Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
Findings Of Fact Respondent David A. Avant, III, was arrested on October 16, 1989, and charged with one count of cultivation of marijuana (a third degree felony), and one count of possession of marijuana (a misdemeanor). The charges concerned one marijuana plant which was found on Avant's property by a game warden. Avant was arrested when he picked up the plant to throw it over his fence. The marijuana plant did not belong to Avant and it was not on his property with his permission. A search of Avant's truck by game wardens did not reveal any tools, buckets, etc., indicating that he was, in fact, cultivating and/or caring for the marijuana plant. Avant accepted a plea agreement offered by the State Attorney to save the money and expenses that would be required for a trial. Avant accepted the state attorney's plea agreement for reasons of economics and convenience. Avant entered a plea of nolo contedere to one felony count of cultivation of marijuana and one misdemeanor count of possession of marijuana. 1/
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.
The Issue The issues are framed by a notice to show cause/administrative complaint brought by Petitioner against Respondent charging Respondent with violations under 561.29(1)(a) and (c) and 561.58, Florida Statutes. These alleged violations pertain to alleged drug activities on or about the premises for which Respondent holds a license issued by the Petitioner allowing Respondent to sell alcoholic beverages at that licensed premises. Respondent is also accused of maintaining the licensed premises for purposes of illegal drug activities. More particularly Respondent is held accountable for any violations associated with Sections 823.10, 893.03, 893.13(1)(a) and (f), and 893.13(2)(a)5., Florida Statutes.
Findings Of Fact Petitioner regulates the alcoholic beverage industry in Florida pursuant to Chapter 561, Florida Statutes. Among its functions Petitioner issues various licenses which allow alcoholic beverages to be sold. The license number 34-00017, series 1-COP has been issued to Respondent by Petitioner allowing on-premises sales and consumption at Respondent's premises in Jasper, Florida. Petitioner seeks to discipline Respondent's beverage license for reasons discussed in these facts and the conclusions of law section within the recommended order. Randall R. West is a beverage agent employed by the Petitioner. He was assigned to conduct an undercover investigation at Respondent's licensed premises. That investigation commenced in May, 1991 and was concluded in August, 1991. Over that period West tried to ascertain to what extent drug activities were occurring on or about the licensed premises. West talked to a patron in the licensed premises on May 10, 1991. That patron was Gary Cribbs. The discussion concerned the purchase of cocaine. Cribbs told West that he could get one-half gram of cocaine for $50.00. This discussion took place in the main bar area of the licensed premises in an area near the back pool table. After the arrangement for purchase had been made Cribbs approached West in the licensed premises and told West to follow him to the men's bathroom which was located outside the main bar area. To get there one walks out the back door across an open area to the bathroom which is attached to and part of the building proper. Only a few steps separate the back door from the bathroom. Once inside the men's bathroom, which is lighted, Cribbs produced a small container from his wallet. He asked West if he, Cribbs, could use some of the cocaine that he had produced from the wallet. Cribbs took some of the substance and poured it on the top of the toilet lid, chopped it up and snorted it up his nostrils. Then Cribbs' wife came into the men's bathroom and both Cribbs and his wife consumed the cocaine. The balance of the cocaine was turned over to West. On May 10, 1991 at different times the odor of marijuana could be detected in and around the licensed premises but West was uncertain of its origin. On May 15, 1991 West encountered Lou Brown and Charles Burnett at the licensed premises. Lou Brown arrived on a motorcycle in an area behind the premises. While in this area on a concrete foundation five feet from the building, Brown and Burnett smoked marijuana. West returned to the licensed premises on May 17, 1991 and once inside spoke to Charles Burnett. Burnett had approached the beverage agent reference a purchase of marijuana. This was a follow-up to a previous conversation about purchasing marijuana. Burnett asked West if West was still interested in purchasing marijuana and West replied in the affirmative. Burnett asked West to step outside the bar. Burnett said that he could get marijuana inside that was already weighed for a price of $40.00. West gave Burnett $40.00 while they were standing behind the building. Burnett went back inside the bar proper. West could not see where Burnett went in the bar. In a few minutes Burnett approached West in the bar and asked West to go outside. They went to West's vehicle which was approximately 20 feet from the entrance to the establishment. There Burnett produced a bag of marijuana. On May 17, 1991 when Burnett and West had walked through the premises in the direction of the men's bathroom at the back of the building they had observed several people standing outside the back door smoking a marijuana cigarette. When West attempted to gain entry into the men's bathroom the door was partially opened and he observed two additional persons smoking marijuana in the bathroom. On the evening of May 17, 1991 the Respondent was in the licensed premises. West returned to the licensed premises on May 22, 1991 and engaged in a conversation with Charles Burnett. Burnett asked West if West had a marijuana cigarette and West stated that he did not. Burnett asked West if he wanted to buy some marijuana and West said that he did. Burnett asked how much marijuana West wanted to purchase. West said he wanted a quarter of an ounce. This conversation took place while they were standing at the bar counter and it resulted in a purchase of marijuana off premises. On May 22, 1991 while at the licensed premises while going to use the men's bathroom West observed patrons standing just outside the back door of the building engaged in smoking marijuana. During most of that evening the smell of marijuana pervaded the inside of the premises. On two occasions Frank Bell who was the bar manager on duty was observed going out the back door of the premises and smoking marijuana with patrons while standing in back of the building. At this time the front door and back door to the building were propped open. When West returned to the licensed premises on May 24, 1991 he observed that the Respondent was present. Throughout that evening West observed patrons smoking marijuana behind the building outside the back door. Because of the ventilation system that was within the licensed premises the marijuana smoke from outside was being drawn into the premises such that anyone inside could have detected the marijuana smell if familiar with that aroma. On May 24, 1991 West observed three persons outside the rear door of the premises smoking a marijuana cigarette. Those persons were Greg Sapp, Jeff Gritzs and Jack Walker. On May 24, 1991 West was approached by Burnett and asked if West wanted to buy some marijuana. This conversation took place while West was seated at the bar area within the licensed premises. After that conversation West watched Burnett engage in a conversation with Jack Walker. After Burnett and Walker talked Burnett came back to West and told West that he could get a bag of marijuana for $25.00. This second conversation between Burnett and West took place at the bar within the licensed premises. West gave Burnett $25.00 in furtherance of the discussion they had at the bar and Burnett walked around inside the premises and started to exit the rear of the premises. Believing that Burnett was looking for Jack Walker, West went to Jack Walker who was playing a pinball machine within the licensed premises near the front and told Jack Walker that Charlie was looking for him. Charlie refers to Charles Burnett. Walker and West stepped out the rear of the premises and went to a vehicle that was parked directly behind the premises in an alley. That vehicle was parked about 50 feet away from the licensed premises. Walker got into that vehicle and retrieved a bag of marijuana. Walker than handed the bag of marijuana to Burnett, West handed $25.00 to Burnett and then Burnett handed the $25.00 to Walker. Then a marijuana cigarette was rolled at which time while standing in this area Burnett and Walker smoked a marijuana cigarette. West returned to the licensed premises on June 6, 1991. While there he observed a patron, who was determined to be James Alford, engaged in a drug transaction with another patron, Michael Brooks. This transaction took place in the dance floor area of the licensed premises near the front in which Alford passed Brooks a bag of what by appearance was marijuana. Brooks then came over to the area where West was seated and while standing up and speaking in a somewhat loud voice told another person that he had "a big bag of pot" (pot is a slang expression for marijuana) and he then pulled it halfway out of his pants pocket. Subsequent to the events between Brooks and Alford, West approached Alford and asked Alford if Alford had another bag of marijuana for sale. Alford responded that he did for $35.00. West asked if the purchase could be made for $25.00 and Alford said that he would try. This conversation between West and Alford occurred in the licensed premises near the front door in the area of the front pool table. As a result of this conversation Alford gave West a bag of marijuana while they were standing within 20 feet of the front entrance of the building that is the licensed premises. This exchange took place in plain view of anyone coming in or out of the building. On June 6, 1991 Burnett invited West to smoke a marijuana cigarette with him. In furthering the invitation West followed Burnett to the men's room associated with the licensed premises. When they reached the men's room they encountered a Billy Willis and Kevin Mercer. (In the investigation West had observed Billy Willis play records and tapes in the licensed premises in the manner of a disc jockey and had seen Willis turn off the lights at the licensed premises. This does not lead to the conclusion that Willis was an employee there.) The back door was open and Willis was holding a plastic bag with what appeared to West to be marijuana. Willis was putting this substance in a rolling paper. Burnett produced something that he referred to as hash or hashish and this substance was put together with Willis's apparent marijuana and formed into a cigarette by Mercer. The marijuana cigarette that was then passed around and smoked by Burnett, Willis and Mercer, all standing at the back door of the premises just outside, within two feet of the building. On June 6, 1991 while inside the licensed premises Burnett approached West and again asked West if he wanted to step outside and smoke another marijuana cigarette. Burnett and West exited the rear of the premises and encountered a man identified as Austin. Austin produced a marijuana cigarette at which time the cigarette was smoked by Austin, Burnett, Willis and a person named Doug Parr. This occurred within twenty feet of the rear door of the licensed premises. On June 7, 1991 West returned to the licensed premises and engaged in a conversation with Kevin Mercer about purchasing a bag of marijuana and Mercer advised that he could get the marijuana but it would be later before he could obtain it. This conversation took place while the two were standing near the front pool table of the licensed premises. West was then approached by a white male patron who introduced himself as Bruce Adams. At this time West was seated on a stool inside the dance floor area of the licensed premises. Adams told West that he had a marijuana cigarette and invited West to go out and smoke it with him, assuming that West had rolling paper. After this conversation West and Adams stepped out the back door of the premises. Adams produced a plastic bag of marijuana. A marijuana cigarette was rolled at which time Adams smoked the marijuana cigarette and there were several other unidentified persons all standing around that engaged in smoking the marijuana cigarette. This event between Adams and the other patrons took place approximately three feet from the door of the premises. On June 7, 1991 Kevin Mercer approached West while West was standing near the front pool table and asked West if West still wanted a bag of marijuana that had been discussed earlier that evening. West replied in the affirmative. West and Mercer then stepped outside the front entrance at which time Mercer produced a bag of marijuana and handed it to West and West paid Mercer $20.00 for the marijuana. This took place within ten feet of the front door on the sidewalk adjacent to the licensed premises. This transaction was in plain view. On June 8, 1991 West returned to the licensed premises and while there stepped out back to a car that was parked behind the licensed premises in the alley. Approximately nine people were seated in that car. They were engaged in smoking a substance that was said to be hash or hashish. They were using a coke can converted into a pipe. There was a conversation that went on in which Jack Walker said the cost of a block of this substance being described as hash would be $150.00. After the events outside with the nine persons in the automobile West returned to the licensed premises where Billy Willis was sitting at the disc jockey booth playing records and tapes. West engaged in a conversation with Willis and asked if he had any hash for sale. Willis advised that he had a small amount which he produced while seated at the D.J. booth and sold to West for $10.00. Later a conversation took place between West and Michael Brooks while seated in a booth across from a bar in reference to hash. West asked Brooks if he had any hash for sale and West advised that he did and directed West to follow him to the men's bathroom. While in the bathroom Brooks produced a block of suspect hash and West told him he would take $20.00 worth. Brooks took West's knife and cut off a chunk of the suspect hash and handed it to West. Willis and Brooks had been among the nine persons in the vehicle located out behind the licensed premises earlier in the evening. That's how West became familiar with the idea of hash and its possible availability for sale. Later laboratory testing of the substances which Willis and Brooks sold to West did not reveal that the substances were hashish. Later on June 8, 1991 West engaged in a conversation with Kevin Mercer while standing near the pool table. This conversation was about the purchase of marijuana. West gave Mercer $60.00 in advance to buy marijuana which Mercer said he could get. Subsequently Mercer delivered marijuana to West outside the front door of the licensed premises within a foot of the door. On June 8, 1991 West spoke to Jack Walker about purchasing marijuana. They went out back within ten feet of the back door and West paid $80.00 to Walker for the purchase of marijuana. West went back in the licensed premises on June 8, 1991 and engaged in a conversation