The Issue The issue in this case is whether the Respondent’s license should be disciplined; and if so, what penalty should be imposed.
Findings Of Fact The Respondent, Lashawn R. Williams, was certified by the Petitioner as a correctional officer on May 22, 2001, and was issued certificate number 197081. Eventually, the Respondent was employed as a full-time correctional officer by the Corrections Corporation of America. Sometime prior to June 20, 2004, the Respondent’s apartment received smoke damage from a fire that had occurred in the unit next to her. Because of the damage, she and her two children, ages seven and one, were required to temporarily move while repairs to her apartment were being made. She moved in with Typhrus McNeil and his father, Connie McNeil at 112 Cheri Lane, Parker, Florida. The McNeil residence is a small two-bedroom townhouse of approximately eight hundred square feet. The front door is located about twenty feet from the street. Typhrus McNeil was the Respondent’s boyfriend. At the time, they had been dating for approximately three years. Mr. McNeil was the father of the Respondent’s youngest child and occasionally took care of the Respondent’s children while the Respondent was at work. At the time, Typhrus McNeil was also under community control for a 2004 drug charge. The Respondent Knew Mr. McNeil had a past criminal history, but felt he had changed. On June 20, 2004, Officer Aaron Wilson of the Parker Police Department received a “Crime Stoppers” tip. The tip consisted of an allegation that a male and a female person living at 112 Cheri Lane in Parker were engaged in the sale of narcotics from the residence. The tip also included an allegation that the female subject was conducting hand-to-hand narcotics transactions with the occupants of vehicles that pulled up outside the residence. Over the next two weeks, Officer Wilson conducted approximately six surveillances and observed activities ongoing at the McNeil residence. During his surveillances, Officer Wilson observed the Respondent coming and going from the residence along with her two children. He observed them playing outside. Officer Wilson also observed Typhrus McNeil, whom he recognized from past arrests, and his father Connie McNeil, coming and going from the residence. He observed vehicles driving up to the residence for short stops and leaving. On occasion, he observed people from the residence talking for a short time with the occupants of the vehicles, sometimes going back into the residence and then returning a short time later to talk with the occupants of the vehicles again. The vehicle would then leave the area. Officer Wilson described such activity as indicating drug-related activity was going on at the residence. Officer Wilson only observed the Respondent talk to the occupants of a vehicle one time. During his observation, the Respondent spoke with the occupants for a short while, went into the residence and returned to speak with the occupants of the vehicle some more. The vehicle then left. Officer Wilson did not observe the exchange of any money or drugs. There was no evidence regarding who the occupants of the vehicle were or whether the Respondent knew the occupants of the vehicle. This one observation does not clearly and convincingly demonstrate that the Respondent was engaged in drug related activity. On July 1, 2004, Officer Wilson applied for and obtained a warrant from the Circuit Court in Bay County to search for controlled substances and other related items in the McNeil residence. The warrant also authorized searches of persons and vehicles present at the residence. On July 2, 2004, Officer Wilson, together with several other officers, served the search warrant at 112 Cheri Lane in Parker. Upon arrival at the residence, Officer Wilson knocked and announced his authority and purpose for being there. Present in the residence were Typhrus McNeil, Connie McNeil, the Respondent, her two children and two visitors. Officers located and seized several items in the bedroom shared by the Respondent and Typhrus McNeil. These items were in plain view lying on the headboard of the bed. These included Typhrus McNeil’s wallet, which contained $1704 in cash, another $1335 in loose cash and an open box of clear plastic sandwich bags with $13 in cash protruding from the top of the box. The cash appeared to be in denominations of $20 or less. The Respondent believed the loose cash was from Mr. McNeil’s paycheck, which he had recently cashed. Next to the bed, officers located and seized a closed shoebox on the floor. Inside the shoebox, officers found a set of electronic scales consistent with the type utilized for weighing quantities of illicit drugs for purposes of sale. Also, officers located and seized two plastic bags containing cannabis residue along with two partially burnt cannabis cigarettes in a closed dresser drawer located in the bedroom. The evidence did not demonstrate that the Respondent knew about the contents of the shoebox or the dresser drawer. None of her personal effects were in the dresser drawer. There was no evidence showing the length of time the cigarettes had been in the drawer. In the common living room of the residence, officers located and seized a cannabis cigarette lying on top of the television adjacent to a remote control. The cannabis cigarette appeared to be in plain view of the occupants of the residence. However, there was no evidence of the length of time the cannabis cigarette had been on top of the television or that the Respondent had observed the cigarette there. In fact, the Respondent denies knowing about the activity at the McNeil home or the Marijuana cigarettes in the house. During the course of the execution of the search warrant, officers also located and seized several items in the second bedroom, occupied by Connie McNeil. These items included a box found in Connie McNeil’s closet, which contained suspected cannabis seeds and two partially burnt cannabis cigarettes located inside a nightstand drawer. Officers also located and seized nineteen clear plastic bags, each containing approximately one-half ounce of cannabis. The plastic bags were under the bed in the bedroom of Connie McNeil. Together, such quantities and packaging demonstrate that Connie McNeil was engaged in illicit drug sales and not simply possession of illicit drugs. However, the evidence did not demonstrate that the Respondent was aware of the activities of Connie McNeil or the contents of his room. During the course of the execution of the search warrant, officers also located and seized five partially burnt cannabis cigarettes located inside a closed kitchen drawer. Again, the evidence did not demonstrate that the Respondent was aware of the cigarettes in the kitchen drawer, especially in light of the fact that she was only staying temporarily at the McNeil residence. The McNeils and the Respondent were arrested and charged with drug possession and sale. The Respondent was also charged with child neglect. Eventually, all the charges were dropped against the Respondent. The aggregate weight of the cannabis seized by the officers was in excess of 20 grams. However, in this case, the evidence only raises suspicions that the Respondent may have known about the possession of marijuana in the McNeil residence. At the time, the Respondent was a temporary occupant of the residence, waiting for repairs to be completed on her apartment. The evidence is neither clear nor convincing that the Respondent actually knew of such possession. Likewise, the evidence did not demonstrate that the Respondent was aware of or engaged in any drug sales during her stay at the McNeil residence. The most incriminating evidence was not found in the bedroom where the Respondent slept, but in Connie McNeil’s bedroom or in closed drawers and boxes. The one cannabis cigarette that was in a common area does not clearly or convincingly demonstrate that the Respondent knew it was there or that she knew of any drug activity at the McNeil house. Finally, the evidence did not demonstrate the Respondent criminally neglected her children when she was staying at the home of one of the children’s father. Vague testimony regarding the possibility that living in close proximity to illicit drug activity might cause danger to the occupants of the home is not clear or convincing evidence that the Respondent is guilty of criminal child neglect. Given this lack of clear evidence, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found not guilty of violations of Subsection 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of March, 2006. