Findings Of Fact During the month of April in 1988, and perhaps also in March of that year, the Petitioner, Sam Anthony Ciotti, conspired with others to purchase 200 pounds of marijuana in Broward County, Florida, for $110,000.00 The conspirators intended to transport the 200 pounds of marijuana to Ohio, where they expected to sell the marijuana to others. Unbeknownst to the conspirators, the persons from whom they arranged to purchase the marijuana were detectives of the City of Fort Lauderdale Police Department. The negotiations for the sale were primarily between the detectives and a conspirator named Klenner. The basic terms of the agreement were that the detectives would deliver 200 pounds of marijuana to Klenner or to someone designated by Klenner, Klenner would then transport the marijuana to Ohio and sell it, and once he received the money for selling the marijuana, Klenner would pay $110,000.00 to one of the detectives. To secure the deal, Klenner agreed that he and the Petitioner, Ciotti, would sign a promissory note for $110,000.00 secured by a boat co-owned by Klenner and Ciotti. On April 14, 1988, one of the detectives met with the Petitioner, Ciotti, at the boat yard where the boat was. docked. During that meeting the detective confirmed with Ciotti that a promissory note would be signed for 200 pounds of marijuana and that the boat would be collateral for the promissory note. On April 15, 1988, the two detectives met with Klenner and Ciotti, at which time Klenner delivered to one of the detectives a promissory note in the amount of $110,000.00 signed by both Klenner and Ciotti. On April 19, 1988, one of the detectives spoke to Klenner and arrangements were made for the marijuana to be delivered to a third conspirator named Bradford. Later that day the two detectives met Bradford at a prearranged location. One of the detectives took possession of Bradford's motor vehicle, loaded it with 200 pounds of marijuana, and returned the motor vehicle and its cargo of marijuana to Bradford. The trunk was opened and Bradford examined the marijuana cargo. Bradford then took possession of his motor vehicle and attempted to drive away with the 200 pounds of marijuana. At that point, he was arrested. Later that same day, the detectives went to the boat yard where the boat owned by Klenner and Ciotti was docked, where they arrested Ciotti and seized the boat owned by Klenner and Ciotti. On June 8, 1989, the Department of Revenue issued a document titled Notice Of Assessment And Jeopardy Findings which assessed tax, penalties, and interest in the amount of $52,534.42 against the Petitioner, Ciotti, pursuant to Section 212.0505, Florida Statutes (1987). The factual basis for the assessment was the Petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following other unsuccessful efforts to resolve the matter, the Petitioner ultimately filed a timely petition seeking a formal hearing. At the formal hearing in this case on September 28, 1990, the Department of Revenue delivered to the Petitioner a document dated September 27, 1990, titled Revised Notice Of Assessment And Jeopardy Findings. The significant difference between the original assessment and the "revised" assessment is that in the latter document the Department seeks to recover less than in the original assessment. Specifically, the "revised" assessment contains a lower estimated retail price than on the original assessment and eliminates a fifty percent penalty that was included on the original assessment. These changes are consistent with the Department's current policies regarding the assessment of taxes, penalties, and interest. The net difference between the two assessment documents is a reduction of $18,809.39 in the amount sought by the Department. The specific amounts assessed in the "revised" assessment are as follows: Tax, $22,000.00; Penalty, $5,500,00; and Interest, $6,225.03; for a total of $33,725.03. Interest continues to accrue at the rate of $7.23 per day. The factual predicate for the "revised" assessment is the same as that of the original assessment.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department of Revenue issue a final order in this case concluding that the Petitioner, Sam Anthony Ciotti, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1987), and assessing the amount of such liability at $33,725.03, plus interest at the rate of $7.23 per day since September 28, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of February 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February 1991.
