Findings Of Fact Respondent David A. Avant, III, was arrested on October 16, 1989, and charged with one count of cultivation of marijuana (a third degree felony), and one count of possession of marijuana (a misdemeanor). The charges concerned one marijuana plant which was found on Avant's property by a game warden. Avant was arrested when he picked up the plant to throw it over his fence. The marijuana plant did not belong to Avant and it was not on his property with his permission. A search of Avant's truck by game wardens did not reveal any tools, buckets, etc., indicating that he was, in fact, cultivating and/or caring for the marijuana plant. Avant accepted a plea agreement offered by the State Attorney to save the money and expenses that would be required for a trial. Avant accepted the state attorney's plea agreement for reasons of economics and convenience. Avant entered a plea of nolo contedere to one felony count of cultivation of marijuana and one misdemeanor count of possession of marijuana. 1/
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of June, 1991.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. 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 20th day of April, 1992.
Findings Of Fact At all times relevant hereto Respondent was licensed by the Florida Real Estate Commission as a real estate broker. On August 7, 1982, Respondent was arrested on his property in Manatee County at a marijuana patch growing thereon. He was taken into custody, handcuffed, and placed in a Sheriff's Department vehicle for transportation into Bradenton for booking. Upon arrival at the sally port at the booking office and jail, Respondent was removed from the car. While the sequence of events that occurred was not explicated at the hearing, in Respondent's words "things got out of hand." Respondent testified the Deputy Sheriff tried to "break my arms while removing him from the vehicle, then "overreacted" and drew his pistol. As he emerged from the car, one of Respondent's handcuffs came off, Respondent seized the deputy's gun and ran away. Respondent surrendered himself to authorities the following day and the gun was returned by his attorney a few days later. Respondent was charged and tried on three counts involving manufacture, use, or intent to use, and possession of marijuana; grand theft of the pistol taken from the Deputy Sheriff; aggravated assault; and escape from confinement. He pleaded nolo contendere to all counts except aggravated assault, to which he pleaded and was found not guilty. Adjudication of guilt was withheld on the three marijuana counts (Counts I, II, and III) and on the grand theft count (Count IV), and Respondent was sentenced to ten days' confinement on work release program on Counts I, II, III, and IV, and was fined $1,000 and placed on probation for three years on Count IV. He was found guilty of escape from confinement and was sentenced to 11-1/2 months in the County Jail work release program and placed on three years probation to run concurrently with the probation in Count IV. Respondent has lived in Manatee County all his life and his parents are long-time residents. He has been licensed as a real estate broker for seven years and was a salesman before becoming a broker. The psychotherapist to whom Respondent was referred for counseling after his arrest testified that he met with Respondent for counseling for more than 100 hours and that he administered standards tests to Respondent to determine emotional stability and personality traits. This witness opined that Respondent is of moral standards without psychiatric problems or personality disorders, and that he is a church-going man. This witness did not consider the stealing of the deputy's firearm to be an immoral act, but considered the growing of marijuana to be a moral offense.
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1983.
The Issue Whether Respondent has fostered, condoned, and/or negligently overlooked trafficking in and use of illegal narcotics and controlled substances on or about the licensed premises. Whether Respondent has failed to exercise due diligence in supervising his employees and managing his licensed premises so as to prevent the illegal trafficking and use of narcotics on the licensed premises. Whether Respondent may transfer his alcoholic beverage license to a qualified licensee or if it should be permanently revoked.
