Findings Of Fact At all times pertinent to the allegations and issues herein, Respondent was the holder of 2 COP alcoholic beverage license number 66-89, held since 1952, for his premises known as Eddie's Drive In, located at 1907 Avenue D., Ft. Pierce, Florida. Mr. Asbury has operated his establishment at that location under the above license since 1952 with only three former infractions of a very minor nature. In 1959, he was warned for a failure to have the fingerprints of an employee on file. In 1963 he was given a 15-day suspension when a minor was found in possession of whiskey as opposed to beer on his premises. In 1965 he was again given a 15-day suspension and, in addition, a $200.00 fine because gambling tickets were found in the premises. Until the instant case, these were the only derogatory incidents in Respondent's file. Respondent has been known to be very cooperative with the authorities and has always quickly corrected violations brought to his attention. In the latter part of 1982, based on a complaint from the Ft. Pierce police Department of numerous narcotics in the Avenue D area, Petitioner conducted an undercover investigation of several establishments in the area including that of the Respondent. Pursuant to that investigation, Beverage Officer Thompson, five year veteran with DABT, who has been given the normal police training in narcotics detection and identification as well as having attended various schools conducted by the U.S. Drug Enforcement Agency, and who, based on this education and his experience in the field, is quite familiar with marijuana and its various forms and methods of use, in the company of another beverage investigator, Hamilton, on September 17, 1982, entered Respondent's premises at approximately 9:30 P.M. and observed both Respondent and his bar maid, Lois, on the premises. He took a seat at the bar across from Respondent and several feet off to the side of Lois. He saw Lois pull a cigarette from beneath the bar and start to smoke it. From the way she handled the cigarette and from the way it looked and smelled, he felt it was marijuana. While Lois was smoking this cigarette, she made no effort to hide it and was in full view of the Respondent all the time. Thompson saw Respondent look over in her direction while she was doing it but made no issue of it or even acknowledged it. Though there were other patrons in the bar at the time, Thompson saw nothing else that looked like marijuana use to him that evening. The following evening, September 18, both agents again entered the establishment and sat at the bar. This time the bar maid was Laverne. Thompson also saw a black female identified as Devonza at the counter with whom both he and the other investigator had a brief conversation. Later, Thompson saw another black female identified as Dot (Dorothy Battle), seated across the bar from Laverne, pull out and start smoking a cigarette he thought was marijuana. He also saw Dot pull small manila colored packages from a small pouch she carried and sell them for $5.00. These bags were similar in appearance to what he knew from his experience to be "nickle bags" of marijuana. He also saw Laverne smoking that evening and from the way she held the cigarette and from its odor and the way it was rolled and burning, he concluded it was marijuana. At this particular time, she was on duty behind the bar, but Respondent was not on the premises. No samples of the substance in question were taken either night. Both investigators went back to the premises on September 22 at about 8:30 P.M. There were few patrons in the bar at the time. Thompson went to the bar and sat talking to Laverne who was on duty. When Dot came up and sat at the bar, he asked her if she had any $5.00 bags and she said she did. She pulled out a small manila bag like he had seen her sell on September 18 and made no effort to hide the transaction. She made the transfer to him above the level of the bar. Thompson does not know if Laverne saw the sale or not, but Respondent was not on the premises at the time. The substance he purchased that night was later properly identified as marijuana. When he went back at about 10:00 P.M. on September 23, Thompson saw 10 or more patrons in the bar. He sat down at the bar across from Respondent and asked him if he knew where he could buy some "snow." Respondent indicated he did not, but that there was some around. Respondent's recollection of this conversation differs from that of Thompson. He says he thought Thompson was asking for snow, which is the nickname of a known drug dealer named Coleman, and he said he did hot know where he was but that he was around. Under either interpretation of the conversation, the result is the same. Thompson asked a question and got no assistance from Respondent's answer. There is nothing incriminating either in knowing that "snow" is available in the area (from all reports, drug use is rampant in this area), or in knowing that a known drug dealer, Snow, is around. Thompson had also been in the bar earlier in the day, about 3:00 P.M., when he saw both Laverne and Dot inside. After sitting at the bar for a while, he walked over to the video area where he saw black males rolling and smoking what he took to be marijuana cigarettes in a remote area of the club. While talking with Laverne at the bar, he saw her pass an empty 1/2 of a cardboard beer box to three black males sitting at a table. He saw these males use this box to hold large amounts of what appeared to be raw marijuana from which they were making small manila packages of the substances which they subsequently put into a brown paper bag under the table. During this same time, he saw Laverne smoking what he suspected to be a marijuana cigarette. At about 9:15 P.M. on October 8, Thompson again went back to the club and saw Laverne when he sat at the bar. Another black female, identified as Wanda, came to the bar and offered to sell him marijuana. She pulled out a small package of purported marijuana and laid it on the bar, offering to sell it for $5.00. She also offered to sell him a somewhat larger bag for $6.00. At this point, Thompson gave Laverne a $20.00 bill and asked for change which she gave him. She was standing right there and made no effort at all to stop this sale of marijuana. In fact, Thompson had asked her if Wanda's stuff was any good and she replied it was. While at the club that evening, he also saw other black males and females smoking what to him appeared to be marijuana at a remote area of the bar counter. He formed the opinion it was marijuana because of how the cigarettes were rolled, smoked, and passed around and from the distinctive smell it has. On October 9, 1982, Thompson again went into the place, this time with Hamilton. On this occasion, Laverne was on duty and he sat at the bar and propositioned her to buy him some marijuana. She said she had none then because she had smoked it all, and so he was unable to make a buy that evening, but he saw, while in there, other patrons at the bar and in the area smoking what he is convinced was marijuana. Again, he formed that opinion because of the way the substance was being smoked and handled. Thompson did not get back to Respondent's place until October 15, 1982, when he again went in with Hamilton. On this evening, Respondent was there and he could smell the heavy distinctive odor of marijuana in the premises. Thompson sat at the bar across from Respondent and observed a group of black males at a nearby table. While he was watching, he saw one black male inhale a large quantity of smoke and blow it into the nostrils of the other people at the table. When he saw this, he mentioned it to the Respondent who looked over and acknowledged it but made no effort to stop it or get these patrons out of his place. On this same occasion, the bar maid, Brenda, was smoking what appeared to be marijuana after Respondent left and Thompson was able to purchase marijuana from Dot, at the bar and in front of Brenda, who also made no effort to stop the transfer. Brenda also made no effort to stop other patrons who were rolling and smoking what he believed to be marijuana cigarettes right at the bar. Also on this same evening, Thompson observed Hamilton purchase what was subsequently identified as marijuana from Dot near the video games. The next afternoon, on October 16, 1982, at about 2:30 P.M., Thompson again went into the Respondent's establishment with Hamilton and sat at the bar. At this time, he saw the rolling and smoking of suspected marijuana cigarettes at nearby tables and at the bar by unidentified black males. The smell and packaging of the substance is what convinced him it was marijuana. Neither agent was in Respondent's establishment again until December 18, 1982, when both went in about 8:30 P.M. They sat at the bar where, on this evening, Beverly was the bar maid. While sitting there, Thompson saw various individuals smoking marijuana at different places on the premises and observed that Beverly made no effort to stop it. In fact, from the odor, the method of burning, and the way she smoked, he was convinced she was smoking it herself. Dorothy Lee Battle (Dot) denies ever having met Thompson before this hearing and indicates he is lying when he says he bought marijuana from her at Respondent's establishment. She admits that she was arrested for the sale and delivery of marijuana outside Respondent's place but absolutely denies ever having sold or transferred inside. Even though she refused to cooperate with the authorities who wanted to prosecute Respondent, she was placed on three years probation after being confined for almost 3 1/2 months. She indicates she has known the Respondent since she was a kid and knows that he is definitely opposed to the use of drugs and will not permit it to be sold in his establishment. In fact, he has told her that she was not to bring any marijuana into his place and if she had any he would call the police. She knows that Respondent is quite concerned about losing his license because she believes this is the only business he has. Because of that, there are a lot of signs warning against the smoking or selling of marijuana in there but notwithstanding, she has seen people smoking marijuana inside the bar. However, his patrons respect