with Michael Brooks. This conversation took place while seated in a booth across from the bar area. Brooks invited West to go and smoke hash with him. They exited the back door along with another patron named Robert Corey. They stood directly behind the men's room where the roof overhangs. Brooks had a coke can stashed in the rafters above the woodwork of this overhang. That coke can had been converted into a pipe. At that point Corey and Brooks smoked suspect hash. West had been advised that it was hash and it had that appearance. In addition to the events that have already been described concerning June 8, 1991, West made observations of several groups of people at different times smoking marijuana behind the licensed premises and during these occasions the aroma of the marijuana could be detected inside the licensed premises proper. West returned to the licensed premises on June 13, 1991. While there he observed Billy Willis standing out back near the men's bathroom. Willis advised West that he had enough marijuana for a marijuana cigarette and asked West if he had rolling paper. West gave Willis rolling paper at which time a marijuana cigarette was rolled and Willis smoked it. While Willis was engaged in smoking the marijuana cigarette, Frank Bell, the bar manager, exited the back door of the premises and looked over at West and Willis. West and Willis greeted Bell and Bell stepped back into the premises. Later on June 13, 1991 while inside the licensed premises seated at the bar, Charles Burnett advised West that he had marijuana. West and Burnett went outside near the men's bathroom and Burnett rolled a marijuana cigarette and smoked it. West observed the smoke from the marijuana cigarette wafting into the licensed premises. On June 13, 1991 while in the licensed premises West asked Jack Walker if Walker had marijuana to sell and Walker replied in the affirmative. Walker said that the marijuana had to be weighed. Later Walker was seated at the bar and West approached Walker and asked about the marijuana purchase. Walker advised West to step out back. Walker and West went into the men's bathroom where Walker produced the plastic bag of marijuana and a set of handscales. Walker weighed the bag of marijuana and advised West that it would cost $45.00. West paid Walker $40.00 and gave him the balance of the money later. On June 13, 1991 while seated at the bar next to Amy West, a patron, the female patron advised West that she had some "speed" also known as amphetamines. West asked the patron how much it would cost. The patron said it would be free. She put her purse on top of the bar and retrieved a pill bottle and produced a couple of white pills. She handed West four of the pills and told him that they were "white crosses". Later laboratory testing revealed that this was not a controlled substance. The pills were epherdrine. In a further conversation on June 13, 1991 between West and Amy West while seated at the bar, discussion was made about cocaine. Amy West asked the beverage agent if the beverage agent would sponsor half the money necessary to buy half a gram of cocaine. The beverage agent said that he would and was told by Amy West that the beverage agent's share would cost $50.00. West, the beverage agent, put three twenty-dollar bills on top of the bar and asked Frank Bell for change for one of those twenty-dollar bills and then slid $50.00 across the bar to Amy West. She took the money and handed it to Gary Wayne Boyd who was seated next to her. Later Boyd asked beverage agent West to step out front with him. Beverage agent West, Amy West and Boyd then went out front to a pickup truck that was parked there. Boyd and Amy West were seated in the pickup truck and Boyd produced a quantity of suspect cocaine. Boyd divided the cocaine and delivered approximately half of that cocaine to beverage agent West. This took place within 40 or 50 feet of the front door. On June 14, 1991 West returned to the licensed premises and while in the premises seated at the bar engaged in a conversation with Kevin Mercer about the purchase of marijuana. He gave $40.00 to Mercer to purchase the marijuana. Later Mercer delivered the marijuana to West while standing outside the front door of the licensed premises within about 40 feet of that door. The delivery took place in a corridor between the licensed premises and another building. Later on June 14, 1991 West engaged in a conversation with Jack Walker while seated at the bar counter. Walker had squeezed between West and the Respondent at the bar. At that time Walker told West that he had a few bags of marijuana for sale at $50.00. West and the Respondent were seated and Walker placed himself between those two individuals. Walker was not seated. West had a further conversation with Walker at the back pool table and they departed to an area behind the men's bathroom at the licensed premises. There they encountered a man named Bart Harvey. Harvey gave two bags of marijuana to Walker who in turn gave the marijuana to West and West paid Walker $50.00. On June 14, 1991 during the course of the evening West observed the odor of marijuana inside the licensed premises and he observed persons outside the premises smoking marijuana. The aroma of marijuana was even noticeable in the lobby of the licensed premises because of the ventilation system and during this time Respondent and his wife were present in the licensed premises. On June 15, 1991 West returned to the licensed premises and engaged in a conversation with James Thomas Alford concerning the purchase of marijuana. This conversation took place in front of the premises between two parked cars. West gave Alford $50.00. Alford later approached West while West was in the licensed premises and asked West to step outside with him. Alford and West stepped outside to an area between two cars parked in front of the premises at which time Alford delivered a bag of marijuana to West. This location was within 30 feet of the front entrance to the licensed premises. A patron saw this delivery being made and asked if he could purchase marijuana from the beverage agent. On June 19, 1991 West returned to the licensed premises and engaged in a conversation with Amy West. Amy West asked the beverage agent if he wanted to smoke a marijuana cigarette with her at which time Amy West, Charlie Burnett, Gary Wayne Boyd, and the beverage agent exited to the rear of the premises. They walked around behind the men's bathroom. They then came back in the licensed premises and went to the dance floor area side. When they entered the area of the dance floor inside the premises, Frank Bell, Jack Walker, and another unidentified white female and an unidentified white male were there smoking marijuana. Another marijuana cigarette was rolled by the unidentified white male and it was smoked. While they were in this location a patron Bobby Don Staten banged on the door and hollered out "Everybody put your hands on top of the bar." This person Staten was pretending to be a police officer. On June 20, 1991 West went back to the licensed premises. While there he stepped out the back door near the men's bathroom and observed Frank Bell and Lou Brown engaged in smoking a marijuana cigarette. This was approximately three feet from the exit at the back. On June 20, 1991 West engaged in a conversation with Kevin Mercer reference the purchase of marijuana. This was related to a purchase of marijuana off premises. This conversation with Kevin Mercer took place in the area where Lou Brown and Frank Bell had been observed smoking marijuana. The conversation between West and Mercer was overheard by Frank Bell, the bar manager. On June 24, 1991 West returned to the licensed premises and while seated at the bar was approached by Gary Wayne Boyd. Boyd told West that he had cocaine for sale. Later Boyd came back to the bar where West was seated and motioned for West to follow him outside. They went to the men's bathroom. There West observed Robert Corey and Charles Burnett. Burnett was sitting backwards on the toilet making lines of what appeared to be cocaine on the tank lid to the toilet. West considered this to be cocaine given its appearance. While Burnett was conducting this activity Boyd and West were standing at the doorway. Boyd produced a white powdery substance and West asked him how much it would cost to purchase that substance. Boyd said that a gram would cost $100.00. West told Boyd that he wanted to buy a gram and gave Boyd $100.00 to purchase the cocaine Boyd handed him. On June 25, 1991 West returned to the licensed premises and was approached by Billy Willis while seated at the bar. Willis advised that he had a joint, meaning a marijuana cigarette. He invited West to step out back with him for the purpose of smoking marijuana. While standing just outside the back door of the premises Willis, Charles Burnett and another patron identified as Farmer smoked the marijuana cigarette. At that time the back door was closed; however, patrons were exiting the back door to use the men's bathroom. West returned to the licensed premises on July 17, 1991. During that evening West and Jack Walker stepped out the back door of the premises. On the way out Walker made a motion for Walt the bartender on duty to come with West and Walker. While standing just outside the back door Walker produced a small amount of marijuana, rolled a marijuana cigarette and Walt and Walker engaged in smoking the marijuana. They were within three feet of the back door. On July 18, 1991 while at the licensed premises West went to the men's bathroom and observed Robert Corey and an unidentified white female behind the premises engaged in smoking marijuana. Corey and this woman were within fifteen feet of the door. The odor of the marijuana being smoked could be detected inside of the premises. Corey and the woman were not trying to hide their activities in smoking the marijuana. West returned to the licensed premises on July 19, 1991. He engaged in conversation with Jack Walker about the purchase of a quarter pound of marijuana while standing at the front pool table of the licensed premises. Later, while seated in the dance floor area of the bar, Walker asked West if he had a pocket knife. West replied in the affirmative and was told to follow Walker outside that he had something to share with him. They went into the men's bathroom at the licensed premises and while there Walker produced a quantity of what appeared to be cocaine and made it into lines on the toilet lid. Walker told West that this substance was cocaine. Walker snorted the suspect cocaine up his nose and they reentered the licensed premises. On July 20, 1991 West returned to the licensed premises and went with Charles Burnett, Corey and Farmer out back. While outside near the back door Corey produced a marijuana cigarette while standing near the air conditioned compressor. Lou Brown and two other unidentified persons were already in the area. Those three individuals were engaged in passing a marijuana cigarette between them and were smoking it. While these activities were occurring other patrons stepped out of the back door of the premises either to use the bathroom or just to look around. The patrons were in a position to observe the marijuana being smoked. The back door was also propped open. On July 22, 1991 West returned to the licensed premises. He was seated at the bar and there were only about five patrons present at that time. The patron known as Butch Brown entered the premises with his wife and hollered out "Who's got the best dope around." Jack Walker walked up to Butch Brown and produced a marijuana cigarette from his shirt pocket. This action by Walker could be clearly observed. Brown then produced his own marijuana cigarette from his shirt pocket. Brown and Walker compared the marijuana cigarettes while standing at the bar. Walker then said in a voice loud enough to be heard that when this "joint was gone he had a bag that he would smoke." These events took place in the licensed premises standing at the corner of the bar near the front pool table. Shortly thereafter West, Walker, Brown and Burnett went out behind the men's bathroom at which time the marijuana cigarette that Brown had earlier and the marijuana cigarette that Walker had earlier were smoked by Walker, Brown and Burnett. They were standing under the roof overhang near the bathroom. On July 23, 1991 West returned to the licensed premises and while standing out back he engaged in a conversation with Jack Walker. Charles Burnett approached them and produced a marijuana cigarette and smoked it. This was within ten feet of the rear entrance to the licensed premises. Later on July 23, 1991 West and Burnett were seated at the bar when they were approached by Walker who asked them to step out back with him. The three of them entered the men's bathroom at which time Walker produced a quantity of suspect cocaine. Walker put the suspect cocaine on the back of the toilet at which time Burnett began chopping the suspect cocaine into a finer powder and putting it into lines. Walker and Burnett inhaled the suspect cocaine up their nostrils. While this was occurring the door to the bathroom was closed. While in there someone banged on the door and said, "Hey, now ya'll get out of there with them drugs." On July 23, 1991 while back inside the licensed premises Jack Walker was seated at the corner of the bar near the front pool table Walker motioned West to come over to him at which time Walker handed West a bag of marijuana in an open manner. This was done by pulling the bag of marijuana out of his pants pocket and handing it to West. This transfer occurred at the corner of the bar near the front pool table. West then stepped out back of the licensed premises with the bag of marijuana at which time Charles Burnett rolled a marijuana cigarette from that bag. Kevin Mercer and Charles Burnett engaged in smoking the marijuana cigarette. This took place within ten feet of the back door of the licensed premises. On July 23, 1991 when West reentered the licensed premises Burnett had the previously described bag of marijuana that belonged to Jack Walker. Burnett was seen to walk over to where Walker was seated and in an open manner handed the bag to Walker. On July 31, 1991 West returned to the licensed premises and was seated at the bar with Charles Burnett on his right and Jack Walker to Burnett's right. West overheard a conversation between Burnett and Walker in which Burnett was asking Walker about where something was. He observed Burnett walk to the dance floor area of the premises which was closed. Burnett then came back from the dance floor area and handed the person attending the bar a package wrapped up with a wrapper made of a brown paper bag. He asked the person tending bar to put it in the microwave for ten seconds. The bartender placed the package in the microwave in the bar area for ten seconds. After ten seconds he opened the door and smoke rolled out of the microwave and the smoke revealed the presence of marijuana which pervaded the licensed premises. Burnett then took possession of the marijuana. Burnett stated that a hole needed to be bored into the package of marijuana until his hands could cool down and then Burnett placed the package in his pants pocket. Frank Bell, who was the bar manager, was present playing the pinball machine. When the odor of marijuana started he made a comment to Burnett to not be cooking that marijuana in his