Findings Of Fact At all times material hereto, Respondent, Horace Clare, was the holder of alcohol beverage license #63-01368, series 2-COP, for the licensed premises known as Campbell's Restaurant situated at 1305 North 11th Street, Haines City, Polk County, Florida. Petitioner used an undercover agent, C.I., who was directed to attempt to purchase controlled substances from the licensed premises. On January 24, 1992, at approximately 7:35 p.m., C.I. contacted an individual to ascertain if "weed" was available to purchase at the licensed premises. Sgt. Spicer of the Haines City Police Department was assigned to insure that the confidential informant, "Snoops" was under constant eye surveillance. Spicer was given $20 by the Haines City Police Department while under the surveillance of Sgt. Spicer. Spicer searched the C.I.'s person and insured that the C.I. was not given any additional monies. The C.I. entered the licensed premises and was introduced to a woman whose nickname was "Snoops", later known as Mary Allen. The C.I. went directly to the kitchen and tendered Snoops the $20 dollar bill she was given by Spicer. Snoops went into the kitchen area and returned with a small packet of marijuana in exchange for the $20 dollar bill. The C.I. left the licensed premises and returned to the area of Officer Alexander of the Haines City Police Department. The C.I. was again searched and possessed only the marijuana which she gave to Spicer. On January 25, 1992 at approximately 7:17 p.m., the confidential informant again met with Sergeant Spicer for the purpose of making a controlled purchase of marijuana. Sergeant Spicer searched and observed the confidential informant in the same manner as she had on the evening of January 24, 1992. Spicer gave the C.I. $20.00 and watched the C.I. from her vehicle until she entered the licensed premises. The C.I. contacted Snoops, tendered her $20.00 whereupon Snoops went into the kitchen area and returned with a small packet of marijuana which she retrieved from her purse. Snoops exchanged the marijuana for the $20.00 that the C.I. had given her. The C.I. left the licensed premises and immediately contacted Sergeant Spicer whereupon she tendered the marijuana to her. On or about January 26, 1992 at approximately 6:53 p.m., the confidential informant again met with Sergeant Spicer of the Haines City Police Department. She was searched to determine if she had any controlled substances on her person and also to ascertain that she had no additional monies. Sergeant Spicer again gave the C.I. $20.00 for the purpose of making a controlled purchase of marijuana from the licensed premises. Upon entering the licensed premises, the C.I. met with Respondent and handed him $20.00. Respondent reached under the cash register and retrieved a small packet of marijuana from a brown bag which he then gave to the C.I. The C.I. left the licensed premises and turned the marijuana over to Sergeant Spicer. The C.I. described Respondent and identified him at the hearing. Sergeant Spicer next directed Officer Mervin Stewart to go to the licensed premises and ascertain the identity of Respondent. Officer Stewart, as directed, encountered Respondent and asked him for identification. Respondent identified himself to officer Stewart as the owner of the licensed premises. On January 29, 1992, the Haines City Police Department executed a search warrant at the licensed premises with the assistance of the Polk County Sheriff's Office. An employee named Mary Allen a/k/a "Snoops" was present during the search. The search resulted in the discovery of 21 packets of marijuana, five packets of rolling papers and three packets of cocaine and several "baggies". In addition, several containers of money were found as well as $120.00 that was found in the wicker purse with the marijuana. A narcotics dog assisted in the search of the licensed premises for the presence of controlled substances. The narcotics dog alerted to the presence of a controlled substance in an envelope containing money from the licensed premises evidencing that the subject money had been in contact with controlled substances. Each of the packets purchased by the C.I. were tested with a presumptive field test by Sergeant Spicer. Each packet tested positive for the presence of marijuana. Likewise, each packet had the odor, appearance and packaging common to marijuana. Each packet was sent to the Florida Department of Law Enforcement for analysis and each packet tested positive for marijuana, a controlled substance. Likewise, the cocaine from the licensed premises also field tested positive for the presence of cocaine and upon subsequent laboratory analysis, tested positive for cocaine. Rolling papers are commonly used to roll marijuana cigarettes or loose tobacco cigarettes. No loose tobacco was found on the licensed premises. The empty baggies seized in the house and the licensed premises were identical to those used to package marijuana. Consequently, the rolling papers and the baggies are drug paraphernalia. The licensed premises is 651 feet and 8 inches from the Bethune Elementary School in Haines City. A consensual seal search was conducted of Respondent's home which was shared by Mary Allen. That search resulted in the seizure of fifty packets of marijuana, a number of empty baggies and a scale. The marijuana was located in the master bedroom. Respondent has lived with Mary Allen for ten years. At the hearing, Respondent also acknowledged that he lived with and worked with Mary Allen whose nickname is "Snoops".
