Findings Of Fact While a student at Southwest Florida Police Academy in April 1981, Petitioner gave Janice Kellogg a baggie containing 3.2 grams of marijuana. The only factual dispute occurred regarding the circumstances leading to Petitioner's acquisition of the marijuana and the reasons for giving the marijuana to Kellogg. Petitioner testified he found the marijuana in the road leading into a trailer space adjacent to his trailer the morning after the trailer had departed. He further testified he threw the marijuana into the cab of his pickup truck intending to turn it in to the authorities; that he was engaged in final exams and forgot about the marijuana until later in the day when a K-9 drug dog was presented and Petitioner hid the marijuana to test the dog; that after they observed the dog locate the marijuana, Kellogg asked Petitioner for the marijuana and he gave it to her; and that when he asked for it back later that day he was told she had smoked it. Kellogg's version of the events surrounding the marijuana is that after the marijuana had been produced for the drug dog, Petitioner gave her the baggie saying, "You look like a girl who likes to lay back and smoke a joint once in a while." Upon receipt of the marijuana Kellogg turned it in to police authorities and at their request attempted to get Petitioner to provide her with additional marijuana, without success. She further testified Petitioner told her he had obtained the marijuana from a suspect he had "frisked" the previous day. Petitioner worked in law enforcement in Tennessee for at least two years before moving to Florida. He has been in charge of the drug section of a police force in Tennessee but has had no special training. His experience caused him to immediately recognize the contents of the baggie as marijuana. Janice Kellogg has been involved in police work in Florida for one and one-half years and worked as a confidential informant to a narcotics squad in Michigan for five years before coming to Florida. She is certified as a law enforcement officer in Florida.
The Issue The issue is whether the Petitioner, Harvey Donley, is liable for the jeopardy assessment as set forth in the Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990.
Findings Of Fact On June 9, 1989, Petitioner sold a quantity of cocaine to a confidential informant at Albertson's Food Store on Apalachee Parkway, Tallahassee, Florida. On June 9, 1989, Petitioner drove to Albertson's Food Store, parked his car, and got into the confidential informant's vehicle. Shortly after Petitioner had entered the confidential informant's vehicle and conducted a transaction of cocaine, he was arrested. At the time of Petitioner's arrest, one plastic bag containing cocaine was recovered from the seat next to where Petitioner had been seated. A second bag of cocaine was recovered from Petitioner's shirt. After Petitioner's arrest, Petitioner told Sgt. McKissack that he got the cocaine from one Paul Dorlag. Petitioner further told Sgt. McKissack that the bag of cocaine in his shirt pocket was his "cut" of the cocaine. After Petitioner's arrest, police officers executed a search warrant at Petitioner's residence. During the search, under the search warrant, a small quantity of paraphernalia and drug residue were seized in Petitioner's home. This paraphernalia consisted of a plastic cocaine straw. Other evidence seized during the search of Petitioner's residence consisted of a cedar box containing cannabis residue and one bottle of Insitol. After his arrest, Petitioner was charged with trafficking in cocaine. Twenty-five and one-half (25.5) grams of cocaine were recovered from Petitioner's person when he was arrested. The estimated retail price of the cocaine seized from Petitioner was $100 per gram. The estimated retail value of the total amount of cocaine seized from Petitioner amounted to $2,550. The Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990, is legally valid and mathematically correct. The 50% tax according to the revised assessment is $1,275. The 25% surcharge according to the revised assessment is $637.50. The penalty of 5% per month according to the revised assessment is $95.63. Interest accrued through August 2, 1990, amounts to $238.14. The total amount of the legal assessment against Petitioner is $2,246.27. The additional interest for the period from August 2, 1990, to the date of the hearing, January 31, 1991, amounts to $114.66. Interest continues to accrue until the assessment is paid. The total assessment due through January 31, 1991, is $2,360.93.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order upholding the revised assessment in the amount of $2,360.93, plus additional interest as shall become due after the date of the hearing. RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 13th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2734 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Revenue 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20(1-20) and 21(16). COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Harvey Donley 4918-B Crawfordville Road Tallahassee, Florida 32304 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
The Issue Whether disciplinary action should be taken against the Respondents' respective educator's certificates upon proof of violations of Sections 231.28(1)(c), Florida Statutes [gross immorality or acts involving moral turpitude] and 231.28(1)(f), Florida Statutes [personal conduct which seriously reduces effectiveness as an employee of the school board], based upon allegations that Respondents possessed marijuana and drug paraphernalia.
Findings Of Fact Respondent Gregory J. Ramputi, Sr., held Florida educator's certificate 752393, covering Specific Learning Disabilities, which was valid through June 30, 1997. At all times material, he was employed at Forrest Heights High School in the Marion County School District. Respondent Joanna C. Ramputi, holds Florida educator's certificate 734502, covering Elementary Education, which is valid through June 30, 2000. At all times material, she was employed as a Fifth Grade Elementary School Teacher at Maplewood Elementary School in the Marion County School District. In November 1995, the Drug Task Force Headquarters in Marion County received a 50-pound package of marijuana from law enforcement officials in California. The package of marijuana was originally sent by Federal Express and addressed to the Ramputis' home address in Ocala, Florida. After they intercepted the package, Marion County Law Enforcement agents, in a covert operation, delivered it to the Ramputis' address on November 3, 1995. The Ramputis have been married for 18 years and in November 1995 had lived at the same address for approximately 12 years. As of November 3, 1995, Mrs. Ramputi had been certified as a teacher for one school year, and Mr. Ramputi was in his first year of teaching. The Ramputis have three children. On November 3, 1995, Gregory was 14; Jeffrey was 9; and Marina was 7. On November 3, 1995, Mr. Ramputi and his son Gregory left the house by the front door at approximately 7:00 a.m. Respondent Joanna Ramputi left the house by the front door at approximately 8:00 a.m. Marina had spent the night at her grandmother's house and was not there when the other family members left the residence. Jeffrey was the only person remaining at home after Mrs. Ramputi left. He remained at home only a short time until picked up by a second grandmother. Agent Edgar Leedy is employed by the Marion County Sheriff's Office. He has over 14 years' experience in law enforcement and has substantial experience investigating the cultivation and sale of marijuana. Agent Leedy is familiar with marijuana and is able to recognize harvested marijuana and marijuana plants. In conducting surveillance of the Respondents' residence on the morning of November 3, 1995, Agent Leedy observed a Ford Explorer arrive at the residence, park in the garage, and wait. The Ramputis' two boys "appeared" on the Ramputis' front lawn between the surveillance car's pass-bys. Gregory had been picked up at school, and both boys were dropped off by the second grandmother. No officer observed any communication between the children and the occupants of the Ford Explorer, but they were not continuously observed. It is not clear from the surveillance officers' testimony whether any of the Explorer's occupants had an opportunity to enter the house. The occupants of the Ford Explorer accepted the 50- pound package of marijuana from a law enforcement officer posing as a Federal Express driver and left the residence within seconds after receiving the package. The Explorer was immediately stopped by Special Agent Chris Crandon, and the package of marijuana was found unopened inside the vehicle. The occupants of the Explorer, including Mark Erp, were arrested. When asked where he was living, Mr. Erp indicated an address in Ocala different than the Respondents' address. He never indicated he was residing at the Respondents' home. Mark Erp is the son of Mr. Ramputi's female cousin. He is in his early twenties. He has a criminal record for dealing illegal drugs, as does his father. The father and mother, Mr. Ramputi's cousin, are divorced. Both live in Ocala, Florida. Mr. Ramputi has assisted Mark in a quasi-parental manner in the past and was aware of Mark's and his father's criminal records. Upon approaching the Respondents' residence, Agent Leedy immediately noticed a marijuana plant growing in a pot standing by the front door in plain view. Agent Leedy and Agent Brandt secured the residence to ensure that any potential evidence was not altered while a search warrant was being procured. The front door was opened to them by one of the Respondents' sons. After a search warrant was procured, the house was searched. Mr. Ramputi was telephoned at his school shortly after lunch and was requested to return home. He returned in mid- search. Agent Leedy was present in the living room, kitchen, and master bedroom suite in the course of about an hour. He conducted a search of the kitchen area of the Respondents' home. In the kitchen, he located an old meat scale with no marijuana residue on it. He also located a platter containing rolling papers and marijuana in the cabinet above the refrigerator in the kitchen. Agent Leedy was able to identify the marijuana and paraphernalia on the platter by sight and smell, but testified that no scent of marijuana use (smoke) was anywhere in the house. The platter and its contents were consistent with what law enforcement officers understand to be a "personal use platter." Agents Leedy and Crandon noted that marijuana cigarettes/roaches (partially burned marijuana cigarettes) were located throughout the house, including the living room. Agent Crandon has been employed by the Marion County Sheriff's Office for over 16 years and has been in the field of narcotics and narcotic detection since 1990. He has substantial experience in dealing with marijuana cases and is able to detect marijuana by sight and/or smell. He assisted in searching the master bedroom suite, which included two closets, a master bedroom, and a master bath. He also was responsible for collecting, testing, and documenting all seized evidence, wherever originally located throughout the house. Another phrase for his involvement would be "collecting, bagging, and tagging." Agent Crandon located a marijuana cigarette in plain view on top of the master bedroom dresser and a "bong" in plain view sitting on the bathroom counter. A "bong" is a pipe commonly used for smoking marijuana. The bong contained marijuana residue. Also found in the master bedroom were 175 grams of marijuana in the Respondents' dresser in two separate bags. This amount of marijuana is consistent with a "stash" for sale to others in smaller amounts. Marijuana possession in excess of 20 grams constitutes a felony. Also found in the master bedroom were approximately six quarter-ounce bags of marijuana, located in the bottom drawer of the night-stand next to Respondents' bed, together with a ledger which the officers interpreted as describing transactions of drug sales. This method of packaging is consistent with amounts for individual use sales. Approximately $5,500 in cash was found underneath the bottom drawer of the same night-stand. The envelope had been laid on the floor under the bottom drawer of the night-stand and bore some mathematical computations. The top drawer of the same night-stand contained hemostats a/k/a "clips" (devices commonly used to hold marijuana cigarettes while they are smoked), together with a small amount of marijuana in a plastic bag. Mr. Ramputi's closet was on the right of a small entryway within the master bedroom suite. Mrs. Ramputi's closet was on the left of this entryway. Both closets contained the Ramputis' respective clothing. Approximately $32,000.00 in cash was found in Mr. Ramputi's closet. It was contained in two small brown paper bags which were placed inside an unlocked and unlockable white canvas draw-string bag at the bottom of the closet with clothing and Mr. Ramputi's High School Annual. There was no lock on the closet door or any way to secure it. The cash within the two small brown bags was separated into $15,000+ in one bag and $16,000+ in the other. Each bag contained several stacks of $1,000 each, secured with rubber bands. According to the officers who testified, this method of packaging cash in $1,000 stacks is consistent with the way drug dealers keep track of cash transactions. The Respondents asserted ownership of the $37,000 cash found in the master bedroom suite, but denied any knowledge of, or