him and any marijuana smoking is done only when Respondent is not there and never when he is. These signs have also been seen by Mr. Daniel Cribbs, the supplier of Respondent's vending machines, whose family has dealt with him for 30 years or so. Mr. Cribbs has been in Respondent's establishment every two weeks for a long while and has seen these signs prohibiting the use of selling of marijuana up and down for several months or so. He gave no indication as to whether they were there two years or so ago when the incidents in question were alleged to have taken place. In any case, he has spoken with Respondent about marijuana in the past and recalls that Respondent has stated that he doesn't want it in there. These signs were also seen from time to time by Gary Coleman who, by deposition, indicated that they are the normal signs placed in all establishments where beer is sold. Coleman indicates he has also heard Respondent telling people who were smoking pot to leave his place. Coleman denies every smoking marijuana in Respondent's place or, for that matter ever doing anything unlawful there. He has lived in Ft. Pierce for about eight years and in all that time has only been in there about a dozen times or so. He is, however, by his own admission, on probation for selling narcotics. Therefore, neither his testimony or that of Ms. Battle are particularly credible and both Thompson and Young, who conducted the close out investigation of Respondent's premises indicate that on the times they were in there, neither ever saw any signs warning against the sale or smoking of marijuana. It is, therefore, most likely, that if any signs were posted, they were put up long after the incidents in question and were not there prior to official interest being shown. Respondent denies that Thompson ever saw Lois smoke marijuana in his premises. He also indicates that he discharged Laverne by telling her she need not come to work any more when he found out she was doing drugs. He contends he never had any idea people were doing drugs in his establishment. He has, he says, always been against that sort of conduct and has repeatedly told his employees to call either the police or him if they saw people smoking marijuana on his property. He has, on at least one occasion prior to the incidents in question here, called the police on people smoking marijuana in his bar. There is, he contends, only so much one can do about the problem short of that. Even on the occasion he called the police and they came and took the offenders outside, they were not arrested and, as he understood it, even after requesting the police to make these people stay out of his place, the police did not even take their names. Mr. Asbury had a schedule for his routine at the time these alleged incidents took place which had him arriving at his place about 6:00 P.M. to check out the bartender on duty and check the money. This took about 30 minutes. He would then leave and come back between 9:00 and 9:30 P.M. to check for a while, after which he would again leave and come back at 11:00 P.M. and stay for the rest of the evening. This would be his routine just about every night of the week. He has no knowledge of the things that are alleged to have taken place when he was there. As to the shot gunning incident (the blowing of the marijuana smoke into the others' nostrils) that Thompson said he observed, Respondent denies it ever happened. Respondent tries to hire only people he knows and trusts. He pays them in cash and keeps no employment records. During the period in question, he states he had two employees. One was named Vernel (he does not knew anyone named Laverne) and the other was named Lois. Since the incidents in question, Respondent checks on his establishment much more than he did before. He has added a new afternoon visit to his schedule and has hired new girls to tend bar. While prior to this time, no one ever warned him of the problems he was apparently having, even now he still has problems with people smoking marijuana in the place. When he learns of it, he tells them to get out and he is quite satisfied that law enforcement officials have not seen much selling and smoking of marijuana in his place recently.
The Issue The issue in this case is whether Petitioner, Lee County School Board (School Board or Petitioner), has just cause to dismiss Respondent, Maria Burns, from her employment as a school teacher for immorality and misconduct in office.
Findings Of Fact Respondent holds a Florida Educator Certificate and has been a teacher at Pine Island Elementary School in Lee County since August 27, 1990. Prior to that, she taught for four years in DeSoto County. The evidence was that she has been a good and effective teacher. On May 21, 2012, Respondent resided with a female housemate in a home Respondent owned in Charlotte County. The two women had a disagreement or altercation, and the housemate threatened Respondent, who left the premises to get help from the housemate's mother. When her mother arrived, the housemate became more violent and threatening. The Charlotte County Sheriff's Office (Sheriff's Office) was called and responded to the home. The housemate barricaded herself in the house, fired shots, and stood off law enforcement for several hours. When the stand-off ended, and before Respondent returned to the house, the Sheriff's Office arrested the housemate and executed a warrant to search the premises. During the search, law enforcement found 25 to 30 small suspected marijuana plants in five flower pots in open view on chairs on the second floor balcony of the house. The plants tested positive for cannabis. It appeared to law enforcement that the plants were being tended by someone and that leaves were being harvested from the plants. A cigar-type box was found on a kitchen counter amid debris from the stand-off, during which tear gas canisters were shot through the windows of the home. The box had a hinged lid and contained suspected marijuana residue and seeds and a glass smoking pipe (drug paraphernalia). Because Respondent was the owner and a resident in the house, she was arrested and charged with marijuana possession, marijuana cultivation, and possession of drug paraphernalia. Respondent entered into a pre-trial diversion agreement, which she completed by the time of the hearing in this case. On February 25, 2013, the charges against her were dropped by nolle prosequi. No other evidence was presented from which it could be inferred that Respondent knew the marijuana plants were in her house. When found, the plants were in an open and obvious location, but there was no evidence how long they had been there prior to their discovery by law enforcement. The cushions of the chairs they were on were not designed to be left outside in the elements. There was no evidence as to where the plants were kept when not on the chairs on the balcony. Even if the plants were seen by Respondent, there was no evidence that she knew they were marijuana plants. There was no evidence that Respondent tended to the plants, harvested leaves from them, or used the leaves in any way. There also was no evidence that the drug paraphernalia belonged to Respondent, or that she knew the drug paraphernalia was in the house. No inferences are drawn simply from Respondent's decisions, made on advice of counsel based on Fifth Amendment privilege, not to appear at the final hearing and not to address certain aspects or give her explanation of the incident during the pre-determination hearing. The local media reported Respondent's arrest. The reports gave Respondent's name, age, and Charlotte County address, and included a photograph, but did not identify her as a teacher. Pine Island is a small community, and everyone at Respondent's school and in the community probably knows about her arrest and prosecution. There was no other evidence as to any adverse effect that knowledge might have on Respondent's service to the community or effectiveness as a teacher. Lee County School Board Policy 5.02 requires the School Board to "establish high standards and expectations for its professional faculty and staff, including: (1) Compliance with applicable federal and State laws, rules, codes, regulations and policies concerning professional credentials and employment; (2) Dedication to high ethical standards; [and] (3) Establishment of high standards in educational practice." It also requires employees to meet the standards and expectations established by the School Board. Lee County School Board Policy 5.04 requires criminal background checks to determine suitability for employment and provides that failure to be truthful on an employment application about prior criminal history will be grounds for ineligibility or dismissal from employment. Id. § (1)(a). It also provides that the School Board will not hire a teacher: who is "on probation or has a pending case"; with "[o]ther offenses listed in §§ 435.04 and 1012.315, Florida Statutes" (which includes, under section 435.04(2)(rr), Florida Statutes, a chapter 893 felony drug prevention and control offense, such as cultivation of marijuana); or with a misdemeanor drug and/or drug paraphernalia offense less than five years old. Id. § (7)(a)-(c). Lee County School Board Policy 5.29(1) provides that "[a]ll employees are expected to exemplify conduct that is lawful and professional " Lee County School Board Policy 5.37(2)(a) "prohibits the use, distribution, manufacture, possession, sale, cultivation, or attempt to sell illegal controlled substances at any time whether on or off duty . . . ." Violation of the prohibition subjects an employee to "disciplinary action up to and including termination." This policy is set out in the School Board's Employee Handbook. There is a Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County. It prohibits possession, consumption, or being under the influence of illegal drugs on the job or in the workplace. It does not negate Lee County School Board Policy 5.37(2)(a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: finding no just cause for dismissal on charges of immorality or misconduct in office; and reinstating Respondent with back pay from February 26, 2013, forward. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 19th day of April, 2013.