Findings Of Fact Respondent is the holder of alcoholic beverage license number 69-0876, series 2-COP, for a licensed premises known as Stormy Norman's, which is located at 3006 South U.S. 17- 92, Casselberry, Seminole County, Florida. On March 13, 1990, five patrons were observed passing and smoking a marijuana cigarette, just outside the rear door on the "patio". The "patio" is a fenced-in, partially covered area, which contains picnic tables and is located immediately behind the licensed premises. The patio is primarily accessible through the rear door of the licensed premises, which is usually left open during business hours. However, access could be made to the patio through the back of the premises onto the patio without knowledge of the Respondent as to who was there or what activity was going on. On March 13, 1990, a patron known as "Billy" sold marijuana to two different patrons on the patio. Subsequently, other patrons were observed dividing up marijuana into plastic bags, rolling "joints" and smoking marijuana on the patio. During this time, the rear door of the licensed premises was open and the smoke from the marijuana cigarettes was easily detectable inside the premises. Also, inside the licenses premises, several patrons openly discussed the purchase and consumption of controlled substances in the presence of employees. On March 14, 1990, a patron known as "Kelly" sold a plastic bag containing marijuana for the sum of $35.00. The sale was discussed in the presence of the bartender known as "Gordie". After this transaction, Kelly offered to sell large quantities of cocaine to Petitioner's investigators. On March 15, 1990, while Respondent was on the premises, several patrons rolled "joints", manufactured a "pipe" and smoked marijuana on the patio. These patrons would freely enter and depart the licensed premises from the patio and did nothing to conceal their activities. Inside the licensed premises, the patrons openly discussed the use of controlled substances and extended invitations to other patrons to consume the same on the patio. In addition, Kelly openly sold a baggy of marijuana to a patron, in plain view and in the presence of several other patrons and bartender Gordie. On March 20, 1990, several patrons were rolling and smoking marijuana cigarettes on the patio. A patron known as "Rabbit" sold and delivered marijuana to another patron known as "Stan". During this time, Respondent was on the licensed premises and was in a position to detect the use of controlled substances. On March 21, 1990, a patron Billy gave Petitioner's investigator a muscle relaxant in exchange for a beer, while in the presence of bartender Gordie at the licensed premises. During this time, Respondent was playing darts near the rear door of the licensed premises and was observed looking out the rear door and watching patrons smoke marijuana. While doing so, several patrons were heard to yell "He's out back doing drugs," in response to bartender Gordie's inquiry about another patron. On March 22, 1990, Petitioner's investigators made two controlled buys of marijuana while on the patio. One of the sellers was Respondent's day manager, known as "Little Dave". On the same date, while Respondent was on the licensed premises, several patrons were observed smoking marijuana on the patio, and other patrons were observed in possession of plastic bags containing marijuana inside the licensed premises. On March 28, 1990, Petitioner's investigator made a controlled buy of marijuana from Respondent's day manager, Little Dave. Just prior to this sale, the bartender known as "Cookie" was asked to make change for a marijuana purchase. In response thereto, Cookie smiled and freely made change for a twenty dollar bill. On this occasion, patrons openly smoked marijuana on the patio, the odor of which was easily detectable inside the licensed premises. On April 4, 1990, patrons were smoking marijuana on the patio, and the bartender Cookie had open conversations regarding the use of cocaine. On April 10, 1990, patron Stan sold marijuana on the patio to two patrons. On April 12, 1990, a patron known as "Fred" approached the bar to purchase a beer. While at the bar, Fred openly displayed two small white pills and a small quantity of marijuana on the bar counter in the presence of bartender Gordie. Subsequently, Fred went to the patio, where he was observed selling white pills to patrons, which were later determined to be "white- crosses". On April 18, 1990, several patrons were observed rolling and smoking marijuana cigarettes. On April 19, 1990, Respondent's day manager, Little Dave, sold a small plastic bag containing marijuana to Petitioner's investigator for $35 while on the patio. Throughout this transaction, there was a young boy, approximately 8 years of age, playing on the patio. Also, bartender Cookie went to the patio on three occasions while on duty to smoke a marijuana cigarette. On one occasion she was observed blowing marijuana smoke at bartender Gordie's face. During this general time period, Respondent was on the patio while several patrons were smoking marijuana. On April 24, 1990, Petitioner's investigator made a purchase of a small bag of marijuana in plain view of the bar while on the licensed premises. On April 25, 1990, several patrons were observed smoking marijuana on the patio of the licensed premises. At no time throughout