestations of duress ring hollow. Regarding his financial motivation, the proof demonstrates that when approached by Lupo, petitioner was financially strapped, and stood to make $500 for each kilo he could deliver. Had the entire transaction been consummated for the agreed 12 kilos, petitioner stood to make a quick $6,000. Regarding the relationships that existed, the proof demonstrates that petitioner had been friends with Lupo and Greenberg for over twenty years, had actually lived with Greenberg for ten years, and that there was no apparent change in that relationship when he was approached by Lupo and introduced to the agent in this case. Considering the length of their relationship, and the lack of conviction in petitioner's testimony, it is concluded that petitioner's participation in this transaction was not compelled by any threat from Lupo, but by his own financial needs. In sum, the proof supports the conclusion that petitioner did engage in the unlawful sale, use, distribution, transportation or storage of cocaine as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of tax, penalty and interest set forth in its revised assessment 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, David J. Caplan, is liable for taxes, penalties and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $13,964.25, plus interest at the rate of $3.25 per day from February 22, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March 1992. 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 30th day of March 1992.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: On February 17, 1990, Frank Vitale was arrested at or near the ABC Liquors at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). On February 17, 1990, Noel Frederick Shumann was arrested at or near the ABC Liquors (ABC) at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). Noel Frederick Shumann was acquitted for both the charges of trafficking in cocaine and conspiracy to traffic in cocaine on May 2, 1991. Noel Frederick Shumann was present at the ABC on February 17, 1990. Noel Frederick Shumann denies that he was involved in any illegal drug transactions; however, he admits that an illegal drug transaction occurred on February 17, 1990 at the ABC. Frank Vitale, who was convicted of the charges, testified on behalf of Noel Frederick Shumann at the criminal proceeding. Mr. Vitale's testimony is as follows: That the money used to purchase the estimated retail value of cocaine of $9,400.00 was in fact Mr. Vitale's money. That Mr. Vitale had accumulated this money from the sale of an interest in some green houses and monies from the sale of jewelry from his flea market business. He stored the money at Mr. Shumann's house while living there for a brief period of time. On February 17, 1990, he called Mr. Shumann and asked Mr. Shumann to bring envelopes containing the money to the ABC Lounge. Mr. Vitale was not living at Mr. Shumann's house at the time he called Mr. Shumann and asked him to bring the envelope containing the money to the ABC Lounge. These envelopes were stored in the bedroom Mr. Vitale resided in while living in Mr. Shumann's house. Mr. Shumann acquiesced with Mr. Vitale's request. Mr. Vitale further testified that Mr. Shumann had nothing to do with the drug transaction, did not know there was a drug transaction taking place at the ABC Lounge until such time as he arrived and remained at the lounge for a period of time. Mr. Vitale further testified that Mr. Shumann was not to share in the cocaine or any expected profits from the sale of the cocaine. The drug transaction involved 500 grams of cocaine. The estimated retail value of the cocaine was $9,400.00. The money used to purchase the cocaine was in Noel Frederick Shumann's vehicle. Mr. Shumann was assessed on February 26, 1990, pursuant to Section 212.0505, Florida Statutes, for the delinquent tax, penalty and interest relating to the drug transaction which took place on February 17, 1990. The jeopardy assessment is a correct and proper assessment both as to form and content of an illegal drug transaction involving cocaine with the retail value of $9,400.00. Mr. Shumann does not contest the mathematical accuracy of the tax assessment nor the procedures followed in issuing the notice. Mr. Shumann has not paid the sales tax assessed and the amount claimed has not been paid by another on his behalf. Mr. Shumann asserts that the assessment is improper only because he was not personally involved in the illegal transaction and, therefore, committed no act to give rise to the tax. Consequently, he argues the assessment against him should be dismissed. Prior to February 17, 1990, Agent Cannon, an undercover narcotics investigator, was introduced to Frank Vitale. Mr. Vitale met Agent Cannon through a third party, a confidential informant, named Barbara Anderson. Ms. Anderson advised Agent Cannon that Mr. Vitale wanted to purchase cocaine. Ms. Anderson had known Mr. Vitale