connection to, the marijuana. However, both Respondents conceded that they had, at all times, access to the master bedroom suite. In addition to the Respondents' cash, many of their personal belongings were located in close proximity to the marijuana in the master bedroom suite. Personal belongings and mail addressed to Joanna Ramputi under her maiden name were in the night-stand in which marijuana was located. Mail in the Respondents' names was located elsewhere in the master bedroom, together with financial documents and tax certificates. An address book with Mark Erp's name inside, giving a Marion County address, was also located in the master bedroom. Presumably, this address book belonged to the Respondents. Mr. Ramputi's steroids, in unopened glass vials, and syringes for the administration of the steroids were also located in the master bedroom. A set of electric curlers and a woman's makeup bag were on the bathroom counter next to the bong. Agent Crandon was able to identify the marijuana found in the bedroom by sight and smell. In collecting, tagging, and bagging the two amounts of cash and the marijuana-related items from the house, Agent Crandon handled all of the listed items, including marijuana roaches, clips, the outside of baggies, and the cash with its paper and canvas containers. He did not recall if he wore gloves during this procedure, but related that if he had worn gloves, he would have worn the same pair of gloves the entire time he was in the Respondents' house. He did not open the baggies and actually sift through any marijuana. Agent Crandon conducted field reagent tests upon the marijuana-related items throughout the house resulting in positive findings that the substances were, in fact, marijuana. Agent Crandon dumped the cash out of its respective containers. He counted and photographed the cash from the closet on the bed. He counted and photographed the cash from the night- stand on the floor of the master bedroom suite. He then replaced the cash in the brown paper bags and envelope respectively and bagged and tagged them separately from any marijuana-related items. Subsequent testing at the Task Force's offices revealed that latent finger prints had not been recovered or that any fingerprints recovered were of insufficient quality to make a positive identification of anyone. All packages of cash located in the Respondents' residence (the two brown bags from the canvas bag in the closet and the paper envelope under the night stand) were forwarded for testing to the Marion County Sheriff's Office K-9 (dog) Unit. At the Sheriff's Office, the seized cash was stored separately from the seized marijuana. Officer Whitman, who did not testify, purportedly placed seized cash from each of the three separate bundles in three separate bags and neutral cash from the Sheriff's Fiscal Division in three other bags. The Sheriff's Fiscal Division gets its money from banks and takes no special steps to purify or cleanse the cash. Law enforcement witnesses conceded that a great deal of cash that is in general circulation has marijuana residue on it and further conceded that it is possible, under some circumstances, for someone who has touched marijuana in the course of an investigation to leave marijuana residue on cash seized at the same time. Talon, a trained dog of the K-9 Unit working with Officer Pistarelli, alerted on all three of the bags which Officer Whitman told Officer Pistarelli contained cash seized from the Ramputis' home. The K-9 sniff-test was not conclusive of guilt, nor is it, by itself, sufficient to constitute "probable cause" to arrest the owner of the money on drug-related charges. However, Agent Crandon testified that based upon his experience and the totality of the circumstances of this case, the cash claimed by the Respondents was connected to the drugs located in their master bedroom suite. The search warrant for Respondents' home was ultimately ruled defective. The criminal arrest and prosecution records were ultimately expunged. After the criminal case(s) against them was dismissed, Respondents asserted ownership of the $37,000 in cash, and it was returned to them. At formal hearing herein, Respondents asserted that the cash was not drug-related, but had been intended by them for ongoing repair and construction in their home. Respondents maintained that from the latter part of October until November 3, 1995, they had been sleeping in the living room of their home, and their two sons, Gregory and Jeffrey, had been sleeping in the master bedroom. They asserted that Mark Erp had temporarily moved into the master bedroom with their sons 4-6 days before November 3, 1995, because he was "having trouble with his girlfriend." Mrs. Ramputi testified that she provided a roll-out bed for Mark Erp, which normally was kept in her closet within the master bedroom suite. The Ramputis acknowledged possession of the injectable prescription steroid vials and syringes in their bedroom, stating that these had last been used a year before by Mr. Ramputi's mother for Mr. Ramputi's skin condition, but they maintained they had never seen or smelled anything in their home that would indicate marijuana use or possession. They denied any knowledge of the presence of marijuana or drug paraphernalia in their home. Specifically, they asserted that the kitchen was Mrs. Ramputi's territory solely, and each denied ever looking in the kitchen cabinet above the refrigerator, wherein the "personal use" platter had been discovered. It was the Ramputis' mutual contention that at all times material, their master bathroom was under construction with torn-up floor and bad plumbing in the shower, and was unusable; that their clothing had been removed to Marina's room; that their personal toiletries had been removed to the hall bathroom; that the hall bathroom adjoining the boys' bedroom was also under construction; that the rug and a wall of the boys' bedroom had been affected by water leakage from the hall bathroom; that the rug in the boys' bathroom had been pulled up; and that the smell of mildew was noticeable in the boys' bedroom. They further contended that all six occupants of the home used the hall bathroom and that no one used the bathroom in the master bedroom suite. According to the Ramputis, they had given up their bedroom for their boys, and ultimately for Mark Erp, because they did not want to have their children sleeping in the living room in the event guests came by and so that their children could go to sleep earlier than the adults did. They contended that the television in the master bedroom did not receive objectionable programming from HBO, whereas adult HBO programs could be viewed by adults on the living room television. According to Respondents, they had slept on the living room couch for some period of time and expected to do so until repairs had been made to the hall bathroom and boys' bedroom. Purportedly, the $32,000 found in Mr. Ramputi's closet was the result of a real estate sale which had closed twenty- three months earlier on December 29, 1993. Purportedly, this amount originally had been deposited into the Respondents' joint bank account in 1993, but Mrs. Ramputi had loaned it to her brother, Sal, in cash, so as to assist him in his business. When her brother repaid Mrs. Ramputi, also in cash, she had turned the cash over to her husband, who, in order to keep his wife from loaning the money back to her brother, had hidden it in the bottom of his closet. Mr. Ramputi stated that his reason for not putting the money in a bank was because he believed his wife was more likely to take money out of their joint bank account than out of his closet and that he needed the cash on hand to pay for building permits and construction supplies and to pay contractors during the house renovation. Mr. Ramputi's explanation for the cash under the night- stand was that he had earmarked this $5,500 amount, which the couple claimed had been received in cash accumulated from parental loans and gifts, for new windows. Respondents in these types of proceedings are not required to testify against themselves, but once they elect to take the stand in their own defense, their testimony is subject to the same tests of credibility as that of any other witness. Herein, the greater weight of the credible evidence renders Respondents' denial of knowledge and possession of marijuana and their explanation for the large amounts of cash they kept in their home incredible for the following reasons. Throughout the search, Agent Leedy was, at various times, present in the living room, master bedroom, and master bathroom. He observed no type of construction occurring in the residence, including but not limited to any construction or removed flooring in the master bathroom. Deputy Brad Smith was also present during the search of the Respondents' residence. He did not see any evidence of construction or repairs inside the residence. Officer Crandon saw no construction in the master bedroom. Mr. Ramputi testified that his brother, Sam Ramputi, had done most of the construction on the home. Sam Ramputi lives in Ocala, Florida, but was not called to verify the existence of construction in the Ramputis' home on or about November 3, 1995. The Ramputis offered no building permits in evidence, although Mrs. Ramputi testified that a new roof had just been completed the week before the search and seizure. They produced no bills for the new roof. Mr. Ramputi produced no estimates for the windows they intended to add. Respondents produced no prescription to verify their testimony with regard to the use of the steroids and did not call the grandmother who allegedly administered the shots. Respondents conceded that the sofa in the living room is not a sleeper sofa. Marijuana roaches were found even in the living room, where Respondents were purportedly sleeping. Three officers testified that they did not observe blankets, pillows, or anything at all to indicate that Respondents' living room was being used as temporary sleeping quarters. Agents Crandon and Leedy, who entered the master bedroom suite, did not observe or locate any children's clothing, toys, comic books, or other items consistent with children residing in the master bedroom suite, but they did locate items consistent with access and use by the Respondents, such as makeup, mail, and clothing. No personal belongings of Mark Erp were located in the master bedroom or anywhere in the house at the time of the search. No roll-away cot was located in Mrs. Ramputi's closet or elsewhere in the house. Mr. Ramputi testified that Mark Erp confessed to him that the marijuana found in the Ramputis' home belonged to Mark Erp. Mark Erp is currently residing in Ocala, Florida. The formal hearing was held in Ocala, Florida. However, Mr. Erp was not subpoenaed to testify. Mrs. Ramputi testified that one of the grandmothers had signed a statement to verify that Mark Erp was residing in the Respondents' home at the time of the search and seizure. However, that grandmother was not called to testify nor was her statement produced at formal hearing. The grandmother's alleged inability to speak English is not a credible reason not call her. Respondents did not call their children to verify their occupancy of the master bedroom, Mark Erp's occupancy of the master bedroom, or the presence of Mark Erp in the house on November 3, 1995. Respondents offered no explanation why their sons, ages 14 and 9, would not have reported to them the presence of a bong, hemostats, and marijuana in the master bedroom suite. Mr. and Mrs. Ramputi both testified that their parents had given them cash "for windows" at the end of October 1995. The parents of each of the Respondents live in Ocala. The parents were not called to verify the Respondents' testimony on this issue. In light of the evidence as a whole, it is not credible that this family, however closely knit, were regularly and legitimately transferring multiple thousands of dollars of cash among themselves. It is likewise incredible that anyone would pay for contracting work on one's home in multiple thousands of dollars in cash. Mrs. Ramputi testified that the federal Internal Revenue Service had investigated the Respondents for 13 months, during which time it had access to all Respondents' financial records and all financial records of Mrs. Ramputi's brother, Sal, and that the Internal Revenue Service then sent the Respondents a letter saying that the Agency was satisfied and was closing the case. However, this alleged letter from the Internal Revenue Service was not produced at formal hearing. Respondents produced no bank records to show withdrawals by Mrs. Ramputi between the December 29, 1993, closing and the November 3, 1995, search and seizure. They produced nothing to document any loans to her brother Sal or his repayments to her. Mrs. Ramputi's brother lives in Ocala but was not called as a witness to verify the several alleged transfers of $32,000 in cash from the Respondents' joint bank account to him and back to Mrs. Ramputi. He was not called to verify the Internal Revenue Service's favorable disposition of the situation. Mr. Ramputi's explanation of why he did not return $32,000 cash into the couple's joint bank account lacks credibility. He was aware at all times that it was possible for him to open a bank account solely in his own name so as to prevent withdrawals by Mrs. Ramputi. Unlike the safety of a bank account in Mr. Ramputi's name alone, his unlocked closet was not a reasonable precaution to prevent Mrs. Ramputi from using the cash for her own purposes or to prevent theft by any visitors, most significantly, Mark Erp, if Mark Erp were indeed present. Respondents had access to and control over all areas of the house where marijuana or cash was found. Each testified that s/he had not given Mark Erp a key to the house. Respondents testified that they have had only favorable and supportive comments from all prior educator/employers, community leaders, parents, and students whom they have taught. Mrs. Ramputi has remained employed almost full time as a substitute teacher since the dismissal of the criminal charges in July 1996. Mr. Ramputi has been unable to find employment as a teacher since his arrest. However, upon the testimony of Roddy Michele and James Nowell, it is clear that if the Respondents are determined to be guilty of possession of marijuana, their effectiveness as school teachers would be seriously reduced. Although Mr. Michele emphasized that his primary concern was with notoriety through newspaper and other media coverage of the search and seizure, Respondents' arrest, and their subsequent suppression hearing, it remains a matter of law that notoriety, of itself, is not an offense upon which the Respondents' teaching certificates may be disciplined.