The Issue Whether Respondents committed the offenses described in the administrative complaint? If so, what penalties should they receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Richard Grant is the Administrator of the Department of Health and Rehabilitative Services Pharmacy Program Office. His office is responsible for the administration and enforcement of the provisions of Chapter 499, Florida Statutes, relating to drug manufacturing, drug repackaging, drug wholesaling, device manufacturing and cosmetic manufacturing. Among its responsibilities is the issuance of permits to persons and entities engaged in activities over which it has regulatory authority. Respondents do not possess such a permit issued by Grant's office. In the latter part of 1986, on the basis of a complaint received from the Department of Professional Regulation, Grant directed that an inspection be conducted of a facility operated by Respondent Arthritis Medical Center, Inc. An inspection of the facility was attempted on January 16, 1987. Respondent Pinorsky, who is the President of Arthritis Medical Center, Inc., did not allow the inspectors to enter the premises. The inspectors therefore left without conducting an inspection of the premises. Another inspection of the facility was attempted on March 13, 1987. Again Respondent Pinorsky denied the inspectors entry. Accordingly, no inspection was conducted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of December, 1989. STUART M. LERNER 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 4th day of December, 1989.
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 21, 1988, as a law enforcement officer, Certification Number 50-87-002-01, and at all time relevant, certification was active. In March of 1988, the Respondent became employed as a police officer with the Winter Haven Police Department. On two separate occasions in 1990, Lois May engaged in sexual intercourse with Officer Edgar S. Searcy. On both occasions, Officer Searcy paid May $10.00 for her services. Officer Searcy was on duty and in uniform during both of these occurrences. Colleen McCoy performed oral sex on Officer Searcy in exchange for $5.00 on one occasion in 1990. While on duty, Respondent picked up McCoy at her residence, and took her to a secluded location where she performed oral sex on him. He paid her $5.00, and drove her to a location where she could walk to nearby "crack house" and obtain drugs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989), and that Respondent's certification be REVOKED. DONE AND ENTERED this 6th day of January, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 6th day of January, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,9 Rejected as hearsay: paragraphs 6,7,8 Respondent's proposed findings of fact. Accepted in substance: none Rejected as argument or comments on the evidence: paragraphs 1, 2, 3,4 COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Steve Brady Regional Legal Advisor Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Doris Hundley Qualified Representative Edgar S. Searcy 490 East Plum Avenue Chipley, Florida 32428
Findings Of Fact At all times relevant hereto, respondent Maria I. Casas, held license number PS0014711 issued by petitioner, Department of Professional Regulation, Board of Pharmacy. When the events herein occurred, respondent was prescription department manager for Cuca Pharmacy, Inc. (Cuca) at 11048 West Flagler Street, Miami, Florida. The president and permittee of the pharmacy was Hortensia Lopez-Perez who does not hold a pharmacist license. Respondent has been licensed as a pharmacist in the State of Florida since 1975. In February, 1984 Alberto Fernandez was performing undercover operations in the Miami area for the Drug Enforcement Agency (DEA) for the purpose of enforcing federal narcotic laws. On February 17, he received information from an informant that ten kilograms of cocaine could be purchased for $21,000.00 per kilogram from two individuals named Zayas and Santos. Be was told the cocaine was stored at Cuca. Fernandez arranged a meeting with Zayas and Santos in Hialeah, but no sale was consummated since Zayas and Santos were unable to produce any cocaine. On February 25, Fernandez again received a telephone call from his informant and was told to go to Cuca and meet an individual named Jesus Avila who was interested in dealing some cocaine. There he was introduced to Avila by an undisclosed individual, and the three negotiated a sale of ten kilograms at the rear of the store. There is no evidence that Casas was aware of these negotiations or that she was even on duty at this time. In any event, Avila agreed to sell ten kilograms to Fernandez for an undisclosed price. As a good faith gesture, the two further agreed to meet at a nearby shopping center where Fernandez would display the money and Avila would show the drugs. if both parties were satisfied, the sale would be consummated at Cuca. Fernandez went to the shopping center at the designated time, but Avila never showed. Fernandez then returned to the drug store where the permittee (Lopez-Perez) told him the cocaine was on its way and not to worry. Although Casas was on duty when Fernandez met with Lopez-Perez, it is found she was not privy to the conversation as it related to a shipment of cocaine. Several hours later Fernandez received a telephone call advising that the cocaine had arrived and to return to Cuca. He did so and met with Avila and Lopez-Perez in the rear of the store. The three agreed on a sale within a few days. Again Casas was not a party to these discussions. On February 29, Fernandez received another telephone call from his informant and was told the cocaine could be purchased at Cuca around 3:00 p.m. At the designated time, Fernandez, Lopez-Perez