Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Jimmy Franklin Pinion, L.P.N., holds License No. 42845-1, as a Licensed Practical Nurse. Respondent was employed as a private duty nurse caring for Elsie B. Allen, a ninety-three-year-old woman, during the period April, 1978, through September 11, 1978, when he was dismissed for alleged physical abuse of Mrs. Allen and for alleged possession of controlled substances, to-wit: Valium and marijuana, on or about August 15, 1978. The Complaint alleges that on or about September 9, 1978, Respondent slapped Mrs. Allen twice on her forehead, resulting in bruises to the forehead. Concluding the Complaint alleges that the Respondent is guilty of unprofessional conduct in violation of Florida Statutes Subsections 464.21(1)(b) and (d). Anna Marie Snyder, an L.P.N. in Florida since approximately 1971, testified and expressed her familiarity with the Respondent since his employment with Mrs. Allen. Snyder testified that Mrs. Allen employed three round the clock nurses, one of whom was the Respondent, Jimmy Franklin Pinion. Ms. Snyder testified that she occasionally stayed at Mrs. Allen's home and that while so doing, she used a back bedroom which the Respondent also used occasionally. She testified that a problem arose with respect to a suspicion that some brownies had been placed in the refrigerator which were laced with marijuana. According to Ms. Snyder, the Respondent made the brownies and brought them to Mrs. Allen's home. Ms. Snyder also testified that she discovered marijuana in the back bedroom and that she brought the matter of the marijuana-laced brownies to the attention of Mrs. Allen's two nephews. According to Ms. Snyder, Respondent stressed the fact that Mrs. Allen had to be taken care of "firmly." On cross- examination, Ms. Snyder testified that the Respondent admitted that the brownies which were in a bag in the back bedroom belonged to him and that Respondent admitted that he had struck Mrs. Allen with a cane. Ms. Snyder's testimony is that bags of marijuana were found in a closed used by the Respondent, wherein crocheting and other personal items belonging to Respondent were located. She testified that vials of other drugs were confiscated by Mrs. Allen's attorney on or about September 11, 1978. Lorraine Clark Ruskin, an L.P.N. licensed for more than twenty-eight years, was also employed by Mrs. Allen as a private duty nurse. Ms. Ruskin testified that on August 15, 1978, she, along with Ms. Snyder, visited Respondent's rear bedroom where Respondent showed her marijuana in the rear bedroom. Approximately April 28, 1978, Ms. Ruskin had some photos taken which were introduced into evidence over the objections of Respondent's counsel. (Petitioner's Exhibits 1 through 5.) According to Ms. Ruskin, Respondent and a friend of his allegedly hit Mrs. Allen on her forehead, causing bruises, on or about September 9, 1978. Attorneys Carl Hiassen and G. Ware Cornell, Jr., visited the Allen's home on the morning of September 11, 1978, and dismissed the Respondent from Mrs. Allen's employ for alleged patient abuse and possession of drugs. Ms. Ruskin testified that she took Mrs. Allen to a psychiatrist who diagnosed Mrs. Allen as being incompetent to handle her own affairs due to an organic brain syndrome caused by generalized arterioscleriotic cardiovascular disease. (Respondent's Exhibit 2.) She testified that Mrs. Allen had a history of falling and that the subject incident, which gave rise to the bruises, occurred approximately September 10, 1978. She testified that the Respondent was terminated on September 11, 1978, when bruises were found on Mrs. Allen's forehead. G. Ware Cornell, Jr., an associate of Attorney Carl Hiassen, visited Mrs. Allen's home on September 11, 1978, for the purpose of terminating the Respondent. The reasons given for the termination were "unsatisfactory performance and suggestion of drug possession." Attorney Cornell testified that he visited the back bedroom where the Respondent stayed while at Mrs. Allen's home and discovered what appeared to be Valium, marijuana and other drugs. Attorney Cornell testified that when the Respondent was terminated, he was told to return all keys to the Allen's home that were in his possession. Carl A. Hiassen, Esquire, has been representing Mrs. Allen since World War II and visited the Allen's residence on September 11, 1978, for the express purpose of preparing a termination notice for the Respondent. He testified that he discovered drugs in a bedroom which he was told was being occupied by the Respondent. He testified that he made a list of the substances which he considered to be drugs and gave it to Mrs. Markowitz, Petitioner's representative in the Fort Lauderdale area. Attorney Hiassen testified that he retained custody of the drugs until approximately January of 1979, at which time there were given to Mrs. Markowitz. Mrs. Markowitz later turned the substances over to the Broward County Sheriff's office for chemical analysis. According to Mrs. Markowitz, the substances were analyzed by John T. Pennie, a forensic chemist for the Broward County Sheriff's office Crime Laboratory. Neither the substances nor the person performing the analysis appeared at the hearing to testify with respect to the identify of the substances. Respondent appeared at the hearing and testified that he had a prescription for Valium and, to the best of his recollection, he only had one or two tablets remaining from a prescription which he had filled sometime ago. Respondent denied having in his possession marijuana or any other controlled substance prescribed by Chapter 893, Florida Statutes. Respondent testified that Mrs. Allen had a problem signing blank checks for a Mrs. Carr who had taken approximately $40,000 from Mrs. Allen. Additionally, Respondent testified that Mrs. Allen never called him by his name. He testified that he contacted Mr. Hiassen's office to report the fact that Mrs. Allen was signing blank checks and the funds were diverted for the purposes for which they were intended by Mrs. Allen. Mrs. Allen did not testify at the hearing allegedly due to her physical condition.