The Issue The issue in this case is whether petitioner's application for licensure as a professional teacher should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, respondent, Doug Jamerson, as Commissioner of Education, has proposed to deny an application for a teaching certificate filed on behalf of petitioner, Bryan S. Frederick, a thirty year old graduate of Elon College in North Carolina. As a ground, respondent contends that on applications filed with the Department of Education in 1991 and 1993, petitioner failed to disclose the fact that in December 1990 he had been arrested for possession of marijuana, and in January 1991 he had pled guilty to that offense. Petitioner disputed this allegation and timely requested a hearing. The critical facts giving rise to this dispute are as follows. Respondent has prepared an Application for Florida Educator's Certificate which must be completed and filed by those persons desiring a teaching certificate. On page 3 of the form is found the following question: Have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? SEALED or EXPUNGED records must be reported pursuant to S. 943.058 F.S. Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida law. On applications dated August 29, 1991, and April 2, 1993, which were filed with respondent, petitioner answered the foregoing question by checking the "NO" box. He also certified that all information in the two applications was "true, correct, and complete." With the assistance of the Florida Department of Law Enforcement, in late 1993 respondent conducted a law enforcement background check on petitioner. The search revealed that on December 22, 1990, petitioner was arrested by the Brunswick, Georgia police department for possession of marijuana. On January 8, 1991, the solicitor for the state court of Glynn County, Georgia, filed an affidavit and accusation pertaining to that charge. On January 31, 1991, petitioner pled guilty to possession of marijuana, a misdemeanor. For this, he was adjudicated guilty and was sentenced to 12 months in jail, with all time suspended except for the one day served in jail. When he was assessed a fine in the amount of $300 plus costs, and he could not pay the fine, petitioner was sentenced to a week in jail. According to petitioner, however, no fine was ever paid, and except for the day when he was arrested, no time was served. After learning this information, respondent issued a Notice of Reasons on June 13, 1994, proposing to deny petitioner's most recent application for a teaching certificate for failing to disclose the arrest and conviction. Petitioner did not deny that the above events occurred. He explained, however, that on the day in question, he and a friend, Glenn Brinson, were driving to South Carolina for the Christmas holidays and stopped to eat at a fast food restaurant in Brunswick, Georgia (Glynn County) just off Interstate 95 (I-95). When returning onto I-95, Brinson was stopped by a law enforcement officer for making an illegal turn. After Brinson stepped out of the automobile, he was asked to show his driver's license and vehicle registration. Petitioner, who was a passenger, reached in the vehicle's glove compartment to retrieve the vehicle's registration and observed three marijuana joints. Having no prior knowledge that they were there, and being in what he describes as a state of panic, petitioner unwisely placed the three joints inside his hat. When the police officer noted that the license tag and registration had expired, he asked petitioner to step out of the car and submit to a search for weapons. Thereafter, the officer discovered the marijuana. Although petitioner denied that the contraband belonged to him, both he and Brinson were arrested for possession of marijuana. No traffic citations were issued. At hearing, Brinson acknowledged that the marijuana belonged to him, and not petitioner. Petitioner admits that he intentionally failed to disclose the arrest and conviction on his applications because he knew it would "blow his career" as a teacher. He says he could not afford an attorney to fight the charge and believed that by entering a plea of guilty with an explanation to the judge, the charge might be dropped. As it turned out, however, the judge simply accepted the plea and adjudicated him guilty of the offense. Petitioner does not work in the teaching profession at the present time but says he has a pending job opportunity should his application be approved. He desires a five-year professional teacher's license so that he can begin a full-time teaching career. Up to now, he has worked as a substitute teacher on a part-time basis. Except for this isolated incident on the part of petitioner, there is no evidence of any other misconduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a period of one year. Thereafter, and upon reemployment, a license shall be issued but the first three years shall be on a probationary status. DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4263 Respondent: 1-5. Partially accepted in finding of fact 3. 6-11. Partially accepted in finding of fact 2. 12. Partially accepted in finding of fact 5. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or cumulative. COPIES FURNISHED: Bryan S. Frederick 10960 Beach Boulevard, #10 Jacksonville, FL 32246 Robert J. Boyd, Esquire 3121 Killearney Way, Ste. G Tallahassee, FL 32308 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue The issues to be decided are whether Respondent violated sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Findings of Fact below are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a licensed medical doctor holding DOH license number ACN 244. Respondent holds a temporary certification to practice medicine only in areas of critical need (ACN) approved pursuant to section 458.315. Respondent is the owner of and only physician practicing at Gulf Coast Holistic and Primary Care, Inc., a Department- approved ACN facility. Her current primary practice address is 219 Forest Park Circle, Panama City, Florida 32405. Medical Marijuana Regulation in Florida As a preliminary matter, this case is not about the wisdom of the policy decision to allow patients access to medical marijuana in the State of Florida, the efficacy of its use, or the nature of the regulatory scheme to implement the medical marijuana program. Rather, this case involves Respondent’s actions in ordering medical marijuana and whether those actions comported with Florida law as it existed at the time. Generally, at all times relevant to these proceedings, cannabis or marijuana was a Schedule I controlled substance pursuant to section 893.03(1)(c)7., Florida Statutes, meaning that it is a drug with a high potential for abuse and had no accepted medical use in treatment of patients. In 2014, the Florida Legislature created section 381.986, Florida Statutes (2014), which legalized the use of low-THC cannabis for medical use under limited and strictly regulated circumstances. In sum, low-THC cannabis would be available to patients suffering from cancer or a medical condition causing seizures or persistent muscle spasms that would benefit from the administration of low-THC cannabis. The 2014 version of the law is sometimes referred to as “Charlotte’s Web.” Section 381.986(2) contained the requirements that a physician had to meet to be qualified to order low-THC cannabis for his or her patients. A physician had to take an eight-hour course provided by the Florida Medical Association (FMA); register as the ordering physician in the compassionate use registry; and document the dose, route of administration, and planned duration of use by the patient. A physician also had to submit a treatment plan for the patient to the University of Florida. Further, registered physicians could only order low-THC cannabis for Florida residents. In 2016, the Florida Legislature amended section 381.986, effective March 2016, to include use of full-THC medical cannabis, sometimes referred to as medical marijuana, for terminal conditions. In November 2016, Amendment 2 passed, which created Article X, section 29 of the Florida Constitution, providing for the production, possession, and use of medical marijuana in Florida. During the 2017 Special Session, section 381.986 was amended to implement Amendment 2. Ch. 17-232, §§ 1, 3, 18, Laws of Fla. None of the amendments, which were passed in 2016 and 2017, were in place during the period relevant to this case. The first course offered by the FMA pursuant to section 381.986 was available on November 4, 2014. The substance of the course covered the requirements of section 381.986 and the lawful ordering of low-THC cannabis. The Office of Compassionate Use within the Department first allowed physicians to register as ordering physicians on July 1, 2016. On September 8, 2015, Respondent sent an email from her DOH email address to her personal email address with a hyperlink to the FMA course. Instead of taking the course at that time, which she knew to be the required course for ordering low-THC cannabis, Respondent instead took a free online course from an entity called NetCE, entitled “Medical Marijuana and Other Cannabinoids.” Respondent did not complete the required FMA course until August 25, 2016. She is presently an authorized ordering physician. Respondent’s Care and Treatment of R.S. Patient R.S. is a 66-year-old retired physician assistant, who resides in Minnesota. R.S. practiced as a physician assistant for approximately 40 years in Minnesota. For about four years, R.S. spent his winters in the Panama City area. R.S. suffers from a variety of medical conditions, including Stage IV metastatic renal cell carcinoma. When R.S. first presented to Respondent the fall of 2015, he had stopped all treatments for his cancer because he could not tolerate the chemotherapies or the immunotherapy prescribed for him. While wintering in Panama City, R.S. took his dog to a dog park and got to know some people who went there regularly. When some of those people learned that he had metastatic cancer, one person asked him if he had tried medical marijuana, and he told her that it was not then legal in Minnesota. R.S. was told that Dr. Skidmore could provide legal medical marijuana to him. At the time that R.S. presented to Respondent for treatment, it was not lawful to order, prescribe, or dispense medical marijuana in the State of Florida. R.S. called Respondent’s office to obtain an appointment. At the time of his call, he told the receptionist that he had heard Respondent could give him a prescription for medical marijuana. R.S. knew his cancer was incurable, but given his inability to tolerate conventional treatment, he was hoping that the medical marijuana might help reduce the size of his tumors and lengthen his life. R.S. first presented to Respondent on September 28, 2015. He provided to Respondent medical records from his local oncologist, which confirmed his diagnosis of terminal cancer, and contained his most recent laboratory results. Respondent took R.S.’s blood pressure and pulse, and most likely checked his respiration. She listened to his heart and chest with a stethoscope. She did not perform a review of systems, which is review of the patient from the head working down through the different systems of the body. As a physician assistant, R.S. was familiar with the components of a review of systems, and described them in detail at hearing. He testified that Respondent did not check his eyes, feel his lymph nodes, palpate his abdomen, or check his reflexes. R.S. testified that Respondent did not ask him about any history of depression, did not ask him to provide any additional medical records, and did not tell him she wanted to see more lab work than what he had provided to her. R.S. believes that Respondent may have mentioned meditation, which he was already doing, but did not recommend yoga, essential oils, or any modifications in his diet. Had she suggested them, he would have tried them. His testimony is credited. She also did not attempt to place Respondent in a federally-approved experimental marijuana therapy program. Respondent testified and her medical records indicate that she ordered labs for R.S. R.S. testified that no labs were ordered. The medical records indicate that labs were ordered, but do not indicate what tests were actually ordered, an omission that she blamed on her medical assistant. She testified in deposition that she ordered