and the informant went to the rear of the store. Casas joined them a moment later to use the restroom which was also located in the rear of the store. As Casas came out of the restroom, Lopez-Perez pulled a clear plastic bag containing a white powdery substance from a metal cabinet and gave it to Fernandez. Although Casas was in the vicinity of the transfer, it is found she did not know the nature of the transaction. This is because Casas had no reason to believe that drugs were being illicitly transferred, and she was only in the rear of the premises for a matter of moments to use the restroom. After her business was completed she returned to the front of the store. Shortly thereafter, both Casas and Lopez-Perez were arrested by federal agents for allegedly violating federal narcotic laws. The contents of the bag transferred from Lopez-Perez to Fernandez were subjected to a chemical analysis and found to contain 2.2 pounds (one kilogram) of 95 percent cocaine hydrochloride, a controlled substance and legend drug which requires a prescription to dispense. The drug was dispensed to Fernandez without a prescription. Records of Miami area drug wholesalers introduced into evidence reflected that Cuca did not order any cocaine for prescription purposes during the period from January 1, 1982 - through June 30, 1984. This was confirmed by Casas' testimony. As prescription manager it was her responsibility to maintain all drug records providing for the security of the prescription department. Lopez was convicted on August 16, 1984 on two counts of violating federal statutes. She is now appealing her conviction. Although Casas was arrested with Lopez-Perez Casas was not convicted of any crime relating to the illicit drug transactions in question. There is no evidence that Casas was involved in or knowingly condoned the illegal drug activity, or that she was negligent in supervising the licensed premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the two administrative complaints against respondent be DISMISSED, with prejudice. DONE and ORDERED this 20th day of January 1986, in Tallahassee Florida. DONALD R. ALEXANDER 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 January 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 84-1612 & 85-0968 PETITIONER: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 1. 7. Essentially covered in finding of fact 3. 8. Essentially covered in finding of fact 3. 9. Essentially covered in finding of fact 4. 10. Covered in finding of fact 5. 11. Covered in finding of fact 5. 12. Covered in finding of fact 5. 13. Covered in finding of fact 6. 14. Covered in finding of fact 6. 15. Covered in finding of fact 1. 16. Covered in finding of fact 5. 17. Covered in finding of fact 7. 18. Covered in finding of fact 1. 19. Covered in finding of fact 7. 20. Covered in finding of fact 1. COPIES FURNISHED: Bruce D. Lamb, Esquire 130 N. Monroe St. Tallahassee, FL32301 Rolando A. Amador, Esquire 799 Galiano, Suite 206 Coral Gables, Florida 33134
Findings Of Fact Respondent, Jay S. Reese, is a physician in family practice in Temple Terrace, Florida. He holds license number ME 0014119 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. Reese graduated from the Indiana University of Medicine in 1961. He became licensed in the State of Florida in March 1969 and has practiced in the Tampa area since 1972. He is on the active medical staff of the University Community Hospital in Tampa and enjoys an excellent professional reputation with his peers. He has been considered by some to be an "outstanding physician" in his field. Indeed, one of those physicians who testified against Reese in this proceeding characterized him as being a "very capable physician." Respondent has had a long and sincere interest in drug abuse problems since the late 1960s when he served in the U.S. Navy. Thereafter, he became affiliated with a drug clinic in Winter Haven, Florida, which provided assistance to drug abusers. When he moved to Tampa in 1972 he continued his efforts to fight drug abuse by serving on the Department of Health and Rehabilitative Services Advisory Council for Drug Abuse, and on the board of the Drug Abuse Comprehensive Coordinating Office (DACCO) for Tampa and Hillsborough County. He was also on the steering committee which founded the Hillsborough County Alcohol Community Treatment Services in 1979. He is in frequent contact with various law enforcement authorities and judges in Hillsborough County in association with this work. Because of his involvement with drug and alcohol abuse clinics, Reese has often taken care of patients who have had alcohol or drug addiction or habituation problems. This group of patients is considered to be the most difficult to treat. It is not uncommon for such patients to claim they lost their prescriptions, alter prescriptions, steal blank pads from a physician's office, buy and sell drugs on the streets, or to be seeing more than one physician at the same time. In view of this, few physicians are willing to assume the inherent difficulties associated with a former addict or alcoholic. Nonetheless, Reese has opened his doors to the former drug addicts and alcoholics who are in need of medical treatment because of his concern and interest in this field. In light of his longtime volunteer work in the drug abuse area, it came as a surprise to Reese when petitioner filed a lengthy administrative complaint charging him with prescribing excessive and inappropriate amounts of controlled substances to numerous patients for non-medically justified purposes and not in the course of his professional practice. 