Conclusions Due to the hearsay nature of the identity of the substances analyzed by the Crime Laboratory, the undersigned is unable to conclude that the Respondent had possession of drugs or other prescribed substances in violation of Chapter 893, Florida Statutes, as alleged. Among other things, there were problems with the chain of custody from the Allen's residence to the Crime Laboratory and the fact that at least one other nurse shared the same room in which it is alleged that the Respondent allegedly stored Valium and marijuana. Finally, the Respondent emphatically denied that he struck Mrs. Allen and the only testimony to refute this denial was heresay and thus falls within the proscriptions of Section 120.58, Florida Statutes. In view thereof, I shall recommend that the Administrative Complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine B. Johnson, R.N. Department of Professional Regulation Board of Nursing Suite 504, Richard P. Daniel State Office Building 111 East Coast Line Drive Jacksonville, Florida 32202 Julius Finegold, Esq. 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Roger D. Haagenson, Esq. Suite 601, Cumberland Building 800 East Broward Boulevard Fort Lauderdale, Florida 33301
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Findings Of Fact Based upon the record evidence, the following Findings of Facts are made: Idaliza Roman is employed by Respondent as a Collections Specialist II. She is assigned to Respondent's Plantation, Florida office. As part of her job responsibilities, she issues assessments against persons suspected of having engaged in illicit drug activity made taxable by Section 212.0505, Florida Statutes. On October 13, 1989, Roman issued such an assessment against Petitioner. She also issued and filed a tax warrant based on the assessment. The assessment alleged that, on or about August 16, 1989, Petitioner had engaged in a taxable transaction involving 27 kilograms of cocaine. In making this allegation, Roman relied exclusively upon information she had gleaned from a probable cause affidavit contained in a court file, as well as a laboratory report and a property room receipt. She conducted no further investigation into the matter before issuing the assessment. The probable cause affidavit upon which Roman relied reflected that Petitioner had been arrested on August 16, 1989, for a cocaine-related offense. It did not reveal, however, when the alleged offense had been committed. Roman assumed, erroneously, that it had been committed on or about the date of Petitioner's arrest. The arrest actually had been for an offense, involving substantially less than 27 kilograms of cocaine, that Petitioner had allegedly committed in January, 1989. The authorities had no information that Petitioner had been involved in any illicit, drug-related activity on or about August 16, 1989. On April 3, 1990, Roman discovered that the October 13, 1989, assessment against Petitioner and the tax warrant she had issued based on the assessment were incorrect. She thereupon issued and filed a "corrected" tax warrant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued sustaining Petitioner's challenge to the October 13, 1989, jeopardy assessment issued against him and rescinding the assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of May, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1990.
The Issue The issue presented here concerns the Administrative Complaint brought by the Petitioner, State of Florida, Department of Professional Regulation, against the Respondent, Jack V. Quick, alleging that the Respondent has been found guilty of crimes against the laws of the United States, which crimes directly relate to the activities of a licensed broker or salesman or involve moral turpitude or fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes. Specifically, it is charged that the Respondent was found guilty on or about December 11, 1979, of certain offenses, namely counts Three, Four, Five and Six of an indictment dated July 31, 1979. Those offenses involved: (1) the willful and knowing conspiracy with others to possess with intent to distribute a controlled substance, to wit, marijuana, (2) the use and arrangement for the use of telephonic communications in the aforementioned enterprise, two counts, and (3) travel in interstate commerce to carry out the business of distributing a controlled substance, to wit, marijuana in violation of Section 841(a)(1), Title 21, United States Code; Section 846, Title 21, United States Code; and Section 1952(a)(3), Title 18, United States Code.