microwave anymore. On August 2, 1991 West went back to the licensed premises and noticed that Respondent was present. On that evening Walker approached West while West was standing at the pinball game and asked West if he wanted to buy an ounce of marijuana. West replied in the affirmative. Later Walker and West stepped out back of the licensed premises and while standing there Walker produced a plastic bag containing suspect marijuana and West purchased it from him for $65.00. There was a pickup truck parked next to the back door and the purchase was made while standing at the back of the pickup truck. On August 3, 1991 West returned to the licensed premises. He saw Lou Brown, a patron, arrive at the premises on his motorcycle. Several other patrons and West stepped outside to take a look at the motorcycle Brown was riding. The motorcycle was parked directly in front of the premises. At that time Lou Brown produced a marijuana cigarette and lit it and began smoking it and passing it to Charlie Burnett to smoke as well as Farmer. Farmer was squatting down next to the front door. Frank Bell opened the door, poked his head out, looked at the motorcycle and said "nice bike." When Bell did this, Farmer who was engaged in smoking the marijuana cigarette, had his head turned toward Frank Bell and blew marijuana smoke in the direction of Bell. On August 3, 1991 West went to the men's bathroom and saw several patrons smoking marijuana just outside the back door. He made a similar observation when going to the men's bathroom later on that evening. West returned to the licensed premises on August 8, 1991. Burnett invited West to step out back of the premises to smoke marijuana with him. Once out back Burnett produced a bag of marijuana and a marijuana cigarette was rolled. Farmer and a white female identified as "Ditty-Bop" joined in with Burnett in smoking marijuana. They were within ten feet of the back door. On August 8, 1991 Michael Brooks invited West to step out back of the premises to smoke marijuana with him. They were accompanied by Billy Willis and once outside Willis and Brooks went in the men's bathroom and with the door opened rolled a marijuana cigarette. Once the cigarette was rolled Brooks and Willis while standing behind the premises just outside the back door smoked the marijuana cigarette. They were within two or three feet of the back door when smoking the marijuana. On August 9, 1991 West returned to the licensed premises. At that time he saw the Respondent and the Respondent's wife present. He also observed Frank Bell open the front and back doors and turn on the ventilating fans. When this was done West observed people standing outside the back door. He also observed that the smell of marijuana was sucked into the premises by the ventilating fans. On August 9, 1991 West and Burnett went to the rear of the premises near the men's bathroom. Burnett produced a plastic bag of marijuana. A cigarette was rolled and Burnett smoked it. While Burnett and West were standing right at the corner of the men's bathroom, West observed the Respondent exit the premises. The Respondent entered the men's bathroom, exited the bathroom and looked back at West and Burnett. When the Respondent looked back Burnett was engaged in smoking the marijuana cigarette. Burnett was smoking the cigarette in an open manner. When Burnett would exhale the smoke of the marijuana it entered in through the back door of the premises. Respondent took no action to stop Burnett from smoking marijuana. On August 9, 1991 while West was standing in front of the licensed premises, he ordered a bag of marijuana from Kevin Mercer and paid $25.00 in advance. Back inside the licensed premises seated near the lift windows inside the dance floor area Mercer approached West and asked him to step out back. They went out the back of the licensed premises and near the back door Mercer delivered a bag of marijuana to West. The delivery was made in an open manner within one foot of the exit on the side of the licensed premises where the D.J. booth is located. On August 10, 1991 West entered the licensed premises and engaged in a conversation with Walker while standing next to the pool table. This discussion involved the purchase of marijuana. Walker told West that he had a bag of marijuana in his pocket and would have to look at it and see what it was worth. Walker and West stepped out back of the premises just outside the door. Walker produced a plastic bag of marijuana and told West that it would cost $20.00. West paid $20 for the marijuana. They were within two feet of the back door at that time. Later on August 10, 1991 Burnett asked West to go outside and smoke a marijuana cigarette with him. As they were exiting West leaned over and told Frank Bell, bar manager, that West and Burnett were going outside to smoke a joint, meaning marijuana. Bell replied "good, I'll be right out". Later Burnett, Robert Corey and Frank Bell engaged in smoking a marijuana cigarette outside. West returned to the bar on August 15, 1991. When he entered the bar the man named Walt was tending the bar. There were approximately eight patrons present. West ordered a beer and asked Walt where everybody was located. Walt explained that people were in the other portion of the licensed premises known as the dance floor, which was shut off and the door closed and the windows that separate the dance floor from the other part of the licensed premises were pulled down. West entered the dance floor area and saw several patrons. Those patrons were at the back of the dance floor near a service bar. Among them was Jack Walker. He commented that he had a bag of "pot," meaning marijuana, to smoke a joint from. Walker was trying to explain to Charlie Burnett where the bag of "pot" was. He explained that it was in a Budweiser beer box next to the bar on the other side, that is the main part of the premises. Burnett was having difficulty understanding Walker's directions and West offered to go get the marijuana. He walked over to the main part of the bar where approximately six patrons were present. He went to the boxes that were stacked in the area of the bar in the main part of the licensed premises. The box that he was looking for was among boxes where empty beer bottles are kept. He found the marijuana in a baggie and removed it and observed Walt the bartender watching what he was doing. He retrieved the bag of marijuana with his left hand and carried it around the main bar area back to the dance floor area. Once back in the dance floor area a white female patron named Sherry rolled a marijuana cigarette on top of the service bar in the dance floor area. That cigarette was then passed around and smoked. Eventually the persons in the dance floor area went back to the main part of the bar. At that time, Walt the bartender commented that the smell of marijuana was stinking up the bar. His reference was to "pot" smelling up the bar, meaning marijuana. Walt then went and turned the big ventilating fan on located in the wall and this cleared the marijuana smoke out. Later Burnett asked West to go smoke a marijuana cigarette with him at which time Burnett and West went through a door at the back of the dance floor area. Walt opened the door behind them in the dance floor area and told West and Burnett not to smoke any more dope back there. He said that if you want to roll one back there you can roll it but don't smoke it back there. Burnett could not find any rolling papers to prepare a marijuana cigarette so West and Burnett exited the dance floor area and went back to the main area of the bar. Subsequently, Burnett, Walker, Billy Willis, Sherry and West entered the dance floor area of the premises and Burnett produced a marijuana cigarette and rolling papers and a marijuana cigarette was rolled and smoked. There were times other than the dates described when beverage agent West entered the licensed premises in the period May through August, 1991 and nothing irregular occurred. On the Friday nights when Respondent would be in attendance there was a great deal of noise inside the licensed premises. Concerning an awareness of the possible problems with drugs in the licensed premises, on April 19, 1990 Chief of Police John Franklin Osborn of Jasper, Florida spoke with the Respondent at Respondent's instigation. Chief Osborn also spoke with the sheriff's office of Hamilton County about getting an undercover officer to examine that potential problem. Osborn had previously spoken with the Respondent in November or December, 1990 about having an undercover person in the bar to look at the issue of possible drug activities there. At that time Osborn checked with the Hamilton County Sheriff's Office about an undercover officer doing surveillance. An undercover surveillance or investigation by the sheriff's office was not conducted. In conversation Respondent had told Osborn that if sales of drugs were going on in the licensed premises the Respondent wanted to do something about it. Osborn described the alley behind the licensed premises as one in which lighting is available at the local telephone office at the opposite end of the alley from the licensed premises. Osborn is also aware that a light exists in the men's bathroom of the licensed premises which provides light immediately outside that convenience. There are no lights in the alley proper. His description of the lighting is that it is medium quality lighting and that at night you can identify people if you are in the alley but if you are outside the alley you cannot look into the alley and identify who the people are. Osborn established that no drug arrest had been made in the licensed premises other than arrests associated with the case that has been described here. Osborn heard the Respondent tell Jack Walker to leave the licensed premises on one occasion, but the Respondent allowed Jack Walker back into the bar at a later date. The nature of the patrol activity around the bar area was once on Friday and once on Saturday night. This refers to patrol activity by the Jasper, Florida Police Department. Margaret Bell, who is the sister-in-law of Frank Bell, had managed the licensed premises in the past, as recently as the summer of 1990. She describes the Respondent's instructions to her were that she not allow drugs, unauthorized liquor, or fighting, and to call Respondent if problems occurred. In her experience the Respondent would be at the bar on Friday night. Respondent would return on Sunday or Monday morning to check up on the week's business. Frank Bell who worked at the bar with his sister-in-law, Margaret Bell, had been informed of Respondent's conditions about misconduct in the bar. Frank Bell was recommended to replace his sister-in-law as bar manager and was the manager in the period of the subject investigation. The recommendation came from Margaret Bell. Margaret Bell worked on July 5 and 6, 1991 as an employee under the management of Frank Bell and did not observe any problems in the bar. She established that Billy Willis is not an employee of the bar but someone who was allowed to play the records and tapes as disc jockey and would be given chips and cokes in return for his service. Margaret Bell identified that on Friday and Saturday night with the noise level up you might have to yell at the person next to you to be heard above the din. Margaret Bell identified that to get the kind of ventilation necessary to deal with the number of people in the bar in the summer that the employees would open the front door in the dance area and the back door on the main bar side. Margaret Bell states that she has smelled marijuana in the bar when the exhaust fans were on and had told patrons to leave from the area behind the bar. She also told persons out front who were smoking marijuana to leave. These requests to have these persons leave were in accordance with the Respondent's instructions to her. Margaret Bell has also seen Frank Bell ask patrons to leave five or six times. Margaret Bell did not call law enforcement when she smelled marijuana out back which had occurred on seven to nine occasions. Additionally, she did not post signs about drug usage or receive any specific instructions about drug matters beyond those described before concerning Respondent's remarks to her. Margaret Bell was told that Frank Bell had smoked marijuana during the period when she and her husband had first been married but she had not witnessed this personally. Frank Bell was the bar manager from August, 1990 to August 23, 1991. His instructions as bar manager, based upon what the Respondent told him about management, was that no drugs and no unauthorized liquor would be allowed in the bar. Respondent made mention of those basic rules on many occasions. Frank Bell identified the fact that he had told people to leave the outside area who were smoking marijuana. In this connection Frank Bell had asked people to leave the back door area on many occasions. The record does not reveal that he had called for law enforcement assistance to deal with this problem. Frank Bell didn't post signs concerning prohibition against drug usage in the licensed premises. Frank Bell's arrangement with the Respondent concerning his employment status was that he would share 50% of the net profits for his work as manager. Frank Bell identified that Jack Walker, Gary Wayne Boyd, Billy Willis, Kevin Mercer, and Charles Burnett are customers of the licensed premises. Frank Bell has also experienced the exhaust fans pulling marijuana smoke into the licensed premises. Frank Bell was arrested based upon facts that are described, and charged with a criminal law violation based on those facts. Respondent has been associated with the establishment for 33 years and has been the licensee since 1977. His practice in the past has been to hire someone to run the licensed premises and to split the profits with them. He is typically at the licensed premises on Friday. His instructions for management are no drugs, unauthorized liquor, fighting or card games. Respondent corroborates that the noise level on Friday night is loud and that you need to be close to the person that you are conversing with to hear and be heard. Respondent has never overheard people discussing drug transactions inside the bar. In the one instance where a transaction was discussed in his presence he did not hear because he has impaired hearing. Respondent in describing his conversations with Chief Osborn spoke in terms of having the Chief check on the possibility of drugs at the licensed premises, although Respondent says he has never seen drugs in his business. He has smelled the marijuana smoke in the place. Respondent has smelled the odor of marijuana on three or four occasions and that led him to tell Frank Bell or the person running the bar to tell people to leave who were smoking the marijuana. Again, the record does not reveal that Respondent sought the assistance of law enforcement on these occasions. Respondent has never seen a drug transaction on or about the premises. Respondent's attendance at the bar is usually from 7:00 p.m. until closing on Friday nights. Otherwise he just drops in occasionally. Respondent has not put up lights out back so that patrons could be seen more clearly and their activities monitored, nor has he put signs up concerning the prohibition against drugs and he has not asked the Petitioner, local police department, or sheriff's office to talk to employees about drug problems.