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's alcoholic beverage license at the licensed premises, to wit, Horace Clare, d/b/a Campbell's Restaurant, license number 63-01368, Series 2-COP. DONE and ORDERED this 11th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 11th day of January, 1993. COPIES FURNISHED: NANCY C WALLER ESQ ASST GENERAL COUNSEL DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007 HORACE CLARE CAMPBELL'S RESTAURANT 1305 N 11TH ST HAINES CITY FL 33844 RICHARD W SCULLY DIRECTOR DIVISION OF HOTELS & RESTAURANTS 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007 DONALD D CONN ESQ GENERAL COUNSEL DEPT OF BUSINESS REGULATION 725 S BRONOUGH ST TALLAHASSEE FL 32399 1007
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 Whether respondent's alcoholic beverage license should be disciplined for alleged multiple violations of the Beverage Law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the respondent's alcoholic beverage license be revoked for multiple violations of the Beverage Law. DONE and ENTERED this 22nd day of June, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 22nd day of June, 1983. COPIES FURNISHED: William A. Hatch, Esquire Howard M. Rasmussen, Department of Business Regulation Director 725 South Bronough Street Division of Alcoholic Tallahassee, Florida 32301 Beverages and Tobacco 725 South Bronough Street Aaron A. Green, Esquire Tallahassee, Florida 32301 410 S.E. 4th Avenue Gainesville, Florida 32602 Gary Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 7, 2006. He holds certificate number 255361. On June 24, 2006, a Department of Corrections contraband interdiction team arrived at Gadsden Correctional Institution to conduct an operation that included the use of dogs to detect narcotics in vehicles parked in the Institution's parking lot. The Respondent was on duty at the Institution that day. After one of the dogs alerted on a car owned by the Respondent, the Respondent was summoned. He unlocked the car and consented to have his vehicle searched. The officer searching Respondent's car removed all the papers and other items from the glove compartment on the passenger side of the vehicle. He observed trash in the bottom of the glove compartment: sand, pebbles, hair, and the other normal debris that builds up over time in a glove compartment. Also on the bottom of the glove compartment was an unidentified sticky substance. The officer used his gloved hand to scrape up everything from the bottom of the glove box and placed it on a plain, white paper. Within the scrapings were a green leafy substance and a brown leafy substance. He separated these substances from the other debris on the white paper and placed them on his gloved hand. The quantity of substances he recovered was, according to his description, less than one gram, the size of a couple pinches of salt, a minute amount the size of a dime or smaller. He then took the substances on his hand to the interdiction team leader, who performed a reagent field test and determined that they were cannabis. It was the officer's opinion based upon his expertise in the identification of cannabis that the substances had been in the glove compartment for a long time. The officer then entered the back of Respondent's vehicle and removed the back seat. The area under the back seat had not been cleaned in a "very, very long time," and he discovered pebbles, gravel, sand, moldy French fries, and other debris. He also observed what looked to him like the residue of cannabis but did not bother to remove or test it. Doing so would have required hand-picking through the dirt and debris with a tweezers. Respondent was relieved of duty and has not worked as a correctional officer since that time. At the time, Respondent denied that the cannabis was his, denied any knowledge of it, and offered to take a urinalysis. However, he was not tested, and there is no evidence that any criminal charges were ever filed. At the time, Respondent owned two cars. His primary vehicle, which he drove to work and which he would not loan to others to drive, was a 2004 Chevrolet Impala. His secondary vehicle, which he did not drive to work and which he loaned to others to drive, was a 1999 Buick which he had purchased in March 2005. The vehicle searched by the interdiction team that day was the Buick, which had just been returned to him after being out on loan for approximately a month, and which he decided to drive to work that day. Among the persons who drove the Buick were Monica Phillips, Rontez Phillips, and Rontarius Phillips. The first two persons testified at the final hearing. Rontarius Phillips did not testify since he is incarcerated. The criminal conduct causing his incarceration was not revealed at the final hearing. Monica Phillips is Respondent's girlfriend. They have been together for seven years and have 3 children. Rontez Phillips and Rontarius Phillips are cousins of Monica, but Respondent sometimes refers to them as his cousins since he and Monica have been together for so long.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint in this cause. DONE AND ENTERED this 14th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2007. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Damari V. Wade
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 30th day of March, 1983.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was demoted to an inferior employment position and, if so, whether the demotion was motivated by reasons of racial discrimination, as he has charged.