Findings Of Fact Petitioner, as the State of Florida, Department of Professional Regulation, brought an Administrative Complaint against the Respondent, Jack V. Quick, setting forth those allegations as are found in the Issues statement of the Recommended Order. The Respondent requested a formal administrative hearing pursuant to Subsection 120.57(1), Florida Statutes, and on February 9, 1981, that hearing was conducted. The case was presented on the basis of the introduction of Joint Exhibits A, B and C, by the parties. Joint Exhibit A is an indictment by the Grand Jury in the United States District Court, Middle District of Georgia, Valdosta Division, Case No. 79-7-VAL, placed against the Respondent Jack V. Quick who is referred to in the indictment as Jack Vernon Quick. Joint Exhibit B is the Judgment and Commitment Order of the U.S. District Court in the aforementioned case arising from a finding/verdict directed to the aforementioned indictment. Joint Exhibit C is the Judgment of the United States Court of Appeal, for the Fifth Circuit, directed to the judgment of the United States District Court, Middle District of Georgia, Valdosta Division. From the position taken by the parties in this action and the documents stipulated to by the parties, the following facts are found: Respondent, Jack V. Quick, is a real estate broker, licensed by the Petitioner, State of Florida, Department of Professional Regulation, Board of Real Estate. The Respondent, Jack V. Quick, under the name Jack Vernon Quick, was indicted by the Grand Jury of the United States District, Middle District of Georgia, Valdosta Division, Case No. 79-7-VAL on the following Counts: COUNT ONE From on or about August 17, 1978, to and including on or about August 19, 1978, within the Middle District of Georgia and elsewhere, the defendant, JACK VERNON QUICK, wilfully and knowingly did transport and cause to be transported and did aid and abet the transportation in interstate commerce from Tallahassee, Florida, to the State of Georgia, David Karl Roberts who had theretofore been unlawfully seized, confined, kidnapped, abducted, carried away, and held by the said defendant, JACK VERNON QUICK, for ransom, reward and otherwise, that is, for the purpose of obtaining a particular hoard of one thousand pounds of marijuana or the return of the defendant's downpayment of $68,000 on the purchase price of $138,000 of the said marijuana; in violation of Sections 1201(a)(1) and (2), Title 18, United States Code. COUNT TWO From on or about August 17, 1978, to and including on or about August 19, 1978, within the Middle District of Georgia and elsewhere, the defendant, JACK VERNON QUICK, wilfully and knowingly did combine, conspire, confederate and agree together with others known and unknown to the Grand Jury to violate Section 1201 (a)(1), Title 18, United States Code, that is, to wilfully and knowingly transport in interstate commerce from Tallahassee, Florida, to the State of Georgia, David Karl Roberts, who had theretofore been unlawfully seized, confined, kidnapped, abducted, carried away and held by the said defendant for ransom, reward and otherwise, to wit, for the purpose of obtaining a particular hoard of one thousand pounds of marijuana or the return of the defendant's downpayment on said marijuana. OVERT ACTS In furtherance of the conspiracy and to effect that objects thereof the defendant performed the following overt acts: On or about August 17, 1978, David Karl Roberts was transported by force and coercion by the defendant and others from the residence of James Mann Ervin to the residence of defendant JACK VERNON QUICK, both residences being in the State of Florida. On or about August 18, 1978, David Karl Roberts was transported by force and coercion from the residence of defendant JACK VERNON QUICK in Tallahassee, Florida, to Valdosta, Georgia, by the defendant JACK VERNON QUICK and others. On or about August 19, 1978, David Karl Roberts was transported by force and coercion from Valdosta, Georgia, to defendant JACK VERNON QUICK's residence in Tallahassee, Florida, where he was held against his will by the defendant and others. All in violation of Section 1201(c), Title 18, United States Code. COUNT THREE From on or about July 1, 1978, to and including on or about August 18, 1978, in Valdosta, Georgia, in the Middle District of Georgia and elsewhere, the defendant, JACK VERNON QUICK, did unlawfully, wilfully and knowingly combine, conspire and confederate and agree together with others known and unknown to the Grand Jury, to commit an offense in violation of Section 841(a)(1), Title 21, United States Code, to wit, to knowingly and intentionally possess with intent to distribute approximately 1,000 pounds of marijuana, a Schedule I controlled substance; all in violation of Section 846, Title 21, United States Code. COUNT FOUR On or about August 16, 1978, the defendant, JACK VERNON QUICK, did use and cause to be used a facility in interstate commerce, that is, telephonic wire communications from Tallahassee, Florida, to Adel, Georgia, in the Middle District of Georgia, with the intent to promote, manage, establish, carry on, and facilitate the promotion, management, establishment and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of narcotics and controlled substances, to wit, marijuana, in violation of section 841(a)(1), Title 21, United States Code, and thereafter did perform and attempt to perform acts to promote, manage, and carry on and facilitate the promotion, management and carrying on of said unlawful activity; in violation of Section 1952(a)(3), Title 