Recommendation Based upon a consideration of the facts found and conclusions of law reached, it is recommended that a final order be entered which revokes license no. 34-00017, Series 1-COP held by the Respondent. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5349 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is subordinate to facts found, except with the reference to Billy Willis as being an employee of the Respondent. That reference and others that suggest that Willis was an employee is incorrect. Paragraphs 7-37 are subordinate to facts found. Paragraph 38 is subordinate to facts found with the exception that the facts were not presented to show that the odor of burning marijuana was prevalent inside the licensed premises. Paragraphs 39-47 are subordinate to facts found as is Paragraph 48 with the exception of the proposed fact that Respondent did a "double take when he came out of the men's restroom." That is rejected. Paragraphs 49-51 are subordinate to facts found. Paragraph 52 is rejected. Paragraphs 53-57 are not necessary to the resolution of the dispute. Paragraph 58 is subordinate to facts found. Paragraphs 59 and 60 are not necessary to the resolution of the dispute. Paragraphs 61-63 are subordinate to facts found. Paragraph 64 is not necessary to the resolution of the dispute. Paragraphs 65-69 are subordinate to facts found. Paragraph 70 is not necessary to the resolution of the dispute. Respondent's Facts Paragraph 1 in the initial sentence is subordinate to facts found. The balance of that paragraph is not necessary to the resolution of the dispute. As to Paragraph 2 while the 1977 sketch of the licensed premises that was filed with the application did not show the men's bathroom in the same location as it was in 1991, the men's bathroom in 1991 is still considered part of the licensed premises. Paragraphs 3-11 are subordinate to facts found. Paragraph 12 is rejected. Paragraph 13 is subordinate to facts found. Paragraph 14 is rejected in that Chief Osborn described the available lighting behind the licensed premises as moderate. Paragraphs 15-18 are subordinate to facts found. Paragraph 19 is rejected in that Respondent indicated that he had some belief that marijuana was used outside the premises on occasion based upon its odor. Paragraph 20 is subordinate to facts found. Paragraph 21 is rejected. COPIES FURNISHED: Nancy C. Waller, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Donald K. Rudser, Esquire Post Office Drawer 1011 Jasper, FL 32052 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue This case is presented on the basis of a certain Notice to Show Cause/Administrative Complaint placed by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Toney Hatfield McDonald Koenemann d/b/a McDonald's Liquor Store and Lounge. The Administrative Complaint contains the following allegations On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEBRA LYNN HART, at your licensed premises did unlawfully solicit or conspire with a B/M identified as DENNIS to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in violation of F.S. 893.13 to wit: F.S. 561.29. On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee at your licensed premises, to wit: DEBRA LYNN HART, did solicit Beverage Officer R. THOMPSON to buy her an alcoholic beverage, to wit: beer, said alcoholic beverage subsequently purchased by THOMPSON and given to DEBRA LYNN HART, in violation of F.S. 562.131. On or about January 13, 1981, you TONEY HARTFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or hour [sic] agent, servant, or employee, GWENDOLYN HENRY, at your licensed premises, did unlawfully sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer J. BATES, in violation of F.S. 893.13 to wit: F.S. 561.29. On or about January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMAN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEDRA LYNN HART, at your licensed premises did unlawfully criminally solicit or conspire with a B/M identified as "COOKIE" to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in violation of F.S. 893.13 to wit: F.S. 561.29. Between January 10, 1981 and January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:4-COP, your agent, servant, employee, did maintain a place to wit: your licensed premises at 15966-15974 N. W. 27th Avenue, Miami, Dade County, Florida, which is resorted to by persons rising controlled substances for the purpose of using these controlled substances, to wit: canabis and cocaine, or which place is used for keeping or selling them in violation of FSS[sic] 893.13(2)(a)5. within F.S. 561.29(1)(a). Between January 10, 1981 sod January 15, 1981, you, TONEY HATFIELD MCDONALD, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:40 COP [sic], your agent, servant, end/or employee, did keep or maintain a public nuisance on your licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893 (Florida Statutes as amended) or which is used for the illegal keeping, selling, or delivering of same, contrary to F.S. 823.10 and F.S. 561.29 (1)(c).
Findings Of Fact Having been charged with the allegations set forth in the Issues statement of this Recommended Order, which were brought by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, the Respondent, Toney Hatfield McDonald Koeneman d/b/a McDonald's Liquor Store and Lounge, requested a Subsection 120.57)1), Florida Statutes, hearing. The formal hearing in this cause was conducted on May 15, 1981. This Recommended Order is being entered in furtherance of that hearing and after granting the parties an opportunity to offer memoranda of law, proposed findings of fact, conclusions of law and recommendations and in keeping with the schedule designed to effectuate that opportunity. 1/ The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is a regulatory agency within the State of Florida, which has among its functions, the licensure of individuals who sell alcoholic beverages in the State of Florida and the responsibility to discipline those several licenses, should the licensees violate the underlying regulatory statutes and rules. The Respondent, Toney Hatfield McDonald Koenemann, operates a business known as McDonald's Liquor Store and Lounge at a location on Northwest 27th Avenue, Miami, Dade County, Florida. Respondent is the holder of License No. 23-2363, Series 4-COP, issued by the Petitioner. This license allows the sale of alcoholic beverages at the business location for purposes of consumption off premises. At all times pertinent to the Administrative Complaint, the Respondent was the holder of that license. On January 10, 1981, Beverage Officers R. Thompson and Eddie Alford went to the licensed premises to determine if drugs were being sold or used at the licensed premises. When Thompson and Alford approached the front door to the licensed premises, they asked the man who was at the window in the vicinity of that door, how much it would cost to be admitted. The employee replied that the cost was $2.00. Thompson then asked this individual where they might obtain marijuana and the response was, "you ran get it back there," while pointing to the area in which the licensed premises were used as a discotheque club. This gesture made by the employee at the door was by one Rollins Donald, who was the bar manager. The officers entered the bar area to commence their surveillance: however, Officer Alford only stayed in the licensed premises for a period of approximately fifteen (15) minutes, after which time he left the building for fear that he had can recognized by persons in the bar. Alford was concerned that his identity not be revealed in view of the fact that the beverage officers were operating in an undercover capacity and when operating, law enforcement personnel do not wish persons to know their identity. This revelation would inhibit the investigation. While in the licensed premises, Alford did not observe any form of narcotics violation. Once Thompson had entered the licensed premises, he took a seat at the bar area where certain female dancers were performing a nude dance routine. The dancers were employees of the Respondent. One of those dancers was a person identified as "Debra." While at the bar, a conversation was held between Thompson and "Debra" and Thompson asked her to obtain marijuana for him. "Debra" walked over to a man in the licensed premises who was sweeping the floor and the man gestured with his head, after which time the dancer returned and said, "he didn't have any." "Debra" then left Thompson and returned with a second man and in the presence of "Debra" negotiations were held and Thompson bought a $7.00 quantity of marijuana, which is also known as cannabis sativa L. During the transaction, the non who was identified as "Dennis," left the licensed premises, and after returning, the transaction was concluded. On the same date, January 10, 1981, another team of investigators from the Beverage Division went to the licensed premises. These officers were Sergeants Allan F. Nash and James P. Bates. The officers entered the licensed premises and observed the dancing of the female employees, and undertook the investigation but did not observe any sale or use of narcotics. On January 13, 1981, Sergeants Nash and Bates returned to the licensed premises. The officers, upon entering the licensed premises, purchased beers from the bartender and were seated at a table inside the premises. They were approached by a dancer employed at the bar who identified herself as "Tiny." She asked them for money related to her dancing. Nash gave her $2.00 and Bates gave her $1.00. Bates asked the dancer where he might obtain "reefer," meaning marijuana. The dancer responded that he should give her $5.00. The dancer then left and spoke to a woman behind the bar and obtained a bag from that woman. "Tiny" returned to the officers and sold Bates the contents of the bag for a price of $5.00. The bag contained marijuana, also known as cannabis sativa L. While at the licensed premises on January 13, 1981, Sergeants Bates and Nash observed two men at the bar smoking cigarettes which had an aroma which the officers associated with burning marijuana, a substance which they had the sufficient expertise to detect when confronted with a similar aroma. The barmaid behind the bar where the men were seen to be smoking this material did not take steps to prevent this activity on the part of the men. On the evening of January 13, 1981, Sergeants Nash and Bates took no further steps to purchase narcotics in the bar after the purchase from the dancer "Tiny." Officer Thompson was also at the licensed premises on January 13, 1981. While in the bar proper, he observed a man and woman sitting in a corner of the bar. From that location he noticed a smell which had an odor similar to marijuana. The officer was familiar with the smell of marijuana. Thompson then went to the location of the man and woman and spoke to the woman and asked her if she knew where he might purchase some "coke," meaning cocaine. This woman then accompanied Officer Thompson to the restroom area, and after being introduced to a man identified as "Wallace" concerning the subject of the possible purchase of cocaine, Thompson negotiated with "Wallace" and purchased a quantity of cocaine in the amount of $25.00. "Wallace" then inquired of Thompson about a further purchase of cocaine and Thompson was amenable to that transaction. "Wallace" left the area of the licensed premises and returned and spoke with one of the employees of the bar, a barmaid named "Carrie." He then returned to Thompson and they went to the restroom area again and Thompson paid "Wallace" a price of $37.00 for an additional Quantity of cocaine Thompson then returned to the bar proper and soaks with the barmaid "Carrie" and asked her what she thought he had, referring to the cocaine, and she replied to the effect that she knew and for him to do what he wanted. This same "Carrie" had been at the bar on January 10, 1981, as an employee and Thompson had asked her about cocaine and she indicated that she had used cocaine before but did not use it at present. Officer Thompson returned to the licensed premises on January 15, 1981, in the company of Beverage Officer Ted Fagan. When entering the licensed premises, they spoke to the bar manager, Rollins Donald, and Thompson asked Donald if he wanted to smoke some "grass," meaning marijuana. Donald said that he did not "mess with it" but that "you can go back there," referring to the lounge area and Donald stated that if someone comes in, "I will let you know." Officer Thompson and Fagan then entered the licensed premises and sat in the northwest corner of the discotheque portion of the bar at a table where four or five females were located. One of those females was the individual "Debra" an employee in the licensed premises who worked as a dancer and who is the same "Debra" referred to before in this matter. There were other dancers employed in the licensed premises who were seated around the table. While at the table, cigarettes were passed around and smoked by those persons seated at the table, with the exception of the officers, and those persons included the dancers employed in the licensed premises and a barmaid employed in the licensed premises. The cigarettes that were being smoked had an aroma which was similar to burning marijuana and was identified by the two officers who have a knowledge in the identification of burning marijuana. Thompson, while seated at the table, struck up a conversation with "Debra" and asked her about purchasing marijuana. She then went to another table and returned with a man and after conversing with that man in the presence of "Debra," Thompson purchased marijuana for $6.00 paid to the man. This marijuana is also known as cannabis sativa L. Thompson had identified his request to "Debra" as being a request for "smoke." On the subject of bar management, the Respondent goes to the licensed premises four to six times a week. Visits which the Respondent makes to the licensed premises are during the daylight hours or from noon through the afternoon. She has instructed the manager Donald that she does not like to have narcotics in the lounge and to refuse the entrance of "undesirables." The business has a policy against the usage of drugs by employees. Persons who are employed by the licensed premises are asked if they use drugs and fired if they do. The manager, Rollins Donald, hires employees and after the incidents in question, fired all the employees at the licensed premises. The nude dancers were employed in the licensed Premises for a period of five to six months; however, following the instance of the current Administrative Complaint, the business no longer employs the nude dancers. The police have been contacted about drug violations in the past.
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.
The Issue At issue herein is whether or not the Respondent, Lucille Marie Royce, is guilty of alleged illegal possession of Marijuana, Librium and Darvocet capsules as alleged by the Petitioner's Administrative Complaint dated May 14, 1979, charging that the Respondent, on or about October 20, 1978, was arrested at her home by officers of the Santa Rosa County Sheriff's Department and found to be in illegal possession of Marijuana and the above-mentioned controlled substances, in violation of Subsection 464.21(d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. On October 20, 1978, officers of the Sheriff's Office of Santa Rosa County, Florida visited the Respondent's premises in Santa Rosa County and, pursuant to an authorization to search her (Respondent's) premises, found and seized approximately sixteen items as reflected on Petitioner's Exhibit 14, which is an inventory of items received from Respondent's residence on October 20, 1978. Among these items were Marijuana, three Darvocet 100 tablets and one Librium tablet. The Respondent was placed under arrest; however, the charges of possession of paraphernalia and possession of controlled substances wore nolle prossequi. 2/ Rosa Lee Wier, a Deputy Sheriff of Santa Rosa County, testified that she received a call on or about October 20, 1978, to the effect that there were Marijuana plants growing on the outside of Respondent's residence. Deputy Weir visited Respondent's neighborhood and observed what appeared to be Marijuana plants growing in the front and side of Respondent's residence. Deputy Weir returned to the Sheriff's Office and received assistance from two other deputies who returned to the scene and inquired of Respondent the reason the "flowers" were growing in her front yard. Respondent credibly testified that she did not know what kind of "flowers" there were growing in her front yard but that she suspected that they were Marijuana plants which had been planted by Navy student pilots who were living in the apartment building next door. Following the deputies' discovery that the plants were in fact Marijuana plants, they requested, and obtained, a voluntary search release from Respondent to search her premises for other controlled drugs. Based on the ensuing search, several packets of Marijuana, three Darvocet 100 tablets and one Librium tablet were found. The Respondent is a Registered Nurse and has been since 1977. She has been a Licensed Practical Nurse since 1966. Prior to the subject incident, she has not been involved in any disciplinary actions by the Petitioner. Respondent, since 1977, was employed as a Charge Nurse in the Emergency Room at Santa Rosa Hospital. Respondent's supervisor on the three to eleven shift, Leilanim Fobtanilla, testified that Respondent was a good nurse who renders good health care. In this regard, character letters are introduced reflecting the fact that the Respondent is a person of unquestionable character. (Respondent's Exhibits 1 and 2.) Respondent's supervisor testified that it was not unusual for nurses to withdraw medications intended for patients and and up taking such medications home when patients refuse to take it. According to Ms. Fobtanilla, this situation usually occur when patients refuse to take prescribed medication and the nurse, being busy, forgets to return the medication to the medication drawer. (TR 40-42.) In this regard, Respondent testified that this exact situation occurred to her on October 19, 1978, when she withdrew three Darvocet 100 tablets and one Librium capsule which had been prescribed for a patient who refused to take the medication. Respondent testified that she put the medication in her uniform because she would never leave medication lying around in the Emergency Room due to the large number of patients milling around therein. Respondent took the medication home and while changing clothes, noted that she bad taken the medication home. She put the medication in her purse to return it to the hospital the following day. In this regard, Respondent's testimony was credible and was not attached by Petitioner's counsel. Respondent testified that she inherited the residence at which she is now living from a former patient for whom she had served as a private duty nurse, Elton E. Nichols. Respondent testified that Mr. Nichols and she became lovers while she was caring for him as a private duty nurse. Mr. Nichols died of cancer on September 12, 1978, and willed the property to Respondent based on their relationship. Respondent testified credibly that she underwent a period of grief following Mr. Nichols' demise and that it was months before she could pull herself together to try to rid herself of his personal effects. It was noted that the subject incident occurred on October 20, 1978, which, of course, is approximately five weeks subsequent to Mr. Nichols' death. Additionally, Respondent credibly testified that she has a metabolic disease which prevents her from taking drugs, even for a cold. She testified that she has no use for drugs and per instructions from her physicians, cannot take any narcotics. Respondent testified that she has never used drugs nor has she sold them. In these circumstances, it is the undersigned's considered opinion that the above facts do not warrant disciplinary action as contemplated by Subsection 464.21(1)(d), Florida Statutes, and I shall, therefore, recommend that the Administrative Complaint filed herein be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. RECOMMENDED this 31st day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether the application for Alcoholic Beverage License No. 23-6847 received by the Department on June 21, 1985, should be disapproved: because the application discloses a person with a direct interest in the premises to be licensed (Mr. Farquharson) is ineligible for licensure pursuant to Section 561.15(2) and 561.17(1), Florida Statutes (1985), due to conviction for the sale of marijuana within the last five years, and for violation of Section 559.791, Florida Statutes (1985) for a material misstatement on the application by not disclosing these convictions?