a lipid panel, Vitamin D panel, thyroid panel, and urine panel. The lab tests that R.S. provided to her from his oncologist contained none of these. R.S. never had the tests Respondent claims she ordered because Respondent never actually ordered them. The one treatment that Respondent performed was a form of acupuncture at this first visit. R.S. paid $140 in cash for his first visit to Respondent. R.S. was a cash-pay patient because medical marijuana was not a benefit under his existing insurance plan. Respondent advised R.S. that he would need to be seen three times over a 90-day period in order to obtain medical marijuana. R.S. returned to Respondent on October 19, 2015. R.S. paid $90 for this visit. As with the first visit, Respondent performed only a very limited physical examination, taking his blood pressure, pulse, respiration, and listening to his chest. While the electronic medical records for this visit indicate that labs were pending, none were actually ordered. Despite not having any lab results, the records state “will recommend medicinal marijuana after receiving previous records.” R.S.’s third visit was January 15, 2016. As with the previous visits, Respondent performed only a perfunctory examination, and the charge for this visit was $90. At this third visit, Respondent told R.S. that he had complied with the requirements in Florida to be seen for 90 days, and that she would send in her assistant with the paperwork R.S. would need to obtain medical marijuana from a dispensary in Pensacola. Respondent did not advise R.S. that medical marijuana, as described in the certificate, was not lawful in Florida at that time, and that he could be arrested if he purchased it in Florida. She did not advise him that he was ineligible for low-THC cannabis when it became available because he was not a resident of Florida. Respondent did not discuss the risks and benefits of medical marijuana. Respondent then provided to R.S., through her receptionist/medical assistant Caitlyn Clark, a document that she referred to as a “certificate” or a “recommendation.” The certificate, discussed in more detail below, appears to be a prescription for medical marijuana. It was not for low-THC cannabis. As R.S. described the document, it looked like a prescription to him, just not on a prescription pad. R.S. was required to pay $250 for this certificate, which was in addition to the visit fee of $90. Respondent provided this certificate despite the fact that, according to her records, R.S. had not completed the labs she claimed to have ordered for him, and did not comply with any recommendations for modification of his diet, or use of essential oils, yoga, or meditation. His electronic medical record for this visit included a plan of “1000 mg of canabis [sic] extract oil daily.” In addition to the certificate, R.S. received from Ms. Clark a flyer from an entity called Cannabis Therapy Solutions, with the names of Joe and Sonja Salmons and their telephone numbers. While R.S. received the flyer from Ms. Clark, copies of the flyers were also available on the tables in the reception area of the office. R.S. believed, based on the information given to him from Respondent and Ms. Clark, that he was being referred to Cannabis Therapy Solutions to obtain the medical marijuana, which he believed was prescribed for him through the use of the certificate. R.S. called the numbers on the flyer and was unable to reach anyone. One number was disconnected, and the messages he left on the other number were never returned. When R.S. was unable to reach the Salmons at the numbers listed on the flyer he received at Respondent’s office, he did some research on the Internet. Through this research, he learned for the first time that medical marijuana could not yet be obtained legally in Florida. R.S. felt that he had been “taken” by Respondent, and wanted to get his money back. R.S. returned to Respondent’s office in February 2016, and demanded a refund of the money he had paid. He told Respondent that he was unable to reach the Salmons, and had learned that medical marijuana was not yet legally available in Florida. Respondent told him that she was only trying to help him. She also tried to contact the Salmons, and was unsuccessful in doing so. Respondent’s staff initially offered to refund the $250 R.S. had paid for the certificate, but only if he returned it. R.S. refused to do so, and stated that it was his only proof to present to the Florida Board of Medicine. R.S. admitted at hearing that he was angry and loud when he visited the office to demand his money. He was intentionally loud because he wanted the patients in the waiting area to hear what was going on. While he was loud, he was not violent, and Ms. Clark testified that she did not feel threatened by him. It was only after he stated that Respondent would have to deal with the state licensing board that he was refunded all of the money he had paid to Respondent’s office. R.S. became a participant in the medical marijuana program eventually authorized in his home state of Minnesota. It has not provided the results for which he was hoping, in that his tumors have increased in size and number. “The Certificate” The certificate that Respondent issued to R.S. was on 8 1/2 by 11 inch paper. It was printed on security paper, meaning that when copied, the document is reproduced with the word “void” printed all over it. The document had Respondent’s office name, address, and telephone and fax numbers at the top, along with Respondent’s name, DEA number, and Florida medical license number. It lists R.S.’s name, patient number, and address, along with the date the document was issued to him. At the bottom of the document, there is a blank to fill in how many refills are allowed, and a statement “to insure brand name dispensing, prescriber must write medically necessary on the prescription.” Immediately below the patient name and address, the document reads: RX Allowed Quantity: 1-2 gm/d THCa-THC: CBD concentration in ratio of 1:1 or 1:2 via oral ingestion or vaporization, include plant vaporization. Max allowance 2 gm/d In the center of the document is the following statement: I certify that I have personally examined the above named Patient, and have confirmed that they [sic] are currently suffering from a previously diagnosed medical condition. I have reviewed the patient’s medical history and previously tried medication(s) and/or treatment(s). Based on this review, I feel cannabis is medically necessary for the safety and well- being of this patient. Under Florida law, the medical use of cannabis is permissible provided that it’s [sic] use is medically necessary. See Jenks v. State, 566 So. 2d (1St DCA 1991). In making my recommendation, I followed standardized best practices and certify that there exists competent and sound peer-reviews [sic] scientific evidence to support my opinion that there exists no safer alternative than cannabis to treat the patient’s medical condition(s). In addition, I have advised the patient about the risks and benefits of the medical use of cannabis, before authorizing them [sic] to engage in the medical use of cannabis. This patient hereby gives permission for representatives of GreenLife Medical Systems to discuss the nature if [sic] their [sic] condition(s) and the information contained within this document for verification purposes. This is a non-transferable document. This document is the property of the physician indicated on this document and be [sic] revoked at any time without notice. Void after expiration, if altered or misused. The certificate that R.S. received was signed by both Respondent and R.S. The copy the Department obtained from Respondent is not signed. Respondent testified that she did not want the references to prescriptions to be on the certificates, but was told by the printer she used that the only security paper available was preprinted with that information. This claim is not credible. Much of what is contained on the document is preprinted. Had Respondent objected to the use of the word “prescription” on the document, she could have directed that the references to it be redacted or blacked out. She did not do so. Respondent testified that she issued only three of these certificates, which she referred to as “recommendations.”1/ Ms. Clark, testified that during her employment from May 2015 to April 2016, about 15 certificates were distributed to patients. Ms. Clark testified that the certificates were kept in a folder separate from the patient’s medical records. When Respondent directed that a patient was to receive a certificate, Ms. Clark would type in the patient’s name, patient ID, address and the date issued. She would print it out, making no changes to the allowed quantity, maximum allowance, or any other language in the certificate. Ms. Clark’s testimony is credited. The certificate given to R.S. does not indicate that R.S. would receive medical marijuana by extract oil, as noted in Respondent’s medical records for R.S. nor does it include a route of administration or planned duration for the substance prescribed. The markings and appearance of the certificate are consistent with what a reasonable person would expect to see on a prescription. Here, R.S. did not expect that it would be filled by a pharmacy. Instead, R.S. expected that it would be filled at a dispensary authorized to dispense medical marijuana. At that time, no such dispensary existed. The certificate was given to R.S. simultaneously with the flyer for Cannabis Therapy Solutions. In her deposition, Respondent stated that Joe and Sonja Salmons came to her office and said that they were able to grow a medical grade cannabis with CBD, as well as a concentrated oil, and that they were located in Pensacola. From the more persuasive evidence presented it is found that the coupling of the certificate with the flyer for Cannabis Therapy Solutions was intentional. Respondent only stopped providing certificates to patients when she learned that they could no longer obtain marijuana from the Pensacola dispensary. It is also found that the certificate provided to R.S. and described above is a prescription. DOH’s Complaint and Investigation While Respondent returned all of R.S.’s money, he nonetheless felt that Respondent’s actions were fraudulent. On February 24, 2016, R.S. filed a complaint with the Department, and provided a copy of the certificate he received, as well as a copy of the flyer from Cannabis Therapy Solutions. As a part of its investigation, the Department requested that R.S. provide a copy of his medical records from Respondent. R.S. wrote back, advising that when he requested his records in March 2016, Ms. Clark provided him with the clinical records he had brought with him from his oncologist on his first visit, and advised him that Respondent did not do patient care records on cash-pay patients. At hearing, Ms. Clark testified that Respondent uses electronic medical records for insurance patients and handwritten records for cash-paying patients. To her knowledge, cash-paying patients never had electronic medical records. Respondent’s Medical Records for R.S. On April 11, 2016, the Department issued a subpoena to Respondent, requesting all medical records for R.S. for a stated time period. Respondent received the subpoena on April 13, 2016. The records that Respondent supplied in response to the Department’s subpoena include forms filled out by R.S., prior medical records from R.S.’s oncologist, and electronic medical records from Respondent’s office. Curiously, the office note for R.S.’s visit September 28, 2015, visit is electronically signed by Respondent on April 18, 2016. The record for the October 19, 2015, visit is electronically signed April 19, 2016, and the record for the January 15, 2016, visit is electronically signed by Respondent on April 19, 2016. Also included with the medical records provided to the Department is an “addendum” that references an encounter date of January 15, 2016. In the body of the note, Respondent references R.S.’s visit to the office on February 17, 2016, when he demanded a refund of his money. Respondent described R.S. as having a “violent attitude,” and noted that he was asked to return the “recommendation” and refused to do so. This note was electronically entered on April 19, 2016, and, similar to the other medical records from Respondent’s office, electronically signed April 20, 2016, within a week after receiving the subpoena from the Department and months after R.S.’s last visit to the practice. Respondent is not charged with falsifying medical records. However, the evidence related to the electronic medical records is relevant in assessing Respondent’s credibility with respect to her claims that she completed a full examination of R.S., ordered labs for him, and made several recommendations for alternative treatments that she claims he failed to follow. It is found that Respondent did not complete a full examination for Respondent; did not complete a review of systems; did not order labs for him to complete; did not recommend the alternative treatments, such as yoga, essential oils, or meditation; and did not recommend that he modify his diet. The Advice upon Which Respondent Allegedly Relied The certificate that Respondent provided to R.S., as well as other patients, included a partial citation to Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991). Jenks stands for the premise that the common law defense of medical necessity is still recognized in Florida with respect to criminal prosecutions for possession and use of marijuana where the following elements are established: 1) that the defendant did not intentionally bring about the circumstances which precipitated the unlawful act; 2) that the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and 3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. 