for some time prior to February 17, 1990. On some occasion prior to February 17, 1990, Mr. Vitale spoke to Ms. Anderson regarding his partner in the drug transaction. When Noel Frederick Shumann arrived at the ABC on February 17, 1990, Mr. Vitale introduced Mr. Shumann to Ms. Anderson as "his partner." Because he remained present during the activities that followed, and because he told Ms. Anderson that he was there to keep an eye on his money, Ms. Anderson presumed Mr. Shumann was the partner in the drug transaction to whom Mr. Vitale had earlier referred. When Agent Cannon arrived to complete the drug transaction, Mr. Vitale introduced Mr. Shumann to him as his partner but maintained he (Vitale) would be handling the deal. In fact, Mr. Vitale became very upset any time Agent Cannon attempted to speak with Mr. Shumann instead of dealing with him exclusively. At one point in time, Agent Cannon threatened to abort the transaction since Mr. Vitale would not let him count the money. The money, which was stored in Mr. Shumann's car at that time, was not counted until Mr. Shumann told Mr. Vitale to let Agent Cannon count the money. Mr. Shumann was aware that Mr. Vitale was attempting to purchase cocaine from Agent Cannon and was aware that the money to be utilized in that purchase was in his (Shumann's) car. During a second conversation, Mr. Shumann directed Mr. Vitale to weigh and test the cocaine to be purchased and to proceed with the transaction if the substance looked good. Mr. Vitale then left the lounge with Agent Cannon and proceeded across the street to the van where Agent Cannon's partner was located with the drugs. Following the exchange of the money for the cocaine, Mr. Vitale was placed under arrest and the MBI team converged. Subsequently, Mr. Vitale and Mr. Shumann were placed in a police patrol car that was wired to record their conversation. The taped conversation (Petitioner's exhibit 1) contains statements by Mr. Vitale to the effect that he knew the police were listening, that he was sorry to get Mr. Shumann into "this," and that Mr. Shumann should "put everything on me (Vitale)." During the counting of the money, the weighing and testing of the cocaine, and the sale and purchase of the cocaine between Agent Cannon and Mr. Vitale, Mr. Shumann remained in the lounge. Mr. Shumann continued to talk to Ms. Anderson even though he knew a cocaine transaction was proceeding, knew that he had been introduced as Mr. Vitale's partner, knew that the money for the transaction was stored first in his house then in his vehicle, and knew that the supplier (Agent Cannon) had sought authorization from him to count the money and complete the deal. It is wholly incredible to conclude that a disinterested party would have remained in the lounge throughout the foregoing events. Cocaine is a controlled substance as defined by Florida law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a final order confirming the notice of assessment and jeopardy findings and finding the amount due to be $10,575.00 plus interest (1% per month until paid). DONE and ENTERED this 5th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Petitioner submitted proposed findings in a form such that rulings cannot be entered. Petitioner summarized: the testimony of Chuck Cannon; the testimony of Mr. Shumann; the patrol car tape (Petitioner's ex. 1); the stipulated statements of facts submitted by the parties; the deposition of Vernon Taylor; and the testimony of Barbara Anderson. Such summaries did not present paragraphs with factual allegations in a form such that specific rulings can be made. Such summaries included argument, irrelevant information and comment on the evidence. Except as set forth in the findings of fact above, they must be rejected as not supported by the weight of credible evidence or as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent listed the stipulated facts submitted by the parties. They have been accepted and incorporated in the foregoing recommended order as findings of fact. As to the proposed findings of fact submitted by Respondent, which began on page 4 of the proposed order, the following specific rulings are given. Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that Mr. Vitale introduced Mr. Shumann to Ms. Anderson as his partner. It is not accepted that he specifically told Ms. Anderson that Mr. Shumann was his partner in this drug transaction. That factual conclusion has been reached based upon a preponderance of all evidence presented in this case. Paragraphs 11 through 20 are accepted. Copies to: Robert J. Buonauro 14 E. Washington Street Suite 602 Orlando, Florida 32801 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether the Petitioners have presented clear and convincing evidence that they are of good moral character so as to receive an exemption from disqualification from licensure as a family foster home, pursuant to Section 435.07(3), Florida Statutes (1997).