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lashawn R. Williams Michael Crews, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Alton Beverages, Inc., trading as Mayflower Lounge, holds Division of Alcoholic Beverages and Tobacco License Number 23-2043, Series 4- COP. Respondent conducts its business pursuant to said license at 17IG Alton Road, Miami Beach, Dade County, Florida. At all times material hereto Sam Rosen was the sole corporate officer and shareholder of Alton Beverages, Inc. In addition, at all times material to this proceeding, Robert L. Pyle was the night manager for Respondent's licensed premises at the aforementioned address. During the time periods alleged in the Notice to Show Cause, that is, from February 21, 1981 through March 7, 1981, Dottie Turner, Laura Kimberly, Mona Castro, Sandra Timmsen and Deborah Sutcliff were dancers at the licensed premises, and were "agents" of Respondent. In the early morning hours of February 21, 1981, an undercover officer in Petitioner's employ was introduced by a confidential informant to Robert L. Pyle, the night manager on duty at Respondent's licensed premises. Shortly after that introduction, the undercover officer purchased a quantity of cocaine from Pyle for $50.00, the sale and delivery of which substance took place on the licensed premises, while Pyle and the officer were seated at a table in the lounge portion of the premises. During the evening hours of February 21, 1981, Petitioner's undercover officer returned to the licensed premises. While seated at a table with Dottie Turner, a topless dancer in the employ of Respondent, Turner mentioned to the undercover officer that she was going outside "to smoke a joint." Thereupon, the undercover officer asked if he could purchase a "joint" from her, and she advised that she would "roll one" for him for one dollar. Thereafter, Turner went outside the licensed premises, subsequently returned to the table, and gave one marijuana cigarette to the undercover officer in exchange for one dollar. Later on the evening of February 21, 1981, the undercover officer made a second purchase of cocaine for $50.00 from Pyle, Respondent's night manager. Again, the purchase ant exchange of this cocaine took place on the licensed promises while the officer and Pyle were seated at a table in the bar. While still in the licensed premises on February 21, 1981, the undercover officer asked for, and obtained, a second marijuana cigarette from dancer Dottie Turner at no cost. On February 23, 1981 the undercover officer again returned to the licensed premises where he spoke with Dottie Turner. On this occasion another purchase of a marijuana cigarette for one dollar from Dottie Turner was accomplished, with the negotiation for and delivery of the cigarette occurring on the licensed premises. After delivery of the marijuana cigarette, the undercover officer inquired of Turner concerning the purchase of a larger quantity of marijuana. The undercover officer was advised by Turner that if he would give her the money for an ounce of marijuana she could purchase it for him and bring it to the licensed premises for delivery. When the undercover officer refused to part with the money prior to delivery, Turner advised him that he would have to come to her apartment to make the purchase. Subsequently, on February 25, 1981, the undercover officer went to Turner's apartment, some distance from the licensed premises, and purchased one ounce of marijuana for $30.00. On February 25, 1981, the undercover officer returned to the licensed premises. On this date, he met with Robert L. Pyle, the night manager, and requested to purchase one quarter-ounce of cocaine. While the undercover officer and Pyle were seated in the Manager's office on the licensed premises, Pyle advised the undercover officer that he could arrange the purchase of that amount of cocaine for $500.00. Pyle further advised the undercover officer that he would have to go upstairs to get the cocaine and would return shortly. Thereupon both the undercover officer and Pyle left the Manager's office, and the undercover officer resumed a seat in the lounge portion of the licensed premises. Shortly thereafter, Pyle returned, and, while seated at a table with the undercover officer and Deborah Sutcliff, one of Respondent's topless dancers, exchanged with the undercover officer the one quarter-ounce of cocaine for $500.00 in currency. As previously indicated, the address of the licensed premises is 1716 Alton Road, Miami Beach. This address consists of the first floor of a two- story concrete block structure. The first floor is leased by Respondent from the building owner, Sam Berlin. The second floor of the structure was leased from the building owner by Robert L. Pyle, the night manager, and several of the dancers and other employees of Respondent for use as apartments. At all times material hereto, access to the apartments on the second floor could be had either by way of an exterior stairway in the rear of the building, or through a door in the interior of the licensed premises opening on an interior stairway. This interior door was used frequently by the dancers to access their apartments, and was used by Pyle on at least one of the occasions when the undercover officer purchased cocaine as hereinabove described. The sketch appearing on or attached to Respondent's license does not show the second floor of the two-story structure as being contained within the licensed premises and, indeed, does not show the interior door giving access to the second floor, although the record in this proceeding establishes that the door was present when Petitioner's agent made the sketch of the premises to attach to Respondent's license. There is no showing in this record that the interior door and stairway were ever used by anyone other than persons making their residence on the second floor. The upstairs portion of the building was never used for storage or for any other purpose connected with the operation of the licensed premises. Finally, there is no showing in this record that Respondent bad, or attempted to exercise, any dominion or control over the second floor of the building. On March 7, 1981, pursuant to a search warrant, law enforcement officers, including Petitioner's undercover officer, conducted a raid of the licensed premises. One of Respondent's dancers was found to be in possession of in excess of 10 grams of cocaine in her purse on the licensed premises. In addition, a quantity of marijuana was found near the bar and a yellow change purse containing a cocaine kit and spoon were found in the Manager's office. In the upstairs area where several of Respondent's employees lived, another of Respondent's dancers was found to be in possession of a controlled substance, Diazepam, and a bartender In Respondent's employ was found to be in possession of Diazepam as well as a small quantity of marijuana. Still another dancer was found to be in possession of a quantity of marijuana in her apartment, while Robert Pyle's bedroom in the upstairs area contained Diazepam and assorted narcotics paraphernalia including a cocaine user's kit, knives and scales. In addition, in the general living area of the upstairs, there was assorted narcotics paraphernalia including large heating elements; boxes and plastic jugs and bags containing different cocaine cutting agents such as procaine; an automatic plastic wrapping machine; a large-size scale; test tubes; and two bags containing cocaine. Respondent does not deny that the aforementioned activities occurred, but instead defends against the allegations or the Notice to Show Cause, as amended, by contending that the corporate licensee, through its sole officer and shareholder, Sam Hill Rosen, took every reasonable precaution to guard against such activity occurring on the premises. Respondent contends, Petitioner admits, and the record herein clearly establishes that Mr. Rosen was not "directly involved" nor did he have personal knowledge of the activities occurring on the licensed premises. Respondent asserts that in an attempt to prevent legal activity from occurring on the licensed premises, it posted signs in conspicuous places, such as the dancers' dressing room, and gave written instructions to employees announcing its policy of prohibiting drugs, other than prescription drugs, from being used or sold on the licensed premises. Violation of this employment policy, according to Respondent, resulted, on occasion, in immediate dismissal of employees. Additional Policies allegedly adopted by Respondent to guard against illegal activity included prohibiting dancers from leaving the licensed premises to go outside while they were working, and subjecting all employees to periodic "shakedown searches". There was also some indication in the record that Respondent reserved the right to subject its employees to polygraph tests. Finally, Respondent also asserts that, acting through its principal, Mr. Rosen, the premises was periodically checked while Mr. Pyle was on duty to assure that no violations of law were occurring. Accepting Respondent's representation that the aforementioned policies were established on the premises, the record in this proceeding clearly establishes that to the extent that these policies did exist they were more honored in the breach than in the observance. For example, of those employees of Respondent who were called to testify at the final hearing in this proceeding, none of them had been administered a polygraph examination, none had had their persons or belongings searched while working on the licensed premises, and they had observed Mr. Rosen on the premises during the evening hours at best "infrequently". Mr. Rosen's failure to adequately supervise the licensed premises is corroborated by the fact that on February 23, 1981, when Petitioner's undercover officer was on the licensed premises, Mr. Pyle, the night manager, was off duty, and Mr. Rosen, who managed the licensed premises during other portions of the day, was not present. In addition, on at least one occasion, one of Respondent's dancers observed Pyle on the licensed premises in possession of both cocaine and pep pills, the latter of which, according to Pyle, were used in case ". . . some of the girls came into work and weren't quite up to doing their performance." The record in this proceeding fails to establish that any agent, employee or patron of Respondent was ever observed using illegal drugs or narcotics inside the licensed premises. In addition, the record clearly establishes that Respondent has never previously been cited by and law enforcement agency, regulatory or governmental body for narcotics law violations of any nature. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those findings of fact have not been incorporated in this Recommended Order, they have been rejected as either being irrelevant to the subject matter of this proceeding, or as not having been supported by the evidence.