582 So. 2d at 679. Respondent relies on the medical necessity defense as justification for her issuance of the certificates, such as the one R.S. received. However, the genesis of her reliance on this defense remains a mystery. In Respondent’s written response to the Department’s investigation, she does not mention seeking the advice of counsel. Instead, she stated: As soon as I open [sic] my practice, I had a visit from a company in Pensacola, that showed me some documents about the medical necessity regulation for medical marijuana and how it was helping so many patients with cancer. One of my patients with cancer, said he was going to wait until it gets legalized and died waiting. The second patient requested the recommendation, and is in remission as we speak. At hearing, however, Respondent testified that she relied on the advice that she received from her lawyer, Billy-Joe Hoot Crawford, about the applicability of the medical necessity defense. Mr. Crawford is a criminal defense lawyer in the Panama City area. His experience in representing individuals in the professional license regulatory area is scant, by his own admission. Both Respondent and Mr. Crawford testified that they met when attending a meeting of people who were working on medical marijuana issues. Both testified that Mr. Crawford provided some advice to Respondent regarding the medical necessity defense. Both testified that Respondent did not pay for the advice. From there, however, their testimony diverges. Mr. Crawford testified that he could not remember the names of the people who attended the meetings, other than Dr. Skidmore. Despite his inability to remember their names, he believed that the group had people in each field necessary to “set up business” should medical marijuana become legal. He believed that there were a couple of meetings before Respondent attended one, but once she did, he met with her in conjunction with the meetings. Mr. Crawford testified that he met with Respondent approximately a dozen times. He said that their discussions were most likely after the meetings, because to discuss issues related to her patients in front of others would not be appropriate. Respondent testified that she met with Mr. Crawford once at a meeting of people discussing the legalization of marijuana, and that he gave her advice in the meeting itself. Her ex-husband also spoke to him on the phone once, to ask for some clarification regarding his advice. Mr. Crawford also testified that he traveled to Orlando to speak to a physician (unnamed), who was recommending marijuana to her patients, and got a copy of what she was using to bring back and provide to Respondent. Respondent testified that she wrote down “word for word” what he had told her that she needed to include in the recommendation and soon thereafter stated that he gave her a sample to use that was not on security paper. Respondent claims that the reference to GreenLife Medical Systems (GreenLife) was on the sample she received from Mr. Crawford, and that she did not know what GreenLife was. Mr. Crawford testified that while he knew about GreenLife before giving Respondent advice, he did not have a reference to GreenLife on the recommendation he provided. Most importantly, Mr. Crawford testified that he advised Respondent that she needed to tell her patients that they could be arrested if they were caught with medical marijuana and that he fully expected them to be. He also advised her that if any of her patients were arrested for possessing marijuana pursuant to her recommendation, then he would represent them for free. Respondent, however, did not remember the conversation that way. She stated, “in my mind, I remember he said, if, not when. ‘If’ was if they get in trouble, we give them free legal help.” She did not advise R.S. that he could be arrested, and when asked at hearing whether it concerned her that her patients might be arrested from what she was doing, her response was, “Yes. But life goes first in my priority algorithm.” She repeated this theme, saying, “my algorithm of priority, health and life go on top. On top of money. I’m sorry, but on top of law.” Indeed, she confessed that she did not read all of the Jenks case, because she found it boring. What is clear from the evidence is that, while Mr. Crawford provided some advice to Respondent regarding the medical necessity defense, he did not provide any advice concerning the impact her actions could have on her license to practice medicine. Equally clear is that Respondent did not seek that advice.2/ Respondent’s contention that she accepted Mr. Crawford’s advice without question and did not concern herself with the technicalities is not credible. At deposition, Respondent was questioned about her blog posts, media interviews, and Facebook posts. What emerges from these documents and from her testimony is a woman who was quite aware of the status of medical marijuana, both in Florida and elsewhere. In fact, a blog she wrote in October 2014 details the requirements of the regulatory scheme for ordering low-THC marijuana. The blog includes the statement, “[a]ll physicians that plan to prescribe medical marijuana are required to keep strict documentation of all prescriptions and treatment plans and submit them quarterly to the University of Florida College of Pharmacy to maintain proper control.” The reality is that she knew the regulatory scheme to order medical marijuana, with all of its technicalities. She simply chose not to wait for the new law to be implemented. Assuming that Respondent truly believed that the medical necessity defense outlined in Jenks would protect her patients, she did not act to satisfy the three elements required for the defense. First, while the medical necessity defense might protect her patients if arrested, nothing in Jenks negates the regulatory scheme in chapters 456 and 458, or addresses a physician’s ability to prescribe medical marijuana. Second, the evidence indicated that R.S. did not follow through with the recommendations that Respondent claimed would benefit him before providing him with the prescription for medical marijuana. Under these circumstances, ordering medical marijuana would not be the last resort contemplated under Jenks. Most disturbing is the fact that a patient was required to pay $250 for a “recommendation” that the patient obtain a substance that could not be legally provided, with no assurance that he or she would receive anything to address their suffering. While Respondent claimed repeatedly that her goal was to help people, charging for this “recommendation” looks more like exploiting the hopes of those who are desperate for relief for Respondent’s financial gain, and providing nothing to actually ease her patients’ pain. Respondent’s Practice Address Respondent’s address of record, and primary practice address on file with the Department between August 11, 2014, and August 19, 2017, was 756 Harrison Avenue, Panama City, Florida 32401. Between June 2016 and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida 32405. The Department did not send a warning letter to Respondent regarding her address update. However, section 456.035 states that it is Respondent’s responsibility, not the Department’s, to ensure that her practice address on file with the Department is up-to-date. This is especially so where a physician’s eligibility to practice is predicated on practicing in an area designated as an ACN. Section 456.042 requires that practitioner profiles, which would include a physician’s practice location, must be updated within 15 days of the change. This requirement is specifically referenced in bold type on license renewal notices, including notices filled out by Respondent in 2012, 2014, and 2016, and included in her licensure file. On May 22, 2013, Respondent sought and received approval for Gulf Coast to be a designated ACN facility at 756 Harrison Avenue, in Panama City, Florida. On May 16, 2016, she sought and received approval for Gulf Coast to be a designated ACN facility at 105 Jazz Drive, also in Panama City. This approval however, is for the entity, not an individual licensee, and does not automatically update an individual licensee’s primary practice address. Between August 11, 2014, and August 19, 2017, Respondent’s address of record and primary practice address on file with the Department was 756 Harrison Avenue, Panama City, Florida 32401. Sometime between June and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida. Respondent did not update her practitioner profile with the practice address at 105 Jazz Drive. That address never appeared as her primary practice location in her practitioner profile. When Andre Moore, the Department investigator assigned to investigate R.S.’s complaint, went to interview Respondent, he went to her address of record, which was the Harrison Avenue address. When he arrived, he found a sign on the door stating that the practice had moved to 105 Jazz Drive. Mr. Moore went to the Jazz Drive location and interviewed Respondent there. At that time, Mr. Moore told Respondent that she needed to update her address. Normally, physicians can update their practice location address online using the Department’s web-based system. Physicians who hold an ACN license, however, must update their addresses in writing because verification that the new practice address qualifies as an ACN is required before an ACN can practice in the new location. All licensees, including Respondent, can update their mailing address online. Respondent had completed updates of her practice address before by sending a letter and a fax, so she was familiar with the process. The Department’s internal licensure database does not show any attempts made by Respondent between June and August 2016 to access the web-based system or otherwise update her practice address to 105 Jazz Drive. A search of the Department’s licensure information on Respondent, viewing every address change request, indicates that she did not update either her mailing address or her practice location address to list 105 Jazz Drive. On or about August 19, 2017, Respondent updated her mailing address online to 219 Forest Park Circle, Panama City, Florida 32405. The Department received a request from Respondent by mail on or about September 5, 2017, to update her practice location to the Forest Park Circle address. Respondent claims that she tried multiple times to update her address with no success, and when she called the Department, she was told by an unidentified male to just wait and update her address when she renewed her license. This claim is clearly contradicted by Florida law and by multiple notices for renewal that Respondent had received and returned previously. It is found that Respondent did not update her practice address as required with respect to the 105 Jazz Drive address.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015). It is further recommended that Respondent’s license be revoked. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2018.