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency enter a Final Order that: Finds Gregory J. Ramputi, Sr., not guilty of illegal possession of steroids; Finds Gregory J. Ramputi, Sr., guilty of possession of marijuana and drug paraphernalia and thus guilty of violating Sections 231.28(1)(c) and 231.28(1)(f), Florida Statutes; Prohibits Gregory J. Ramputi, Sr., from applying to renew his teaching certificate for two years; Finds Joanna C. Ramputi guilty of possession of marijuana and drug paraphernalia and thus guilty of violating Sections 231.28(1)(c) and 231.28(1)(f), Florida Statutes; and Revokes Joanna C. Ramputi's teaching certificate for two years. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 David B. Kundin, Esquire Post Office Box 430 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Dept. of Education 325 W. Gaines St., Ste. 224-E Tallahassee, FL 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact The Petitioner is an agency of the State of Florida charged under Chapter 943, Florida Statutes, and related rules, with regulating the licensure status, including determination of entitlement to licensure, of law enforcement and correctional officers in the State of Florida. The agency is also charged by the Legislature with regulating and enforcing the practice standards for certified law enforcement officers, including correctional officers, embodied in Chapter 943, Florida Statutes, and related rules. The Respondent was certified by the Criminal Justice Standards and Training Commission (Commission) on or about March 7, 1991. She was issued corrections certification number 45-90-502-11. From March of 1991 through July 31, 1992, the Respondent was employed as a corrections officer for the Taylor County Sheriff's Office. She has no criminal record and no record of administrative discipline of any sort. During the course of her training to be a corrections officer, the Respondent received classroom training in the identification of controlled substances, including cannabis (marijuana). This training included the viewing of actual cannabis in the classroom but did not include training in recognizing it as a growing plant in the field. Charles R. "Chuck" Morgan is an employee of the Perry Lumber Company. On or about July 29, 1992, and until sometime in February of 1995, he was employed by the Taylor County Sheriff's Office. Danny Williams is an investigator with the Taylor County Sheriff's Office and has been employed in that capacity since January of 1990. Investigator Williams has had training in the aerial detection, and other means of identification, of marijuana. He participates in four to eight flights per year in aircraft searching for marijuana plants, essentially in rural areas of Taylor County. On July 29, 1992, Investigator Williams was the passenger in a helicopter, provided to the Taylor County Sheriff's Office by an unknown agency, participating in an aerial search for marijuana plants. During this search, he noticed what appeared to be marijuana plants growing in or adjacent to the backyard of a residence which proved to be the Respondent's residence. Investigator Williams, upon being landed at the airport, entered his patrol vehicle and drove to the residence of the Respondent and her husband, James Byrd. On route to that location, Investigator Williams, presumably by radio communication, summoned other law enforcement officers of the Taylor County Sheriff's Office. He was, therefore, met at the front gate of the residence premises in question by Captain Worsham and Sheriff Deputy Chuck Morgan and others. The front gate was on the portion of the premises immediately adjacent to the public thoroughfare by which the premises are normally entered by vehicles. The residence premises contained a wood-frame house on a well- landscaped yard of a fairly-open character with few or no trees. The rearward portion of the premises, analogous to the "backyard", was that portion of the premises most distant from the public highway (toward which the house faces). It is observable by an observer looking in the opposite direction or away from the public highway upon which the premises fronts. In this rearward portion of the premises, in a rearward corner of the backyard, there was a dog pen, located approximately 75-100 feet from the northwest corner of the rear portion of the house. Investigator Williams and Deputy Morgan observed an individual, who proved to be James Byrd, the Respondent's husband, recognized by Investigator Williams, standing behind the dog pen. They observed him in that location attempting to cut down several plants which were growing there. Deputy Morgan stopped Mr. Byrd from cutting any other plants and removed him from the immediate area. He was ultimately taken into custody that day. The plants he was attempting to cut down proved to be cannabis plants. Investigator Williams and Deputy Morgan observed 13 cannabis plants growing in that location behind the dog pen. Most of the plants were approximately 10-12 feet tall. Investigator Williams took samples from the grown plants, and a laboratory analysis proved the plants to be cannabis and that the samples taken totaled 27.3 grams of cannabis. The cannabis plants were in plain view from the residence. They were tall enough to be observed over the top of the dog pen, which lay between the back wall and back door of the residence, the site where the plants were growing and immediately adjacent to it. Deputy Morgan described the area where the cannabis was located as being in a clear, open area with grass but no high weeds which would conceal the cannabis from the plain view from the rear portion of the residence. Investigator Williams has received some training in the growth rate of cannabis plants so that he could make a somewhat educated estimate of the age of the plants found behind the dog pen. He estimates that they could have grown to a height of 10-12 feet in approximately 60 days, depending upon climatic conditions, care and maintenance, and the amount of fertilization they received. The mature plants, as well as the small plants, discovered growing adjacent to the dog pen, would in Investigator Williams' experience, produce something in excess of 13 pounds of cannabis leaf. Investigator Williams and Deputy Morgan also observed a bucket and flowerpot in the backyard containing several smaller cannabis plants. These containers and plants were in plain sight from the rear portion of the residence. Deputy Morgan escorted Mr. Byrd to the residence and obtained his consent to search it for cannabis. Deputy Morgan, with Mr. Byrd's cooperation, discovered a partially-smoked cannabis cigarette in a desk drawer in the family room of the residence and also found rolling papers and marijuana-smoking paraphernalia in the desk, as well. Deputy Morgan then proceeded to the bedroom shared by Mr. Byrd and his wife, the Respondent. In the bedroom closet, he located approximately one-half pound of marijuana in a grocery bag on the floor in the middle of the closet. In the closet were both male and female clothing, with each spouse having a designated side of the closet for their personal clothing and other items. The middle of the closet contained a filing cabinet, which was for the Respondent's use. A laboratory analysis determined that the bag found on the closet floor contained approximately 118 grams of cannabis. Mr. Byrd admitted to Investigator Williams and Deputy Morgan that the cannabis found belonged to him and that smoking cannabis was a bad habit he acquired during his service in the Vietnam War. He stated to them that he grew the cannabis for personal consumption and was not engaged in the sale or distribution of it. He stated that he smoked cannabis but that his wife, the Respondent, did not. He never stated to law enforcement officers that the Respondent had knowledge of the cannabis in the residence and on the surrounding curtilage. The Respondent was not present at the residence that day when the officers seized the cannabis and arrested Mr. Byrd. She was at Moody Air Force Base in Valdosta, Georgia, at the time and only learned of her husband's arrest and the incident when she returned late that afternoon. She learned of it from her father or daughter, who also resided on the premises. There is a separate mobile-home residence on the same parcel of property as the house in which the Respondent and her husband reside. Although the officers, on the day in question, interviewed Mr. Moore, the Respondent's father, who resided in the mobile home, they never questioned the Respondent and charged no one other than James Byrd. The Respondent was terminated from her position with the sheriff's office on approximately July 31, 1992 because of the above-described incident. After her termination from her job with the sheriff's office, the charges against her husband, James Byrd, were "nol prossed". The Respondent and Mr. Byrd have been married for approximately 35 years. They have resided in Taylor County since November 1, 1979 and have resided in the same residence where the cannabis was found and shared the bedroom and closet where some of it was found since that time, including on and around the date in question. The Respondent was not a record title holder of the premises on which the cannabis was found but considered herself as having a practical ownership interest in the residence. Despite his statement to law enforcement authorities that he had had the habit of smoking cannabis since returning from the Vietnam War, the Respondent denied knowledge of her husband's cannabis habit. Although they had been married for 35 years and resided in the same residence, including at the times when the marijuana in question was placed in the residence and grown in the backyard of the residence, the Respondent maintains that she had no knowledge of its presence on the premises. She maintains that she had no knowledge of her husband's cultivation and use of marijuana. Neither the Respondent's husband nor any other witness testified in corroboration of the Respondent's denial of knowledge of the presence of cannabis on the subject premises. Although, as the Respondent stated, Mr. Byrd commonly cared for the dogs which are normally kept in the dog pen, and the Respondent seldom went to that vicinity of the backyard, the marijuana plants growing adjacent to the dog pen were in plain view from the rear portion of the house itself. The Respondent's testimony is the sole testimony that is exculpatory. She is an "interested witness" testifying on her own behalf, in a proceeding where she can potentially lose the valuable right to practice her livelihood. In consideration of the totality of the evidentiary circumstances and the demeanor of the witnesses, it is found that, indeed, she knew of the presence of the growing marijuana on the premises and the marijuana which was found inside the residence. It simply strains credulity beyond acceptance that she could live with her husband in the same residence, in the same bedroom and use the same closet for a substantial period of years and not know of the marijuana smoking habit he freely admitted to and his activities involved in growing marijuana in plain sight on their marital premises. In addition to the Respondent having no record of any criminal or administrative offense, the above-found misconduct was not facilitated by the Respondent's official authority nor did it occur while she was performing her duties. There was no damage or danger caused to others by her conduct. The Respondent gained no pecuniary benefit from the misconduct and its effects, through penalties, can obviously damage her livelihood, which is already the case. Finally, her employing agency has already imposed the discipline of termination approximately three and one-half years ago. Rule 11B-27.005(6)(a- v), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that her certification be suspended for one year, with one additional year of probation, as well as such career development training or re-training as the Commission shall deem appropriate. DONE AND ENTERED this 29th day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3844 Petitioner's Proposed Findings of Fact 1-20. Accepted. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert J. Schramm, Esquire Post Office Box 29 Perry, Florida 32347-0029 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement O. Box 1489 Tallahassee, Florida 32302
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.