Findings Of Fact Hope Gadson (Case No. 98-2781) Hope Gadson (Petitioner) has an extensive criminal history beginning approximately 12 years ago. Under Florida law, she is considered a habitual offender. Beginning in 1986, her criminal record includes seven convictions for worthless checks and petit theft, three convictions for drug possession and sale, and at least two convictions for prostitution. Four of these convictions are disqualifying convictions. In 1992, 1993 and 1994, Petitioner was convicted on felony drug charges. She was also charged with two probation violations in the intervening period. Petitioner's last conviction in 1994 resulted in jail time to run concurrently with the 1993 case as a violation of probation. Petitioner was arrested August 1994 and remained in jail until December 1994 when she was placed on work release. In June 1995, Petitioner was placed on house arrest for approximately two months. As a condition of her confinement and also as a condition of her work release, Petitioner received drug treatment in jail. Petitioner attended Narcotics Anonymous (NA) meetings during the time she was on work release from December 1994 to March 1995. Petitioner also has a disqualifying conviction for prostitution in 1994. Petitioner had at least three other arrests for prostitution that she admitted to having committed. Petitioner denies one arrest that she stated was based on mistaken identity. Petitioner states that the prostitution charges are directly related to the drug charges. Prior to her time in jail, Petitioner's long-term drug abuse resulted in the termination of her parental rights on four of her children. Of the four children that presently live with her, only the youngest child has lived with her since birth. Four of the children were drug-dependent newborns, and as a result of this finding, were removed from her custody. Except for a short time that a court order was in place, Petitioner did not provide support for any of her children during that period. Recently, her sixteen-year-old daughter, and her nine- year-old son have moved back in with her and her husband. The sixteen-year-old has not lived with her since she was three or four years old and the nine year old has not lived with her since he was one year old. The nine-year-old remains under the protective supervision of the juvenile court. Since her release from house arrest, Petitioner has made a remarkable turnaround in her life. Petitioner has been living drug-free for over two years. She has taken responsibility for her life and assembled the duties of being a responsible wife and mother. Petitioner has been employed as a secretary at a company that went out of business; as a sales person for AT&T and Bell South Mobility; and as temporary service personnel. Petitioner is a high-school graduate and plans on returning to school at Orlando Vo-Tech to learn more about computers. Petitioner has been married to Roger Gadson since February 1996. They have one son by this marriage. Besides Petitioner's other three children, they also have the child of her sister living with them. Random drug tests are performed on Petitioner on a monthly basis because one of her own children and the child of her sister are under protective supervision. Petitioner did not provide proof of the results of the drug tests. Regarding drug treatment, Petitioner does not believe that addiction to drugs is an ongoing condition. She feels addiction is in your mind and can be overcome with determination and support. She has not continued to attend NA meetings since her release. John Anderson testified on behalf of Petitioner. He became her friend while she was on drugs. He used to check on Petitioner and counsel her to make a better life for herself. He states he has seen the good care she gives to the children in her case. Roger Gadson (Case No. 98-2780) Roger Gadson (Petitioner II) was disqualified for a conviction for Grand Theft in 1988 and a conviction for Dealing in Stolen Property in 1991. He was sentenced to three years probation and sixty days in jail for the 1988 conviction. Petitioner II served approximately two and one half years in prison for the 1991 conviction. In August 1994, Petitioner II was released from prison and placed on work release. Petitioner II also had several misdemeanor and DUI convictions dating back to 1983. He has not had any criminal charges placed against him since his release in 1994. Since his release from prison, Petitioner II has been employed at Central Auto Parts. The company was aware of his criminal record when they hired him. He has worked his way up to Systems Warehouse Manager. He was married in February 1996, to Hope Gadson and has one child from that marriage. He has two children from a prior marriage and pays child support for their care. John Anderson also testified on Petitioner II's behalf. Petitioner II has turned his life around and his been a responsible citizen, husband and father since 1994.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioners' request for exemption from disqualification for licensure as a family foster home be DENIED. DONE AND ENTERED this 8th day of December, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Roger Gadson Hope Gadson 2849 Mayer Street Orlando, Florida 32806 Eric D. Dunlap, Esquire Department of Children and Family Services Suite S-1106 400 West Robinson Street Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976. The above facts were as stipulated to by the parties.