Findings Of Fact The Petitioner, James S. Brown, Jr., is a black male deputy sheriff, employed by the Sheriff of Alachua County. He has been employed by the Sheriff for approximately 17 years. He was assigned to "uniform patrol" during his employment, but for the majority of his employment time he was assigned to the narcotics division. Sheriff Stephen Oelrich promoted the Petitioner to sergeant in February 2000 and assigned him to a road patrol position and duty. The Sheriff believed at that time that Brown was qualified to serve as a sergeant. The Petitioner, like all other similarly promoted employees, was required to serve a one-year probationary period following the promotion. Sheriff Oelrich is the elected Sheriff of Alachua County, Florida, and has served in that position for 11 years. It is his responsibility to make final employment decisions, including promotions, suspensions, demotions, and terminations. He has had a goal and practice of promoting qualified African- Americans to positions of responsibility including having black captains in charge of patrolling and criminal investigation, as well as promoting black females to lieutenancy's assigned to patrol duties. Additionally, the Respondent Sheriff conducts internal investigations upon receipt of complaints. The internal investigations concerning the Petitioner in this case were initiated because of complaints received by professional standards personnel of the Sheriff's Department, from either external or internal sources or informants. Majestic Oaks Apartments Complaint On or about November 2000, the Respondent's Office of Professional Standards received an internal memorandum from Sergeant Clifton Reynolds, a black male. The memorandum concerned a complaint he had received from a person at the Majestic Oaks Apartments in Gainesville, Florida. The complaint alleged that the Petitioner was attempting to use his position with the Sheriff's Department to obtain an apartment for a former girlfriend, Athena Brown, who had a criminal history. The criminal history would have precluded her from renting the apartment under the policies and rules of the apartment owner. The Respondent's chief inspector, Charlie Lee, initiated an investigation into the matter. He assigned the investigation responsibility to Lieutenant Joel DeCoursey. Eventually he assigned the case to inspector Norman Atkins due to workload considerations. Inspector Atkins conducted the majority of the investigation and interviewed Kimberly Figard, Brenda Raulson, Athena Brown, as well as the Petitioner. The Petitioner purportedly went to the Majestic Oaks Apartment Complex to take a child support order that would verify Athena Brown's income. Kim Figard was the secretary at the office at Majestic Oaks. According to her testimony, the Petitioner identified himself as a deputy sheriff and offered to perform extra patrols around the apartment complex in return for Athena Brown's being allowed to rent an apartment, in spite of her criminal history, which would ordinarily render her ineligible for an apartment. Chief Inspector Lee did not instruct Investigator Atkins to make any particular finding in the Petitioner's case. In fact, when Investigator Atkins informed Chief Inspector Lee that the investigation might go nowhere, Inspector Lee told Investigator Atkins, "if you ain't got nothing, you ain't got nothing." Ultimately, however, Investigator Atkins believed that there was a preponderance of evidence that the allegations against the Petitioner should be sustained. Ultimately, the Respondent relied upon evidence collected during the investigation to reach a "sustained finding" that the Petitioner went to the Majestic Oaks Apartments and identified himself as a deputy sheriff, attempting to use the status of his office or position, to assist, and with the expectation, that Athena Brown, the mother of his child, would obtain an apartment she might not otherwise qualify for. The evidence relied upon by the Respondent included the results of a polygraph examination that the Petitioner volunteered to take and which indicated deception on the part of the Petitioner. The investigator ultimately found the Petitioner to be untruthful as to his version of the Majestic Oaks Apartments events and ultimately it was concluded that the Petitioner violated the Respondent's policy regarding conduct unbecoming an employee and regarding truthfulness. The Respondent uses polygraph tests while conducting other internal investigations and has done so both before and after the internal investigation related to the Petitioner. The Respondent follows a point system with regard to imposing disciplinary action. Each level of violation is assigned points that are carried over if there are future violations. "Carry- over points" can increase the severity of subsequent discipline. Upon reviewing the investigatory findings and recommendations, based