Findings Of Fact The Respondent was a public school teacher employed by the Washington County School Board under a continuing contract of employment at the time of the events referred to in the Petition for Dismissal. He remained on continuing contract status as a teacher at the Roulhac Middle School until his suspension on November 7, 1983. On the morning of April 5, 1982, William Poole, Chief of Police for the City of Bonifay, responded to a confidential informant's report of suspected marijuana plants growing on property located at 312 Caldwell Avenue, Bonifay, Florida. Chief Poole went to that location accompanied by Assistant Chief of Police Ike Gardner. When he arrived at the scene in the rear of the house located at that address and across the back fence marking the rear boundary of the property, the Chief looked over or through the fence on the rear boundary of the property and observed what he believed to be ten to twelve marijuana plants growing in a garden along the back fence. The house was owned at the time by the Respondent's Mother, Lavada Forehand, who was living in the house with the Respondent at the time the suspected marijuana plants were discovered. Chief Poole took photographs of the property, the garden and the suspected marijuana plants at that time, which were admitted into evidence as Petitioner's Exhibit 1. An investigation was initiated and in the early morning hours of April 7, 1982, Chief Poole again observed the suspected marijuana plants in the Respondent's garden. Later that day the Chief received a call from a confidential informant to the effect that the Respondent was, at that time, in the garden. Chief Poole proceeded to a residence on adjacent property and viewed the garden, and at approximately 4:00 p.m. that afternoon observed the Respondent watering plants in the garden for approximately 20 minutes. The officers were equipped with a camera with a telephoto lens at the time, and took photographs of the Respondent watering his garden, which were offered and admitted into evidence as Petitioner's Exhibit 2. Based upon his personal observations and the photographs which he obtained, Chief Poole proceeded to the State Attorney's office where he was assisted in the preparation of a search warrant for the subject property, which was duly issued by the Court. That evening of April 7, 1982, the two officers proceeded to the Caldwell Avenue residence owned by Respondent's mother, where the Respondent resided, and served the search warrant. When they arrived the Respondent was present with his mother and another lady with several children. The officers served the search warrant and thereupon went to the garden area which they had earlier observed and found it "standing in water." The suspected marijuana plants which they had previously observed were no longer present, and no traces of marijuana could be found in the house or on the grounds. At the time the premises were searched, and at the time the officers observed the Respondent watering the garden, the Respondent resided at the premises in question with his mother and by his own admission had resided there for approximately the last three weeks prior to April 7, 1982. In addition to the Respondent and his mother residing at the premises, various friends and relatives and other persons had access to the premises and visited there from time to time. Other persons have lived there or been invited there from time to time and his mother had problems during 1982 with trespassers on her property and has complained to the Bonifay Police Department regarding trespassers. Respondent acknowledges that he maintained the garden on the site growing tomatoes, bell pepper and other large and small vegetables including "a couple of hills of squash" and broccoli. On the day in question he was watering tomato plants according to his testimony. The Respondent has a nephew who sometimes resides with Respondent's mother and so do other young persons. The Respondent maintained he did not plant the marijuana plants and does not know who did plant them. In fact it has not been established that the Respondent planted the marijuana plants. The Respondent knows the neighbors who own the property and live adjoining his mother with the exception of neighbors who lived in the house from which the officers conducted the surveillance and from which the photographs were taken, who moved in and out quickly so that the Respondent did not become acquainted with them. The Respondent is active in his teacher's union and has incurred an increasingly hostile relationship with Superintendent Adams since 1981 when the Superintendent ordered interscholastic sports terminated at Roulhac Middle School where the Respondent coached as well as taught Civics. The Respondent conducted a campaign to reinstate athletics at the school at the behest of many of the parents of students at the school, and in the course of this campaign engendered a relationship of animosity with Superintendent Adams. The Respondent maintains that he cannot identify the plants depicted in the photos considered by the officers to be marijuana plants. He once smoked marijuana 14 years ago when in college but has not smoked it since and once taught a drug abuse course for the Northwest Florida Drug Abuse Council. He agrees with Superintendent Adams' view that a teacher using drugs should be dismissed but he denies doing so since becoming a teacher. Although it was established that the Respondent was likely capable of identifying marijuana by sight in view of his prior experience with the drug education course, it was not established that in fact he knew the marijuana was in the garden on his mother's property, nor was it established that he had sole access to or control of his mother's property, including the house and surrounding grounds, and particularly, the garden in question. Chief Poole had no doubt that the plants he observed, and which were photographed and are depicted in Petitioner's Exhibit 1, were marijuana plants. The Chief could not establish however, that the plants that Forehand was observed and photographed watering were actually marijuana plants as opposed to tomatoes, bell peppers, squash or some other vegetable which were present in the garden. Both Chief Poole and Agent William Fisher of the Florida Department of Law Enforcement are trained to make visual identification of marijuana. Chief Poole, however, is not trained to make a chemical analysis in identification of controlled substances, including marijuana, nor is he trained to give a positive identification of marijuana based upon other forms of testing, aside from visual identification. Agent William Fisher is very familiar with marijuana and testified that the plants depicted in Exhibit 1 "appeared" to be marijuana. Agent Fisher was shown the photographs of the plants the Respondent was watering but could not identify that the plants he was watering were actually marijuana. Agent Fisher testified that there was a "strong probability" that the plants depicted in Petitioner's Exhibit 1 were marijuana plants but added that he was not trained to make a positive identification of marijuana plants and did not consider himself qualified to do so. He was unable to perform any sort of "presumptive test" as for instance, by smell or taste or touch, because he was only shown a photograph of the plants in question. Chief Poole has had 11 years of law enforcement experience and attended numerous classes concerning drug enforcement and drug identification, and has served as a drug-handler for a "drug dog." In his years of law enforcement experience he has sent numerous samples of suspected marijuana to the FDLE Crime Lab in Tallahassee and Pensacola, and none of his samples have ever been confirmed as anything other than marijuana. Chief Poole, however, did not succeed in obtaining the plants he observed growing in the subject garden upon his search of the premises, however, because they had "disappeared." Thus, no chemical or other positive identification test has been performed on anymarijuana seized on the premises in question, because none was seized at all. The officers performing the search did not know whether other people might have access to the house and garden in question, and Chief Poole admitted he did not know who else might have access to the garden. The Respondent called five "character witnesses" (four teachers and one parent) each of whom had had acquaintance with the Respondent for a substantial period of time and had knowledge of his reputation in the community for truth and veracity. The Respondent has a reputation for being truthful. The Respondent has never before been subjected to disciplinary action during his career as a teacher.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint filed by the Petitioner herein should be DISMISSED and the Respondent should be reinstated with full back pay from the date he was suspended without pay. DONE and ENTERED this 18th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF, 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 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Charles Adams, Superintendent of Schools Washington County School Board 206 North Third Street Chipley, Florida 32428
Findings Of Fact At all times pertinent to the allegations and issues herein, Respondent was the holder of 2 COP alcoholic beverage license number 66-89, held since 1952, for his premises known as Eddie's Drive In, located at 1907 Avenue D., Ft. Pierce, Florida. Mr. Asbury has operated his establishment at that location under the above license since 1952 with only three former infractions of a very minor nature. In 1959, he was warned for a failure to have the fingerprints of an employee on file. In 1963 he was given a 15-day suspension when a minor was found in possession of whiskey as opposed to beer on his premises. In 1965 he was again given a 15-day suspension and, in addition, a $200.00 fine because gambling tickets were found in the premises. Until the instant case, these were the only derogatory incidents in Respondent's file. Respondent has been known to be very cooperative with the authorities and has always quickly corrected violations brought to his attention. In the latter part of 1982, based on a complaint from the Ft. Pierce police Department of numerous narcotics in the Avenue D area, Petitioner conducted an undercover investigation of several establishments in the area including that of the Respondent. Pursuant to that investigation, Beverage Officer Thompson, five year veteran with DABT, who has been given the normal police training in narcotics detection and identification as well as having attended various schools conducted by the U.S. Drug Enforcement Agency, and who, based on this education and his experience in the field, is quite familiar with marijuana and its various forms and methods of use, in the company of another beverage investigator, Hamilton, on September 17, 1982, entered Respondent's premises at approximately 9:30 P.M. and observed both Respondent and his bar maid, Lois, on the premises. He took a seat at the bar across from Respondent and several feet off to the side of Lois. He saw Lois pull a cigarette from beneath the bar and start to smoke it. From the way she handled the cigarette and from the way it looked and smelled, he felt it was marijuana. While Lois was smoking this cigarette, she made no effort to hide it and was in full view of the Respondent all the time. Thompson saw Respondent look over in her direction while she was doing it but made no issue of it or even acknowledged it. Though there were other patrons in the bar at the time, Thompson saw nothing else that looked like marijuana use to him that evening. The following evening, September 18, both agents again entered the establishment and sat at the bar. This time the bar maid was Laverne. Thompson