1/ This prompted the instant proceeding. As narrowed during the course of the hearing and by subsequent pleadings of petitioner, the charges involve thirteen patients treated by Reese at varying times between 1979 and 1982. Most, if not all, had a history of prior alcohol or drug addiction or habituation problems. Nonetheless, they had legitimate medical problems requiring the attention and care of a competent physician. The quantities and duration of controlled substances given to the thirteen patients are set forth in petitioner's exhibits 2-8 and 10-15 received in evidence. Nine patients received controlled substances (dilaudid, percodan, demerol, mequin and percocet) for the treatment and management of pain, three were given quaalude exclusively, and a fourth received both quaalude and sapor. The latter four patients suffered from legitimate sleeping problems which necessitated the prescriptions in question. In treating these patients, Reese acted prudently and honestly, and used his best medical judgment to select the type and amount of drug prescribed. All were given thorough physical examinations and necessary periodic follow-up checks. Those patients for whom Dr. Reese prescribed painkilling controlled substances had various ailments which inflicted pain on the patient in varying degrees of severity and duration. All medical problems were legitimate in nature, and the testimony did not establish otherwise. Dr. Reese's treatment was in accord with mainstream medical opinion that the utilization of controlled substances in the management of patient pain is appropriate. The prescription of controlled substances for various types of pain will depend on the severity of the pain and the response of the individual, among other factors. Authoritative medical literature declares that pain should be treated and should be treated early. In the absence of an alternative therapy, narcotic drugs should not necessarily be withheld from the patient. Each patient must be individually evaluated and continually evaluated during the doctor-patient relationship. The results of such treatment should be continually monitored. Because pain can be psychologically and physically debilitating, it should be brought under control as quickly as possible. To do so requires a subjective evaluation by the physician of the patient since there is no prescribed or defined procession through which a physician goes in determining the strength of pain medication. Generally, a doctor will prescribe smaller amounts of medication when first treating a patient, and once he gets to know the patient and his condition, a physician will schedule longer intervals between visits and larger quantities of drugs with more frequent refills. This is true since once a situation is under control, there is no reason to have the patient come to the office on a frequent, recurring basis. In treating pain, a drug of greater potency and potential for abuse should not be ignored in favor of a less potent drug, simply by virtue of the former drug's potential for abuse. In this regard, a physician achieves a better pain control with Schedule II medications than with Schedule III medications. The bottom line is the treating physician's medical judgment, that is, his judgment as to how severe the pain might be as he interprets it and what medication can achieve the best results. Pain control is the most difficult area to quantitate by virtue of the manner in which patients react to pain under medication. The prescription of drugs by a competent physician for the management of pain is a legitimate medical objective. The use of quaaludes for sleeping disorders was shown to be medically justified. Although some physicians do not ascribe to its use, it is nonetheless an appropriate drug for certain diagnoses, and was not shown to be inappropriate for patient numbers 5, 7, 13 and 14 as to either quantity or duration. Petitioner presented the testimony of two physicians who were accepted as experts for this proceeding. Their evaluation of the treatment given by Dr. Reese was based only upon a review of the patient records. They did not interview the patients, or meet with Dr. Reese to discuss his prescribing regimen. They had never actually seen or treated the patients. They generally concluded that Reese had not acted as a reasonably prudent physician or in accord with the level of care, skill and treatment which is recognized by a reasonably prudent physician in the Hillsborough County area. In short, they supported the relevant allegations in the administrative complaint. In contrast, experts presented by respondent painted a completely different picture and found no violations of applicable statutes, rules or standards of conduct. Indeed, they praised respondent for his willingness to treat this most difficult type of patient, and his dedication to the medical profession. It is noteworthy that the experts on both sides had minimal experience in treating patients who abuse alcohol and drugs, and in any event far less than the experience of Reese. It is a well-accepted fact in the medical community that as between two equally competent physicians, one of whom treats the patient and one of whom looks at records after the fact, the former physician will have substantially greater knowledge and "feel" of the treatment result than one merely looking at records. Given this fact, and the more persuasive testimony of respondent's experts, it is found that no deviation from the level of care, skill and treatment of the patients in question has occurred. It is further found that the drugs were in appropriate quantities and duration, were for medically justifiable purposes, and were not prescribed outside the course of Reese's medical profession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Dr. Jay S. Reese be DISMISSED with prejudice. DONE and ENTERED this 10th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of February 1984.