on that point system, Sheriff Oelrich believed the results to be accurate. He had no reason to believe that the investigation or the results contained any racial bias. In fact, complaints of a racially biased investigation are themselves routinely investigated as a potential disciplinary matter. The initial recommended discipline for the Petitioner for the violations with regard to the Majestic Oaks Apartments incident, was fifteen days' suspension without pay and a six- month extension of the probationary period. The Sheriff met with the Petitioner on December 21, 2000, however, and agreed to reduce his discipline to eight days' suspension without pay and a six-month extension of his probationary period. The Respondent still wanted to retain the Petitioner in a leadership role because of his past good performance. The second investigation Chief Inspector Lee received information also from Deputy Billy Ray Hunter, which revealed that several members of a drug task force Hunter was assigned to had expressed concern that the Petitioner was associating with a known felon. Gainesville Police Department Detective Jeff Nordberg was also a part of that task force. Deputy Hunter reported that the Petitioner had ignored Nordberg's request to cease associating with an individual later determined to be Andrew Maddox. Upon receipt of the information, the Respondent interviewed one of the drug task force's confidential informants and then initiated an internal investigation into the allegations. Chief Inspector Lee conducted the investigation. During the course of the investigation, Lee interviewed Deputy Sheriff Hunter, a confidential source identified as FDLE-205, Federal Probation Officer Beverly Stiefvater, Detective Jeff Nordberg, Lieutenant Mike Thompson, and Andrew Maddox. The Petitioner and Detective Nordberg of the Gainesville Police Department had previously worked together in a narcotics unit. The Petitioner was a drug investigator at the time and had not yet been promoted to sergeant. Nordberg had been a narcotics officer with the Drug Enforcement Administration (DEA). Detective Nordberg knew Andrew Maddox to be the focus of several drug investigations that year, which led to convictions of other individuals. While Nordberg was with the DEA, the Petitioner called him and advised him that he was "riding around" with Maddox and that Maddox was "showing him some things." Nordberg understood the Petitioner to mean that he was obtaining information from Maddox, because Nordberg knew that Maddox was the focus of a drug investigation and he asked the Petitioner to call him when Maddox was no longer present. Nordberg told the Petitioner in a subsequent telephone call, that the DEA was making controlled drug purchases and that he believed that Maddox was supplying the cocaine in question. Nordberg advised the Petitioner of the information because he was unsure what role Maddox was trying to play by associating with the Petitioner and with drug dealers. Nordberg received information from another drug dealer that the "word on the street" was that the Petitioner and Maddox were "tight." Nordberg advised the Petitioner in the same manner in which he would expect another law enforcement officer to advise him in a similar situation. Nordberg contacted the Petitioner a second time to advise him about the "word on the street" regarding the Petitioner and Maddox. The Petitioner advised Nordberg to take whatever action he needed regarding Maddox and that he would try to give them whatever information he could. Because of the information he was receiving on the street regarding the Petitioner's relationship with Maddox, Nordberg advised Richard Brooks, another of the Respondent's employees, because he wanted the Respondent to know what was going on. However, he did not want to file a formal complaint against the Petitioner. Federal Probation Officer Beverly Stiefvater, Maddox's probation officer, knew the Petitioner through his formal assignment in the drug unit. On one occasion, Maddox advised Stiefvater concerning contact he had with the Petitioner. She called the Petitioner and he advised her that he did not intend to use Maddox in any official manner. On another occasion, she observed an Alachua County Sheriff's Office patrol vehicle parked in front of Maddox's business. Maddox advised Stiefvater that the vehicle belonged to the Petitioner and that the Petitioner was at his business to lift weights. The Petitioner made no effort to contact Stiefvater, Maddox's probation officer, while she was present at Maddox's place of business or afterward to advise her of contact he was having with the Petitioner. Stiefvater became concerned about the Petitioner's presence at Maddox's place of business, because of a certified law enforcement officer, she questioned the ethical and moral correctness of "hanging out with convicted felons." She also discussed