the entire investigation did the licensee or any of his employees do or say anything to prevent employees from using or selling controlled substances on the licensed premises. The Respondent did not participate in the sale of any controlled substances or drugs, nor did he witness the sale of drugs at any time during the course of the investigation. Respondent was aware of customers smoking marijuana on the patio on several occasions and did not evict them from the premises. Respondent did ask Little Dave to leave the property on divers occasions when it was discovered that he was selling marijuana, but he was allowed to return to the premises. Respondent was taken advantage of by his friends and customers and was not aware that drug use was so prevalent, although he did know that at times some marijuana smoking was going on. Respondent seeks to transfer his beverage license, as provided by Section 561.3 2, Florida Statutes, to Elizabeth Ann Allen of Casselberry, Florida, who would qualify for a temporary license upon application for transfer as provided in Section 561.331, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Alcoholic Beverage License Number 69- 0876, Series 2-COP be REVOKED. DONE AND ENTERED this 4th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL N. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4 day of September, 1990. COPIES FURNISHED: Thomas A. Klein Assistant General Counsel Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Mark E. NeJame, Esquire 1520 E. Amelia Street Orlando, FL 32803 Leonard Ivey Director, DABT Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000 Joseph A. Sole Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: On February 17, 1990, Frank Vitale was arrested at or near the ABC Liquors at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). On February 17, 1990, Noel Frederick Shumann was arrested at or near the ABC Liquors (ABC) at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). Noel Frederick Shumann was acquitted for both the charges of trafficking in cocaine and conspiracy to traffic in cocaine on May 2, 1991. Noel Frederick Shumann was present at the ABC on February 17, 1990. Noel Frederick Shumann denies that he was involved in any illegal drug transactions; however, he admits that an illegal drug transaction occurred on February 17, 1990 at the ABC. Frank Vitale, who was convicted of the charges, testified on behalf of Noel Frederick Shumann at the criminal proceeding. Mr. Vitale's testimony is as follows: That the money used to purchase the estimated retail value of cocaine of $9,400.00 was in fact Mr. Vitale's money. That Mr. Vitale had accumulated this money from the sale of an interest in some green houses and monies from the sale of jewelry from his flea market business. He stored the money at Mr. Shumann's house while living there for a brief period of time. On February 17, 1990, he called Mr. Shumann and asked Mr. Shumann to bring envelopes containing the money to the ABC Lounge. Mr. Vitale was not living at Mr. Shumann's house at the time he called Mr. Shumann and asked him to bring the envelope containing the money to the ABC Lounge. These envelopes were stored in the bedroom Mr. Vitale resided in while living in Mr. Shumann's house. Mr. Shumann acquiesced with Mr. Vitale's request. Mr. Vitale further testified that Mr. Shumann had nothing to do with the drug transaction, did not know there was a drug transaction taking place at the ABC Lounge until such time as he arrived and remained at the lounge for a period of time. Mr. Vitale further testified that Mr. Shumann was not to share in the cocaine or any expected profits from the sale of the cocaine. The drug transaction involved 500 grams of cocaine. The estimated retail value of the cocaine was $9,400.00. The money used to purchase the cocaine was in Noel Frederick Shumann's vehicle. Mr. Shumann was assessed on February 26, 1990, pursuant to Section 212.0505, Florida Statutes, for the delinquent tax, penalty and interest relating to the drug transaction which took place on February 17, 1990. The jeopardy assessment is a correct and proper assessment both as to form and content of an illegal drug transaction involving cocaine with the retail value of $9,400.00. Mr. Shumann does not contest the mathematical accuracy of the tax assessment nor the procedures followed in issuing the notice. Mr. Shumann has not paid the sales tax assessed and the amount claimed has not been paid by another on his behalf. Mr. Shumann asserts that the assessment is improper only because he was not personally involved in the illegal transaction and, therefore, committed no act to give rise to the tax. Consequently, he argues the assessment against him should be dismissed. Prior to February 17, 1990, Agent Cannon, an undercover narcotics investigator, was introduced to Frank Vitale. Mr. Vitale met Agent Cannon through a third party, a confidential informant, named Barbara Anderson. Ms. Anderson advised Agent Cannon that Mr. Vitale wanted to purchase cocaine. Ms. Anderson had known Mr. Vitale for some time prior to February 17, 1990. On some occasion prior to February 17, 1990, Mr. Vitale spoke to Ms. Anderson regarding his partner in the drug transaction. When Noel Frederick Shumann arrived at the ABC on February 17, 1990, Mr. Vitale introduced Mr. Shumann to Ms. Anderson as "his partner." Because he remained