also saw a black female identified as Devonza at the counter with whom both he and the other investigator had a brief conversation. Later, Thompson saw another black female identified as Dot (Dorothy Battle), seated across the bar from Laverne, pull out and start smoking a cigarette he thought was marijuana. He also saw Dot pull small manila colored packages from a small pouch she carried and sell them for $5.00. These bags were similar in appearance to what he knew from his experience to be "nickle bags" of marijuana. He also saw Laverne smoking that evening and from the way she held the cigarette and from its odor and the way it was rolled and burning, he concluded it was marijuana. At this particular time, she was on duty behind the bar, but Respondent was not on the premises. No samples of the substance in question were taken either night. Both investigators went back to the premises on September 22 at about 8:30 P.M. There were few patrons in the bar at the time. Thompson went to the bar and sat talking to Laverne who was on duty. When Dot came up and sat at the bar, he asked her if she had any $5.00 bags and she said she did. She pulled out a small manila bag like he had seen her sell on September 18 and made no effort to hide the transaction. She made the transfer to him above the level of the bar. Thompson does not know if Laverne saw the sale or not, but Respondent was not on the premises at the time. The substance he purchased that night was later properly identified as marijuana. When he went back at about 10:00 P.M. on September 23, Thompson saw 10 or more patrons in the bar. He sat down at the bar across from Respondent and asked him if he knew where he could buy some "snow." Respondent indicated he did not, but that there was some around. Respondent's recollection of this conversation differs from that of Thompson. He says he thought Thompson was asking for snow, which is the nickname of a known drug dealer named Coleman, and he said he did hot know where he was but that he was around. Under either interpretation of the conversation, the result is the same. Thompson asked a question and got no assistance from Respondent's answer. There is nothing incriminating either in knowing that "snow" is available in the area (from all reports, drug use is rampant in this area), or in knowing that a known drug dealer, Snow, is around. Thompson had also been in the bar earlier in the day, about 3:00 P.M., when he saw both Laverne and Dot inside. After sitting at the bar for a while, he walked over to the video area where he saw black males rolling and smoking what he took to be marijuana cigarettes in a remote area of the club. While talking with Laverne at the bar, he saw her pass an empty 1/2 of a cardboard beer box to three black males sitting at a table. He saw these males use this box to hold large amounts of what appeared to be raw marijuana from which they were making small manila packages of the substances which they subsequently put into a brown paper bag under the table. During this same time, he saw Laverne smoking what he suspected to be a marijuana cigarette. At about 9:15 P.M. on October 8, Thompson again went back to the club and saw Laverne when he sat at the bar. Another black female, identified as Wanda, came to the bar and offered to sell him marijuana. She pulled out a small package of purported marijuana and laid it on the bar, offering to sell it for $5.00. She also offered to sell him a somewhat larger bag for $6.00. At this point, Thompson gave Laverne a $20.00 bill and asked for change which she gave him. She was standing right there and made no effort at all to stop this sale of marijuana. In fact, Thompson had asked her if Wanda's stuff was any good and she replied it was. While at the club that evening, he also saw other black males and females smoking what to him appeared to be marijuana at a remote area of the bar counter. He formed the opinion it was marijuana because of how the cigarettes were rolled, smoked, and passed around and from the distinctive smell it has. On October 9, 1982, Thompson again went into the place, this time with Hamilton. On this occasion, Laverne was on duty and he sat at the bar and propositioned her to buy him some marijuana. She said she had none then because she had smoked it all, and so he was unable to make a buy that evening, but he saw, while in there, other patrons at the bar and in the area smoking what he is convinced was marijuana. Again, he formed that opinion because of the way the substance was being smoked and handled. Thompson did not get back to Respondent's place until October 15, 1982, when he again went in with Hamilton. On this evening, Respondent was there and he could smell the heavy distinctive odor of marijuana in the premises. Thompson sat at the bar across from Respondent and observed a group of black males at a nearby table. While he was watching, he saw one black male inhale a large quantity of smoke and blow it into the nostrils of the other people at the table. When he saw this, he mentioned it to the Respondent who looked over and acknowledged it but made no effort to stop it or get these patrons out of his place. On this same occasion, the bar maid, Brenda, was smoking what appeared to be marijuana after Respondent left and Thompson was able to purchase marijuana from Dot, at the bar and in front of Brenda, who also made no effort to stop the transfer. Brenda also made no effort to stop other patrons who were rolling and smoking what he believed to be marijuana cigarettes right at the bar. Also on this same evening, Thompson observed Hamilton purchase what was subsequently identified as marijuana from Dot near the video games. The next afternoon, on October 16, 1982, at about 2:30 P.M., Thompson again went into the Respondent's establishment with Hamilton and sat at the bar. At this time, he saw the rolling and smoking of suspected marijuana cigarettes at nearby tables and at the bar by unidentified black males. The smell and packaging of the substance is what convinced him it was marijuana. Neither agent was in Respondent's establishment again until December 18, 1982, when both went in about 8:30 P.M. They sat at the bar where, on this evening, Beverly was the bar maid. While sitting there, Thompson saw various individuals smoking marijuana at different places on the premises and observed that Beverly made no effort to stop it. In fact, from the odor, the method of burning, and the way she smoked, he was convinced she was smoking it herself. Dorothy Lee Battle (Dot) denies ever having met Thompson before this hearing and indicates he is lying when he says he bought marijuana from her at Respondent's establishment. She admits that she was arrested for the sale and delivery of marijuana outside Respondent's place but absolutely denies ever having sold or transferred inside. Even though she refused to cooperate with the authorities who wanted to prosecute Respondent, she was placed on three years probation after being confined for almost 3 1/2 months. She indicates she has known the Respondent since she was a kid and knows that he is definitely opposed to the use of drugs and will not permit it to be sold in his establishment. In fact, he has told her that she was not to bring any marijuana into his place and if she had any he would call the police. She knows that Respondent is quite concerned about losing his license because she believes this is the only business he has. Because of that, there are a lot of signs warning against the smoking or selling of marijuana in there but notwithstanding, she has seen people smoking marijuana inside the bar. However, his patrons respect him and any marijuana smoking is done only when Respondent is not there and never when he is. These signs have also been seen by Mr. Daniel Cribbs, the supplier of Respondent's vending machines, whose family has dealt with him for 30 years or so. Mr. Cribbs has been in Respondent's establishment every two weeks for a long while and has seen these signs prohibiting the use of selling of marijuana up and down for several months or so. He gave no indication as to whether they were there two years or so ago when the incidents in question were alleged to have taken place. In any case, he has spoken with Respondent about marijuana in the past and recalls that Respondent has stated that he doesn't want it in there. These signs were also seen from time to time by Gary Coleman who, by deposition, indicated that they are the normal signs placed in all establishments where beer is sold. Coleman indicates he has also heard Respondent telling people who were smoking pot to leave his place. Coleman denies every smoking marijuana in Respondent's place or, for that matter ever doing anything unlawful there. He has lived in Ft. Pierce for about eight years and in all that time has only been in there about a dozen times or so. He is, however, by his own admission, on probation for selling narcotics. Therefore, neither his testimony or that of Ms. Battle are particularly credible and both Thompson and Young, who conducted the close out investigation of Respondent's premises indicate that on the times they were in there, neither ever saw any signs warning against the sale or smoking of marijuana. It is, therefore, most likely, that if any signs were posted, they were put up long after the incidents in question and were not there prior to official interest being shown. Respondent denies that Thompson ever saw Lois smoke marijuana in his premises. He also indicates that he discharged Laverne by telling her she need not come to work any more when he found out she was doing drugs. He contends he never had any idea people were doing drugs in his establishment. He has, he says, always been against that sort of conduct and has repeatedly told his employees to call either the police or him if they saw people smoking marijuana on his property. He has, on at least one occasion prior to the incidents in question here, called the police on people smoking marijuana in his bar. There is, he contends, only so much one can do about the problem short of that. Even on the occasion he called the police and they came and took the offenders outside, they were not arrested and, as he understood it, even after requesting the police to make these people stay out of his place, the police did not even take their names. Mr. Asbury had a schedule for his routine at the time these alleged incidents took place which had him arriving at his place about 6:00 P.M. to check out the bartender on duty and check the money. This took about 30 minutes. He would then leave and come back between 9:00 and 9:30 P.M. to check for a while, after which he would again leave and come back at 11:00 P.M. and stay for the rest of the evening. This would be his routine just about every night of the week. He has no knowledge of the things that are alleged to have taken place when he was there. As to the shot gunning incident (the blowing of the marijuana smoke into the others' nostrils) that Thompson said he observed, Respondent denies it ever happened. Respondent tries to hire only people he knows and trusts. He pays them in cash and keeps no employment records. During the period in question, he states he had two employees. One was named Vernel (he does not knew anyone named Laverne) and the other was named Lois. Since the incidents in question, Respondent checks on his establishment much more than he did before. He has added a new afternoon visit to his schedule and has hired new girls to tend bar. While prior to this time, no one ever warned him of the problems he was apparently having, even now he still has problems with people smoking marijuana in the place. When he learns of it, he tells them to get out and he is quite satisfied that law enforcement officials have not seen much selling and smoking of marijuana in his place recently.