the Petitioner's presence at Maddox's place of business with other DEA officers working on the case against Maddox. The Petitioner and his wife accompanied Maddox to an automobile auction so that Maddox could assist the Petitioner's wife in purchasing a vehicle through the use of Maddox's automobile dealer's license. While at the auction, Maddox pointed out persons he believed to be drug dealers from other counties and advised the Petitioner how the drug dealers were outfitting vehicles to transport drugs, according to the Petitioner. The Petitioner, however, did not provide a written report of any of the information received from Maddox to any person in his chain of command. Although he had obtained information from other sources, the Petitioner did not attend an auction with any of his other sources. When the Petitioner sought promotion to sergeant, Lieutenant Mike Thompson wrote a letter of support on his behalf to the Sheriff. Thompson had supervised the Petitioner for approximately 12 years and found him to be an excellent employee. After receiving information that the Petitioner was having contact with Maddox, including using Maddox to purchase vehicles or a vehicle and spending time at Maddox's business, he advised the Petitioner about the Respondent's policy regarding associating with known felons. The Petitioner expressed to Thompson that he did not care what other people thought. On one occasion while Petitioner was assigned to patrol, the Petitioner came to Thompson's office and called Maddox so that he could provide information to Thompson regarding drug dealing. Maddox told Thompson that he would call back to provide the information but failed to ever do so. Thompson, as the Petitioner's supervisor, never received any drug violation-related information from Maddox either directly or indirectly through the Petitioner's efforts. The Respondent's policy states that "Employees while on duty will avoid regular or unnecessary association with persons they know or should know are racketeers, sexual offenders, drug dealers, or convicted felons if not authorized or required due to the nature of the assignment. Association with known offenders or their families, as mentioned above, while off duty is not authorized unless specifically approved by the Sheriff." The Respondent expects its employees and officers who receive information that may be useful for a law enforcement purposes to document that information in writing, for submission to the appropriate agency personnel. The Petitioner did not present any evidence that any employee received information from him or through his efforts and he failed to properly document any information obtained from Maddox or otherwise. After interviewing the identified witnesses and considering all of the information, the investigator concluded that the Petitioner had violated the Respondent's policy regarding association with a known felon and regarding conduct unbecoming an employee. The investigator provided the Sheriff with the disciplinary recommendation based upon the carry-over points from the previous investigation. The Sheriff thereupon reasonably concluded that the information in the investigative report was true and correct. The Sheriff thereupon demoted the Petitioner because of his concern about the Petitioner's leadership skills and his ability to provide direction to subordinate deputies regarding proper contact with known felons in view of the deficient example he was found to have demonstrated regarding his own such association. The Sheriff was also concerned that the Petitioner had been warned about the relationship with Maddox and did not appear to have heeded those warnings. The Petitioner appeared, at best, to be conducting some sort of investigation on his own (although that has not been persuasively demonstrated) and he failed to document his actions or any information he may have received. Sheriff Oelrich also considered that an outside agency had also contacted the Petitioner regarding his contact with Maddox. The Sheriff advised the Petitioner at the time of the demotion that he was demoting him because of his failure to document any information he received from Maddox. There is no persuasive evidence that the Sheriff decided to demote the Petitioner because of any motivation related to the Petitioner's race. Comparative Employee Discipline The Petitioner has identified the following white persons as being similarly situated comparators: Sergeant Darrell Bassinger, Lieutenant David Clark, Deputies Mark Galanos, Brian Davis, Jason Lee, Retired Lieutenant Danny Pascucci, and Records Clerk Susan Marks. However, he did not present any additional documentary evidence to support his testimony. His testimony in this regard is hearsay and cannot be the basis of a finding of fact. When the Petitioner was presented with documentary evidence regarding these other employees, his