present during the activities that followed, and because he told Ms. Anderson that he was there to keep an eye on his money, Ms. Anderson presumed Mr. Shumann was the partner in the drug transaction to whom Mr. Vitale had earlier referred. When Agent Cannon arrived to complete the drug transaction, Mr. Vitale introduced Mr. Shumann to him as his partner but maintained he (Vitale) would be handling the deal. In fact, Mr. Vitale became very upset any time Agent Cannon attempted to speak with Mr. Shumann instead of dealing with him exclusively. At one point in time, Agent Cannon threatened to abort the transaction since Mr. Vitale would not let him count the money. The money, which was stored in Mr. Shumann's car at that time, was not counted until Mr. Shumann told Mr. Vitale to let Agent Cannon count the money. Mr. Shumann was aware that Mr. Vitale was attempting to purchase cocaine from Agent Cannon and was aware that the money to be utilized in that purchase was in his (Shumann's) car. During a second conversation, Mr. Shumann directed Mr. Vitale to weigh and test the cocaine to be purchased and to proceed with the transaction if the substance looked good. Mr. Vitale then left the lounge with Agent Cannon and proceeded across the street to the van where Agent Cannon's partner was located with the drugs. Following the exchange of the money for the cocaine, Mr. Vitale was placed under arrest and the MBI team converged. Subsequently, Mr. Vitale and Mr. Shumann were placed in a police patrol car that was wired to record their conversation. The taped conversation (Petitioner's exhibit 1) contains statements by Mr. Vitale to the effect that he knew the police were listening, that he was sorry to get Mr. Shumann into "this," and that Mr. Shumann should "put everything on me (Vitale)." During the counting of the money, the weighing and testing of the cocaine, and the sale and purchase of the cocaine between Agent Cannon and Mr. Vitale, Mr. Shumann remained in the lounge. Mr. Shumann continued to talk to Ms. Anderson even though he knew a cocaine transaction was proceeding, knew that he had been introduced as Mr. Vitale's partner, knew that the money for the transaction was stored first in his house then in his vehicle, and knew that the supplier (Agent Cannon) had sought authorization from him to count the money and complete the deal. It is wholly incredible to conclude that a disinterested party would have remained in the lounge throughout the foregoing events. Cocaine is a controlled substance as defined by Florida law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a final order confirming the notice of assessment and jeopardy findings and finding the amount due to be $10,575.00 plus interest (1% per month until paid). DONE and ENTERED this 5th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Petitioner submitted proposed findings in a form such that rulings cannot be entered. Petitioner summarized: the testimony of Chuck Cannon; the testimony of Mr. Shumann; the patrol car tape (Petitioner's ex. 1); the stipulated statements of facts submitted by the parties; the deposition of Vernon Taylor; and the testimony of Barbara Anderson. Such summaries did not present paragraphs with factual allegations in a form such that specific rulings can be made. Such summaries included argument, irrelevant information and comment on the evidence. Except as set forth in the findings of fact above, they must be rejected as not supported by the weight of credible evidence or as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent listed the stipulated facts submitted by the parties. They have been accepted and incorporated in the foregoing recommended order as findings of fact. As to the proposed findings of fact submitted by Respondent, which began on page 4 of the proposed order, the following specific rulings are given. Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that Mr. Vitale introduced Mr. Shumann to Ms. Anderson as his partner. It is not accepted that he specifically told Ms. Anderson that Mr. Shumann was his partner in this drug transaction. That factual conclusion has been reached based upon a preponderance of all evidence presented in this case. Paragraphs 11 through 20 are accepted. Copies to: Robert J. Buonauro 14 E. Washington Street Suite 602 Orlando, Florida 32801 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The Petitioner is charged with enforcing the provisions of Chapter 475, Florida Statutes, and related rules which establish the licensure and practice standards for real estate brokers and salesmen in the State of Florida and provide for a method of enforcing those standards. The Respondent is a licensed real estate salesman, being issued license number 0443228, in accordance with Chapter 475, Florida Statutes. The Respondent's last licensed practice location was as a salesman with John Davidson Realty, Inc., at 949 Jenks Avenue, Panama City, Florida 32401. The Respondent was first licensed in January of 1985. In November of 1983, the Respondent engaged in a telephone call(s) to introduce or serve as an intermediary between two old friends. The purpose of the calls was to arrange for one of his friends to buy a quantity of marijuana from the other. This arrangement arose out of friendships based upon the Respondent's former residence in Key West, Florida. The Respondent helped his friends arrange a