Findings Of Fact On January 8, 1980, Johnny L. and Robert J. Mims held license No. 27-75 2COP for the Libra Lounge at 2409 Palafox Street in Pensacola, Florida. Larry Stevens, a beverage officer in petitioner's employ, visited the Libra Lounge in order to make a routine inspection. Accompanying him was James Loman, a deputy sheriff in the Escambia County Sheriff's Department. They arrived about half past one o'clock on the afternoon of January 8, 1980, and found the door standing open. Inside, Carlos Roncelli Mims was standing behind the bar. Carlos Roncelli Mims had spent the night of January 7, 1980, at the lounge, and had been there when Johnny L. Mims closed the place up. Also on the premises were a man and woman drinking beer, who left when Officer Stevens and Deputy Loman began questioning Carlos. Officer Stevens asked for the owner or manager and Carlos Roncelli Mims telephoned Robert Mims, who arrived about 15 minutes later. In the interim, Officer Stevens inspected the premises, and discovered a shallow cardboard box to the left of the cash register. The box was open and in plain sight. It was accessible to someone working the bar but was not accessible to the public. In the box was a clear bag of what appeared to be marijuana, a number of black capsules, and a folded piece of tinfoil, containing some white powder. In a separate room housing the pool table, there was a marijuana cigarette butt. Carlos was arrested for possession of narcotics. When Carlos left the premises, he took money with him. Later, a chemist analyzed the apparent marijuana and confirmed that the substance was cannabis. He also analyzed the contents of the foil packet and established that the powder was a small quantity of phencyclidine. Carlos Roncelli Mims, a nephew of the respondents, was born on March 5, 1962. He is employed by the Pensacola Port Authority. He had his uncles' permission to sleep on the premises of the Libra Lounge, in exchange for cleaning up and doing other chores. Carlos was never paid any money for this work. He was authorized to call the police if somebody should break in. His uncles did not authorize him to open the business himself at any time, nor was he authorized to serve beverages or handle money.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondents' license in the amount of One Hundred Dollars ($100). DONE AND ENTERED this 2d day of October, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Johnny L. and Robert J. Mims t/a Libra Lounge 2409 Palafox Street Pensacola, Florida 32501 James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether Petitioner is subject to the sales tax imposed on controlled substances by s. 212.0505, Florida Statutes, and if so, what is the appropriate tax.
Findings Of Fact On September 12, 1989, a search and destroy team assembled in Sebring, Florida, to survey Highlands County for evidence of the growing or possession of illegal drugs. The survey team consisted of a helicopter, pilot and crew chief from the Florida National Guard; and the ground crew of representatives from the Highlands County Sheriff's Office, State Highway Patrol, Fish and Game Commission, Florida Law Enforcement Officers and federal agents. The search commenced in the southwest quadrant of Highlands County with the helicopter and trained spotters flying a search pattern so as to view from the air any illegal substances being grown. On one, if not the first, leg of the search pattern, the helicopter, flying at an altitude of 500 feet, passed over the property on which Petitioner lives; and one of the observers spotted what he identified as marijuana growing near one of the outbuildings on this property. The marijuana patch was circled for both spotters as well as the pilot and crew to better see the growing marijuana. The ground party was alerted by radio of the find. They proceeded to the location and entered onto the property. There they met Petitioner, proceeded to the area where the marijuana was growing, and cut down the marijuana plants. Some 171 cut plants were counted, wrapped in bundles of approximately 10 plants each, and loaded into the back of a pickup truck. The deputies asked Petitioner if he would unlock the building next to where the marijuana plants were growing and he, knowing they could get a search warrant if necessary, unlocked the door. Inside they found some lights obtained for the purpose of growing marijuana indoors and other material listed on Exhibit 3A, all of which were confiscated. Petitioner was placed under arrest and the marijuana and other property seized was taken to the sheriff's office. The vehicle carrying the marijuana was weighed before the marijuana was unloaded and again immediately following the unloading. The difference in the weight of the vehicle with and without the marijuana was 450 pounds. Subsequent thereto, someone from either the sheriff's office or the Florida Department of Law Enforcement advised the Department of Revenue Collections and Enforcement agent in Lakeland, Florida, and the Notice of Assessment was prepared and served on Petitioner. To establish the value of the marijuana seized, the agent preparing the assessment used information received from the FDLE that the average street price in the district in which the marijuana was seized was $600 per pound in 1989. The document containing this information was admitted into evidence as Exhibit 6 after testimony was presented that each year the FDLE directs its five regional offices to submit street prices for various illegal drugs sold on the streets during that year. Exhibit 6 shows the marijuana street price at $600 per pound in the Tampa district (which includes Highlands County) as of June 7, 1989. To obtain the estimated retail price of the marijuana seized, the agent multiplied $600 per pound by 450 pounds. This price is for marijuana which has been processed and is ready for use. No evidence was submitted showing what parts of the marijuana plant are used in preparing the marijuana rolled into "joints" or smoked in a pipe. Nor was evidence presented showing how many pounds of processed and ready-to-use marijuana can be obtained from a given number of pounds of growing marijuana plants. In his testimony, Petitioner readily admitted that he had planted and cultivated the marijuana seized on September 12, 1989. He also testified that this is the first and only time he has ever attempted to grow marijuana; that he obtained the marijuana seeds and a book on how to grow marijuana from an advertisement in a magazine; that he had never sold marijuana in the past; that he had made no effort to locate a purchaser; or that he had any inkling of how to find a buyer for the plants after they were harvested or how much such plants were worth for use by marijuana users. Petitioner also testified the marijuana was planted a long distance from the nearest traveled road and from the nearest boundary of Petitioner's property; and that there was a canopy provided by trees among which he had planted the marijuana plants, and he didn't think the plants would be readily visible from the air. Petitioner's testimony that the helicopter passed over his property at tree top level, which he estimated at less than 75 feet, is rejected as being in conflict with the altimeter height provided by the helicopter pilot. In the U. S. District Court, Southern District of Florida, Petitioner pleaded guilty to possession of more than 100 marijuana plants.
Recommendation It is recommended that the assessment against Joe "Little Joe" Hatch of $270,999.02 plus interest from September 12, 1989, be dismissed. ENTERED this 26th day of March, 1990, in Tallahassee, Florida. K. N. AYERS 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 26th day of March, 1990. APPENDIX Respondent's proposed findings are generally accepted and included in the Hearing Officer's findings of fact, except the following which are rejected. 12-18. Accepted as street value of processed marijuana. 26. Last sentence rejected as contrary to the record that the charge was possession of over 100 marijuana plants. Petitioner failed to timely submit a proposed recommended order. COPIES FURNISHED: Raymond E. LaPorte, Esquire 410 Ware Boulevard, Suite 601 Tampa, FL 33619 Steve Kackley, Esquire 357 S. Orange Avenue Sebring, FL 33870 Lee R. Rohe, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, FL 32399-1050 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 =================================================================
The Issue The issues presented for resolution in this proceeding concern whether the Respondent's alcoholic beverage licensure should be subjected to disciplinary sanctions because of alleged misconduct involving the sale and use of controlled substances on a licensed premises, more specifically delineated in the Notice to Show Cause filed in this proceeding by Petitioner.