Findings Of Fact At all times material hereto, Respondent Alberto Calil was the owner of Farmacia La Familia, the holder of a permit to operate a pharmacy under the laws of the State of Florida, having been issued permit number 0007056. At all times material hereto, Respondent Hildelisa M. Hernandez has been licensed as a pharmacist under the laws of the State of Florida, having been issued license number 0016352. At all times material hereto, Hernandez has been the managing pharmacist at Farmacia La Familia and, specifically, has been the only pharmacist employed there. Prior to the events alleged in the Administrative Complaints filed herein, Respondent Nelson Torres had an ownership interest in Farmacia La Familia. In February 1982, he transferred his interest in the business, and his shares of stock in the corporation owning the business, to Respondent Calil. At the time of the formal hearing in this cause, Torres did not own or operate a pharmacy. The Miami office of the Department of Professional Regulation received an anonymous letter advising, essentially, that a number of pharmacies were being operated other than in compliance with the law. Georgina Auspitz, an investigator with the Department of Professional Regulation, was instructed by her supervisor to visit each of the pharmacies named in that letter to investigate the allegation. On Friday, March 26, 1982, Auspitz entered the Farmacia La Familia. After a brief conversation with Respondent Hernandez and a customer of the pharmacy, Auspitz asked Hernandez for three dollars' worth of Tranxene 3.75 mg. Hernandez went into the dispensary part of the pharmacy and returned with a manila envelope containing 15 capsules. At no time during this transaction did Auspitz present Hernandez with a prescription. On Monday, March 29, 1982, Auspitz took the envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene. On April 6, 1982, Auspitz returned to the Farmacia La Familia. She asked Manuel J. Diaz Garcia1 an employee of the pharmacy, for three dollars' worth of Tranxene 7.5 mg. Diaz went into the dispensary part of the pharmacy, had a discussion with an unidentified female, and returned to the main part of the pharmacy to wait on customers. After being advised that the order was ready, Diaz gave Auspitz a manila envelope containing 11 capsules. Auspitz paid Diaz, Diaz placed the money in the cash register, and Auspitz left the pharmacy. At no time during this transaction did Auspitz present to Diaz a prescription. Auspitz took the manila envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene. After she had made her second "buy" at Farmacia La Familia, Auspitz contacted the City of Miami Police Department to ascertain if one of its narcotics detectives would accompany her on subsequent "buys." As a result of her request, Detective Noel Rojas was assigned to accompany her. On April 8, 1982, Auspitz and Rojas went to the Farmacia La Familia. Crus Caballero, an employee of the pharmacy, approached them. Auspitz told Caballero she wanted three dollars' worth of Ativan, and Rojas told Caballero he wanted five dollars' worth of Valium 5 mg. Caballero wrote something on a scrap piece of paper and went into the dispensary portion of the pharmacy, left the piece of paper, and returned to wait on other customers. Respondent Hernandez came to the door of the dispensary area, "looked over" Auspitz and Rojas, and returned to the dispensary. A few moments later, Caballero brought two manila envelopes to where Auspitz and Rojas were waiting. Although Auspitz had ordered three dollars' worth of Ativan, Caballero only brought her two dollars' worth. After Auspitz agreed to take the smaller quantity, Caballero placed both manila envelopes into one bag, and Auspitz and Rojas paid for their purchases and left the pharmacy. At no time during this transaction did Auspitz or Rojas present Caballero with a prescription. Upon leaving the pharmacy, Auspitz and Rojas separated their purchases. Auspitz took hers to the Dade County Public Safety Department, and Rojas took his to the City of Miami Police Department. The chemical analysis performed on the six tablets purchased by Auspitz revealed the presence of the controlled substance lorazepam, the active ingredient in Ativan. The chemical analysis performed on the 23 tablets purchased by Rojas revealed the presence of the controlled substance diazepam, the active ingredient in Valium. Neither Manuel J. Diaz Garcia nor Crus Caballero is licensed as a pharmacist or registered as a pharmacy intern in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against Respondent Nelson Torres with prejudice; finding Respondents Farmacia La Familia, Alberto Calil and Hildelisa M. Hernandez guilty of each and every count in the Administrative Complaints filed against them; and revoking pharmacy permit number 0007056 issued to Respondents Farmacia La Familia and Alberto Calil, and further revoking pharmacist license number 0016352 issued to Respondent Hildelisa M. Hernandez DONE and RECOMMENDED this 5th day of April, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 5th day of April, 1983. COPIES FURNISHED: W. Douglas Moody, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Raul A. Cossio, Esquire 1900 Coral Way, Suite 404 Miami, Florida 33145 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hinton F. Bevis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 3230123