Recommendation Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 H. R. Fallin, Esquire 1239 King Street Jacksonville, Florida 32204
The Issue The issue is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
Findings Of Fact At all material times, Respondent was a certified law enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001. As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed. On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home. The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis. As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned. The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing. On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample. At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites. At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml. The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample. The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample. Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result. The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening. Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large amount of cocaine into his drink. This defense is unworthy of belief. Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night. As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended. For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer. The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom, Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high. Exacerbating these credibility problems was Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance. Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James C. Casey, Esquire Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134-6020 Rod Caswell, Program Director Division of Criminal Justice Professional Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2016).1/
Findings Of Fact Based on the evidence presented at hearing, the following findings of fact are made: The Agency is the state entity which supports vulnerable persons with various developmental disabilities. The Agency contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. Vision Builders One, Inc., is a service provider for the Agency. Mr. Gaskin applied with Vision Builders One, Inc., to become a caregiver, a position of trust which requires completion of level 2 background screening. The Department of Children and Families conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a significant history of involvement with law enforcement for Mr. Gaskin.2/ In response to inquiries concerning possession of cocaine on December 2, 1988, Mr. Gaskin stated: I was young, not thinking straight, and decided to experiment with selling illegal drugs. I was arrested in a known location for having three cocaine rocks. I was placed on probation. On February 8, 1989, Mr. Gaskin entered a plea of nolo contendere to possession of a controlled substance, cocaine, a felony of the third degree. In response to inquiries concerning violation of probation on May 31, 1990, Mr. Gaskin stated: I didn’t want to result back to selling illegal drugs. I was unable to find employment; therefore, I didn’t have money to pay my probation fees. I violated and was sentenced to 18 months in prison. In response to inquiries concerning resisting an officer without violence on April 9, 1993, Mr. Gaskin stated: I do not recall this arrest or charge. Once researched, the clerk was unable to locate court documents for this charge. In response to inquiries concerning contempt of court regarding child support on November 15, 1993, Mr. Gaskin stated: I was unemployed and unable to pay the child support purge. In response to inquiries concerning possession of cocaine on February 15, 1994, Mr. Gaskin stated: I was hanging out with a few guys, and one of them left cocaine in the backseat of my car, unknowingly to me. This charge against me was dropped. In response to inquiries concerning cocaine possession on February 5, 1995, Mr. Gaskin stated: I was parked in my car and had cocaine in my possession when the law officers approached my car. I received one year house arrest probation, six months weekend jail, and 75 hours of community service work, in addition to court fines and suspended driver license. On June 19, 1995, Mr. Gaskin entered a plea of nolo contendere to possession of a controlled substance, cocaine, a felony of the third degree. In response to inquiries concerning a domestic battery on July 20, 2000, Mr. Gaskin stated: My wife and I were separated. I stayed away for four weeks and when I returned to our home, my wife had a male friend in the house. I was upset and she wouldn’t let me in our home, so I knocked the door in to enter. When entering, she and I exchanged hurtful words and we struck each other. She called police and I was arrested. Those charges were downsized to lesser charges. I was sentenced to one year probation, attend and complete an anger management class. On January 31, 2001, Mr. Gaskin entered a plea of nolo contendere to trespass of an occupied dwelling, a misdemeanor of the first degree and to