Findings Of Fact The Respondent, JIMMIE WILLIAMS, owns the club or tavern known as the "Copa Cabana", doing business at 2901 North Haynes Street, Pensacola, Florida. That establishment holds a Series 2-COP alcoholic beverage license number 27- 00239, authorizing the sale of beer and wine on the premises. The Respondent is the sole owner of the Copa Cabana. Burnett Patterson, at times pertinent hereto, during September 1988 through February 1989, was a patrol deputy with the Okaloosa County Sheriff's Department. While a deputy with that Department, he engaged in special drug investigations. During the course of this employment, he became involved in numerous undercover operations designed to curb traffic and use of controlled substances. He thus became familiar with the appearance, properties and paraphernalia associated with crack cocaine and marijuana. On September 2, 1988, he met with Law Enforcement Investigator, Paul Blackmon, of the DABT. Investigator Blackmon asked Deputy Patterson to assist in a drug investigation of the Copa Cabana. At approximately 8:00 p.m. on that date, Deputy Patterson entered the Copa Cabana licensed premises in an undercover capacity. While in the licensed premises, inside the Copa Cabana, he observed patrons of that establishment openly smoking marijuana and crack cocaine. He observed one black male patron walking around inside the licensed premises holding a piece of crack cocaine visibly in his front teeth in order to advertise it for sale. This activity was done in the presence of the licensee/Respondent, Jimmie Williams. The undercover agent further observed numerous persons selling marijuana and cocaine inside, as well as outside the licensed premises. These persons made no attempt to conceal their illegal actions. It has not been demonstrated who owned or controlled the grounds immediately outside the door of the licensed premises. On September 16, 1988, at approximately 8:15 p.m., Deputy Patterson again entered the licensed premised in an undercover capacity. Upon entering the licensed premises, he observed 15 to 20 patrons inside and observed the Respondent working at the bar. Deputy Patterson went to the restroom inside the Copa Cabana and observed two black males cutting crack cocaine into small pieces, mixing them with marijuana, and rolling the resulting material into cigarettes or "joints" for smoking. Deputy Patterson purchased one piece of crack cocaine for $20.00 from a patron known as William Barker while inside the restroom. While inside the licensed premises, Deputy Patterson observed patrons openly smoking crack cocaine and marijuana. He was approached by other patrons, who asked if he wanted to purchase controlled substances. The substance purchased was analyzed and tested positive for cocaine. On September 19, 1988, at approximately 7:40 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Upon entering, he made contact with patron, Jerry Green, who was accompanied by a patron known as "Killer." Deputy Patterson purchased one "baggie" of marijuana for $10.00 from "Killer." This transaction, along with the open smoking of marijuana, took place in the presence of the Respondent. Deputy Patterson also observed numerous controlled substance transactions taking place outside and near the entrance of the licensed premises. The substance he purchased was analyzed and proved to be marijuana. On September 24, 1988, at approximately 3:30 p.m., Deputy Patterson again entered the license's premises. He observed several patrons entering and exiting the restroom area. He entered the restroom and made contact with patron, John Butler. John Butler asked Deputy Patterson what he was looking for, and the Deputy replied "crack." Deputy Patterson was sold one piece of crack cocaine by John Butler and another unknown patron for $20.00. Deputy Patterson observed several patrons entering the restroom and purchasing crack cocaine. Jimmie Williams was inside the licensed premises during the time Deputy Patterson was present and making these observations. Deputy Patterson further observed several narcotic transactions outside the front entrance of the licensed premised. The substance purchased by Deputy Patterson was analyzed and tested as positive for the presence of cocaine. On October 8, 1988, at approximately 4:10 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Prior to entering, he was asked by several patrons loitering near the entrance of the Copa Cabana if he wanted to purchase controlled substances. Once inside the licensed premises, he entered the restroom, where he made contact with patron, Calvin Black. Deputy Patterson purchased one piece of crack cocaine from Calvin Black for $20.00. Deputy Patterson then departed the restroom and observed patrons openly smoking marijuana while playing pool. Deputy Patterson contacted patron, Terry Boutwell, by the pool table. Terry Boutwell sold Deputy Patterson one baggie of marijuana for $10.00 at that location. Upon leaving the building, Deputy Patterson was again approached by persons outside the entrance to the Copa Cabana and asked if he wanted to purchase controlled substances. During all of the aforementioned events, including the sale of marijuana and the smoking of marijuana in the vicinity of the pool table, the Respondent was inside the licensed premises. Both the substance purchased from Calvin Black and that purchased from' Terry Boutwell were subsequently analyzed and proved to be controlled substances. On January 28, 1989, at approximately 5:00 p.m, a confidential informant, Alonzo Blackman, was designated to conduct a controlled substance purchase inside the licensed premises from the licensee, Jimmie Williams. The confidential informant was given specific instructions to buy only from Williams. Prior to departing the Sheriff's Department, he was thoroughly searched. It was determined that he had no controlled substances or money on his person. He was provided with a concealed, wireless voice transmitter. He was also given $50.00 of the Sheriff's Department's money for the purpose of purchasing crack cocaine. Subsequently, the confidential informant departed the Sheriff's Department with Deputy Gwen Salter. The pair was followed and traced by Escambia County Sheriff's Deputy Mark Shaeffer. Deputy Shaeffer was equipped with a radio receiver and monitored transmissions emitted from Alonzo Blackman's transmitter. Deputy Shaeffer observed Alonzo Blackman park behind the Copa Cabana to the rear of the building on a back street and depart Deputy Salter's vehicle. He observed Alonzo Blackman walk through the wooded area behind the Copa Cabana and disappear around the side of the building, moving toward the front of the Copa Cabana building. After Alonzo Blackman was out of sight around the corner of the Copa Cabana building, Deputy Shaeffer could hear normal outdoor sounds, as well as Alonzo Blackman's footsteps through the transmitter. Shortly thereafter, he heard the sound of a juke box playing and loud voices consistent with the noises one would expect when a person entered a bar. Within two or three minutes thereafter, Deputy Schaeffer observed Alonzo Blackman come back in sight around the corner of the licensed premises and enter Deputy Salter's vehicle. Deputy Schaeffer followed the two back to the Sheriff's Department, keeping Alonzo Blackman in visual sight the entire time. When Alonzo Blackman and Deputy Salter returned to the Sheriff's Department, Alonzo Blackman presented Deputy Schaeffer with a slab of rock cocaine and no longer had the $50.00 given to him by the Sheriff's Department. Subsequently, the substance purchased was analyzed and tested positive for the presence of cocaine. The Petitioner adduced a hearsay statement from Deputy Schaeffer to the effect that Alonzo Blackman had told him that he had purchased the rock cocaine in question from the Respondent. That statement was not admitted into evidence since it was not corroborative hearsay for the purposes of Section 120.58, Florida Statutes. The hearsay statement concerning the alleged purchase from the Respondent is not corroborative of the testimony concerning the other independent events in question in this proceeding involving the sale and use of controlled substances on the licensed premises by others. The only testimony or evidence directly concerning the alleged purchase of cocaine from the Respondent was that related by confidential informant, Blackman, to Deputy Schaeffer. The only other evidence purporting to show that the Respondent sold a slab of rock cocaine was the testimony by Deputy Schaeffer revealing what he saw and heard over his radio receiver. All he saw was Alonzo Blackman passing around the side of the building aid later returning around the back corner of the building. He heard his footsteps as he passed around and presumably entered the building, judging from the change in sounds received. There was no evidence that any voices or other noises transmitted to Deputy Schaeffer's listening station consisted of the actual drug transaction and specifically that any of the voices or sounds he might have heard were those of the Respondent in conducting that transaction. Since Deputy Schaeffer's testimony, itself, does not implicate the Respondent in selling the drug, the hearsay statement of the confidential informant, Alonzo Blackman, who could not be located at the time of the hearing, cannot be admissible corroborative hearsay. Thus, it was not established that on this occasion, the slab of rock cocaine was actually purchased from the Respondent. On February 8, 1989, at approximately 5:00 p.m., Alonzo Blackman was again designated to conduct a controlled substance purchase inside the Copa Cabana from the Respondent. He was given the same specific instructions, and Deputy Schaeffer made the same visual and auditory observations as he had with regard to the alleged transaction of January 28, 989. The same factual findings apply, and are made, with regard to this transaction as were made above concerning the January 28, 1989 transaction. The alleged fact that the purchase was made from Jimmie Williams was again predicated on the hearsay statement of Blackman, which was not corroborative and was uncorroborated. It cannot be used to support a finding that the Respondent sold the cocaine in question. On February 7, 1989, at approximately 8:00 p.m., Escambia County Investigators, Tyron Wicks, Melvin Possey and J. Johnson, conducted a "routine drug sweep" of the Copa Cabana. This type of operation was a routine matter for Investigator Wicks in the six months prior to February 7, 1989. Upon entering the licensed premises, Investigator Wicks went directly to the men's restroom where he observed four patrons having a conversation while looking into a paper bag. Investigator Wicks seized the paper bag which contained nine plastic baggies of marijuana ready for distribution and charged him with possession of 20 grams of marijuana with the intent to distribute. Investigator Wicks is familiar with the smell of marijuana smoke; and during "drug sweeps" conducted in the licensed premises, estimated to be 20 or 30 such operations for the previous six months, he smelled such smoke in the licensed premises on a number of occasions. On these occasions, he had also found marijuana and crack and razor blades, as well as pipes and cans used for smoking crack, on the floor of the licensed premises. He has seen people buy drugs at the Copa Cabana while he has been present there with the Sheriff's Department Narcotics Unit during the years 1988 and 1989. Sergeant Bobby Jackson of the Narcotics Division of the Escambia County Sheriff's Department has bean a law enforcement officer for approximately 14 years. He is familiar with the smell and appearance of marijuana and crack cocaine. He has been involved in 20 to 30 raids at the licensed premises. On at least 15 occasions, officers in his party have found controlled substances. The Respondent was always present when these raids took place. On many of the raids, Sergeant Jackson smelled the odor of marijuana smoke in the licensed premises. He is certain that the Respondent was present on these occasions. During these raids, he has observed marijuana cigarette butts on the floor of the licensed premises and has often found people inside bagging marijuana. Prior to the suspension of the beverage license on February 10, 1989, Sergeant Jackson received quite a few complaints about the licensed premises; and each time he visited it, he would observe a great number of people standing around inside and outside the licensed premises. It has been quite different since the suspension of the license and the shutdown of operations at the Copa Cabana. Sergeant Jackson has received very few complaints since February 10, 1989. Sergeant Jackson, however, never received any complaints from the Respondent about drug use in the establishment. John Green is a black male, whose mother lives approximately a block from the licensed premises. He has been a friend of the Respondent for approximately 15 years. During the period of January and February of 1989, he patronized the licensed premises six days a week, every week. He would go there after work and stay until approximately 9:00 p.m. He states that he always saw the Respondent behind the bar. John Green stated that the bar was a self- service bar where patrons could get beer out of the cooler in front of the bar and pay for it at the counter. He maintained that he had never seen Deputy Patterson and that, in his opinion, marijuana smoke smells just like Kool cigarette smoke. He drinks beer every night, including the times when he patronized the Copa Cabana. He testified under oath that he had never seen anyone use drugs in the licensed premises and that on one occasion, however, he had thrown someone out of the licensed premises for using