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to terminate Respondent for misconduct in office as alleged in the Administrative Complaint (“Complaint”) dated December 10, 2019.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At all times relevant hereto, Respondent was employed as a Student Services Manager at Belleview High School in Marion County, pursuant to a professional services contract with the Board. On November 5, 2019, following an incident in which Respondent intervened in a physical altercation between students, Respondent complained to administration that he may have been injured. Respondent was referred to a doctor who provides treatment to Board employees who are injured on the job. As part of his evaluation for a possible workers’ compensation covered injury, Respondent was administered a routine urine drug screen. The results of the drug screen were positive for THC and marijuana metabolites. Respondent does not dispute either the test administration or results. Respondent is approved by the State of Florida through the medical marijuana use registry to obtain medical marijuana for his personal medical treatment. Respondent obtained his medical marijuana card in October 2018, and uses medical marijuana to treat pain associated with injuries he received while serving in the U.S. Marines in Desert Storm in 1991. The Board maintains Alcohol and Drug-Free Workplace Policy 6.33. Section II.B. of that policy provides that “it is a condition of employment for [a Board] employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Section IV.B. includes marijuana within a list of substances use of which is considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R., §§ 1300.11 through 1300.15. However, this section notes that “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” At no time prior to his positive drug screen did Respondent notify his supervisor that he was using medical marijuana. Respondent has been employed by the Board since 2010. He began as a physical education coach at Horizon Academy, where he was subsequently promoted to a dean’s position. After the dean’s position at Horizon Academy was eliminated, Respondent transferred to Emerald Shores Elementary where he served as a dean. The record does not establish the date on which Respondent transferred to Belleview, but Respondent served as a dean of students at Belleview until he was placed on unpaid administrative leave on January 13, 2020. Respondent was placed on paid administrative leave on January 29, 2020, where he remains pending the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding the charges against Respondent Michael Hickman, and terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056.2 1 Respondent additionally argues that the Board’s position is unfair because it penalizes him for use of medical marijuana to treat chronic pain, but would allow him to continue teaching under the influence of opioid pain medications, which he took for years prior to the availability of medical marijuana. 2 The undersigned notes that the remedy of suspension is also available under the applicable rule. Further, the parties made no argument that the Board’s discretion to impose a different penalty is foreclosed, or that the Board may not consider mitigating circumstances. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of September, 2020. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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.
The Issue Whether or not the Department of Revenue has accurately and appropriately assessed Petitioner tax, penalty, and interest for unlawful production of marijuana.
Findings Of Fact During 1988, Petitioner cultivated a patch of marijuana located in abandoned phosphate pits in Loncala, northwest Marion County. On or about September 16, 1988 Investigator Glenn Hurst of the Ocala Police Department discovered and seized the marijuana referred to above. The marijuana seized by Officer Hurst ranged in height from approximately twelve to fourteen feet. The marijuana seized covered a tract of four acres within the above- described land. The seized marijuana when weighed by Officer Hurst weighed 2,910 pounds. The marijuana, when seized, was cut off at the base of each plant with a machete so that the roots were not seized with the plants themselves. The property where the marijuana was seized was under lease to one Sammy Long of Sumter County. At the time of seizure of the subject marijuana, the property under lease to Sammy Long was owned by one Stanley Cowherd of Planters Boulevard, Boca Raton. The property under lease to Sammy Long was being utilized by him for the grazing of cattle. Fred Brown, a longtime friend of Petitioner and of Sammy Long, assisted Petitioner in the cultivation of the subject marijuana. Kim Nixon, or Kim Mixon, was also involved in the cultivation of the subject marijuana with Petitioner and Fred Brown. In early August of 1988, Fred Brown moved a small trailer onto the Cowherd/Long property and lived in it during August and during the fall. The trailer was located approximately a mile from the marijuana patch. There were two electric meters on the property. One of the electric meters served a well pump used to pump water into a cattle trough. The meter and pole were located within several feet of Brown's trailer. The meter was already active when Brown brought in his trailer. The other electric meter and pole were located close to the marijuana patch. The meter served a pump for watering the marijuana patch. The electric meter near the patch had been inactive until March 30, 1988 when Petitioner applied for an electric meter from the Sumter Electric Cooperative (SEC). Petitioner did not have any cattle grazing on the subject property either before or after he applied for the meter. Fred Brown did not have any cattle grazing on the subject property either before or after Petitioner applied for the electric meter. When Officer Hurst arrived at the marijuana patch on September 16, 1988, he found that the meter Petitioner activated served a pump which was connected to an underground sprinkler system. The underground sprinkler system was located within the subject marijuana patch. On the same date, Officer Hurst found an old water trough near the meter activated by Petitioner, but the trough water was stagnant. Thus, Petitioner had not used the meter to fill the trough near the marijuana patch. Petitioner's fingerprints were found on the original of the electric meter application. The fingerprints of Fred Brown were also found on the original of the same application. On April 26, 1986, Petitioner was arrested for cocaine possession. Fred Brown was arrested on August 15, 1985 for possession of marijuana over 20 grams. Petitioner had hunted doves during the 1980's on the Cowherd/Long property and was familiar with the property prior to the September 1988 seizure of the subject marijuana. Fred Brown had also hunted and been familiar with the same property prior to the September 1988 seizure. Petitioner was responsible for cultivating the subject marijuana seized on September 16, 1988 by Officer Hurst. Pursuant to Section 212.0505 F.S., the estimated retail value of the subject marijuana is $244,300.00 as stated on the Revised Assessment dated March 27, 1990, which was introduced as the Department of Revenue's sole exhibit. The Revised Assessment was sent to Petitioner's former attorney, Ed Scott, on March 27, 1990 and received by him on March 30, 1990. The retail price estimated by the Respondent was based upon 12% of the total marijuana weight of 2,910 pounds. The factor of 12% represented that portion of the marijuana plants which is considered, by the Department, as usable for consumption after processing of the plants. The Revised Assessment is mathematically correct. The Revised Assessment is legally valid. Per the Revised Assessment, the 20% tax was imposed upon the estimated retail value to arrive at a base tax of $48,860.00. Per the testimony of Kevin Jackson, the total amount of tax owed by Petitioner to the Department of Revenue amounts to $94,450.42, including penalties and interest, as of March 27, 1990. No surcharge was applicable in this case. Interest on the above amount continues to accrue at a rate of $16.06 per day, making the total as of the date of formal hearing $100,215.96. (TR-12- 13) The Revised Assessment is prima facie correct in these proceedings. It is noted that all of Petitioner's "admissions," upon which many of the foregoing findings of fact were based, were couched in terms of "marijuana," which is not named in any applicable statute. (The genus "cannabis" is defined at Section 893.02 F.S. "Cannabis" is the material to be taxed under Section 212.0505(1) F.S., which statute incorporates Section 893.02 F.S. by reference.) No evidence was presented to establish that "marijuana" and "cannabis" are the same substance and the Department of Revenue made no request to officially recognize that they are one and the same. However, because of Petitioner's admissions to the prima facie correctness of the Revised Assessment, its mathematical correctness, and its legal validity against him, no further findings with regard to the nature of marijuana are necessary.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order upholding the Revised Assessment, assessing the Petitioner $100,215.96 as of the date of formal hearing plus statutory interest continuing to accrue from date of formal hearing. RECOMMENDED this 14th day of May, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1589 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner submitted no PFOF. Respondent's PFOF: 1-37 Accepted as modified to more closely reflect the greater weight of the evidence as a whole. Those matters not supported by the record have been rejected as contrary to the record. COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Robert Maynard Harris 13980 S.E. 80th Avenue Summerfield, Florida 32691 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
The Issue The Petitioner requested a hearing pursuant to Section 120.57 (1)(b)(1), Florida Statutes, and as grounds therefor alleged that the Respondent, Cynthia Ann Schoneck, on or about September 12, 1975, at approximately 11:00 a.m. violated Monroe County District School Board policy rule 2.5.1 "in that the Respondent on said date on school property was in possession of a controlled substance that is categorized as a harmful drug under the provisions of Chapter 893, Florida Statutes. Based on this allegation, the Petitioner seeks to suspend or dispel the Respondent from school.