domestic battery, a misdemeanor of the first degree. In response to inquiries concerning contempt of court for violation of a protective injunction regarding domestic violence on September 3, 2000, Mr. Gaskin stated: My bondsman neglected to notify me of my court date; therefore, I didn’t appear on day of court. When informed of the contempt of court, I turned myself in, so no arrest record. The bondsman notified the court of negligence and the contempt of court charges were dropped. In response to inquiries concerning failure to appear on March 1, 2002, Mr. Gaskin stated: I do not recall this arrest or charge. I will be following up on researching to receive clarification that this was actually me. Once the research is completed I will provide a detailed statement. In response to inquiries concerning violation of probation for trespassing in an occupied dwelling March 1, 2002, Mr. Gaskin stated: I was violated because my wife made an untrue statement to the police that I was harassing her. I called to ask for visitation with my son and we got into a verbal argument. In response to inquiries concerning driving while license suspended on July 24, 2010, Mr. Gaskin stated: I got a traffic ticket leaving work which violated my probation. I notified my probation officer and turned myself in, so there wasn’t an arrest. My probation was re-instated; I then paid it off and completed it to its entirety. Since September 10, 2002, Mr. Gaskin has been released from all confinement, supervision, and non-monetary sanctions imposed for the disqualifying offenses he committed. Since April 14, 2016, Mr. Gaskin has been released from all monetary conditions. Mr. Gerry Driscoll is the regional operations manager for the Southeast Region in the Agency. He has served in his current position for 3 years and has been employed with the Agency for 17 years. Mr. Driscoll credibly testified that the Agency has responsibility for a very vulnerable population, many of whom are unable to later tell others about the actions of their caregivers. This population is thus very susceptible to exploitation. Mr. Driscoll noted that the Agency must consider any prior instance of violence very carefully. While in his written submission to the Agency Mr. Gaskin stated that he never caused any harm or injury to any victim, at hearing he admitted that he caused injury to his wife when he hit her after breaking into their home and injury to others in selling them controlled substances, testimony that is credited. Mr. Gaskin submitted three character reference letters to the Agency stating generally that he is hardworking, intelligent, and committed. Mr. Gaskin further stated that he was very remorseful and admitted he had made poor choices in his life in the past. He explained that he just wants an opportunity to be a productive citizen, to work, and to take care of his family. Mr. Gaskin seems sincere in his desire to care for vulnerable persons, and asks for a chance to work with them to demonstrate that he is rehabilitated. However, the statute requires that rehabilitation be shown first through other work history and by additional means: only then may an exemption to disqualification be granted. While Mr. Gaskin stated that he is rehabilitated, he offered little evidence to clearly demonstrate that. He completed some courses toward certification as a firefighter in 2004-2005, but has evidently not pursued that further. He completed some courses required as a condition of probation, but has not participated in other counseling or coursework. Mr. Gaskin’s work history in the past decade, a very important element in demonstrating rehabilitation, has been very “sketchy,” as Mr. Driscoll testified. Mr. Gaskin indicated that his last employment ended in July 2014. He was employed by Manpower Staffing Services doing temporary work for about 14 months in several jobs such as maintenance worker, demolition worker, and equipment/maintenance technician. He also worked at United Parcel Service for a couple of months in 2010. Although Mr. Gaskin has not had steady work in recent years, he noted that when needed, he assists his father-in-law with handyman work, his son with his entertainment business, his cousin with his bail bonds business, and his nephew with his marketing business. He noted that he also assists at his church. Passage of time is a factor to be considered in determining rehabilitation, and the last disqualifying offense was many years ago. However, Mr. Gaskin’s history since his disqualifying offenses continues to reflect minor incidents and does not contain sufficient positive indications of rehabilitation. Petitioner failed to prove by clear and convincing evidence that he is rehabilitated and that he will not present a danger if he is exempted from his disqualification from employment in a position of trust.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Mr. Dwayne Gaskin’s application for exemption from disqualification. DONE AND ENTERED this 21st day of September, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 21st day of September, 2016.