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 Whether there is substantial justification or special circumstances to preclude Petitioner from receiving an award of attorneys’ fees and costs pursuant to section 120.595(2), Florida Statutes (2017).1/
Findings Of Fact Based on the oral and documentary evidence, written submissions from the parties following issuance of ALJ McKibben’s Final Order, and the entire record in this proceeding, the following Findings of Fact are made: Section 381.986(8), Florida Statutes and the Proposed Rule Section 381.986(8), Florida Statutes, establishes a mechanism for the licensing of medical marijuana treatment centers (“MMTC”). The statute was amended in 2017 to provide, in pertinent part, that: (8) MEDICAL MARIJUANA TREATMENT CENTERS. (a) The department shall license medical marijuana treatment centers to ensure reasonable statewide accessibility and availability as necessary for qualified patients registered in the medical marijuana use registry and who are issued a physician certification under this section. * * * The department shall license as medical marijuana treatment centers 10 applicants that meet the requirements of this section, under the following parameters: [Previously denied applicants meeting certain requirements not relevant to the instant action.] [One applicant from a specific class pursuant to a federal lawsuit.] As soon as practicable, but no later than October 3, 2017, the department shall license applicants that meet the requirements of this section in sufficient numbers to result in 10 total licenses issued under this subparagraph, while accounting for the number of licenses issued under sub-subparagraphs a. and b. For up to two of the licenses issued under subparagraph 2., the department shall give preference to applicants that demonstrate in their applications that they own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana. (emphasis added). The Proposed Rule was intended to implement the changes to section 381.986; but, where section 381.986(8)(a)3., uses the term “facility,” the Proposed Rule substitutes the term “property.” For instance, the Proposed Rule provides, in pertinent part, that: (1)(f) For applicants seeking preference for registration as a medical marijuana treatment center pursuant to ss. 381.986(8)(a)3., F.S., the applicant must provide evidence that: The property at issue currently is or was previously used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses. In order to demonstrate the property meets this criteria, the applicant may provide documentation that the applicant currently holds or has held a registration certificate pursuant to section 601.40, F.S. A letter from the Department of Citrus certifying that the property currently is or was previously used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses will be accepted as sufficient evidence; The applicant as an individual holds, in his or her name, or the applicant as an entity holds, in the legal name of the entity, the deed to property meeting the criteria set forth in subparagraph 1. above; and A brief explanation of how the property will be used for purposes of growing, processing, or dispensing medical marijuana if the applicant is selected for registration. * * * Subject matter experts will substantively and comparatively review, evaluate, and score applications using [the Scorecard incorporated by reference]. * * * (a)7.(b) Scores for each section of the application will be combined to create an applicant’s total score. The department shall generate a final ranking of the applicants in order of highest to lowest scores. . . . (c) In accordance with ss. 381.986(8)(a)3., F.S., the two highest scoring applicants that own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana will receive an additional 35 points to their respective total score. Licenses will be awarded, subject to availability as set forth in ss. 381.986(8)(a)2. and 381.986(8)(a)4., F.S., based on the highest total score in the following manner: The highest scoring applicant that is a recognized member of Pigford or [African American Farmers Discrimination Litigation] will receive a license. The remaining highest scoring applicants, after the addition of the preference points for applicants pursuant to paragraph (7)(c) above, will receive licenses up to the statutory cap set forth in ss. 381.986(8)(a)2., F.S. The remaining highest scoring applications, after removing any preference points received under paragraph (7)(c), will receive licenses up to the statutory cap set forth in ss. 381.986(8)(a)4., F.S. (emphasis added). The Parties The Department is the state agency charged with implementing the Compassionate Medical Cannabis Act of 2014. See § 381.986, Fla. Stat. Del Favero has been incorporated since 1974 and has been primarily engaged in the business of growing orchids. At the time of the final hearing in this matter, Del Favero aspired to apply for licensure as a medical marijuana treatment center. After Senate Bill 8A became law and substantially rewrote section 381.986, Del Favero elected to seek the citrus preference described in section 381.986(8)(a)3. In order to accomplish that goal, Del Favero purchased the real property and facilities of a citrus processing business in Safety Harbor, Florida, for approximately $775,000. The purchase occurred prior to the Proposed Rule’s publication. Del Favero intends to convert the citrus processing facility located on the Safety Harbor property into a medical marijuana processing facility if Del Favero becomes a licensed MMTC. Pertinent Portions of ALJ McKibben’s Analysis In ruling that the Proposed Rule was invalid, ALJ McKibben made the following findings: The Legislature clearly intended to give a preference to applicants who “own . . . facilities that are, or were, used for canning, concentrating, or otherwise processing of citrus . . . and will use or convert the . . . facilities for the processing of medical marijuana.” The Legislature failed, however, to provide guidance by way of definitions. While the Legislature chose the words “facility or facilities” in the Preference Statute, the Department complicated the issue by using the word “property” for the most part, but also using the words “facility” and “facilities” at times. Favero contends that a property is much broader in scope than a facility, and the Department therefore exceeded its delegated legislative authority. The Department argues that facilities used to process citrus must be located on some property, obviously. But, facilities located on a property might be leased, so that the fee simple owner of the property is different from the leaseholder of that facility. Thus, if an applicant for a medical marijuana treatment center license wants to avail itself of the preference, it would need to own the facility. Whether that means the applicant must own the property on which the facility is located is not clear in the Preference Statute or in the Proposed Rule. The Department argues that the way to show ownership of a facility is by way of a deed to the property on which the facility is located. In fact, Favero will use a warranty deed to prove ownership of the facilities it purchased in order to obtain the preference. But if Favero purchased land on which citrus had been grown but not processed, i.e., if there had been no facilities on the land to can, concentrate or otherwise process the fruit, except in fresh fruit form, the preference would not apply. And if an applicant obtained a leasehold interest in a facility, it would not be able to “show ownership” by way of a deed to the property. The Preference Statute requires the applicant to convert the facility in order to gain the preference. It is unclear how a piece of unimproved property can be “converted” to another use; land is land. This begs the question of whether growing citrus on a piece of property, and then removing all the citrus trees in order to grow medical marijuana, is a “conversion” of a facility as contemplated by the Legislature. Neither the Preference Statute nor the Proposed Rule contain any definitional assistance to answer that question. An important question to be answered is whether the growing of citrus constitutes “processing” as alluded to by the Legislature. The Preference Statute provides no definition of the word. The Citrus Code (chapter 601, Florida Statutes) also does not define “processing,” but does describe a “processor” of citrus as: ‘[A]ny person engaged within this state in the business of canning, concentrating, or otherwise processing citrus fruit for market other than for shipment in fresh fruit form.” § 601.03(32), Fla. Stat. (Emphasis added) (sic). Processing must therefore mean something other than merely growing citrus and packing it up for shipment. That being the case, a property where citrus is grown that is “converted” to a property growing marijuana would not afford an applicant a preference. There must be some “facility” that is or has been used to process citrus, i.e., doing something more with the raw product, in order to constitute “processing.” Therefore, a “packinghouse,” i.e., “[a]ny building, structure, or place where citrus fruit is packed or otherwise prepared for market or shipment in fresh fruit form,” would not be engaged in “processing” citrus. See § 601.03(29), Fla. Stat. (emphasis added). ALJ McKibben then made the following Conclusions of Law: In this instance, the Department interprets the statutory language concerning “facility or facilities” to include “property.” It is impossible to reconcile that interpretation, especially in light of the fact the Legislature contemplated conversion of the facilities. The Department’s interpretation is hereby rejected as being outside the range of permissible interpretations. See Cleveland v. Fla. Dep’t of Child. & Fams., 868 So. 2d 1227 (Fla. 1st DCA 2004).[2/] The test is whether the agency’s proposed rule properly implements specific laws. See § 120.52(8)(f), Fla. Stat. The Preference Statute specifically provided a preference for using or converting citrus facilities, not properties. The Proposed Rule does not implement that specific provision of the law. (emphasis added). The Department’s Rationale for Substituting “Property” for “Facility” The Department asserted during the final hearing that it consulted with the Citrus Department on how to interpret the phrase “otherwise processing.”3/ See § 381.986(8)(a)3. (providing that “the department shall give preference to applicants that demonstrate in their applications that they own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit . . .”). (emphasis added). Ms. Shepp, the Citrus Department’s executive director, testified that activities such as picking, grading, sorting, polishing, and packing citrus fruit constitute “otherwise processing.” She also testified that a packinghouse conducts the aforementioned activities. Section 601.03(29), Florida Statutes, defines a “packinghouse” as “any building, structure, or place where citrus is packed or otherwise prepared for market or shipment in fresh form.” (emphasis added) See the Department’s Proposed Final Order at 9, 10, and 15. Because “a place” can be an area without a physical structure, the Department concluded that using the word “property” in the Proposed Rule rather than “facility” would enable applicants who engage in “otherwise processing” to be eligible for the preference. The Department also argued that this substitution is justified because “it is not uncommon in the citrus industry to conduct citrus operations in the open air or in a tent.” See Department’s Memorandum of Law in Opposition to Petitioner’s Motion for Attorney’s Fees at 9.4/ Ms. Coppola explained that the Department substituted “property” for “facility” in order to assist the distressed citrus industry. Finally, Ms. Coppola stated that using the term “property” serves the legislative intent to extend the preference to applicants that are not presently engaged in canning, concentrating, or otherwise processing but had been in the past.5/ As discussed below in the Conclusions of Law, the Department had no substantial justification for substituting the word “property” for “facility” and thus extending the citrus preference beyond what the Florida Legislature had intended. Moreover, there are no special circumstances that would make an award of attorneys’ fees to Del Favero unjust.
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 the Respondent's beverage license should be revoked or suspended?