Findings Of Fact In support of petitioner's application for transfer, one Robert Shepard Pierpont completed respondent's form 710-L, "Personal Questionnaires' signing it in a blank labeled "Signature of Applicant." Mr. Pierpont would like to operate the establishment in Broward County for which the present license transfer is sought. He has invested forty thousand dollars ($40,000.00) in the proposed operation and stands ready to invest another like amount. For some 20 years Mr. Pierpont has owned and operated bars and restaurants. In August of 1976, a minor obtained something alcoholic to drink at a restaurant operated by Mr. Pierpont in Branford, Connecticut. Even though he was unaware of the events at the time, Mr. Pierpont was convicted, on November 10, 1976, of "sales to minor" in the West Haven, Connecticut, Court of Common Pleas, as a result of the incident. Mr. Pierpont has never been convicted of any other violation of any beverage law.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for transfer of license unless, within twenty days, Mr. Pierpont furnishes respondent an affidavit reciting that he is not a corporate officer of petitioner. DONE and ENTERED this 17th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John V. Russell, Esquire 312 S.E. 17th Street Ft. Lauderdale, Florida 33136 Mary Jo M. Gallay, Esquire Staff Attorney 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
The Issue The central issue in this cause is whether the Respondent is guilty of the misconduct alleged in the Amended Administrative Complaint dated January 26, 1987, and, if so, whether her certificate should be revoked.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Patricia M. Rosenfeld, was certified by the Criminal Justice Standards and Training Commission on November 11, 1981, and was issued Certificate Number 02-29462. At all times material to this cause, Respondent was employed by the Metro-Dade Police Department. During the fall of 1982, Carolyn Washington was employed as a dispatcher by the Florida City Police Department. Ms. Washington participated in the theft of some 1450 lbs. of marijuana from the evidence cellar at the Florida City Police Department. After the marijuana had been sold, Washington received a total of $20,000 (cash) as her portion of the proceeds. Alice Clanton Butler was a dispatcher for the Homestead Police Department during the fall of 1982. At all times relevant to the issue in this case, Butler shared an apartment with Respondent. References to "Wendy" or "Alex" in the transcript refer to this person. Washington confided the details of the marijuana theft to her friend, Butler. Washington was allowed to store some of the proceeds from the sale at Butler's and Respondent's apartment. During September, 1982, Washington agreed to loan Butler money. Washington gave Butler $2000 to keep and spend, and requested that Butler store an additional $8000. This money, all proceeds from the sale of the marijuana which had been stolen from the Florida City Police Department, was placed in a hope chest at Butler's apartment. Washington entrusted Butler with the money because she considered her to be a good friend. Some time later, Respondent became aware that Butler was storing money from Washington at the apartment. Washington was asked to come over, at which time she and Butler engaged in a conversation, in Respondent's presence, as to the storage of the money and its origin. On one visit to the apartment, Washington, Butler and Respondent sat at a table counting and arranging the money in stacks of $100, $50, and $20 denominations. During this incident Respondent asked Washington for a loan. This loan was to be used as part of a payment on a new car. Washington agreed to let Respondent use some of the money for the new car purchase. Respondent knew, however, prior to borrowing the money, the manner in which Washington had come by the funds. Respondent used the money borrowed from Washington to purchase a new car. This purchase was made during the month of October, 1982. Washington and Butler discussed the theft of the marijuana, as well as the identity of others who had participated in the theft, in Respondent's presence. Respondent acted as though she did not wish to become involved. The fact that one of the conspirators had purchased a Chili Shop with some of the theft proceeds was also discussed in Respondent's presence. Washington and Butler fabricated a story to explain the new found financial success Washington was having. They told Respondent, Patricia Rosenfeld (Respondent's mother), and Virginia O'Regan (a friend) that Washington had received an inheritance from her grandmother's estate. Thus, Rosenfeld and O'Regan believed the estate money to be the source for the car loan. Respondent, however, had been present during conversations wherein the true source of the funds had been disclosed. Additionally, Respondent knew the money (cash) was being stored in her apartment. Respondent did not file a police report on Butler or others involved in the theft. A memorandum