18, United States Code. COUNT FIVE On or about August 18, 1978, the defendant, JACK VERNON QUICK, did travel in interstate commerce from Tallahassee, Florida, to Valdosta, Georgia, in the Middle District of Georgia, with the intent to promote, manage, establish, carry on, and facilitate the promotion, management, establishment and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of narcotics and controlled substances, to wit, marijuana, in violation of Section 841(a)(1), Title 21, United States Code, and thereafter did perform and attempt to perform acts to promote, manage, and carry on and facilitate the promotion, management and carrying on of said unlawful activity; in violation of Section 1952(a)(3), Title 18, United States Code. COUNT SIX On or about August 18, 1978, the defendant, JACK VERNON QUICK, did use and cause to be used a facility in interstate commerce, that is, telephonic wire communications from Tallahassee, Florida, to Valdosta, Georgia, in the Middle District of Georgia, with the intent to promote, manage, establish, carry on, and facilitate the promotion, management, establishment and carrying on of an unlawful activity, said unlawful activity being a business enterprise involving the distribution of narcotics and controlled substances, to wit, marijuana, in violation of Title 21, United States Code, Section 841(a)(1), and thereafter did perform and attempt to perform acts to promote, manage, and carry on and facilitate the promotion, management and carrying on of said unlawful activity; in violation of Title 18, United States Code, Section 1952(a)(3). On December 11, 1979, the Respondent was found not guilty of the aforementioned Counts One and Two. On December 11, 1979, the Respondent was found guilty of Counts Three, Four, Five and Six and was sentenced to five (5) years under Count Three or until otherwise discharged as provided by law, to be followed by special parole for two (2) years. On each of the Counts Four, Five and Six, the Respondent was given a five (5) year sentence to be served to run concurrently with the sentence set forth in Count Three. On November 7, 1980, in an action on Summary Calendar, United States Court of Appeal, for the Fifth Circuit, No. 79-5729, the court upheld the aforementioned judgment entered December 11, 1979, by the United States District Court, Middle District of Georgia, Valdosta Division. The appellate court order of affirmance was issued as a mandate on December 4, 1980.
Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of Respondent's alleged violation of Section 458.331(1)(c), Florida Statutes, in that he has been convicted or found guilty of a crime which directly relates to the practice of medicine or to the ability to practice medicine. BACKGROUND AND INTRODUCTION By Administrative Complaint signed on October 3, 1985, the Respondent was charged with a violation of Section 458.331(1)(c), Florida Statutes. Specifically, the Administrative Complaint alleges that the Respondent has been convicted of conspiracy to possess with intent to distribute a large quantity of marijuana. Approximately 20 minutes before the commencement of the hearing, the Hearing Officer received a telephone call from a man who identified himself as Frances K. Buckley. Mr. Frances Buckley stated that he is an attorney in Ft. Lauderdale, Florida. and that he is the father of the Respondent in this case. Attorney Buckley advised the Hearing Officer that his son was still incarcerated at Danbury, that an appeal of his son's conviction was pending, that there had been no disposition of the appeal, and that he expected his son to be released from prison sometime within the next three months. Attorney Buckley advised the Hearing Officer that he was providing the foregoing information at the request of his son. Attorney Buckley did not purport to be acting as attorney for his son and did not make any motions. The substance of the foregoing conversation was made a part of the hearing record, whereupon the Department was asked what course of action it preferred. The Department having expressed a preference for going forward, and there being no motion for continuance, the formal hearing was conducted at the time and place set forth in the Second Notice of Hearing issued on December 19, 1986. At the hearing the Petitioner presented the testimony of one witness and offered several exhibits in evidence, all of which were received. A transcript of the proceedings at hearing was filed on April 14, 1987, and by memorandum issued April 15, 1987, all parties were reminded that they had until April 24, 1987, within which to file their post-hearing submissions to the Hearing Officer. on April 22, 1987, the Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all of the findings of fact proposed by the Petitioner has been included in the findings of fact in this recommended order. By letter dated April 22, 1987, and received on April 27, 1987, the Respondent moved for an enlargement of time and for a new hearing. By order issued May 1, 1987, the motion for new hearing was denied and the motion for enlargement of time was granted to the extent of allowing the parties until May 15, 1987, within which to file proposed recommended orders and/or memorandums of law. On May 15, 1987, the Respondent filed a motion seeking reconsideration of the order of May 1, 1987, and seeking a continuance of further proceedings in this case until September 15, 1987. The merits of the last mentioned motion are addressed in the conclusions of law hereinafter. The Respondent has not filed any proposed findings of fact.