Findings Of Fact The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. (Stipulated Fact). The Respondent is John Timmons, Jr., d/b/a Harold's Grocery. (Stipulated Fact). The Respondent, at all times relevant to this proceeding, operated a grocery store where beer and wine was sold under beverage license number 23-1197, Series 2-APS. (Stipulated Fact). The Respondent's licensed premises is located at 17347 Homestead Avenue, Miami, Dade County, Florida. (Stipulated Fact). On September 21, 1962, the Respondent applied for a transfer of the subject beverage license to its current location. Included with the transfer application was a "Sketch of Licensed Premises." In pertinent part, the licensed premises was identified as follows: Based upon the Sketch of the Licensed Premises submitted by the Respondent to the Petitioner, the licensed premises consisted of only a portion of the building located in the northern part of the building. The southern portion of the building consisted of a pool hall which was not identified as a part of the licensed premises. The Respondent owned the entire building. The pool hall is identified above by the dotted lines. The dotted lines were not a part of the Sketch of the Licensed Premises. The Respondent agreed as an incidence of filing the transfer application that any alterations or additions to the licensed premises could be inspected in the same manner as the portion of the licensed premises identified- on the Sketch of the Licensed Premises. The Respondent subsequently made substantial alterations to the building. The portion of the building formerly used for the pool hall has been incorporated, at least in part, into the portion of the building used by the Respondent in his business. The building and its uses during the period of time at issue in this proceeding consisted of the following: The portion of the building to the south of the dotted line is the area where the pool "all was located. That area is now used as a storeroom, the Respondent's living quarters and as a part of the store. The area of the building identified as a part of the store and the storeroom are part of the licensed premises. The area of the building identified as the Respondent's living quarters is not a part of the licensed premises. This area is used exclusively by the Respondent as his personal residence. Although there is access through a door from the living quarters into the store, the living quarters were not readily accessible by anyone except the Respondent and his personal guests. Employees of the Respondent and patrons did not go into the Respondent's living quarters. No business was conducted in the living quarters. On or before February 10, 1983, the Metro-Dade Police Department (hereinafter referred to as "MDPD") began an undercover narcotics investigation of the Respondent. On February 10, 1983, MDPD Sergeant Ed Howett searched a confidential informant, gave the informant $10.00 and watched him enter the licensed premises. `When the informant left the licensed premises, the informant was in possession of marijuana and did not have the $10.00 given to him or her. The informant had purchased the marijuana from someone in the Respondent's building. Based upon the sworn affidavits of two MDPD officers as to the reliability of the confidential informant and the events of February 10, 1983, a search warrant for the Respondent's building was issued on February 11, 1983, by the Honorable Judge Alan Kornblum. On February 15, 1983, MDPD Detective Ricky Smith entered the licensed premises. (Stipulated Fact). Detective Smith was not in uniform. Detective Smith approached Mary Williams, an employee of the Respondent, who was behind the counter on the licensed premises. Detective Smith purchased $2.00 worth of marijuana (2 marijuana cigarettes) from Mary Williams. (Stipulated Fact). Shortly after Detective Smith's purchase of marijuana, MDPD officers entered the licensed premises to execute the search warrant issued on February 11, 1983. (Stipulated Fact). The search warrant applied to the entire building. At the time of the search Mary Williams, Henry Timmons and the Respondent were present on the licensed premises. (Stipulated Fact). Henry Timmons was behind the counter on the licensed premises. (Stipulated Fact). Henry Timmons is the Respondent's brother and was an employee of the Respondent. Located at the cash register closest to the front door was Mary Williams. (Stipulated Fact). The Respondent was located on a patio with Cary Lou Harris. The patio was outside the Respondent's living quarters and was accessible from the living quarters. The Respondent and his brother have similar facial hair. People have confused the Respondent and his brother. Detective Smith and MDPD Detective Preston Lucas, however, were able to distinguish the Respondent from his brother. Detective Smith grew up in the area where the Respondent's store is located and was familiar enough with the Respondent to recognize him. During the execution of the search warrant, approximately 100 marijuana cigarettes and several separate bags of marijuana were found in plain view on the counter on the licensed premises. (Stipulated Fact). Marijuana was also found in Henry Timmons' back pocket. (Stipulated Fact). The Respondent was surrounded to the area of the licensed premises where the police officers had entered. After discovering the marijuana on the counter, the Respondent was asked by the police if that was all of the marijuana. The Respondent replied "yeah, that should be all of it." (Stipulated Fact). Henry Timmons accompanied police officers to the storeroom at the back of the licensed premises. Although Henry Timmons worked in the storeroom, he lied when he indicated that he was unable to find the light switch. Therefore, the Respondent went to the storeroom and turned the light on. Additional bags of marijuana were found in the storeroom (Stipulated Fact). "Then these additional bags were found the Respondent stated that "well, now you really got it all." (Stipulated Fact). Based upon the Respondent's statements to police during the execution of the search warrant, it is clear that the Respondent knew that marijuana was located on the licensed premises. On three separate occasions (March 2, 4 and 28, 1983) MDPD officers entered the licensed premises in an attempt to purchase marijuana from an employee. (Stipulated Fact). On each of the occasions, the employee referred the officers to Larry Wilcox, an individual who was standing outside the licensed premises. (Stipulated Fact). On each of the occasions, the officer purchased marijuana from Larry Wilcox, who retrieved it from a brown paper bag which was stored behind an ice machine in front of the licensed premises. (Stipulated Fact). On March 2, 1983, Detective Smith entered the licensed premises and asked Mary Williams, who was still employed by the Respondent, if he could buy marijuana. Mary Williams pointed to Larry Wilcox, who was standing outside the licensed premises. The Respondent did not witness this event. Detective Smith left the licensed premises and approached Larry Wilcox. Wilcox, who was never employed by the Respondent, sold marijuana to Detective Smith. The marijuana was obtained from a bag retrieved by Larry Wilcox from behind the tee machine which "`as located outside of the licensed premises. No evidence was presented as to who owned the ice machine. On March 4, 1983, Detective Smith and Detective Lucas returned to the licensed premises. They drove up to the curb of the street in front of the licensed premises. The evidence does not show which employee (as stipulated to by the parties) referred Detective Smith to Wilcox on this occasion. Detective Smith approached Larry `Wilcox who was standing on the sidewalk in front of the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox. The marijuana was retrieved from behind the ice machine. The Respondent and Henry Timmons were present on the sidewalk in front of the licensed premises during the March 4, 1983 purchase. The Respondent was close enough to witness the transaction. On March 28, 1983, Detective Smith returned to the licensed premises. He entered the licensed premises and approached the Respondent and Larry Wilcox, who were standing inside the licensed premises. Mary Williams was behind the counter. Detective Smith announced to no one in particular that he wished to buy some marijuana. Again, the evidence does not prove which employee referred the officer to Larry Wilcox. The evidence does prove that the Respondent pointed to Larry Wilcox in response to Detective Smith's question. Larry Wilcox and Detective Smith then left the licensed premises. Detective Smith again purchased marijuana from Larry Wilcox which was obtained from behind the ice machine. On March 29, 1983, upon sworn affidavit, another search warrant was obtained from the Honorable Judge Alan Kornblum for the Respondent's building (Stipulated Fact). The search warrant was executed on the same day. It applied to the entire building. During the execution of the search warrant, Larry Wilcox was arrested on the licensed premises. Upon searching Larry Wilcox, marijuana and quaaludes were discovered. (Stipulated Fact). Marijuana and quaaludes were also found in a trash can located outside the front door of the licensed premises. (Stipulated Fact). No evidence was presented as to who owned the trash can. Two cigar boxes, a metal can, a plastic container and three strainers, all of which contained marijuana residue, were discovered in the living quarters. The Respondent was not present during the March ?9, 1983 search of the licensed premises or his living quarters. On April 28, 1984, MDPD Sergeant Louis Battle and Investigator Lou Terminello entered the licensed premises to conduct a license inspection (Stipulated Fact). The Respondent was located behind the counter on the licensed premises when Sergeant Battle and Investigator Terminello entered. A burnt marijuana cigarette was found in plain view on the counter. (Stipulated Fact). During questioning, the Respondent stated that he smoked marijuana in his living quarters and that he no longer sold marijuana. Marijuana residue was found in the living quarters. During the April 28, 1984, search, a loaded, stolen firearm was found underneath the counter on the licensed premises. It was not proved whether the Respondent was aware of the fact that the firearm was stolen. Administrative charges were brought against the Respondent based upon alleged violations of the controlled substance statute within the beverage statute. Specifically, the Respondent was charged with possession of marijuana on the premises, conspiracy to sell marijuana, possession of marijuana by his employees on the premises, sale and conspiracy to sell marijuana by one of his employees on the premises and public nuisance. The Respondent usually worked on the licensed premises until 4:00 p.m. After 4:00 p.m. the Respondent normally retired to his living quarters. All of the events involved in this proceeding occurred after 4:00 p.m. Although there was testimony to the contrary, it is concluded that the Respondent did not take steps to prevent the possession or sale and/or delivery of marijuana on the licensed premises. The Respondent made statements which indicated that he was aware that marijuana was kept on the licensed premises, he admitted smoking marijuana in his living quarters, marijuana was found in his living quarters on several occasions and he did not fire his brother or Mary Williams after the execution of the first search warrant on February 1, 1983. The Respondent was negligent in supervising the operation of his business. The Respondent entered into a Stipulation on October 7, 1974, whereby he agreed to pay a civil penalty of $250.00 in settlement of charges that the Respondent sold alcoholic beverages for food coupons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(a) and (b), Florida Statutes, as alleged in Count 1. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana) within Section 561.29(1)(b), Florida Statutes, as alleged in Count 2. The Respondent should, however, be found not guilty of a violation within Section 561.29(1)(a), Florida Statutes, as alleged in Count 2 and that portion of Count 2 should be dismissed. It is further RECOMMENDED: That the Respondent be found guilty of a violation within Section 561.29(1)(a), Florida Statutes (possession of marijuana on the licensed premises but not the marijuana found in his 1iving quarters), and a violation within Section 561.29(1)(b), Florida Statutes (possession of marijuana on the licensed premises and in the living quarters), as alleged in Count 3. It is further RECOMMENDED: That the Respondent be found not guilty of conspiracy as alleged in Count Count 4 should he dismissed. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana by an employee) with Section 561.29(1)(a), Florida Statutes, as alleged in Count It is further RECOMMENDED: That the Respondent be found guilty of a violation (sale and/or delivery of marijuana by an employee) within Section 561.29(1)(a) , Florida Statutes, as alleged in Count 6. It is further RECOMMENDED: That the Respondent be found guilty of a violation (possession of marijuana by an employee) within Section 561.29(1)(a), Florida Statutes, as alleged in Count 7. It is further
The Issue Should the Petitioner impose discipline against Respondent, holder of an alcoholic beverage license, for violations of laws pertaining to that license?