marijuana sale transaction; and a few months later, in approximately June of 1984, he again telephoned one of them to urge him to pay the money he owed the seller of the marijuana. That was the extent of the Respondent's involvement in the illegal drug transaction. On December 29, 1988, the Respondent, was indicted, with other defendants, on a number of related charges concerning the use of the mails and telephones in promoting and facilitating the distribution, and the conspiracy to distribute, marijuana, and the commission of acts which are felonies under federal drug laws. He pled guilty to Count V of that indictment involving the intentional use of the telephone in facilitating another in commission of acts which are felonies under federal drug laws, specifically, the distribution and conspiracy to distribute a quantity of a controlled substance: to wit, marijuana. Thus, the Respondent was ultimately convicted of a violation of Title 21, United States Code, Section 843, after his agreed plea was ultimately entered on April 18, 1989. On that date, the United States District Court for the Northern District of Florida entered a judgment convicting the Respondent of violating that Section of the United States Code, as charged in Count V of the indictment. The court sentenced the Respondent to three years of imprisonment, which was then suspended on the condition that the Respondent be confined in a treatment institution for 90 days. The Respondent carried out that sentence by spending nights in a "halfway house", while working during the day. The Respondent immediately notified the Petitioner of his conviction on or about April 24, 1989, by letter. The Respondent candidly explained his predicament to the Florida Real Estate Commission without any prompting by the Commission and asked for the Commission's guidance. Ultimately, the Petitioner responded by filing the subject administrative complaint. The Respondent also fully cooperated with the federal authorities in the prosecution of the various criminal matters relating to the confiscation of property acquired with drug sale proceeds by other individual defendants named in the original indictment. This criminal act was committed by the Respondent prior to his licensure as a real estate salesman in the State of Florida. Since the original criminal conduct, the Respondent, in early 1984, married and has since had four children. He, through his own testimony and that of his witnesses, established that he is an exemplary family man, husband and father of his children. He has been a good provider for his family and himself since he has been a very successful real estate salesman, with a higher professional certification pending for him in the field of commercial real estate. A number of real estate brokers in the Panama City area with whom the Respondent has worked as a business associate or employee attested to his excellent reputation for honesty and fair dealing in all business and personal transactions and to the purity of his personal character. Since his entry into the real estate sales profession, he has become prominent both in the actual practice of his profession and in related professional organizations and civic activities. He has truly proved himself to be a rather admirable citizen since his unfortunate illegal conduct and resulting conviction. This altercation with the federal criminal justice system was the only one on his record, and he has had no violations in a professional context since he was licensed as a real estate salesman. The Respondent's evidence establishes unequivocally that he has rehabilitated himself from the effects and personal blemish of his past miscreant conduct. No evidence was adduced to refute that showing, because the Petitioner essentially no longer disputes those facts. His rehabilitation is to such an extent that it is obvious that his prior criminal conduct, should it become known to the public, would not likely cause or induce the public to fear that he would act to his clients' detriment in the conduct of their business affairs and the handling of their funds. In summary, the peculiar circumstances of this case, starting with the fact that the Respondent himself was not directly involved in the sale of illegal drugs, but rather was seeking to "help out a friend", albeit wrongfully, through the remaining facts established, which prove his rehabilitation, have shown that his prior criminal conduct does not reflect adversely on his ability to serve as an exemplary licensed real estate professional in the State of Florida.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Petitioner finding the Respondent guilty of a conviction of a crime involving moral turpitude, as prohibited by Subsection 475.25(1)(f), Florida Statutes, and that the penalty of a private, written reprimand be imposed. DONE AND ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6876 The following discussion is given concerning the fact proposals of the parties: Petitioner's Facts 1-9. Accepted. Respondent' s Facts The Respondent filed no proposed findings of fact. COPIES FURNISHED: Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Glen L. Hess, Esquire 9108 West Highway 98 Panama City Beach, FL 32407
The Issue Whether Petitioner is subject to the sales tax imposed on controlled substances by s. 212.0505, Florida Statutes, and if so, what is the appropriate tax.