Findings Of Fact An application for an alcoholic beverage license to permit consumption of beer and wine on a restaurant premises was filed by Pauline B. Farquharson which was received by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco on June 21, 1985. "Exhibit 1). The application discloses that Barranett Farquharson born 7/1/52, has a direct interest in the premises to be licensed [Exhibit 1, page 18, Section I(6)(C)]. A personal questionnaire, Department of Business Regulation form DBR 71 OL for Barranett Farquharson was included in the application, which contained the following question and answer: "Have you ever been in this state, any other state, by the United States or by any foreign country: Arrested, charged or convicted of any violation of the law excluding minor traffic violations? Answer: Yes. On or about (1980-81). Arrested, possession of a weapon. Found not guilty." (Exhibit 2) The application also disclosed that the funds for the operation of the business, $60,000, had been obtained from personal funds in the amount of $4,934.09, and $56,065.91 from loans and mortgages. (Exhibit 1, page 11). A mortgage in the amount of $23,446.91 had been received from Standard Federal Loan Association of Gaithersburg, Maryland. A settlement statement included with the application, showed the borrowers as Barranett Farquharson and Pauline Farquharson. (Exhibit 1, pages 12-13). As part of the application, Mr. Barranett Farquharson was fingerprinted and the fingerprints were sent for examination to the Federal Bureau of Investigation. The Federal Bureau of Investigation responded with a report showing that the police department of New York City, New York had recorded the following arrest history, charges and charge disposition for Barranett Farquharson: 11/3/80 - Charged with possession of marijuana. Disposition: conditional discharge. 8/14/81 - Charged with sale of marijuana, possession of marijuana. Disposition: time served on criminal possession of marijuana. l0/14/82 - Charged with criminal possession of marijuana 4th, Criminal sale of marijuana 4th. Disposition: conditional discharge on criminal sale marijuana 4th. 11/3/82 - Charged with criminal sale marijuana 4th, unlawful possession marijuana. Disposition: sentenced to $50/30 days, fine paid on criminal sale of marijuana 4th. (Exhibit 4) A certified copy of the records of the Criminal Court of the City of New York was also entered into evidence as Exhibit 3. It disclosed that Barranett Farquharson, born 7/1/52, had been arrested and arraigned on charges of violating Section 221.15 of the penal law of the State of New York for the unlawful possession of marijuana and was adjudicated guilty of that charge on February 19, 1982. Mr. Farquharson was again arraigned on December 17, 1982 for violation of Section 221.40 of the penal law of the State of New York, criminal sale of marijuana in the 4th degree, and he received a conditional discharge. He was again arrested on November 3, 1982, arraigned on charges of violation of Sections 221.05 and 221.40 of the penal law of the State of New York on November 4, 1982, and he was found guilty of criminal sale of marijuana in the 4th degree and sentenced to pay a $250.00 fine. Section 221.05 of the penal law of the State of New York reads as follows: "Unlawful possession of marihuana. (VIOLATION)I A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter committed within the three years immediately preceeding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period." (Exhibit 6) Section 221.15 of the penal law of the State of New York provides: "Criminal possession of marihuana in the fourth degree. A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than two ounces containing marihuana." Section 221.40 of the penal law of the State of New York provides: "Criminal sale of marihuana in the fourth degree. A/MISD.) A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided on Section 221.35 of this article." (Exhibit 6)
Recommendation It is RECOMMENDED that the application for an Alcoholic Beverage License submitted by Mrs. Pauline Farquharson d/b/a Pauline's West Indian Restaurant be DENIED. DONE and ORDERED this 1st day of August, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1986. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Mrs. Pauline B. Farquharson 104 N. E. 205th Terrace Miami, Florida 33179 James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, Florida 32301-1927
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Parties The Department is the state agency responsible for regulating the practice of medicine in Florida, pursuant to chapters 456 and 458, Florida Statutes. The Department also oversees Florida’s medical marijuana program via the Office of Medical Marijuana Use, formerly known as the Office of Compassionate Use. Art. X, § 29, Fla. Const.; § 381.986, Fla. Stat. Section 381.986 provides that a “qualified patient” can receive medical marijuana from a medical marijuana treatment center.2 A qualified patient must have at least one of the statutorily-designated qualifying medical conditions and obtain a certification from a qualified physician. § 381.986(2) and (4), Fla. Stat. Section 381.986(2)(f) identifies “post-traumatic stress disorder” (“PTSD”) as a qualifying medical condition. A qualified physician must hold an active, unrestricted license as an allopathic physician under chapter 458 or as an osteopathic physician under 2 A marijuana treatment center holds a license issued by the Department to cultivate, process, transport, and dispense low-THC cannabis, medical cannabis, and cannabis delivery devices. § 381.986(8)(a), Fla. Stat. chapter 459, Florida Statutes. § 381.986(1)(m), Fla. Stat. A qualified physician must also “successfully complete a 2-hour course and subsequent examination offered by the Florida Medical Association or the Florida Osteopathic Medical Association, which encompasses the requirements of [section 381.986] and any rules adopted hereunder.” A qualified physician may not have a “direct or indirect economic interest” in a medical marijuana treatment center. § 381.986(3)(b), Fla. Stat. Dr. Davis is a qualified physician and a board-certified family practitioner who has been licensed to practice medicine in Florida since 2003. His practice focuses on holistic medicine and alternative treatments including medical marijuana. Dr. Davis is based in Gainesville, Florida, and practices via a corporation he founded in 2016 called “Florida Marijuana Doctors, Inc.” or “FMD Green.” Dr. Davis has treated hundreds of patients with PTSD and has prescribed medical marijuana to treat PTSD. The Ties Between Dr. Davis and Trulieve Trulieve is a medical marijuana treatment center that operates 43 of the 213 medical marijuana dispensaries in Florida. As measured by sales, Trulieve holds 50 percent of the medical marijuana market in Florida. In 2017, Trulieve’s Florida market share was approximately 80 percent. Trulieve opened a medical marijuana dispensary (“the Lady Lake dispensary”) in the Ocala/Lady Lake area in 2017 by leasing 2,243 square feet for $40,374 a year in a building located in the Oakland Hills Professional Center at 13940 Highway 441 in The Villages. In 2017, there were not enough qualified physicians to handle the number of Florida residents seeking medical marijuana prescriptions.3 In an 3 Benjamin Atkins was involved with ensuring Trulieve’s dispensaries were compliant with state law, and he was involved with opening the Lady Lake dispensary. He described the shortage of qualified physicians as “disastrous.” When Trulieve opened the Lady Lake dispensary, he was unaware of there being any qualified physicians practicing in that area. Mr. Atkins further testified that “[t]here’s approximately 45,000 licensed physicians in Florida, and when [the medical marijuana program] first started there were maybe five effort to alleviate that problem, Trulieve contacted qualified physicians and reached agreements for them to work one day a week or one day a month inside buildings with Trulieve dispensaries where there was a shortage of qualified physicians.4 Trulieve subleased office space to Dr. Davis and at least three other qualified physicians at the Lady Lake dispensary for $100 a month.5 Upon entering the Lady Lake dispensary one would immediately be in a lobby or waiting room with a Trulieve sign identifying the dispensary on one side and office space behind a door on the opposite side.6 physicians that were qualified and willing to see patients So I would call it a crisis. If you [had] that situation with something like pediatrics, the news would have been talking about what a crisis it is.” 4 With regard to how Trulieve contacted Dr. Davis about working in the Ocala/Lady Lake region, Mr. Atkins offered the following testimony: A: And then we would reach out to physicians we were aware of in other parts, and to be honest with you, some were very cold and uncaring and just focused on getting patients to make money, but then there were people like Dr. Davis who were compassionate and caring. And I remember at one time he drove all the way to Miami to see a child who nobody would see. There was just a lot of demand like that. So we would say to somebody like Dr. Davis, “Hey, you know, would you be able to work in the area of The Villages to see people,” and the compassionate physician would agree to one day a month or one day a week, go to different areas of the state that were underserved even though it wasn’t easy. Q: Did you seek out Dr. Davis to have him come to The Villages area then? A: I don’t remember exactly who sought who. What I can tell you is he was always regarded as somebody that was compassionate and, you know, passionate about helping people and was willing to in special circumstances travel around and see people and do stuff like that. I honestly don’t remember who said first, “Hey, would you come to The Villages,” or if he said, “I’m willing to come to The Villages,” or what. 5 Similar arrangements existed at other Trulieve dispensaries. 6 Trulieve did not solicit nonqualified physicians or other businesses to sublease space. However, if a nonqualified physician had inquired about subleasing space in the facility, Lester Perling, a compliance attorney with Broad and Cassell, wrote the sublease, and Trulieve utilized the same sublease for all of the qualified physicians at the Lady Lake dispensary. Mr. Perling did not advise Trulieve what to charge for the subleases, but he did advise Trulieve that it had to be at or above the market price. Benjamin Atkins was responsible for the subleases between Trulieve and any qualifying physicians working at the Lady Lake dispensary. Mr. Atkins testified convincingly that $500 a month was the fair market price for such space. His testimony was substantiated by that of Department witness Thomas Oldenborg as discussed below. Trulieve’s leasing plan was to enter subleases with up to five qualified physicians, and charge each $100 a month to use the space one day a week, thus earning Trulieve $500 a month in rental income, i.e., the fair market value for the space. Dr. Davis’s one-fifth share of the $500 monthly fair market value rental rate for his one fifth share of the monthly occupancy was commercially reasonable. The evidence firmly established that the leasing arrangement was not a trick or scheme related to the practice of medicine. Furthermore, the evidence firmly established that Dr. Davis’s rental of office space at a commercially reasonable rate from Trulieve did not create a direct or indirect economic interest between Dr. Davis and Trulieve.7 Mr. Atkins testified that “we would probably lease to a variety of people so long as they were willing to abide by the lease and it was safe.” 7 Mr. Atkins’s calculations about how much revenue Trulieve realized from the sublease appear to be erroneous in that he believed Trulieve was receiving $100 per week from each sublease rather than $100 a month. Nonetheless, his testimony clearly established the underlying fact that “if somebody came and said I’ll give you $500 a month or something for that space, that was probably well within market.” The subsequent inflation of that figure based on a miscalculation of the lease term does not lessen the weight of his testimony that the total market value was $500 a month, and constitutes competent, substantial evidence that Trulieve was not offering the leases for a below market price. When questioned again about Trulieve’s methodology, Mr. Atkins reiterated his earlier testimony: While the sublease that Trulieve utilized for Dr. Davis and the other qualified physicians had provisions pertaining to late fees, common area maintenance, and a security deposit, the spaces for the associated amounts were left blank. As a result, Trulieve did not: (a) charge Dr. Davis for making late rental payments; (b) pass along the costs of common area maintenance; or (c) require a security deposit. Trulieve was not concerned with a late fee because it would have been an inconsequential amount. As for a common area maintenance charge, Trulieve deemed that to be immaterial given its belief that it was subleasing the physician suite for an amount far in excess of the fair market price.8 So we would take the space and say, okay, what would the space be leased out for in the fair market, and that space I recall was like $500 or something like that. So then to make sure you’re charging above market, say you have 30 days that you could lease in an average year – or in a year, 30 days per month, taking 355 and dividing it by 12, that you would essentially be charging different people to rent, and so charging $100 a month for the four days is like six times market. 