Findings Of Fact At times relevant to the inquiry Respondent held alcoholic beverage license no. 47-00190, series 4COP, issued by Petitioner. This license allowed Respondent to sell alcoholic beverages at the licensed premises known as Kent's Northside Lounge and Restaurant, located at 1133 Thomasville Road, Tallahassee, Florida. Respondent was the sole holder of that license. Respondent continues to hold the license. Beginning January 1997, and ending April 25, 1997, Petitioner, together with other law enforcement agencies, conducted an investigation of the licensed premises to determine if violations of law involving illegal narcotics were occurring. While involved in this investigation, Petitioner also investigated alleged violations involving tobacco. On January 7, 1997, Gordon Chesney entered the licensed premises. He was acting in the capacity of a paid law enforcement undercover operative. He was not a sworn law enforcement officer. Once in the bar he made the acquaintance of a person identified as "Wild Bill." Wild Bill refers to Bill Ferris, Respondent's bartender. Chip Kirby, another bartender, was also in the licensed premises. When Chesney introduced himself to Ferris, Chesney wanted to know "where the action is" in town. In conversation Chesney asked Ferris "Does it ever snow down here?" This reference was a slang term for cocaine. Ferris responded that "it would snow in a few days." This comment referred to the availability of cocaine. Chesney told Ferris he would like to get some "snow." After their initial meeting, Chesney telephoned Ferris at the bar. Ferris told Chesney to come to the bar. Chesney returned to the bar at around 6:30 p.m. on January 9, 1997. Once in the bar Chesney made contact with Ferris. Ferris took Chesney over to a booth in the premises. At this time there were customers in the bar, approximately ten to fifteen people. The other bartender, Kirby, was also in the premises. Respondent was not in the premises. Ferris referred to "she is not here yet," meaning the person who was supposed to deliver cocaine to Ferris. Ferris then invited Chesney to the bathroom in the premises. Chesney showed Ferris money he had brought to purchase cocaine. Ferris indicated that there wasn't enough money. Chesney promised to bring more money later. Chesney went away from the premises to obtain more money and returned to the bar at around 8:30 p.m. When Chesney first arrived at the bar on January 9, 1997, Ferris had not been on duty as a bartender. When Chesney returned to the bar, Ferris was on duty. When Chesney returned, he told Ferris that he was ready. Ferris replied that "she" would be here any minute. A girl then came into the bar. Ferris talked to her. Ferris then came to a booth and invited Chesney to go outside with Ferris. While at the booth, Ferris asked Chesney if he had the rest of the money. They went outside. Chesney gave money to Ferris. The money given to Ferris was in addition to the money which Chesney had given Ferris in the bathroom. Ferris gave Chesney a small baggie containing what was taken to be cocaine. The exchange of additional money and the baggie was made right outside the door of the premises. Chesney turned over the item that he had purchased from Ferris to Officer Kevin Taylor of the Tallahassee Police Department. In turn Detective Louis Donaldson of that department took custody of the item. On January 15, 1997, Chesney returned to the bar. His purpose was to obtain additional cocaine. Once in the bar Chesney contacted Ferris. Ferris was working behind the bar at the time. Chesney told Ferris he wanted to "get a quarter." This refers to a quantity of cocaine. Ferris told Chesney that "she will be here any minute." Chesney waited about half an hour. Then a girl came in the back door and talked to Ferris. Then Ferris went back to an area of the bar which is a restaurant. In about five minutes Ferris came out with a Styrofoam soup cup. He said "here is your soup." Chesney said "okay." Chesney gave Ferris $300 and walked out of the bar. On this occasion Respondent was in the premises seated at a table behind Chesney. That location was about eight feet from Chesney's location. Other people were seated with the Respondent. On this occasion music was playing. Sometimes the music was loud. Sometimes the music was not loud. Chesney cannot recall whether the music was loud during conversations held with Ferris concerning the purchase of the cocaine. But the conversation between Chesney and Ferris was in a normal tone. Once outside of the premises, Chesney turned his purchase over to an officer. Again Detective Donaldson took custody of the item. Detective Donaldson prepared a property receipt for those items seized on January 9 and 15, 1997, that were purchased by Chesney. The items were temporarily held in custody by the Tallahassee Police Department. Those items were then forwarded to and tested by the Florida Department of Law Enforcement, who having analyzed the items, discovered the presence of cocaine. On January 22, 1997, Chesney reentered the licensed premises with Officer Alan Wayne Davis, Jr., who worked for the Petitioner in an undercover capacity. Chesney introduced Davis to Ferris. Ferris was working as a bartender at that time. Specifically Ferris was serving beer and mixed drinks, and taking money. Because Davis was acting in an undercover capacity, he did not tell Ferris that he, Davis, was a law enforcement officer. Davis never revealed his position as a law enforcement officer to any persons who were the subject of the investigation. In pursuit of his undercover role, Davis told Ferris that he was a member of a motorcycle club. On this date a conversation held in a normal tone involved the subject of cocaine. This refers to a conversation between Davis and Ferris. Davis returned to the bar alone on January 23, 1997. He contacted Ferris who was working as a bartender. They discussed a prior cocaine deal between Ferris and Chesney in a normal tone. On January 23, 1997, Davis met Samuel H. Lewis at the bar. Davis was introduced by Ferris. Lewis was taking bets on the upcoming Superbowl football game. The bets were premised upon placing projected scores on a paper square for a cost of one dollar. The winner was to be determined by the individual who placed the bet and guessed the total score. The game was a game of chance, not skill. Davis gave Lewis five dollars to participate in the betting pool. An envelope of bets containing fifty-seven dollars was available when Lewis began to collect bets. Lewis received about twenty additional signatures (twenty dollars) in the bar representing individual bets. The overall pool had one hundred squares. Respondent was not at the bar on January 23, 1997, when the football pool was held. On January 23, 1997, Davis met Robert Strauss, Respondent's son. Robert Strauss was an employee at the bar. In conversation Davis was asked what kind of business he was in. Davis responded that he was in the business of making money. Before Davis met Robert Strauss, Ferris had asked Davis if Davis sold cigarettes, in that, as Ferris described the matter, Robert Strauss was always looking for a good price on cigarettes. Davis had answered Ferris in the affirmative. This led to the introduction to Robert Strauss. Conversations about cigarettes were open, in normal tones. In discussion Robert Strauss asked Davis if the cigarettes that Davis had for sale had stamps on them. Davis replied in the affirmative. On the other hand, Davis commented to Robert Strauss that the cigarettes were "so hot that you could feel it." Davis intended by his remarks to indicate that the cigarettes that he had were stolen. That intent would create the most likely inference to be gained from Davis' remarks. Davis did not indicate that he was a licensed wholesale cigarette distributor on that occasion or any other occasion. Through conversation Davis and Robert Strauss arrived at a price of eight dollars a carton for cigarettes, a price below the expected value of that merchandise. Robert Strauss asked Davis to bring him a case of cigarettes next Wednesday. Davis agreed to that request. When Robert Strauss made the overture to Davis concerning the purchase of cigarettes, Davis was not in control of cigarettes. To further the investigation, Petitioner purchased cigarettes from a wholesaler, SuperValue Warehouse. Petitioner caused stamps to be attached to those cigarettes. Those stamps were out of circulation and not involved in normal commerce. By this attachment, the impression that was created was that the cigarettes were properly stamped. The cigarettes were then turned over to Davis to be used in furtherance of the investigation. In a later conversation between Ferris and Davis on January 23, 1997, the subject of cocaine was discussed. This conversation took place in the bar. Davis told Ferris that he might want cocaine at a later time. Ferris invited Kirby into the conversation. Kirby tried to tell Davis what a good deal Kirby and Ferris could get Davis on some "coke." This refers