Findings Of Fact On September 12, 1989, a search and destroy team assembled in Sebring, Florida, to survey Highlands County for evidence of the growing or possession of illegal drugs. The survey team consisted of a helicopter, pilot and crew chief from the Florida National Guard; and the ground crew of representatives from the Highlands County Sheriff's Office, State Highway Patrol, Fish and Game Commission, Florida Law Enforcement Officers and federal agents. The search commenced in the southwest quadrant of Highlands County with the helicopter and trained spotters flying a search pattern so as to view from the air any illegal substances being grown. On one, if not the first, leg of the search pattern, the helicopter, flying at an altitude of 500 feet, passed over the property on which Petitioner lives; and one of the observers spotted what he identified as marijuana growing near one of the outbuildings on this property. The marijuana patch was circled for both spotters as well as the pilot and crew to better see the growing marijuana. The ground party was alerted by radio of the find. They proceeded to the location and entered onto the property. There they met Petitioner, proceeded to the area where the marijuana was growing, and cut down the marijuana plants. Some 171 cut plants were counted, wrapped in bundles of approximately 10 plants each, and loaded into the back of a pickup truck. The deputies asked Petitioner if he would unlock the building next to where the marijuana plants were growing and he, knowing they could get a search warrant if necessary, unlocked the door. Inside they found some lights obtained for the purpose of growing marijuana indoors and other material listed on Exhibit 3A, all of which were confiscated. Petitioner was placed under arrest and the marijuana and other property seized was taken to the sheriff's office. The vehicle carrying the marijuana was weighed before the marijuana was unloaded and again immediately following the unloading. The difference in the weight of the vehicle with and without the marijuana was 450 pounds. Subsequent thereto, someone from either the sheriff's office or the Florida Department of Law Enforcement advised the Department of Revenue Collections and Enforcement agent in Lakeland, Florida, and the Notice of Assessment was prepared and served on Petitioner. To establish the value of the marijuana seized, the agent preparing the assessment used information received from the FDLE that the average street price in the district in which the marijuana was seized was $600 per pound in 1989. The document containing this information was admitted into evidence as Exhibit 6 after testimony was presented that each year the FDLE directs its five regional offices to submit street prices for various illegal drugs sold on the streets during that year. Exhibit 6 shows the marijuana street price at $600 per pound in the Tampa district (which includes Highlands County) as of June 7, 1989. To obtain the estimated retail price of the marijuana seized, the agent multiplied $600 per pound by 450 pounds. This price is for marijuana which has been processed and is ready for use. No evidence was submitted showing what parts of the marijuana plant are used in preparing the marijuana rolled into "joints" or smoked in a pipe. Nor was evidence presented showing how many pounds of processed and ready-to-use marijuana can be obtained from a given number of pounds of growing marijuana plants. In his testimony, Petitioner readily admitted that he had planted and cultivated the marijuana seized on September 12, 1989. He also testified that this is the first and only time he has ever attempted to grow marijuana; that he obtained the marijuana seeds and a book on how to grow marijuana from an advertisement in a magazine; that he had never sold marijuana in the past; that he had made no effort to locate a purchaser; or that he had any inkling of how to find a buyer for the plants after they were harvested or how much such plants were worth for use by marijuana users. Petitioner also testified the marijuana was planted a long distance from the nearest traveled road and from the nearest boundary of Petitioner's property; and that there was a canopy provided by trees among which he had planted the marijuana plants, and he didn't think the plants would be readily visible from the air. Petitioner's testimony that the helicopter passed over his property at tree top level, which he estimated at less than 75 feet, is rejected as being in conflict with the altimeter height provided by the helicopter pilot. In the U. S. District Court, Southern District of Florida, Petitioner pleaded guilty to possession of more than 100 marijuana plants.