Findings Of Fact At the outset of the hearing, counsel for Respondent requested from Petitioner's counsel a list of drug(s) that were in the Respondent's possession on the date in question so that he would be prepared to properly defend. Pursuant thereto, counsel for the Petitioner stated that the Respondent had in her possession valium and phenobarbital tablets while she was on the school's property, all in violation of school board policy rule 2.5.1 and which are prescribed by Chapter 893, Florida Statutes. As to the allegation that the Respondent had in her possession phenobarbitol on September 12, counsel for Respondent contended that he was unaware that any charge had been made alleging that she possessed such drugs inasmuch as the drug analysis which was attached to the police report showed or asserted that the Respondent only had in her possession the drug valium. The undersigned noted that counsel for the Respondent had filed no motion to compel discovery or for a more definite statement which in his opinion was needed in order to properly prepare his defense and this being the state of the record, the undersigned considered Respondent's counsel's claim of "surprise" to be without merit. Norman Thomas Lee, an employee of the Monroe County School District and presently a criminologist and a property custodian for the county testified that he is a member of the American Society of Crime Labs and that he has been classified as an expert witness to testify in criminal proceedings in Circuit, County and Municipal courts in Monroe County. Lee testified that on or about September 11, he received from Alfredo Vasquez (phonetic), a patrolman, a sealed envelope which has been marked for identification and received into evidence as Board Exhibit 1. He further testified as to the copy of the report which is an analysis of the contents of Board Exhibit 1. Based on his lab analysis, he was able to determine that the contents of the sealed envelope was negative on all drug or narcotic tests except the spot test and electroscopic test which in fact showed that the drug or the tablets contained valium or diazepan. He testified that he kept the drug under seal while in his possession and thereafter, it was in the custody and control of the sheriff's department at all times in a sealed vault. He further testified that valium is a drug that is not controlled by Chapter 893, F.S. He testified that he conducted no inspection and analysis for phenobarbitol. Cynthia Ann Schoneck was called and pleaded the 5th amendment to all questions put to her by counsel for the Petitioner with the exception of stating her name and address for the record. Donna Roberts was called and testified that she is a student at Key West High School and that she knows the Respondent. She testified that on September 11, she complained to officials that the witness attempted to sell or give her "downers." She testified that on September 12, she was absent from school although she vaguely recalled seeing the Respondent briefly during the day because she visited the campus for a short period. 1/ Mary Llewlyn, the dean of girls for approximately 20 years testified that she knows the Respondent and that on or about the date of September 12, Mr. Roberts and Mr. Cebelli (apparently instructors) testified that the Respondent had in her possession pills; she testified that upon learning of this she immediately visited the Respondent's class and asked her to accompany her to the dean's office. She testified that during this period, which was the third period and a morning class, that the Respondent was in a science class. Mrs. Llewlyn testified that the Respondent admitted to her that her parents were in Europe and that she took the pills in question from her father's medicine cabinet. Llewlyn testified that she was given the pills from an open package which was found in the Respondent's purse. She testified that she called the Respondent's uncle and her sister and they were at a loss to explain how the pills got into the Respondent's purse. She testified that she also asked the Respondent how the pills got into her purse and she denied having any knowledge. She also testified that the Respondent stated to her that she was selling pills which she thought to be phenobarbital. Llewlyn testified that she did not recall which specific date that the Respondent had possession of the pills. Curtis Phelps, a ninth grade student, was called and testified that he was in a class with the Respondent on September 12 and that he also attended the third period lab class with her. He testified that the Respondent gave him a bottle of pills and that she instructed him to "get rid of the pills." He testified that he placed the pills in the biology sink and left them there. On cross examination he did not recall any date as to when the incident regarding the pills took place. The Petitioner rested its case. At the conclusion of the testimony of the Petitioner's case in chief, counsel for Respondent requested the undersigned to take official notice of Florida Statutes, Chapter 593 and also the student rule in question and to note that the possession of valium is not a drug which falls within the guidelines of Chapter 593, F.S. He also provided for the record, the fact that there was no chemical testimony as to any alleged possession of phenobarbital by his client, the Respondent, and that the matter should be dismissed based on lack of evidence. He testified that no creditable testimony and in fact no chemist would testify as to the contents of a particular pill without having subjected it to various chemical tests for analysis. He testified further that in this case, no such finding of phenobarbital had been made and that therefore the case against his client must fall. The position urged by Respondent's counsel is well taken. The evidence reveals and the statute nor the school rule under which the Respondent was charged does not cite the possession of valium as being a prescribed substance. The proceeding herein involves the interpretation of penal statutes which must be strictly construed. Aside from the poor status of the record which tended to show that Respondent possessed valium on the School's property, Florida Statute Chapter 893 and the school's own rule do not proscribe the possession of valium on school property. This factor plus the record evidence concerning the petitioner's counsel failure to pursue the possession of valium as an act contrary to school rules, puts the matter to rest. The only remaining act which the Respondent allegedly committed and which the petitioner sought to pursue was the alleged possession, by Respondent, of phenobarbital. The record, absent the mere allegation by Mrs. Llewlyn that the petitioner "thought that she was selling phenobarbital," is barren of any creditable evidence. Accordingly, it is RECOMMENDED that this allegation be DISMISSED due to lack of proof and withdrawal of any proposed suspension of Respondent based on the charges filed herein. DONE and ORDERED this 29th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1976.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Troy E. McCoy, trading as McCoy's Chevron Station in Marianne, Florida, held current alcoholic beverage License No. 42-71, issued by the State of Florida. This license is a 1-COP license. On September 18, 1983, Harold Glisson, a Deputy Sheriff with the Jackson County Sheriff's Department, was engaged in surveillance on property owned by a Mr. Maloy and a Mr. Harding located in Jackson County, Florida. Information had been presented from other deputies, specifically Deputy Wing T. Morris, that a growing plant which he recognized as marijuana had been spotted on the property from the air. Glisson arrived at the property between 1:00 and 2:00 p.m. After looking the property over, the deputies went back to the office to change clothes and pick up the gear necessary for their surveillance. They returned to the property at approximately 7:00 p.m. on September 18 and sat waiting in the dark. Mr. Glisson was located at the southeast corner of the property near Interstate Highway 10. At approximately 10:15 in the evening, Respondent and another individual subsequently identified as Vic Williams passed Deputy Morris, who was also involved in the surveillance, walking toward the field where the marijuana was located. Morris, who had a hand-held radio, called on ahead to Mr. Glisson and advised that two individuals were heading toward him. When the Respondent and Williams came to the area where Glisson was located, Glisson stood up, identified himself, and notified the two that they were under arrest. Williams stayed where he was, but Respondent started running and was apprehended approximately 50 to 75 yards away. At this point, Williams had seven plants subsequently identified as marijuana over his shoulder. Respondent was carrying nothing other than a pocketknife, a flashlight, and some string in his back pocket. After Respondent was apprehended, he was transported to the Jackson County Jail. The field was kept under surveillance all the rest of the night and, when dawn came, deputies pulled out in excess of 290 marijuana plants which were subsequently weighed and determined to weigh approximately 800 pounds, including roots, stalks, stems, etc. After the vegetable matter was dried and stripped down to just limbs and leaves, the net weight was, nonetheless, 117 pounds. This vegetable material was subsequently taken to the Florida Department of Law Enforcement laboratory in Pensacola, Florida, where it was analyzed and determined to be marijuana. The land on which the marijuana was growing was owned by Mr. Harding, for the most part. Mr. Harding was not interrogated by the police regarding this situation, even though he lived on the property. There is some controversy as to whether the deputy who confronted Respondent and Mr. Williams identified himself as a deputy at that time. The deputy contends that he did. Mr. McCoy, on the other hand, contends that he did not, indicating that he was suddenly confronted in an area