to cocaine. At that point in time, Kirby was working at the bar. The price discussed was $750 for a half ounce of cocaine. Kirby indicated that the cocaine would be available Friday and that Davis could come back and purchase the cocaine from Kirby and Ferris. The conversation about cocaine was openly stated. Davis returned to the bar on January 29, 1997. Davis made contact with Ferris who was tending bar, and had a conversation about Davis' failure to purchase cocaine, causing Ferris and Kirby to be "stuck with the coke," trying to sell it to someone else. This conversation was held in a normal tone of voice. Robert Strauss was not at the bar on that occasion. Nonetheless, Ferris told Davis that, Robert, referring to Robert Strauss, wanted to purchase cigarettes. Ferris indicated he would contact Robert Strauss and return to purchase cigarettes from Davis. Ferris then made a telephone call. Ferris then purchased cigarettes from Davis for $100 in return for twelve cartons of Winstons. Those cigarettes sold by Davis on this occasion, and on other occasions, were the cigarettes that Petitioner had placed the out-of-date stamps on, after obtaining the cigarettes from the wholesaler SuperValue Warehouse. Davis returned to the licensed premises on February 5, 1997. While at the bar, Robert Strauss walked out of another part of the bar and yelled to Davis, "Hey, cigarette man, I will be right out." Robert Strauss was approximately twenty feet away from Davis when he made those remarks. Respondent was sitting in one of the booths of the bar at the time. On this visit to the bar, Davis engaged in a conversation with Ferris. Ferris was not on duty at that time. Then Davis spoke with Robert Strauss. Robert Strauss asked Davis what type of cigarettes Davis had brought. Davis replied that he had brought thirty cartons of Marlboro Lights and a Phillieblunt box full of cigars. Robert Strauss asked if the price of the cigarettes was still eight dollars a carton. Davis said yes. The cigarettes were delivered from Davis to Robert Strauss across the counter after Davis obtained the cigarettes from his vehicle. At that time patrons were at the bar. Robert Strauss paid Davis $240 for the cigarettes from the cash register at the bar, by openly handing Davis the money. Robert Strauss then took the cigarettes to a back portion of the premises. Davis purchased one pack of Marlboro Lights back from Robert Strauss for a price of three dollars out of the cigarettes that had just been sold from Davis to Robert Strauss. On this date, Davis also told Robert Strauss that the cigarettes "were so hot that they wouldn't even have to be lit," in conversation concerning the purchase of additional cigarettes beyond that point in time. At the bar, Davis then engaged in a conversation with Ferris about cocaine in a normal tone. Davis returned to the bar on February 12, 1997. At that time Ferris was working behind the bar, Robert Strauss was also on the premises in the kitchen area. Davis told Robert Strauss that he had thirty cartons of Winstons. Robert Strauss told Davis he would give Davis five dollars per carton for all thirty. They agreed. Davis sold Robert Strauss thirty cartons for five dollars each. Davis brought the cigarettes in from his car in a large box and placed them on the edge of the bar in making the exchange. Twelve to fifteen patrons were in the licensed premises. Robert Strauss took the money to pay for the cigarettes from a bank bag near the cash register. The transaction was openly conducted. On that same date Davis discussed with Ferris the purchase of cocaine while Ferris was working behind the bar. The amount discussed was an ounce. To facilitate the purchase, Ferris gave Davis his work and home telephone numbers; these included the number for the bar. Davis returned to the bar on February 19, 1997. Davis contacted Ferris who was working as a bartender. Patrons were in the bar at that time. Ferris asked Davis if Davis had brought the cigarettes for Robert Strauss. Kirby came over to Davis and asked if Davis was still looking to get an ounce, referring to the purchase of cocaine. Davis said yes. Davis gave Kirby $1,400 in cash in furtherance of a purchase. Kirby counted the money while at the bar without attempting to disguise his activities. Kirby put the money in his pocket and went to the business phone in the premises and made a call. Kirby then returned and told Davis he couldn't contact his main supplier, but that he had another source he could get it from who was in the bar. This discussion was held in a regular tone of voice. Kirby left the bar and then returned. Davis was instructed to follow Kirby and Ferris to a back room. Davis followed them to a storage room. Kirby then pulled a bag out of his shirt represented to be cocaine. Davis weighed the substance on scales. While this transaction took place, the parties were concealed by a door. The substance weighed approximately an ounce. When Davis left the licensed premises, he turned the substance over to a case agent for the Drug Enforcement Administration (DEA). On the same day, Davis sold Robert Strauss thirty cartons of cigarettes delivered to Ferris after Robert Strauss handed Ferris $100 to give to Davis. Davis delivered the cigarettes in a box from the trunk of his vehicle and placed them on the top of the bar during the exchange. Robert Strauss had obtained the money from a bank bag. On February 25, 1997, Ferris paged Davis. Davis called Ferris and Ferris told Davis he would give Davis an ounce of cocaine for $1,320. Davis said he wanted three ounces. An arrangement was made to meet on February 27, 1997, at the bar to carry out the transaction. On February 27, 1997, Davis returned to the bar in the company of a law enforcement officer, Agent Scirpan of the DEA. Davis met with Ferris after walking in the bar. Ferris told Davis to follow him outside. Ferris questioned Davis concerning the possibility that Davis was a cop or affiliated with law enforcement. Davis did not acknowledge his status as a law enforcement officer. They then went to Ferris' truck to count the money that would be used in purchasing cocaine. Respondent was seated at a table in the premises when Davis and Ferris left the premises to go to Ferris' truck. The truck was located by the side of the bar. Davis gave Ferris $4,000. They then went inside the bar. Ferris made a telephone call from the business phone in the premises. Ferris then exited the bar. While in the bar, Davis observed a girl sitting at the bar rolling what appeared to be a cannabis cigarette, known by its appearance to Davis to be cannabis, based upon his experience as a law enforcement officer. Robert Strauss was there at that time two to three feet away. Robert Strauss made no attempt to confront the patron concerning this practice. Davis ordered a pack of Marlboro Lights from the bartender and paid for them. To get the cigarettes, Respondent had to produce the keys to the storage room to obtain the cigarettes purchased. The cigarettes that Davis purchased bore the out-of-date stamp involved with the cigarettes that Davis had sold to Robert Strauss. On that same date an unidentified white male came in offering to sell cartons of cigarettes. The unidentified male was trying to sell cigarettes for ten dollars a carton. At that time Respondent had left the bar. Later Ferris returned to the bar and asked Davis to go outside with him. They got in Davis' car and rode around the block. Ferris gave Davis approximately three ounces of a substance as part of the arrangement to purchase cocaine. This item was turned over to a DEA agent. On March 6, 1997, Davis called Kirby at the bar and ordered an ounce of cocaine. The tone of the conversation was normal. On March 7, 1997, Davis went to the bar and contacted Kirby. Kirby was working. Kirby said the deal was off because of a death in the family. Kirby told Davis that they could talk later about doing one or two "keys" of coke. A "key" refers to a kilo of cocaine. This conversation was held in a normal tone of voice across the bar. On March 17, 1997, Davis called Ferris at the business phone number Ferris had given Davis. The call was about purchasing more cocaine. The phone number used was the number for the licensed premises. An arrangement was made to purchase cocaine of an undisclosed amount on the following Wednesday. On the following Wednesday, which was March 19, 1997, Davis returned to the bar and met with Ferris. Ferris was concerned about the rumor that there was an undercover officer working inside the bar. Davis did not acknowledge his undercover capacity in this conversation. It was decided to wait awhile before the parties did any more business. However, there was a conversation between Davis and Kirby in which Kirby said they could go to Miami and pick up cocaine. This conversation was in a normal tone of voice. As Davis was starting to leave, Robert Strauss approached Davis and asked Davis to bring back some cigarettes when Davis returned. On April 7, 1997, Davis called Ferris and discussed