drugs. Dorothy Mouton lives approximately six miles from the Copa Cabana and works at Washington Junior High School in an administrative capacity. She knows the Respondent, who also works there as a coach. She, in the past, has stopped at the Copa Cabana to eat a snack and converse the During the period of August of 1988 to February of 1989, she went to the Copa Cabana every week. According to Ms. Mouton, the Respondent had a stool behind the bar and would get beer from the cooler for patrons who requested beer. She claimed that she was able, by her experience, to identify marijuana smoke and crack cocaine. She maintained that she never saw any drug of either sort in the licensed premises She also testified that it was her habit to depart the licensed premises every day between 6:00 p.m. and 6:30 p.m. Chris Dortch is a 27 year old black male who has known the Respondent for a long period of time. He helped the Respondent operate the Copa Cabana when he first established it. He lives approximately four blocks from the Copa Cabana. He goes to the licensed premises every day and sometimes stays until it closes. He has always observed the Respondent staying behind the bar counter while he is on duty. This witness also claimed under oath that he had never seen any cocaine or marijuana smoked in the licensed premises and had never smelled any marijuana smoke within the licensed premises. He testified that he saw police officers in the licensed premises at least ten times, but never observed any arrests. Elizabeth Freeman lives around the corner from the licensed premises and has lived there approximately four years. During the period of September of 1988 to February 10, 1989, she went to the club every day for about an hour where she would talk to Williams and play video games. She claimed that she observed Williams, on occasion, move from behind the counter into the public area of the tavern. She also testified that she has never seen any indications of drug use on the premises. Shirley Washington was in the habit of going to the club during the period of August of 1988 to February of 1989 at approximately 4:30 p.m. and generally would stay until closing, usually around 9:00 p.m. She was a member of a social group called "The Copa Cabana Queens." It was her habit, during this period of time, to drink four to five six-packs of beer each day. She is familiar with the smell of crack cocaine smoke and marijuana smoke. She testified that she had never observed any marijuana or crack cocaine within the licensed premises. She has been a friend of the Respondent for approximately 25 years. The Respondent is an instructor and coach with the Escambia County School Board. He has owned the Copa Cabana for 15 years. It is a recreation center, lounge, notion store and meeting place. He also has live entertainment and occasionally, a fashion show. His license authorizes him to sell and serve beer and wine. He is the only employee, but Ms. Washington minds the bar for him when he is temporarily away from it (in the restroom, etc.). He testified that he never observed Deputy Patterson until the day of the hearing. He testified that no drugs had ever been in the licensed premises and that he had never dealt in drugs. The testimony of Deputies Patterson and Schaeffer, Investigator Wicks, Sergeant Jackson, and Law Enforcement Investigator Ralph Kelly, to the effect that controlled substances were openly and notoriously used and sold on the premises in question, conflicts in a general sense with the testimony of Respondent's witnesses to the effect that they never saw any marijuana or crack cocaine on the premises or smelled any and so forth. This conflict in the testimony of the witnesses of the Petitioner and Respondent must be resolved by determining which are more credible. Determining the credibility of witnesses is an important and exclusive task of the fact finder Guidelines for resolving credibility issues are provided in Volume 24, Florida Jurisprudence 2nd, Sections 688-696, and grand jury instruction 2.04 on page 779 of West's Florida Criminal Laws and Rules (1989), which sets forth areas to consider in determining whether a witness is credible. Those areas include: whether the witness had an opportunity to observe and know the things about which he testifies' whether his memory seemed accurate; whether he was straight forward in his answers; whether he was interested in the result of the case at issue; whether it is consistent with other testimony and evidence adduced; and whether he has, at some different time, made an inconsistent statement from the testimony given before the court. Firstly, concerning the testimony of John Green, it can be seen that he testified to having patronized the establishment during the period of January and February of 1989 and purported never to have seen Deputy Patterson. This is not surprising since there was no testimony by the Deputy that he was in the licensed premises during those two months. Therefore, John Green would have had no opportunity to observe Deputy Patterson at the time he frequented the licensed the premises. John Green also testified that he drank beer in the licensed premises every night and, thus, could quite likely have suffered a diminution of his powers of observation as a result of drinking beer. Dorothy Mouton maintained that she went to the Copa Cabana every week during the period of August of 1988 to February of 1989. She stated that she went there between the time she got off work until 6:00 p.m. or 6:30 p.m. Her time in the licensed premises was, therefore, very limited; and everything alleged by the Petitioner's witnesses could easily have occurred without her being on the licensed premises to observe the alleged violations. Elizabeth Freeman stated that she went to the Copa Cabana for about an hour each day during the time alleged in the Notice to Show Cause. If her testimony that she saw no drugs used on the licensed premises is accepted as true that still does not resolve the problem that the amount of time that she spent on the licensed premises was quite limited. The violations testified to by the Petitioner's witnesses could have occurred during her absence from the licensed premises. Shirley Washington claimed that she was at the Copa Cabana every day from 4:30 p.m. to approximately 9:00 p.m. during the time pertinent to the charges in the Notice to Show Cause. She also testified that she would drink four to five six-packs of beer every day. That could easily diminish her powers of observation and, no doubt, did. None of the witnesses for the Respondent could describe the events of any particular day alleged in the Notice to Show Cause. Their testimony was rather of a very general nature and not date or time-specific. On the other hand, the Petitioner's witnesses were trained law enforcement officers and observers, who kept meticulous records of their participation in the events in question and who gave detailed testimony as to the time, date and circumstances of each event that took place on the licensed premises and later became the subject of the charges in the Notice to Show Cause. There is no evidence that any of the law enforcement officers were drinking or otherwise had impaired powers of observation during the pertinent times. The Respondent's witnesses' memories and resulting testimonies appeared very general at best. Concerning the issue of whether the witnesses might have some interest in how the case should be resolved, it should be pointed out that the Respondent's witnesses were all old friends of the Respondent. John Green has been a friend of the Respondent for 15 years. Dorothy Mouton is a co-worker of the Respondent's at Washington Junior High School and must be counted as a friend of the Respondent. Chris Dortch has apparently known the Respondent since he was a small child. Elizabeth Freeman has been his friend and customer for the past four years. Shirley Washington has been the Respondent's friend for 25 years. All of these people are not only friends of the Respondent, but apparently considered the Copa Cabana a sort of favorite resort or meeting place away from home and clearly wanted to continue the benefit of the close friendly relationship. The Petitioner's witnesses, on the other hand, were professional police officers, none of whom had any relationship with the Respondent or the Copa Cabana. There was no evidence that any of the officers were somehow targeting the Respondent for special prosecution efforts. It rather appears that the events which came to light, as described in their testimony and the Notice to Show Cause, were discovered through routine police operations. Further, Deputy Patterson testified concerning the issue of whether the Respondent exhibited proper diligence in supervising and maintaining surveillance over the licensed premises. He stated that when the Respondent sold' a beer, he would do so by receiving the money for the beer and then moving outside of the bar to the cooler, kept in the room near the bar, to obtain the beer and give it to the customer. The Respondent's witnesses, however, addressed this matter with differing testimony. John Green, stated that customers would get the beer themselves from the cooler and then go to the counter to pay for it. Dorothy Mouton stated that the Respondent would get the beer from the cooler himself, which required him to walk outside the area behind the bar into the area of the room, in which the bar was located, to the cooler, which would allow him to view the rear room and restroom area of the licensed premises. Chris Dortch testified that the Respondent stayed behind the counter during beer sales. Elizabeth Freeman stated that she had observed the Respondent move from behind the counter into the open area of the licensed premises in the act of getting a beer for a customer. Thus, the Respondent's witnesses' testimony as to this question was inconsistent in terms of rebutting the testimony of Deputy Patterson as to the manner in which beverages were sold by the Respondent, as that relates to the Respondent's physical position in the licensed premises and ability to see what activities transpired in the rear room, the area of the restroom entrance and the pool table. In any event, the foregoing analysis reveals that the testimony of the Petitioner's witnesses is more credible. It is concluded that that of the Respondent's witness, and the Respondent himself, show a lack of knowledge, clear memory, and consistency, at best, without reaching the question of whether any of the Respondent's witnesses deliberately falsified their testimony. Accordingly, the testimony of the Petitioner's witnesses, to the extent that it conflicts with that of the Respondent's witnesses, is accepted as more credible.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the competent, credible evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, JIMMIE WILLIAMS, d/b/a Copa Cabana, be found guilty of the offenses set forth in Counts II and III of the Notice to Show Cause. It is further recommended that Count I of the Notice to Show Cause be dismissed. It is further recommended that the alcoholic beverage license held by the Respondent be revoked and that a civil penalty of $2,000.00 be assessed against the Respondent. DONE AND ENTERED this 26th day of January, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 26th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-719 Petitioner's Proposed Findings of Fact 1.-6. Accepted. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted. Accepted. Accepted, but not as probative of any material issue presented for adjudication. 12.-16. Accepted, in that these proposed findings of fact describe the testimony of these witnesses. However, these witnesses have been determined to be not credible. 17. Accepted, to the extent that it is arc accurate description of the Respondent's testimony. Respondent's Proposed Findings of Fact 1.-4. Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not Entirely in accordance with the clear and convincing evidence. 7.-9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and hot in accordance with the clear and convincing evidence. Rejected, as not materially dispositive of the issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not, itself, materially dispositive. Rejected, as not, .in itself, materially dispositive. Accepted, in part, but the evidence in this case does not delineate the extent of the premises owned or controlled by the Respondent, and to that extent, it is rejected. Rejected, as subordinate to tide Hearing Officer's findings of fact on the subject matter and as to it's purported material import. Rejected, as to its material import in relation to the remainder of Deputy Patterson's testimony. Rejected, as contrary to the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not in accordance with the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not being an accurate reflection of the overall sense of the witnesses' testimonies. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as being contrary to the greater weight of the clear and convincing evidence. Accepted, but not, itself, dispositive of material issues presented, except to the extent that it has not been proven that the Respondent, himself, offered any drugs for sale. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not being, itself, dispositive of material issues presented. Rejected, as immaterial. Even if this is true, it does not overcome proof that the Copa Cabana club's operations constitute a nuisance. COPIES FURNISHED: Harry Hooper, Esq. Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Leo A. Thomas, Esq. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. P.O. Box 12308 Pensacola, FL 32581 Leonard Ivey, Director Department Of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000