Recommendation It is recommended that the assessment against Joe "Little Joe" Hatch of $270,999.02 plus interest from September 12, 1989, be dismissed. ENTERED this 26th day of March, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX Respondent's proposed findings are generally accepted and included in the Hearing Officer's findings of fact, except the following which are rejected. 12-18. Accepted as street value of processed marijuana. 26. Last sentence rejected as contrary to the record that the charge was possession of over 100 marijuana plants. Petitioner failed to timely submit a proposed recommended order. COPIES FURNISHED: Raymond E. LaPorte, Esquire 410 Ware Boulevard, Suite 601 Tampa, FL 33619 Steve Kackley, Esquire 357 S. Orange Avenue Sebring, FL 33870 Lee R. Rohe, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, FL 32399-1050 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 =================================================================
Findings Of Fact On January 8, 1980, Johnny L. and Robert J. Mims held license No. 27-75 2COP for the Libra Lounge at 2409 Palafox Street in Pensacola, Florida. Larry Stevens, a beverage officer in petitioner's employ, visited the Libra Lounge in order to make a routine inspection. Accompanying him was James Loman, a deputy sheriff in the Escambia County Sheriff's Department. They arrived about half past one o'clock on the afternoon of January 8, 1980, and found the door standing open. Inside, Carlos Roncelli Mims was standing behind the bar. Carlos Roncelli Mims had spent the night of January 7, 1980, at the lounge, and had been there when Johnny L. Mims closed the place up. Also on the premises were a man and woman drinking beer, who left when Officer Stevens and Deputy Loman began questioning Carlos. Officer Stevens asked for the owner or manager and Carlos Roncelli Mims telephoned Robert Mims, who arrived about 15 minutes later. In the interim, Officer Stevens inspected the premises, and discovered a shallow cardboard box to the left of the cash register. The box was open and in plain sight. It was accessible to someone working the bar but was not accessible to the public. In the box was a clear bag of what appeared to be marijuana, a number of black capsules, and a folded piece of tinfoil, containing some white powder. In a separate room housing the pool table, there was a marijuana cigarette butt. Carlos was arrested for possession of narcotics. When Carlos left the premises, he took money with him. Later, a chemist analyzed the apparent marijuana and confirmed that the substance was cannabis. He also analyzed the contents of the foil packet and established that the powder was a small quantity of phencyclidine. Carlos Roncelli Mims, a nephew of the respondents, was born on March 5, 1962. He is employed by the Pensacola Port Authority. He had his uncles' permission to sleep on the premises of the Libra Lounge, in exchange for cleaning up and doing other chores. Carlos was never paid any money for this work. He was authorized to call the police if somebody should break in. His uncles did not authorize him to open the business himself at any time, nor was he authorized to serve beverages or handle money.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondents' license in the amount of One Hundred Dollars ($100). DONE AND ENTERED this 2d day of October, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Johnny L. and Robert J. Mims t/a Libra Lounge 2409 Palafox Street Pensacola, Florida 32501 James N. Watson, Jr., Esquire 725 South Bronough Street Tallahassee, Florida 32301