where he had been advised marijuana was being cultivated by an individual who rose up in front of him, shined a light in his face, and cocked a shotgun; and it was the combination of these factors which caused him to run, fearing that his confronter was someone involved with the growing of the marijuana. This explanation is reasonable, and Respondent's reaction, even if the deputy identified himself as such, is not necessarily indicative of culpability. Respondent indicates that he went to the site voluntarily, knowing or believing that marijuana was being grown there. He indicates that earlier in the evening Mr. Williams had come to his gas station and in the course of conversation related that he had seen a place where marijuana was being grown. Respondent contends that for no other reason than just to see what marijuana looked like growing he decided to accompany Mr. Williams back to the site. It is at this point when he was apprehended. It is significant to note that at the time of apprehension the parties were exiting the marijuana patch and Mr. Williams had several marijuana plants over his shoulder. Williams admits that he had taken them for his own purpose and use. His knowing possession of marijuana, however, does not necessarily require the conclusion that Respondent either owned, possessed, or controlled it. Respondent is a respected businessman who has lived in the community for many years. His business associates know him as an excellent customer who has worked hard and improved his business. He is also known to have a good reputation with the bank and to be a good family man who conducts both his personal and business lives in a highly moral fashion. Respondent has no criminal record, and there is no record of any beverage violations over the six years he has held his beverage license. Respondent operates a gasoline station, grocery, fish bait, feed, and all-around general store. His alcoholic beverage license is for the sale of beer. His alcoholic beverage business constitutes at least 50 percent of his nongasoline business. His operation is the one place in the area where individuals who are going fishing, hunting, camping, or picnicking can come to pick up all of their supplies, including beer, in one place. He contends that if his alcoholic beverage license were suspended or revoked it would have serious adverse consequences upon his business and would very possibly have the ultimate effect of putting him out of business since he could not make his debt service without the beverage business. This estimate was confirmed by Mr. Miller, the jobber who supplies Mr. McCoy with his gasoline and who has invested substantial sums in Mr. McCoy's business for the purpose of improvement. It is these sums which could not be paid off if Respondent were to lose his license. On March 27, 1984, Respondent entered a plea, waiver and consent in the Circuit Court for Jackson County, Florida, on charges alleging trafficking in over 100 pounds off cannabis in violation of Section 893.135(1)(a), Florida Statutes. Respondent entered a plea of guilty to the crime of attempted trafficking. That portion of the form where Respondent was required to state the facts which resulted in the charges contains the comment "I was found and arrested in a wooded area at night where cannabis was growing." As a result of his plea, Respondent was required to pay a fine of $10,000 (notwithstanding counsel for Petitioner's representation that the fine was $25,000) and sentenced to spend every night and weekend in the county jail for a term of one year.
The Issue Whether parts of respondent's Proposed Guidelines For Setting Civil Penalties, Section 501 and/or Section 503 of its Policy and Procedure Manual should be declared invalid exercise(s) of delegated legislative authority?
Findings Of Fact Petitioner holds an alcoholic beverage license, No. 13-292 SRX 5 COP, issued by respondent. On January 31, 1984, respondent entered a final order revoking petitioner's license, Petitioner's Exhibit No. 2, which recites that petitioner's "agent, servant or employee did sell, give or serve an alcoholic beverage" to a 16-year-old; that records reflect three "prior violations of the beverage laws concerning illegal sale or service of alcoholic beverages to minors"; and that The policy and procedure guidelines of the Division provide that a license may be revoked any time a license has 2 or more prior minors violations against it. Petitioner's Exhibit No. 2. The order of revocation has been stayed, pending disposition of the appeal in Breakers of Panama City Beach, Inc. d/b/a The Breakers Restaurant and Lounge v. State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, No. AX-440 (Fla. 1st DCA; filed Feb. 28, 1984). A separate notice to show cause directed to petitioner, alleging other sales to minors, has resulted in a separate proceeding, now pending in the Division of Administrative Hearings, Division of Alcoholic Beverages and Tobacco v. Breakers of Panama City Beach, Inc. d/b/a The Breakers Restaurant and Lounge, No. 83-3217. Respondent's Policy and Procedure Manual contains policies which, the parties have stipulated, "are applicable throughout the entire Division of Alcoholic Beverages and Tobacco and to all licensees, including the petitioner." Respondent's Exhibit No. 1. In pertinent part, the Policy and Procedure Manual states: 501.1-Use of Guidelines In an effort to assure consistency in civil penalties in settling administrative charges against beverage licenses, the following guidelines are offered as reasonable penalties for the violations listed. The recommendations listed do not consider mitigating or aggravating circumstances which are important . . . [and] may increase or decrease the penalty. . . Mitigating or aggravating circumstances should not vary the penalty from the recommended normal without written justification . . . 503-SALE TO UNDERAGE PERSONS In cases involving sale to or serving underage persons where an employee violated the law without knowledge by the licensee and with no prior like violations, a minimum $500 civil penalty should be considered. Failure to pay civil penalty within the time specified should result in a minimum 10 day suspension of the beverage license. In the event there is a prior violation, a minimum of $1,000 or 20 days should be considered. In the event there are two or more prior violations, revocation is appropriate. In cases where the licensee participated in or had direct knowledge of the violation, the penalty for the first offense should be a minimum of $1,000 or 20 days suspension. The second such violation should result in a consideration of revocation of the beverage license. Petitioner's Exhibit No. 4. These policies "took effect" only after the order of revocation was entered. At the time the order was entered, Proposed Guidelines For Setting Civil Penalties (Proposed Guidelines) Petitioner's Exhibit No. 3, had been distributed to respondent's personnel "for the purpose of guidance at the district level," (T. 33) in response to an audit by the Auditor General. The order of revocation makes reference to the Proposed Guidelines, which state, in pertinent part: PROPOSED GUIDELINES FOR SETTING CIVIL PENALTIES In an effort to assure consistency in civil penalties in settling administrative charges against beverage licenses, the following guideline is offered as a reasonable penalty for the violation listed. The recommendation listed does not consider mitigating or aggravative circumstances which are an important part of the consideration when valid. The circumstances, when considered, may increase or decrease the penalty accordingly. Usual mitigating or aggravating circumstances to be considered are: 1) past record, 2) whether or not violation appears to be willful, 3) participation by licensee and/or his employees, 4) events that led to violation, 5) prior verbal or written warnings by any law enforcement officer and 6) whether or not the licensee should have known that the act committed was a violation of law or rule. Mitigating or aggravating circumstances should not vary the penalty from the recommended normal without written justification. A revised stipulation transmittal sheet (Form DBR 965) allows ample room for comments by the District Supervisor and the Assistant Chief of Law Enforcement. On every disapproved stipulation, the District Supervisor will be advised why it was disapproved and what is acceptable. * * * SALE TO MINORS In cases involving minors where an employee violated the law without knowledge by licensee and with no prior like violations, a $250 civil penalty should be considered. In the event there is a prior violation $500 should be considered. In the event there are two or more prior violations a $1,000 civil penalty and 30 day suspension and/or revocation is appropriate. In cases where the licensee participated or had direct knowledge of the violation, the penalty for a first offense should be $500 with subsequent penalties increased accordingly. SALE TO MINORS - ADOPTED CASES In the case of adopted minor violations, each adopted case should be considered on its own merit under the same criteria mentioned above. Before consideration is given, it must be determined that a Beverage Officer has investigated the allegations, including interviewing the principal witnesses. In the event minors were used to make such case, consideration for: 1) Did the minor look to be of age? (Photo of minor should be available.) Was there prior complaints or information on the licensed premises which was involved? 2) Was there corroborating witness? 3) Was the investigation conducted in the interest of deterring and stopping the sale of alcoholic beverages to minors? Based on these factors and the feeling of the investigating Officer with respect to the licensed premises and the Division's responsibility, the minor case should be adopted and handled accordingly as outlined. Petitioner's Exhibit No. 3. The parties stipulated that neither the Policy and Procedure Manual nor the Proposed Guidelines have been duly promulgated as rules.