the purchase of one ounce of cocaine on the following Wednesday. This call was made to the telephone within the licensed premises. An agreement was made to purchase an ounce of cocaine, the cost of which was not determined. On April 16, 1997, Davis called the licensed premises and spoke with Kirby about the purchase of an ounce of cocaine. Then Davis went to the licensed premises and contacted Kirby who was working behind the bar. Kirby told Davis that the purchase of cocaine would cost $1,400 an ounce. This conversation was conducted in an open manner. Then Robert Strauss walked out from the back of the bar and asked Davis if Davis "had any hot cigarettes to sell." Davis said "they were all in the trunk." Robert Strauss followed Davis out to Davis' vehicle. In the trunk there were ten cartons of Camels and ten cartons of Marlboro Lights. Robert Strauss carried the cigarettes back into the bar in a box. Robert Strauss put the cigarettes up, went over to the cash register and obtained $100 which was given to Davis. The reference to putting the cigarettes up means that Robert Strauss took them to the storage room. Robert Strauss told Davis that he would buy more cigarettes if Davis would bring them to Robert Strauss. The transaction concerning the purchase of the cigarettes was made with no attempt to conceal the activity. Then Ferris came in and took over Kirby's assignment at the bar. Kirby then sat down next to Davis at the bar. They discussed the purchase of a key of coke, meaning a kilo of cocaine. They discussed that if that amount was broken down, the cost for an ounce would be $700. The purchase was to be made in Miami. This conversation was conducted openly. Davis and Kirby went outside and Davis gave Kirby $1,400 to purchase a smaller amount of cocaine. Kirby returned to the bar. Davis and Kirby then went to Davis' vehicle. Davis took the substance that had been offered as cocaine. This transaction took place after they drove away from the bar. Again, that substance was turned over to an agent with the DEA. On April 22, 1997, Davis called the bar and spoke to Kirby. They discussed the purchase of another ounce of cocaine for the next day. On April 23, 1997, Davis returned to the bar after arranging with Kirby, through a telephone call, to come to the bar. Kirby was tending the bar. Kirby and Davis discussed a cocaine deal. Kirby told Davis that basically all suppliers were sold out of cocaine. Kirby told Davis that some people were offering to sell for as much as $1,600 an ounce. This conversation took place at a little table next to the bar. Patrons were in the premises at that time. The conversation was held in a normal tone. Eventually Kirby told Davis that he had found someone that lives at the Gulf who could get an ounce of cocaine for $1,450. That price was agreed upon. After a person drove up, Kirby commented, "There's my man." At that moment Davis gave Kirby the money. Kirby counted the money. Kirby left the bar and returned. Kirby told Davis to go with Kirby to Kirby's van. They got in the van and drove around the block. Kirby gave Davis an ounce of a substance which was tendered as cocaine. That substance was turned over to an agent of the DEA. Davis returned to the bar on April 24, 1997. He met with Kirby who was tending bar. They discussed the purchase of cocaine. Kirby said he had an ounce of cocaine to sell and asked Davis if he wanted to purchase the cocaine. Davis agreed to purchase the cocaine for $1,400. Davis gave $1,400 to Kirby across the counter. Kirby told Davis to follow him to a bathroom. In the bathroom Kirby handed a substance in aluminum foil to Davis, represented to be cocaine. The substance was turned over to an agent of the DEA. On the same date, Kirby and Davis discussed making a trip to Miami to purchase cocaine, and what it would cost Davis if Kirby delivered the cocaine from Miami, as opposed to Davis and Kirby going to Miami to obtain the cocaine. A price of $32,000 for a kilo of cocaine was discussed. This conversation was held in an open manner. On April 25, 1997, the Tallahassee Police Department served a search warrant on the licensed premises looking for illegal drugs. Petitioner's agency was also involved in the search. During the search, underneath the bar on the right-hand side, an item was discovered, which through a field test revealed the presence of cocaine. The item was wrapped in tin foil. The tin foil was readily visible when standing behind the bar. In addition cigarettes were seized. The item that tested as cocaine in the field test was turned over to the resident agent in charge for the DEA. At the time the search was made on April 25, 1997, Petitioner was investigating the purchase of cigarettes from a non-wholesaler, as well as its interest in the sale of illegal narcotics. On that date, the Petitioner seized the cigarettes that Davis had sold to Respondent's employees. The cigarettes Davis sold had never had taxes remitted to the state of Florida based upon a wholesale transaction. Respondent identified that Kirby and Ferris were part- time bartenders who worked at night. Ferris also worked a Saturday day shift. Ordinarily a shift change to the night shift occurred at 6:00 p.m. Ferris had been a customer of the bar before being hired. Before being hired, Kirby was referred to Respondent by Respondent's friends. Respondent identified that Robert Strauss was more or less the supervisor in charge at the premises when the Respondent was not there. Robert Strauss cooked at the bar a couple of days a week. Robert Strauss was involved with purchasing supplies for the bar. Respondent indicated that Robert Strauss' duties in purchasing during the time in question involved the purchase of cigarettes. Beyond the time of the investigation described, within the last six months prior to the hearing, two employees had been dismissed for suspected drug use. This did not include Messrs. Ferris and Kirby. The dismissal of the other employees was made by Respondent. Respondent's day at the bar runs usually from 7:30 or 8:00 a.m. to 6:00 p.m. Prior to the events described in the facts, Respondent did not have a policy for his establishment concerning activity involving narcotics. Subsequent to the investigation, there is a written policy prohibiting employee activities involving narcotics. Respondent has no written policies advising his employees what the employees should do if they observe persons engaging in illegal narcotic activities. Respondent says that he explains to his employees verbally that if anyone discusses narcotics at the bar "they are out." Respondent has video cameras to monitor activities in the bar. The manner in which Robert Strauss solicited Davis for the purchase of cigarettes, Davis sold the cigarettes, and Respondent's employees sold the cigarettes obtained from the SuperValue Warehouse, creates the inference of impropriety by Robert Strauss and other employees affiliated with Respondent's licensed premises. The inference of impropriety is to the exclusion of any other inference to be gained from the conduct. The inference is that the cigarettes were not part of ordinary commerce and had questionable origins. Under the circumstances, it would be appropriate for an ordinary law-abiding person to suspect that the cigarettes which Davis presented to Robert Strauss and others in the premises, as solicited by Robert Strauss, were stolen. Davis billed the cigarettes as outside the bounds of ordinary commerce when describing the cigarettes as "hot." Davis also identified that the cigarettes were being purchased at a price that was more than a good bargain. The price helped in creating the appearance that the cigarettes were not part of legitimate commerce. As stated, the substances purchased by Chesney on January 9 and 15, 1997, were cocaine. The substance found during the search of the premises on April 25, 1997, was cocaine.1
Recommendation Based upon the findings of fact and conclusions of law, it is recommended that a final order be entered finding Respondent in violation of counts 1, 2, and 9 through 28, and finding that Respondent did not violate counts 2 through 8, and that imposes a penalty of revocation of license number 47-00190, series 4COP. DONE AND ENTERED this 17th day of June, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1998.
The Issue The parties' prehearing statement filed on November 6, 1989, appropriately identifies the controversy as follows: Whether the evidence to be presented by petitioner establishes that respondent was in actual and/or constructive possession of more than twenty (20) grams of cannabis (marijuana), which is a felony violation of Section 893.13, F.S., and drug paraphernalia, which is a misdemeanor violation of Section 893.147, F.S., on November 19, 1988. If proven, do these acts constitute immorality and misconduct in office under Section 231.36(4), F.S.; and Are these acts of such a serious nature that respondent should be discharged from employment and his continuing contract as a teacher with petitioner be terminated.