8 When asked if Trulieve acted intentionally by omitting those incidental charges, Mr. Atkins testified as follows: A: I don’t want to say it was intentional or unintentional or misremember. I can just tell you from my state of mind sitting here today that when your rent from somebody is $100 a month, because you’re looking for 30 different people to pay that 100 or whatever, whatever the math is, you know, to charge a late fee of, you know, $8 or something would not have been something I would have been concerned with. *** Q: Mr. Atkins, in your experience dealing with the Trulieve dispensary subleases to qualified physicians, could you offer the Court what some typical or reasonable rates would be for late charges in any of those subleases? A: Yeah, my opinion is if it was $100 a month, a late charge would be like $5 or $6 or something. Q: Same question as to the past due on the common area maintenance, the CAM. From your experience with the As for other arrangements, qualified physicians were responsible for bringing their own equipment to the Lady Lake dispensary. Also, Trulieve had a policy prohibiting employees from directing patients to a particular physician. If a patient inquired about where he or she could locate a qualifying physician, a Trulieve employee was supposed to direct that patient to a state-run website or the “find-a-doctor” tool on Trulieve’s website. Qualifying physicians who subleased space from Trulieve did not receive preferential status on Trulieve’s website. Between January 1, 2016, and January 25, 2018, Dr. Davis prescribed 4,941,075 milligrams of medical marijuana. Trulieve filled 76.71% of that amount. Given Trulieve’s dominant position in the Florida market for medical marijuana, that number is not surprising. The Department’s Critique of the Sublease The Department presented the testimony of Thomas Oldenborg, a commercial real estate broker whose territory includes the Lady Lake area. Mr. Oldenborg deals with investment properties and lease analysis. Mr. Oldenborg noted that the main lease between Trulieve and the landlord of the Oakland Hills Professional Center does not allow for subletting. Mr. Oldenborg opined that $100 a month was not a reasonable rate for the sublease between Dr. Davis and Trulieve. He testified that it would be difficult to find parties interested in leasing a 500 square foot space for one day a week. Leases with such terms are not typically advertised to the Trulieve subleases to qualifying physicians, what would the CAM passthrough be? A: I mean, if you’re charging six times market rent, I wouldn’t charge the CAM. I would only charge a CAM if I was overcharging. general public. Instead, such leases are usually done privately between parties that have a preexisting relationship.9 9 Mr. Oldenborg’s full opinion was as follows: Q: Mr. Oldenborg, given your review of this lease and your knowledge of commercial real estate in the area, is the $100 per month rental rate a reasonable rate? A: No. Q: Why not? A: Because there would be, in my opinion, no possible way to facilitate the lease or the transaction as in there is no way to advertise that type of deal on a normal commercial real estate platform or any available commercial real estate platform. Q: Would you mind elaborating on that? A: Sure. Normally if somebody is to sublease a space it has to be pretty clear on what it is and put out to the general public. This, again in my opinion, seems that the two parties would almost have to have a personal relationship or something to come across this deal. Somebody would have to approach somebody in person and have this conversation. *** Q: Have you ever, in your time, seen a lease advertised on one of these lease platforms with restrictions on days of use? A: No, sir. Q: Have you ever seen time restrictions, as in specific hours? A: No, sir. Q: Are you aware of whether that can even be advertised on these platforms? A: I do not believe it can, which is the predication of my answer. I don’t know how they would list it. There’s really no availability to do so, in my knowledge. Q: If a client came in – if a client came in asking for a lease for one day per week for, say, three hours a day, would you be able to facilitate a search to find something of that sort? A: No. However, contrary to his initial opinion, when questioned about other parameters of the sublease between Dr. Davis and Trulieve, Mr. Oldenborg’s testimony indicated that the sublease was priced at fair market value: Q: In your experience and your knowledge of the area, what is the going rate for a single office or executive suite sublease of a comparable size, say 500 square feet in this region? A: You’re normally looking at – for an executive suite, you’re normally looking at a ten-by-ten office with access to a conference room and you’re looking at roughly $500 a month to a thousand dollars a month, [depending] on what area of The Villages you’re in, but you’re not getting very much square footage. *** Q: Could you estimate about how much square footage that $500 a month lease would purchase? A: It would come with a single office, which would be roughly a hundred square feet and then you would have access to a conference room, which is usually an appointment basis. *** Q: In your experience would you say that [the current lease space of Dr. Davis] is consistent with approximately 500 square feet of office space? A: Yes, sir. Mr. Oldenborg was then led through a series of calculations from which he ultimately agreed that the cost to Trulieve of the office space used by Dr. Davis was, based on all of the agreed upon assumptions, $107 per Q: So you would not be able to find a lease offered on the open market similar to this sublease? A: No, sir. month. He further testified that a payment by Dr. Davis to Trulieve of $100 a month is “[f]air market value, just not typical for that type of lease setup or sublease.” However, the qualification to his testimony that the lease was fair market value was reduced to near zero by the following: Q: And describe for me any experience that you’ve had with part-time leasing arrangements with physicians? A: Very little. Q: Okay. Can you recall any of those instances where you’ve done any kind of a part-time lease? A: No. Given that Dr. Davis only had access to the space in question for one day a week rather than five days a week, Mr. Oldenborg’s testimony established that Trulieve charged a fair price for the sublease. Findings as to Whether Dr. Davis Engaged in a Trick or Scheme Related to the Practice of Medicine or Had a Direct or Indirect Economic Interest in Trulieve Trulieve sought out qualified physicians to sublease unused space in Trulieve dispensaries. However, there is no evidence that the arrangement between Dr. Davis and Trulieve was an attempt to defraud Florida residents seeking medical marijuana or an attempt to “game the system” by circumventing any statutory requirements. There is no persuasive evidence indicating that Dr. Davis referred patients to Trulieve or that Trulieve referred prospective patients to Dr. Davis. As a result, the evidence does not clearly and convincingly demonstrate that Dr. Davis employed a trick or scheme related to the practice of medicine. Dr. Davis had no ownership stake in Trulieve. Thus, the evidence does not clearly and convincingly demonstrate that Dr. Davis had a direct or indirect economic interest in Trulieve. K.B.’s Appointment with Dr. Davis K.B. retired in 2015 after 35 years in law enforcement. After a year, she returned to the workforce and was employed as an investigator in the Department’s unlicensed activity section from August of 2017 through November of 2017. Her duties included undercover operations. K.B. used the alias of K.G. (“K.G.”) during her undercover operations. Her “K.G.” alias was a white female who had been in the military and had received treatment for PTSD. K.B. began an undercover investigation of Dr. Davis with the intent to get him to qualify her to receive medical marijuana for the treatment of PTSD. K.B. initially visited the Lady Lake dispensary on August 2, 2017, in order to gather information about the business. She walked through the front door of the Lady Lake dispensary and saw a Trulieve sign to her right. She saw no signs referring to Dr. Davis. K.B. met a security guard named Jason who wrote some information about Dr. Davis on a Post-It note and essentially referred to Dr. Davis as Trulieve’s “in-house doctor.” However, the security guard said that K.B. was not required to utilize Dr. Davis and mentioned other doctors in the area who could qualify her for medical marijuana. After her conversation with the security guard, K.B. returned to her office and ultimately went on-line in order to schedule an appointment with Dr. Davis for November 1, 2017. She used a prepaid card to pay the $300 appointment fee. She also faxed “K.G.’s” fictitious medical records to Dr. Davis’s office. Those fictitious medical records purported to memorialize treatment rendered to “K.G.” at Camp Pendleton in December of 2007, January 2008, and December 2008. Those records indicated that “K.G.” had witnessed a traumatic event while in the military and was experiencing difficulty sleeping and hallucinations. She also supposedly reported that she had become irritable, angry, and had withdrawn from friends and family. Dr. Davis received those records, reviewed them, and incorporated them into the medical records that he created for “K.G.” He also reviewed “K.G.’s” controlled substance history via E-Force, a database for controlled substances. K.B. arrived at the Lady Lake dispensary and waited in the lobby until Dr. Davis brought her back into his office. The appointment began with typical doctor-patient banter before turning to the reason for “K.G.’s” appointment, PTSD.10 Rather than relying on the fabricated medical records that K.B. had faxed to his office, Dr. Davis attempted to ensure that “K.G.” still suffered from PTSD. Accordingly, he had K.B. describe “K.G.’s” purported symptoms. In doing so, K.B. described experiencing nightmares and/or flashbacks for a long period of time and probably alluded to them being related to “K.G.’s” military service. K.B. also mentioned experiencing generalized anxiety and headaches.11 In addition to discussing PTSD and medical marijuana, Dr. Davis measured K.B.’s blood pressure, heart rate, temperature, respiration rate, height, weight, and body mass index. He noticed that her blood pressure was 10 The Department’s expert witness, Dr. Jeffrey Danziger, testified that PTSD “involves the development of certain characteristic symptoms following exposure to one or more extreme traumatic events. And the traumatic event must involve exposure to actual or threatened death, serious injury, or sexual violence. The person must directly experience the trauma, witness it occurring to others or learn that it occurred to a close family member or close friend. Or the exception is people exposed to – with repeated exposure to trauma such as first responders or police officers.” 11 Dr. Davis testified that K.B. “indicated a lot of symptoms. She had extreme nightmares, anxiety, insomnia, and social isolation, some depression, although she made it very clear to me that she wasn’t suicidal. I remember making it clear. She – and I said, ‘social isolation,’ she said she was gaining weight, she said she was having a lot of – she said flashbacks and having a lot of recurring thoughts about death or death of her friend. I think she may have said some other things but those were sort of the salient points and certainly were enough to corroborate her past medical history and her current symptoms.” moderately high and checked her lower extremities for edema. While her blood pressure was not high enough to cause him to prescribe a hypertension drug, Dr. Davis did recommend that she see a primary care physician about her elevated blood pressure. Dr. Davis also checked K.B.’s bodily strength and conducted a gait analysis. K.B. described her demeanor during the appointment as “somewhat brief and evasive” and acknowledged that she was intentionally attempting to give Dr. Davis as few details as possible about her purported symptoms. For example, K.B. deflected Dr. Davis’s questions about the nature of the nightmares and/or flashbacks by saying they were too painful to discuss.12 K.B. acknowledged during her testimony that there was no difference between the symptoms she described to him and the symptoms documented in “K.G.’s” fabricated medical records. Also, K.B. did not recall giving Dr. Davis any information that would suggest “K.G.” did not have PTSD. Dr. Davis and K.B. did not go into great detail about any PTSD treatment that “K.G.” had received between 2008 and the time of the appointment with Dr. Davis, and K.B. did not recall any discussion about taking any medications that might interact negatively with medical marijuana. However, K.B. did tell Dr. Davis that Xanax and Zoloft had not been helpful and were discontinued. She also told Dr. Davis that “K.G.” had previously used medical marijuana and that the treatment had been effective.13 12 While Dr. Davis estimated that the appointment lasted 24 to 30 minutes, K.B. estimated that it lasted 15 minutes. Nevertheless, K.B. testified that she did not feel rushed during the appointment and did not feel that Dr. Davis should have afforded her more time. “I can say this: From the discussion that we had and from the exam that he gave and the discussion we had about the product and he asked me if I had any additional questions, so – and I believe I said I did not at that time, so I think we were done having that discussion.” Also, in response to a question asking if the appointment would have taken longer if she had not been intentionally evasive, K.B. testified that, “I’ll say that Dr. Davis was willing to answer any questions I had if I had chosen to be longer-winded. So I don’t feel like I was rushed and I don’t feel like I was kept in there longer than I needed to be. I’d say it was fair.” 13 With regard to K.B.’s description of “K.G.’s” medical marijuana use, Dr. Davis testified that, “For her symptoms, she had used it previously and it was very effective for her in The fabricated medical records and what was relayed to him during the appointment convinced Dr. Davis that medical marijuana was appropriate for “K.G.”14 At that point, Dr. Davis discussed the risks and benefits associated with medical marijuana, the different types of medical marijuana, and the different delivery methods. Dr. Davis mentioned that one type of medical marijuana would be better to use at nighttime and another would be better for daytime use if she lacked energy. He instructed her to begin with very small doses and gave her a preprinted log to keep track of the amount she was taking. K.B. acknowledged during her testimony that Dr. Davis told her that she did not have to acquire medical marijuana at Trulieve and that she could acquire the product wherever she chose.15 K.B. also acknowledged that Dr. Davis never referred to himself as Trulieve’s “in-house doctor,” and that he never indicated that he had any relieving her symptoms. She also related to me that she had tried not only the – I think she had indicated not only the other medications that were specifically listed on here, but had tried multiple medications and treatments and had not had a lot of success or had had side effects, but that she had used marijuana in the past with excellent results.” 