testimony was shown to differ significantly from the documents. For example, he testified that Deputy Kenny Holt was investigated for conduct unbecoming an officer and had received "a couple of days off" for an incident that occurred at Ironwood Golf Course. In actuality, Deputy Holt was charged with criminal conduct and not conduct unbecoming an officer. Deputy Holt received a 20-day suspension without pay, a one-year probation and was required to go to alcohol rehabilitation. The Petitioner also misstated the Respondent's policy regarding associating with a known criminal, as well as who was present during Lieutenant Mike Thompson's interview during the internal investigation. In fact, Deputy Kenny Holt, a white male, is not similarly situated to the Petitioner because Holt was not a sergeant at the time of the imposition of his discipline. Furthermore, Deputy Holt violated the Respondent's policy prohibiting criminal conduct and received a 20-day suspension without pay and a one-year disciplinary probation. Deputy Holt did not have a violation for conduct unbecoming an officer or for associating with a known offender. The Petitioner has never received a 20-day suspension without pay for any single violation. Lieutenant Don Tyson, a white male, is not similarly situated to the Petitioner because there was not a sustained finding of a policy violation against him as the result of his investigation. Lieutenant Tyson also did not have any carry- over points and was not a probationary employee. He also did not have multiple violations established against him. Records Clerk Susan Marks, a white female, is not similarly situated to the Petitioner. Ms. Marks was not a sergeant, not a supervisor, and is not even a certified law enforcement officer. The Petitioner produced no evidence to show that Ms. Marks had any multiple policy violations or that she had any disciplinary carry-over points at the time of the investigation as to her. The Respondent learned about Ms. Marks involvement with a known felon after the felon was shot in the Respondent's parking lot in mid-2003. The Respondent then initiated an internal investigation following that shooting. Prior to the shooting incident, the Petitioner believed that Ms. Marks had a relationship with a known felon, but did not file a complaint and did not provide evidence that any other person had filed a complaint regarding Ms. Mark's association. The Petitioner produced no evidence to persuasively establish that the Petitioner had any knowledge of any such relationship by Ms. Marks prior to that shooting incident. Neither Sergeant Darrell Bessinger nor Lieutenant David Clark, also white males, engaged in identical or similar conduct as the Petitioner. They were not charged with the same violations as the Petitioner, and did not have any disciplinary carry-over points. The Petitioner speculated but did not provide any persuasive evidence to the effect that Bessinger or Clark were probationary employees, at the time of any discipline of them. Brian Davis, a white male, is not similarly situated to the Petitioner. There is no evidence that he was a probationary employee nor that he had multiple violations or had any disciplinary carry-over points, as did the Petitioner. Mr. Davis was not a supervisor at the time of his discipline, as was the Petitioner. Deputy Michael Galanos, a white male, is not similarly situated to the Petitioner. The Petitioner produced no persuasive evidence that Galanos was a supervisor and did not show that Galanos had multiple violations or disciplinary carry- over points. The Respondent initiated an internal investigation regarding Deputy Galanos for associating with a known felon. After the initial portion of that investigation revealed that there might be criminal implications, the Respondent began a criminal investigation. Because the criminal investigation took priority, the internal investigation would have been re- activated only after the completion of the criminal investigation. That did not occur because Galanos took a leave of absence or resigned before the completion of the criminal investigation and has never been rehired. There was therefore no reason to conclude the internal administrative investigation. Danny Pascucci, a white male, is also not similarly situated, as an employee, to the Petitioner. The Petitioner produced no evidence that Pascucci was probationary in his position as lieutenant. The Petitioner did not establish that any complaints had been filed against Pascucci, that he had multiple policy violations, or that he had any disciplinary carry-over points. The Petitioner produced no evidence that Pascucci's relationship with a documented confidential source was not authorized. The Petitioner did not identify any white deputies who had sustained findings of conduct unbecoming an officer who received more favorable discipline than he received.