Findings Of Fact The Respondent, Robert W. Stafford, is 51 years old. At the time of his suspension in 1989, he had been employed as an elementary school teacher with the Brevard County School District approximately 30 years, and was under a continuing contract. For the last 20 years Robert Stafford has owned and lived in his residence located at 5645 Crane Road, Melbourne Village, Florida. He is divorced and, at the time in question, shared the home with his son, Christopher Stafford, and three other young adult males: Martin Lenz, Paul Daniel Butler, and Larry Peace. Each of these individuals had lived in the home for several months or several years prior to November 1988. Each had his own bedroom and due to varying work schedules, only occasionally interacted. In lieu of paying rent, the occupants contributed toward food and utilities and the upkeep and maintenance of the house and its 3/4 acre grounds. Robert Stafford rarely had occasion to enter the bedrooms of the young men. They did their own cleaning. From time to time he would close a window, or put clean laundry in Christopher's room, but generally, the bedrooms, including Robert Stafford's, were considered the private domain of the occupant. On Friday night, November 18, 1988, Robert Stafford left the house around 8:00 or 9:00 p.m. to go to the movies. Larry Peace was at home entertaining his girlfriend. After the elder Stafford left, Peace and the girl smoked marijuana in his room and in the living room. They used a bong (type of water pipe) that he ordinarily kept in his room under his bed. They also burned incense throughout the house. To Peace's knowledge, no one else was home except Martin Lenz, who always kept to himself in his own room, upstairs above the main area of the residence. At some point the couple retired to Robert Stafford's room, leaving the bong in the living room. Although they did not have permission to use the room, the bed was bigger. Christopher Stafford works as custodian in a 2:00 p.m. to 10:00 p.m. shift at Roy Allen Elementary School. He returned home after 10:00 p.m. on the night of November 18, 1988. His father was still out and the others were apparently asleep. He rolled a marijuana cigarette in his room and smoked it outside. When he returned to the house he lit various kinds of incense in the living room and throughout the house. He ate dinner and settled in watching television. Shortly after midnight he heard the dogs barking. When he went out to the backyard, two police officers jumped him and served a search warrant. The Stafford residence had been under surveillance by the Melbourne Village Police Department for several months. Prior to the surveillance, on April 20, 1987, Chief Donald Lock, who was then an officer with the Melbourne Village Police Department, searched the room of Larry Peace, the suspect in a crime which had occurred earlier. The search was pursuant to Peace's written consent and Robert Stafford's verbal consent. The officer was looking for certain clothing, and found, in addition to the clothing, a shotgun, a tray with some marijuana seeds and a waterpipe or bong. After the search was completed, Robert Stafford signed the property receipt for the items. The surveillance was conducted by Officer Norman Rudd with the Melbourne Village Police Department, who at the time of hearing, in November 1989, was 22 years old and had been with the department for two and a half years. Periodically, from February 1988 until November 1988, Officer Rudd viewed the backyard of the Stafford residence from a vantage point in a highly vegetated area behind the property line. He claimed, at various times, to have observed a garden patch of 1-inch marijuana seedlings outside the property line but on a beaten path leading to the property, four males inside the house smoking a bong, a large party in progress with some people smoking marijuana in the backyard, and black plastic pots with larger marijuana plants in the wooded area behind the Stafford property line. Seven or eight police officers converged on the Stafford house the early morning of November 19, 1988. This included the entire 3-man Melbourne Village Police Department and assistance from neighboring Palm Bay and West Melbourne Police Departments. This was the first search warrant executed by Melbourne Village, in the experience of Chief Lock. The search took approximately 5 1/2 hours, and was videotaped (approximately 50 minutes) by an officer from the Palm Bay department. Robert Stafford returned home around 1:00 a.m. and was detained in the living room with the other residents as the search continued. The search revealed Larry Peace's black bong in the northeast corner of the living room. Other paraphernalia and contraband were found in the various bedrooms, including a marijuana pipe with residue and a marijuana cigarette butt and rolling papers on or near Paul Butler's dresser; numerous pieces of drug paraphernalia, hashish oil, cocaine residue, and marijuana, primarily in the form of stems, seeds and parts of discarded cigarettes, in Christopher Stafford's room; a bong and pieces of a bong, marijuana seeds, leaves and butts, a pipe and miscellaneous paraphernalia in Larry Peace's room; and baggies with marijuana residue, a brass pipe with residue, a marijuana butt and tongs in Martin Lenz' room. One item of interest in the search was found in Robert Stafford's room: approximately 27.2 grams of marijuana in two plastic baggies rolled into another baggie and stashed behind a picture on the wall. No other residue, paraphernalia or devices were found in that room. In contrast to Robert Stafford's room, which was neat and uncluttered, the rooms of the young men were messy and filled with books, clothes, posters, papers and debris. Two of the rooms contained wire animal cages, for snakes, rabbits or other small animals. The rooms were small, except for Christopher's, and appeared to be partially make-shift renovation. Most of the items confiscated in the search were either completely hidden in closets or drawers, or were behind beer bottles, books or other clutter. Other items were found (the discarded stems, seeds, and butts) with other refuse in trash cans. The visual effect portrayed in the video tape was such disarray that it would be difficult to focus on a single item of contraband without specifically looking for that item. The officers described the pervasive odor in the house as marijuana, and one officer became ill during the search and had to leave. Other evidence established the odor as incense, including Christopher's blend of strawberry, musk and sandalwood, and of animals. Robert Stafford denies knowledge of the presence of the contraband in his home or the plants growing beyond the property line. He denies that he would have recognized the paraphernalia or the marijuana, except in the form of a plant, which he would recognize from pictures. Sometime prior to the November 1988 incident, Stafford was shown a marijuana plant by the custodian at Turner Elementary School on a morning when he was hurrying to class. When he signed the property receipt at the time of the search of Peace's bedroom, the marijuana seeds and pipe were not presented to him. The marijuana stashed in Robert Stafford's room belonged to Christopher, who had secreted it there for safe- keeping when he suspected someone was messing with the things in his room. The youths never used drugs in front of the elder Stafford and burned incense in their rooms and elsewhere to cover the odor. There is no evidence suggesting that Robert Stafford uses or used drugs or marijuana and he emphatically denies such. When Robert Stafford failed to report the presence of marijuana at school when it was shown to him by the custodian, he was given a written reprimand. This is the only blemish on his 30-year teaching career. His performance evaluations have been satisfactory or outstanding. He has been commended for setting up a model computer center and for work with difficult children. He has been a regular volunteer in child enrichment activities such as Little League. In April 1989, the Staffords and other residents were charged with criminal violations arising from the November 1988 search. Robert Stafford's charges were disposed of, nolle prosequi. The Department of Education found no probable cause to pursue discipline of his teaching certificate. The evidence in this proceeding failed to establish that Robert Stafford was in actual or constructive possession of cannabis (marijuana) or drug paraphernalia.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the Petition for Discharge of Robert W. Stafford be dismissed. DONE AND RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 22nd day of February, 1990.
Findings Of Fact At all times here relevant, Respondent, Howard W. Adams, held Florida teaching certificate number 237388, Graduate, Rank III, and Randy D. Ward held Florida teaching certificate number 404713, Graduate, Rank III. On or about 1 April 1979 Respondents were arrested by the Fort Myers police and charged with possession of marijuana. Respondent Adams, who was on continuing contract, was suspended without pay from his position in the Lee County school system and Respondent Ward, who was on annual contract, was fired from her position in the Lee County school system. Considerable publicity was given to the arrests and school board actions resulting therefrom. The criminal charges against these Respondents were subsequently dropped by the State Attorney's office for lack of evidence. This too received publicity in the local press. Suffice it to say the arrest and subsequent release of Respondent Adams was well-known by both faculty and students at Cypress Lake Middle School, where Adams taught orchestra, and by the adult population of Fort Myers with children attending the Lee County public schools. Both of the witnesses called by Petitioner testified that Respondent Adams' effectiveness in the school system had been seriously reduced as a result of the marijuana incident. This loss of effectiveness was caused by the belief that Adams had, in fact, violated the law by having in his possession marijuana. Since Adams was suspended from his position on the faculty at Cypress Lake Middle School as soon as the newspapers published the circumstances surrounding his arrest, no specific incidents to show how Adams' effectiveness had been reduced was available, let alone presented, to support these conclusions. No evidence regarding the loss of effectiveness of Respondent Ward was submitted. Fort Myers and Lee County are populated predominantly by residents with a conservative outlook on morals and moral values. As a result, possession of marijuana is deemed a more serious offense in Lee County than in more cosmopolitan areas. Students found in possession of marijuana on school premises are routinely expelled. Possession of drugs of any sort is deemed immoral in this area, and marijuana is included in the definition of drugs.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that their teaching certificates numbered 237388 and 404713 be revoked. DONE and ENTERED this 27th day of August, 1980, in Tallahassee, Leon County, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1980. COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Dr., Ste. 224 Tallahassee, FL 32301 Philip Padavano, Esquire P. O. Box 527 Tallahassee, FL 32302