14 Dr. Davis remarked that, “This was a pretty classic textbook case of post traumatic stress, as it was designed to be. She was a very good agent.” 15 Dr. Davis testified that patients frequently ask him to recommend a dispensary. However he does not do so because “that’s not my job. I have no interest in any dispensary. I actually have very good relationships with all the dispensaries, and my business is to educate people about – make sure that they’re qualified and then educate them about the safe use of marijuana and what products might be appropriate for them, et cetera, it’s not which dispensary. And it’s also a very individualized thing. You know, people like different dispensaries for different reasons, they have different products, and the system is actually designed specifically to encourage people to be allowed to go to different dispensaries, and that’s very different than narcotics where it’s very frowned upon. If you go to – if you get an Adderall prescription and then you go to another pharmacy, it’s very frowned upon, whereas this system is specifically set up to be transparent and allow people to go to any dispensary that they wish, and I encourage that.” relationship with Trulieve. Also, Dr. Davis corrected K.B. when she referred to Trulieve as “your dispensary.”16 Findings Regarding the Sufficiency of Dr. Davis’s Assessment of “K.G.” Dr. Davis’s medical records for “K.G.” list her problems as PTSD stemming “from traumas she witnessed in the military,” anxiety, flashbacks, and extreme nightmares. His medical records note that “K.G.” “[s]ays that the worst for her has been nightmares. She is looking for something that can help her. She has tried numerous medications in the past and they have not worked and she hates the side effects.” Dr. Davis also noted that “K.G.” “has tried [medical marijuana] in the past and it worked very well for her.” Dr. Jeffrey Danziger has been a Florida-licensed psychiatrist since November of 1986, and he has treated patients suffering from PTSD. Dr. Danziger based his testimony about the diagnosis of PTSD on the Diagnostic and Statistical Manual, Fifth Edition, the DSM-5. In addition to suffering a severe trauma, Dr. Danziger explained that someone suffering from PTSD must have “at least four categories of symptoms:” The first category is the presence of intrusion symptoms associated with the traumatic event, which can incur – involve recurrent and intrusive distressing memories, recurrent distressing dreams in which the content or nature of the dream are related to the trauma, dissociative reactions and/or if one is exposed to stimuli that symbolize or resemble the traumatic event they develop intense or prolonged psychological distress or marked physical reactions. The second broad category is persistent avoidance of stimuli associated with the trauma, which can be efforts to avoid distressing memories, thoughts or feelings, or avoidance or efforts to avoid external 16 When asked if she had any reason to believe that Trulieve and Dr. Davis were referring patients to one another, K.B. testified that, “I’m just basically saying that in my presence, no one did any direct referral from one – from the doctor to the business or from the business to the doctor. While the – while the employee of Trulieve did say that Dr. Davis was the in- house doctor, he did not state [that] I had to get product if I saw Dr. Davis at Trulieve.” reminders, people, places, conversations, objects or situations that remind them of the trauma. The third category is that of negative alternations in cognition and mood associated with the trauma, which begins or worsens after the trauma occurred. And there’s several – there’s seven factors, somebody must have two or more of them. Persistent or exaggerated negative beliefs about oneself or the world; trouble remembering a key event to the trauma; inappropriate guilt; distorted cognitions that lead them to inappropriately blame themselves or others; a persistently negative emotional state such as fear, horror, anger or guilt; markedly diminished interest in activities; feelings of detachment or estrangement from others; or, the inability to experience positive emotions. You need to have at least two of those seven. The fourth broad category is marked alternations in arousal and reactivity associated with the trauma. And people suffering from PTSD need to have two of the following six. Irritability and angry outbursts, reckless or self-destructive behavior, hypervigilance, an exaggerated startle response, problems with concentration or sleep disturbance. And a few other qualifiers are that this constellation of symptoms in response to a sufficiently severe qualifying trauma must last at least one month. That the syndrome causes significant distress or impairment in functioning, either social, occupational or other important areas. And the disturbance is not due to the effects of a drug or other medical condition. So these are the basis criteria for PTSD as defined in our Diagnostic and Statistical Manual, Fifth Edition. Based solely on a review of the medical records that Dr. Davis maintained for “K.G.”, Dr. Danziger offered the following critique: We know that, looking at the military records, that Criterion A [was] probably met. Criterion A means exposure to actual or threatened death or serious injury. So, if those records from 2007, what they reflected, that would be a sufficient stressor. Now what the patient talked about was, there’s references on the problem list to anxiety, flashbacks and nightmares. Now flashbacks and nightmares are intrusion symptoms, which are B. But there [were] no questions asked as to how often, how frequent, how distressing, tell me about the flashbacks which involve a literal – involve a sense that the incident is literally recurring. So, but Criterion A was probably in the old notes and if she did talk about extreme nightmares and was reluctant to discuss them, all right. I’d give him Criterion B. But what we’re not seeing is, was there any investigation as to avoidance of stimuli, negative alternations in cognition and mood or marked alternations in arousal and activity. So there’s some information as to a qualifying stressor contained in the old records and some information, albeit brief, about nightmares. But other important facets of PTSD were not addressed. Further, there’s a reference there to she’s been tried on numerous medications. Well, what medications? It’d be reasonable to ask what medications were you tried on that failed. And then secondly, in treating PTSD, there are various specific psychotherapies [that are] very useful in the treatment of PTSD. And that would include cognitive processing therapy, cognitive exposure therapy and EMDR, the eye movement resonance treatment. So there was, in other words, there was no inquiry into what medicines have you been on that failed and then have you had any counseling or psychotherapy. Because PTSD spontaneously resolves for up to half of those suffering from it, Dr. Danziger was adamant that Dr. Davis could not base his diagnosis solely on “K.G.’s” old medical records: The records from a decade earlier reflect Criterion A, which refers to a sufficient stressor. That’s there. And Criterion B. She says she’s having nightmares, she didn’t want to talk about it further. Okay. I’ll give him Criterion B. I’ll give Dr. Davis that and if someone didn’t want to talk about it, you don’t want to force it. But there’s no reference to C, D, and E, which is the avoidance behavior, negative alterations and marked alterations in arousal and reactivity. And no documentation as to, well, what treatments were tried, what medicines were you on, did they do individual therapy, group therapy, how did you respond. That’s what’s missing. So what’s missing in terms of PTSD assessment is the full dimension of PTSD, is it still present and what treatment did you or did you not receive before making his decision on how to treat. Despite the supposed shortcomings in Dr. Davis’s diagnosis of “K.G.”, Dr. Danziger declined to say that Dr. Davis’s diagnosis was erroneous: I would answer that by saying she had possible PTSD, but the examination was not complete enough to definitively make the diagnosis and proceed with treatment. So, possible PTSD, but insufficient data to verify that was the right diagnosis. Dr. Danziger also qualified his testimony by stating he was not comfortable opining about the standard of care in different specialties and, as a psychiatrist, he is not a qualified physician under section 381.986: Q: Is there any difference in what you would anticipate for an initial patient visit or an encounter to make a determination of posttraumatic stress between a psychiatrist and a non-psychiatrist? A: There likely would be. My colleagues in primary care treat hypertension, diabetes, asthma, arthritis, heart failure, a host of medical conditions that I don’t treat. Some may – some of my colleagues in primary care and internal medicine are very comfortable treating psychiatric conditions and only referring those who are the most severe or refractory to treatment, and others refer just about everything. So it depends on the practitioner. I want to be careful opining what’s an appropriate standard on a different specialty than mine. Dr. Davis had “K.G.’s” fabricated medical records at his disposal, and those records indicated that she had been diagnosed and treated for PTSD. In addition, Dr. Davis’s own exam indicated that “K.G.” had several symptoms indicating she was still suffering from PTSD. Section 381.986(4)(a) requires a qualified physician to conduct “a full assessment of the medical history of the patient,” and Dr. Davis did not gather a significant amount of information about “K.G.’s” struggles with PTSD during the years between the last fictitious appointment in 2008 and her appointment with Dr. Davis in 2017. However, the Department has not adopted a rule elaborating on what a qualified physician must do in order to conduct a “full assessment.” Also, the Department has not adopted a rule requiring qualifying physicians to follow the DSM-5. The evidence does not clearly and convincingly demonstrate that Dr. Davis violated section 381.986(4)(a) by failing to conduct a full assessment of “K.G.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine issue a Final Order dismissing the Administrative Complaint against Justin C.K. Davis, M.D. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 14th day of April, 2020. COPIES FURNISHED: Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Mark S. Thomas, Esquire Thomas Health Law Group, P.A. 5200 Southwest 91st Terrace, Suite 101-B Gainesville, Florida 32608 (eServed) Major Ryan Thompson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health Board of Medicine 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed)
The Issue This case involves the consideration of a Notice to Show Cause/Administrative Complaint by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Palace Bar and Lounge, Inc. Specifically, it is alleged in Count I that between January 16, 1981, and January 29, 1981, the Palace Bar and Lounge, while licensed under the beverage laws of the State of Florida, in the person of the corporation or by its agent, servant and/or employee did maintain a place, to wit: the licensed premises at 6970 N. W. 17th Avenue, Miami, Dade County, Florida, which is resorted to by persons using controlled substances for the purpose of using these controlled substances, to wit: cannabis and cocaine, or which place is used for keeping or selling them, in violation of Subsection 893.13(2)(a)5., Florida Statutes, and Subsection 561.29(1)(a), Florida Statutes. It is further alleged by Count II that between January 16, 1981, and January 29, 1981, the Respondent, Palace Bar and Lounge, Inc., as a licensee under the beverage laws of the State of Florida, or its agent, servant and/or employee did keep or maintain a public nuisance on its licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893, Florida Statutes, as amended, or which is used for the illegal keeping, selling or delivering or same, contrary to Section 823.10, Florida Statutes, and Subsection 561.29(1)(c), Florida Statutes.