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 a final order be entered by the Florida Commission on Human Relations dismissing the charge of discrimination and petition for relief in its entirety. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Tallahassee, Florida 32308 Matthew J. Wells, Esquire Post Office Box 5606 Gainesville, Florida 32627-5606
Findings Of Fact Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old. Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed. Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared. Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams' money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash. After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient. In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style. In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances. Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused. During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex. In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams. Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs. On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced. Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances. On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection. Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license. On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
The Issue The issue in this case is whether Petitioner should suspend or revoke Respondent's alcoholic beverage license, pursuant to Section 561.29(1), Florida Statutes (1995),1 and Florida Administrative Rule 61A-2.022,2 because Respondent operated the licensed premises in a manner that was a public nuisance and permitted others to violate state criminal laws prohibiting the possession and use of controlled substances, or both.
Findings Of Fact Petitioner is the state agency responsible for regulating alcoholic beverage licenses. Respondent holds alcoholic beverage license number 15-02695, series 2-COP for the Red Top Lounge located at 2804 Kennedy Street, Mims, Florida (the "licensed premises"). Respondent is the sole proprietor of the licensed premises. On February 13, 1997, two of Petitioner's special agents ("SAS") and other undercover law enforcement officers entered the licensed premises as part of an ongoing narcotics investigation. Several patrons of the licensed premises were consuming marijuana and rolling marijuana cigars in plain view of Respondent's employees and managers. Respondent was not present at the time. On February 28, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Black." On March 14, 1997, the same SAS and law enforcement officers returned to the licensed premises incident to the same investigation. After midnight on March 15, 1997, the SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Marty." On March 15, 1997, the same SAS and law enforcement officers returned to the licensed premises, incident to the same investigation. After midnight on March 16, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. The disc jockey routinely encouraged patrons over the public address system to smoke marijuana inside the licensed premises. On April 25, 1997, one of the same SAS, another SAS, and other law enforcement officers returned to the licensed premises incident to the same investigation. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Kenny Harvey." On April 26, 1997, the same SAS and law enforcement officers involved in the investigation on the previous day returned to the licensed premises. After midnight on April 27, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. On May 2, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. After midnight on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 3, 1997, two SAS previously involved in the investigation and other law enforcement officers returned to the licensed premises. The SAS purchased a small package of marijuana for $10 from a patron who identified himself as "Roy." After the previous transaction on May 3, 1997, the SAS purchased a small package of cocaine for $10 from Kenny Harvey. After midnight on May 4, 1997, the SAS purchased a small package of marijuana for $10 from an unknown patron. Subsequent to each purchase of marijuana by the SAS, the items purchased were chemically analyzed in a laboratory and found to be marijuana. Subsequent to each purchase of cocaine by the SAS, the items purchased were chemically analyzed in a laboratory and found to be cocaine. The SAS involved in the investigation have extensive experience and training in narcotics investigation and detection of controlled substances. They have conducted numerous undercover investigations. Each agent has personal knowledge of the appearance and smell of marijuana. The open, flagrant, and notorious drug activity on the licensed premises was the worst each agent had observed in his career. Each time the SAS entered the licensed premises, underage patrons consumed alcoholic beverages. More than half of the patrons present on each occasion consumed and rolled marijuana cigars. The second-hand marijuana smoke inside the premises was so great that the SAS were concerned for their personal health and the affect the second-hand smoke could have on each agent if subjected to a random drug test, pursuant to agency policy. The purchase, consumption, and use of marijuana occurred in plain view of Respondent's employees and managers. Respondent's managers and employees never attempted to prohibit the illegal drug activity. Respondent was never present on the licensed premises. She was caring for her daughter who died on April 2, 1997. During the time she was caring for daughter, Respondent relinquished management and control of the licensed premises to her granddaughter and her boyfriend.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's alcohol and tobacco license. DONE AND ENTERED this 7th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1997.