Findings Of Fact Based on the testimony of the witness and on the exhibits received in evidence, I make the following findings of fact. The Respondent, David K. Buckley, is a licensed physician in the state of Florida, having been issued license number ME 0021232, and was so licensed at all times material to this case. On June 7, 1985, in the U.S., District Court for the District of Maine, the Respondent pled guilty to and was convicted of the offense of conspiracy to possess with intent to distribute a large quantity of marijuana, in violation of Title 21 U.S. Code, Section 846. As a result of that conviction, the Respondent was sentenced to imprisonment for a period of five years. The crime described above directly relates to the practice of medicine and to the ability to practice medicine. The ability to prescribe, administer, and dispense controlled substance in a lawful manner is an important aspect of the practice of medicine. Conviction of the crime described above is indicative of an inability to prescribe, administer, and dispense controlled substances in a lawful manner. An inability to lawfully prescribe, administer, and dispense controlled substances directly relates to the practice of medicine and to the ability to practice medicine.
Recommendation On the basis of all of the foregoing, it is recommended that the Board of Medicine enter a final order in this case to the following effect: Concluding that on the basis of the facts found above the Respondent is guilty of violating Section 45.331(1) (c), Florida Statutes, and Imposing a penalty of a suspension of Respondent's license for a period of three years, with reinstatement of the license only upon a showing by Respondent of ability to practice medicine with reasonable skill and safety, and upon reinstatement place Respondent's license on probation for a period of five years. DONE AND ENTERED this 21st day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 3130 North Monroe Street Tallahassee, Florida 32399-075O David K. Buckley, M.D. 102311-036 Danbury Federal Correctional Institution Pembroke Station Danbury, Connecticut 06811 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 ================================================================ =
Findings Of Fact Petitioner here, Kenneth G. Bray, on May 31, 1983, filed an application for licensure as a real estate salesman in Florida with the Florida Real Estate Commission on its application form, which was received by the Commission on June 9, 1983. Received that same date was the addendum to the real estate salesman's application, signed by Petitioner, which, according to the form itself, is to be answered instead of Question 6 on the basic application form. Petitioner answered Question 6 on both forms. Question 6 on the basic application form states: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation includ- ing traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the outcome in full. In answer to that question, Petitioner replied: D.W.I. Daytona Beach (Fined) 1982 1968 N.Y. Drugs, poss. larceny & sale (turned over to military) On the addendum filed the same date, the question asked is somewhat different, reading: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? To this question, Petitioner answered with the same information as contained in the answer to Question 6 on the basic application form. A printout of Petitioner's Florida arrest record by the Florida Department of Law Enforcement dated June 29, 1983, reflects that Petitioner was arrested by officers of the Daytona Beach Police Department on November 28, 1982, for: Driving under the influence of liquor Possession of under 20 grams of marijuana Resisting an arresting officer without violence. Petitioner indicates all three offenses were part of the same incident and arrest, that he was fined for the offense of driving under the influence of liquor, and that the remaining two charges were dropped. Respondent offered no evidence to rebut this contention, and it is, therefore, found as fact that Petitioner was not convicted of either the marijuana offense or of resisting arrest. Petitioner admits these latter two allegations were not listed on either form at Question 6 because they were all a part of the same arrest and he was not convicted of either. Further, these two omitted offenses were less serious than those he did list, such as the 1960 drug offense when he was a 21- year-old military member and the DUI. At the time the applications were submitted, he was under some problem to get them in because of an impending test date, and he omitted those two offenses. Thereafter, he telephonically contacted a representative of Respondent Real Estate Commission in Orlando, a lady named Ruth (Clayton), to whom he explained his omissions. According to Petitioner, she told him to write a letter to the Commission outlining the offenses he omitted, and he contends he did so. He does not have a copy of his letter, however, nor was a copy offered by Respondent.
Recommendation Based on the above, it is RECOMMENDED that Petitioner, if otherwise qualified, be issued a license as a real estate salesman in Florida. RECOMMENDED this 3rd day of February, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 3rd day of February, 1984. COPIES FURNISHED: Ralph Armstead, Esquire Assistant Attorney General Department of Legal Affairs 400 West Robinson Street Suite 212 Orlando, Florida 32801 Mr. Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Kenneth G. Bray 2617 South Atlantic Avenue Daytona Beach Shores, Florida 32018