filed regarding Washington alleged Washington may have been involved with cocaine. At no time did Respondent expose Washington as part of the marijuana theft group. On March 23, 1983, John Johnson, an investigator for the Dade County State Attorney's Office, subpoenaed Washington for questioning. At this session Washington admitted her involvement in the marijuana theft and named others, including Butler and Respondent. Washington explained how the thefts had been arranged and that she had stored the cash proceeds with Butler. Washington, Butler, and Virginia Ann Woodlief, a dispatcher at the Florida City Police Department who was a friend of Butler's and Respondent's, agreed to assist with the investigation regarding the Florida City marijuana theft. On several occasions they wore body bugs and attempted to engage Respondent in conversation. On one such occasion, Respondent told Woodlief that the cash could not be traced. Woodlief understood Respondent to be referring to the cash proceeds from the marijuana sale. Washington was not prosecuted for her role in the marijuana theft. Respondent was prosecuted and acquitted. On September 17, 1983, Respondent wrote a letter to the Florida Department of Law Enforcement wherein she admitted "a bad judgement (sic) call."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent's certificate number 02- 29462. DONE and RECOMMENDED this 15th day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 15th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0189 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact, paragraph 4. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact paragraph 5. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7. Accepted. Finding of Fact, paragraph 5. Accepted in material part in Finding of Fact, paragraph 6. Accepted in material part in Finding of Fact, paragraph 6. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary. Paragraph 19 is accepted. Finding of Fact paragraph 6. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car. Paragraph 22 is accepted. Finding of Fact paragraph 12. Rulings on Respondent's Proposed Findings of Fact: Accepted. Finding of Fact paragraph 2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5. Accepted. Finding of Fact paragraph 5. Accepted in material part in Finding of Fact paragraph 5. Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence. Accepted but unnecessary since true origin of funds was known to Respondent. 11 Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence. Accepted in material part in Finding of Fact paragraph 13. Rejected as contrary to weight of credible evidence. Rejected as argumentative. Rejected as argumentative. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael R. Fishman, Esquire 19700 Caribbean Boulevard Suite 240 Miami, Florida 33189 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Thomas Lietch, Respondent, is a licensed pharmacist, having been issued license number 0007613 and was so licensed at all times material hereto. On April 11, 1983, Respondent pleaded guilty in the Circuit Court in and for Pinellas County of the offenses of possession of Dextropropoxyphene and possession of a controlled substance outside its proper container. Adjudication of guilt was withheld by the court and Respondent was placed on five years probation. Following the arrest of Respondent on or about January 21, 1983 and before his trial, Petitioner investigated the incident in which Respondent had been arrested for having two Darvon tablets in his pants pocket outside the container in which they were or should have been dispensed. When questioned by the investigator regarding the origin of the Darvon Respondent replied one time that he obtained them on prescription from his doctor and on another occasion replied that he may have obtained them from the pharmacy where he works. The doctor who Lietch stated had prescribed the Darvon was contacted and reported that he may have prescribed Darvon for Respondent when he treated Respondent some time ago; but, if he did, the prescription was written no later than September 1979, more than two years before Respondent's arrest. When this evidence was presented to the Board of Pharmacy the board failed to find probable cause that the Florida Pharmacy Act, Chapter 465, Florida Statutes, was violated. Following Respondent's trial in the Circuit Court the offense here alleged was charged. Respondent presented three witnesses, one of whom owns the pharmacy where Respondent has worked for more than one year. He has had no problem with Respondent's work and considers him a good employee and a competent pharmacist. Another witness is a licensed pharmacist in Florida who opined that possession of two Darvon tablets out of the container in which they were dispensed does not affect the person's ability to practice pharmacy; however if a pharmacist had unauthorized possession of a controlled substance outside the pharmacy that would constitute a violation of the Pharmacy Act. Respondent's third witness was his probation officer who testified that Respondent has fully complied with the terms of his probation and has exceeded the number of hours of community work required by the conditions of probation.