Findings Of Fact This case is presented for consideration pursuant to Subsection 120.57(1), Florida Statutes, following administrative charges brought by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, against Palace Bar and Lounge, Inc., d/b/a Palace Bar. The details of those charges are as set forth in the Issues statement to this Recommended Order. The formal hearing in this cause was conducted on May 11 and 12, 1981. The Recommended Order is being entered in furtherance of that hearing and after granting the parties an opportunity to offer memoranda of law, proposed findings of fact, conclusions of law and recommendations, and in keeping with the schedule designed to effectuate that opportunity. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco is a regulatory agency within the State of Florida, which has among its functions, the licensure of individuals who sell alcoholic beverages in the State of Florida and the responsibility to discipline those several licensees, should the licensees violate the underlying regulatory statutes and rules. Respondent, Palace Bar and Lounge, Inc., d/b/a Palace Bar, is the holder of and held a valid beverage license on all dates in question in the Administrative Complaint. Specifically, Palace Bar is the holder of license No. 23-479, Series 4-COP, which allows the sale of alcoholic beverages for consumption off premises. The licensed premises is located at 6970 N. W. 17th Avenue, Miami, Dade County, Florida. The facts in this case reveal that James P. Bates, Sergeant with the Division of Alcoholic Beverages and Tobacco, went to the licensed premises on January 12, 1981, at approximately 8:00 P.M. The purpose of this visit was a pre-surveillance inspection. While at the bar, Bates spoke with a bartender identified as "Miss Frances." This particular bartender was blind. During the course of the conversation with Frances, Officer Bates inquired of Frances on the subject of the possibility that Bates might purchase "reefer," meaning the controlled substance marijuana, in the bar. Frances replied that he could not point out anyone selling "reefer" specifically, but all that all that was necessary on Bates' part to obtain "reefer" was to ask around the licensed premises. Officer Bates returned to the licensed premises in the early morning hours of January 17, 1981, with the express purpose of attempting to buy marijuana in the licensed premises. While there, Bates spoke with Frances again and asked where he could buy "reefer." The response by Frances was as before, in that he indicated that the officer should inquire around the licensed premises. To that end, Officer Bates spoke to a customer identified as "Red" who also, upon being asked about the purchase of marijuana, told Bates that he could ask around the licensed premises about the purchase of "reefer." This same customer indicated that the management did not allow the sale of marijuana in the bar. On January 17, 1981, on this particular visit, Sergeant Bates saw a person in the licensed premises who was dressed in a uniform. (This individual was located in the package store which is the locale where the alcoholic beverages were being sold for consumption off premises. The bar area is separate from the package store and customers bring the alcoholic beverages that they have purchased from the package store into the bar area where they may purchase mixers from the bartender to be used with the alcoholic beverages which they purchased separately.) Sergeant Bates made an additional visit to the licensed premises on January 29, 1981, and this was the first occasion of visits in which he saw the bar manager, Theodore Ferguson, Jr. On January 16, 1981, Beverage Sergeant Allen F. Nash, went to the licensed premises in an undercover capacity to ascertain if drugs could be purchased in the licensed premises. He arrived at around 1:45 A.M. and remained until approximately 2:50 A.M. in the licensed premises. No purchases were made in the licensed premises, but upon leaving the building at approximately 2:50 A.M., and while just outside the doorway, the officer encountered a man who was advertising that he had drugs for sale. Officer Nash inquired of the individual what was for sale and the man responded that he had "bags" meaning bags of marijuana. A deal was struck and Officer Nash bought a $7.00 bag of marijuana from the subject. The marijuana was a controlled substance. On January 20, 1981, Sergeant Nash returned to the licensed premises at approximately 11:55 P.M. At that time, he was in the company of another Beverage Officer, Phyllis Williams. The officers entered the bar area and took a seat at the bar proper. At around 1:15 A.M., on January 21, 1981, Nash spoke with an unidentified male patron and asked if that individual knew where he could get some "reefer." The patron indicated that he had $3.00 "bags" for sale. In turn, Nash told the man to give him two "bags" and a purchase of the controlled substance marijuana was made for a price of $6.00. The exchange of money and marijuana was made at the bar proper at a level above the bar. The same bartender, Frances, was behind the bar on this occasion. (Nash did not observe any uniformed security guards on the premises.) At around 1:50 A.M. on January 21, 1981, while Officers Nash and Williams were seated at the bar, a different male approached them and Nash asked this individual if he had marijuana. That individual replied that he had "joints and bags" meaning different increments of marijuana. Officer Williams asked how much the man would charge and he replied that the cost would be $7.00 for a "bag." She purchased two separate "bags" of marijuana for a total cost of $14.00 and the individual gave her a complimentary marijuana cigarette. This form of marijuana purchased was a controlled substance. The purchase was made at the bar and at a level above the bar. The two officers left the licensed premises around 2:00 A.M. on January 21, 1981, and as they walked out the door, they overheard an individual say that cocaine was for sale and that "I've got the best girl in the world." Officer Williams asked the individual for two "caps" of cocaine. The individual indicated that the price was $10.00 a "cap" and that he only had one "cap." She paid him $20.00. He gave her the "cap" that he had and went back in the licensed premises and returned with the second "cap." The so called "caps" were in tinfoil packs and contained the substance cocaine which is a controlled substance. Sergeant Nash returned to the licensed premises on January 24, 1981. He entered the bar area and while there, saw an elderly man in a security guard uniform cleaning up, that is, mopping and sweeping. Although Officer Nash was there for the purpose of seeing if he could purchase controlled substances while operating in an undercover capacity, he did not make purchases in the bar proper. Officer Nash did make a purchase outside the licensed premises approximately four (4) feet from the door and this purchase was made around 2:40 A.M. The purchase was made from a man who had individual marijuana cigarettes and who sold Nash five marijuana cigarettes, which were controlled substances. Officers Nash and Williams went to the licensed premises in the early morning hours of January 28, 1981, for purposes of attempting to purchase narcotics while operating in an undercover capacity. At that time, they were unsuccessful in making those purchases. The officers returned to the licensed premises in the evening hours of January 28, 1981, at around 9:30 P.M. When they approached the front door of the licensed premises, a man who was approximately four (4) feet from the front door, stated that he had "joints" for sale for a dollar. This meant marijuana cigarettes for $1.00 each. Two other people were standing with this individual when the officers approached. The officers purchased five marijuana cigarettes from the man for the price of $5.00. The marijuana was a controlled substance. Once the officers went inside, on the evening of January 28, 1981, and while at the bar proper, a man approached Officer Williams and said that he had marijuana for sale. Officer Williams purchased ten marijuana cigarettes, a controlled substance, for a price of 10.00, which the man extracted from a clear plastic bag. Part of this transaction occurred at the level above the bar. At that time, a woman was behind the bar serving as bartender. No uniformed security guards were seen on this visit. During all of the transactions that took place in the licensed premises involving Officers Nash and Williams, no covert acts were taken on the part of the sellers to keep employees of the licensee from seeing those activities. No employees of the licensee took part in any of the sales either in the licensed premises or immediately outside the building. On all occasions, the bar was crowded and noisy. The two officers did not observe other sales of narcotics being made while in the licensed premises and while there on January 28, 1981, in the early morning hours, they were asked to move away from the door and this request was made by a security guard. The officers never made purchases from the same individual twice. On January 21, 1981, Beverage Officers Redis Thompson and Eddie Alford went to the licensed premises. They arrived at approximately 11:30 P.M., entered the building and sat at the bar in the center portion. Three men were at the southern extreme of the bar smoking and one of those individuals left the group and approached Officer Thompson. At that juncture, the man asked Thompson if he wanted to buy some "smoke." This meant marijuana. Thompson asked him what he had and the individual took out a cellophane packet containing marijuana cigarettes. Thompson asked him how much they cost and the individual replied that it was one dollar. At that point, Thompson purchased twenty (20) marijuana cigarettes, a controlled substance for a price of twenty dollars. In the early morning hours of January 22, 1981, while at the bar, the two officers were approached by an individual identified as "Larry." "Larry" indicated that he had some "good coke" and "grass." These terms referred to mean cocaine and marijuana. Thompson indicated that he would like to buy some cocaine and did purchase cocaine from the individual "Larry" for the price of $10.00. This cocaine is a controlled substance. Officer Alford also purchased cocaine on this occasion from a man identified as "Spider" who sold Alford three containers of cocaine for a price of $25.00. This cocaine is a controlled substance. The transactions with "Larry" and "Spider" took place at the bar area at a level above the bar. This same individual "Spider," consumed a portion of the cocaine by "snorting," that is, ingesting the material through his nostrils. On January 28, 1981, at around 1:00 A.M., Officers Thompson and Alford entered the licensed premises and went to the bar and took their seats. The same man identified as "Larry" came over to them and asked if they wanted some "smoke." This meant marijuana. "Larry" produced marijuana cigarettes and charged Thompson five dollars for five marijuana cigarettes, a controlled substance. On this occasion, no security guards were observed at the licensed premises by either of the officers. While the two officers were in the licensed premises on the occasions mentioned, the premises ware crowded and noisy. Employees of the licensed premises did not participate in any of the drug transactions, which took place during the visits, ranging from forty minutes to two hours. On January 29, 1981, a search was conducted on the licensed premises related to action by the Petitioner and this search did not reveal the presence of any form of narcotics. As mentioned before, the bar manager, during the time in question, was one Theodore Ferguson, Jr. In keeping with the policies of the ownership, certain signs have been posted in the licensed premises calling to the attention of the patrons the management policy against the delivery or sale of drugs, the use of drugs and the fact that management could prosecute and hold those persons liable who violated these conditions. Notwithstanding these prohibitions, one of the employees of the bar "Miss Frances" made mention to Sergeant Bates the matter of the availability of controlled substances in the licensed premises. Ferguson identified a management policy to ask people who have drugs to leave the premises and grounds around the premises and the efforts to call law enforcement to assist in this undertaking. Employees of the bar wear identification tags and there are security guards who report to Ferguson if drug violations or loitering is observed on the part of patrons. At the time of the investigation, some of the security guards had green caps with shields and green shirts and pants. Other security guards were in street clothes and this group constituted the majority of security personnel. In the past, patrons have been asked to leave for violating the prohibitions against loitering or drug usage, possession or sale and the authorities have been called. The security guards are instructed to inspect the parking lot as well as the inside of the licensed premises. Nonetheless, there were times in January, 1981, during the pendency of the investigation referred to in this matter, in which the number of desired security guards and the number to which the licensee had stipulated with the Petitioner would be provided as security, were not available. See Petitioner's Composite Exhibit No. 1. (This stipulation settled a complaint by the Petitioner against the licensee for nuisance activities at the premises, wherein patrons were suspected of using narcotics at the licensed premises, and wherein the stipulation incorporated terms of a stipulation between the Respondent's owners and the Dade County, Florida, State Attorney's Office.) The problem with having sufficient numbers of security guards was due to a high turnover. There was other difficulty related to maintaining the security guards in uniform due to removal of the uniforms by former security guards and the fact that the uniforms did not fit replacement security guards. As a result, at some point in the January, 1981, time period, Ferguson made the decision to put all security guards in street clothes, with the exception of one uniformed security guard. Ferguson, as bar manager, is routinely at the bar for a period of 12 to 14 hours a day, as much as 20, and at times has worked 30 hours straight. When he is absent from the bar, it is ordinarily between the hours of 5:00 P.M. and 11:00 P.M. Since January 29, 1981, ownership has taken steps to provide all security guards with uniforms which are constituted of shirts with the word "security" written on them. During January, 1981, Ferguson established through his testimony that the security personnel also fulfilled custodial functions in the licensed premises. Ownership of the licensed premises has left the management of the licensed premises in the period January, 1981, in the hands of Ferguson and visits by ownership to the licensed premises were infrequent and not ordinarily at a time when the bar was having its peak business cycle.
Findings Of Fact Teresa A. Collins was certified by the Criminal Justice Standards and Training Commission on April 19, 1985, and was issued Certificate No. 35-85-002- 02. On February 22, 1985, Respondent was employed by the City of Tampa Police Department as a police recruit and commenced training at the Police Academy. At this time, Respondent was considered to be a civilian employee of the police department. When Respondent applied for employment with the Tampa Police Department, a background investigation, polygraph test and physical examination including a urinalysis was done. Respondent acknowledged experimenting with marijuana in 1982 while in college. Following the background investigation and tests, Respondent was recommended as morally fit for duty as a police officer. On an evening in April 1985, Gloria Thomas observed Respondent, who she knew only by sight, sitting at a table in the rear parking lot at McDonald's with another woman. Ms. Thomas saw Respondent pass a cigarette to the other woman who held it between her thumb and forefinger while taking a puff off the cigarette. Ms. Thomas passed within five feet of the table and thought the smoke smelled like marijuana smoke. She did not see Respondent smoke the cigarette and could not definitely state the cigarette was a marijuana cigarette. At the time Respondent commenced her training at the police academy she roomed with Gina Rodriguez with whom she had formerly roomed at Florida State University. Sometime in mid February 1985, Respondent and Rodriguez had a fight during which Respondent struck Rodriguez in the face with her fist breaking her cheekbone. The date of this fight was not clear. Respondent testified it occurred in mid-February and that Rodriguez made demands on her for money for medical bills up to 21 February--the night before she was sworn-in as a police officer. The parties stipulated that Respondent was sworn in April 19, 1985, as a law enforcement officer and she entered the police academy February 22, 1985. Although not completely clear, it appears that Respondent and Rodriguez roomed together in Tampa from February 1, 1985 until the end of March, 1985. Following the fight Rodriguez threatened to see that Respondent never worked in Tampa. Gloria Thomas' observation of Respondent in the parking lot at McDonald's got back to the Tampa police by word of mouth as a rumor and an investigation was launched. On May 8, 1985, Rodriguez was interviewed by the police to inquire if Respondent smoked marijuana while she roomed with Rodriguez. At this interview Rodriguez denied Respondent ever smoked marijuana at the apartment. On May 29, 1985, Rodriguez contacted the police to give another statement about Respondent. At this interview Rodriguez told the police that she saw Respondent frequently use marijuana in late February and March 1985. At the hearing Rodriguez acknowledged making several conflicting statements about Respondent's use of marijuana but insisted that she saw Respondent smoke marijuana at least once in their apartment between February 22, 1985 and the end of March 1985, but could not identify the time of day this occurred, whether anyone else was present, or any detail at all regarding the circumstances in which this event occurred. Rodriguez also acknowledged she had threatened to "get" Respondent after the fight and they are still on unfriendly terms. These factors made her testimony less credible. Elaine Daniels, a friend of Rodriguez at the time of the fight, was interviewed by the police regarding Respondent's use of marijuana. She told the police she traveled in a car one night when Respondent had a package of marijuana with her. The exact date of this trip was not ascertained, but at the time the incidents were related to the police, Daniels was angry at Respondent for hurting her friend Rodriguez, and had been encouraged by Rodriguez to help her "get" Respondent. Daniels testified that she, herself, was stoned most of the time during this period and the only time she could definitely state she saw Respondent smoke marijuana was the end of January 1985. Daniels also testified to a party on Rodriguez's birthday, March 15, at which a marijuana joint was passed around while Respondent was present but she cannot recall Respondent taking a hit. Four women, who associated with Respondent from January through March 1985, never saw Respondent smoke marijuana during that period, but some of them had seen Respondent smoke marijuana a year or so prior to that period of time. In her testimony Respondent categorically denied smoking marijuana in April 1985 at the McDonald's parking lot and could not recall being there at that time; although she has been to this particular McDonald's on several occasions. Respondent acknowledged the "bad" fight she had with Rodriguez and that she had agreed to pay part of the medical bills resulting from that fight. However, Rodriguez never provided her with copies of bills for medical treatment. Respondent categorically denied smoking marijuana or possessing marijuana at any time subsequent to her entry into the police academy on February 22, 1985.