Findings Of Fact During the month of April in 1988, and perhaps also in March of that year, the Petitioner, Sam Anthony Ciotti, conspired with others to purchase 200 pounds of marijuana in Broward County, Florida, for $110,000.00 The conspirators intended to transport the 200 pounds of marijuana to Ohio, where they expected to sell the marijuana to others. Unbeknownst to the conspirators, the persons from whom they arranged to purchase the marijuana were detectives of the City of Fort Lauderdale Police Department. The negotiations for the sale were primarily between the detectives and a conspirator named Klenner. The basic terms of the agreement were that the detectives would deliver 200 pounds of marijuana to Klenner or to someone designated by Klenner, Klenner would then transport the marijuana to Ohio and sell it, and once he received the money for selling the marijuana, Klenner would pay $110,000.00 to one of the detectives. To secure the deal, Klenner agreed that he and the Petitioner, Ciotti, would sign a promissory note for $110,000.00 secured by a boat co-owned by Klenner and Ciotti. On April 14, 1988, one of the detectives met with the Petitioner, Ciotti, at the boat yard where the boat was. docked. During that meeting the detective confirmed with Ciotti that a promissory note would be signed for 200 pounds of marijuana and that the boat would be collateral for the promissory note. On April 15, 1988, the two detectives met with Klenner and Ciotti, at which time Klenner delivered to one of the detectives a promissory note in the amount of $110,000.00 signed by both Klenner and Ciotti. On April 19, 1988, one of the detectives spoke to Klenner and arrangements were made for the marijuana to be delivered to a third conspirator named Bradford. Later that day the two detectives met Bradford at a prearranged location. One of the detectives took possession of Bradford's motor vehicle, loaded it with 200 pounds of marijuana, and returned the motor vehicle and its cargo of marijuana to Bradford. The trunk was opened and Bradford examined the marijuana cargo. Bradford then took possession of his motor vehicle and attempted to drive away with the 200 pounds of marijuana. At that point, he was arrested. Later that same day, the detectives went to the boat yard where the boat owned by Klenner and Ciotti was docked, where they arrested Ciotti and seized the boat owned by Klenner and Ciotti. On June 8, 1989, the Department of Revenue issued a document titled Notice Of Assessment And Jeopardy Findings which assessed tax, penalties, and interest in the amount of $52,534.42 against the Petitioner, Ciotti, pursuant to Section 212.0505, Florida Statutes (1987). The factual basis for the assessment was the Petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following other unsuccessful efforts to resolve the matter, the Petitioner ultimately filed a timely petition seeking a formal hearing. At the formal hearing in this case on September 28, 1990, the Department of Revenue delivered to the Petitioner a document dated September 27, 1990, titled Revised Notice Of Assessment And Jeopardy Findings. The significant difference between the original assessment and the "revised" assessment is that in the latter document the Department seeks to recover less than in the original assessment. Specifically, the "revised" assessment contains a lower estimated retail price than on the original assessment and eliminates a fifty percent penalty that was included on the original assessment. These changes are consistent with the Department's current policies regarding the assessment of taxes, penalties, and interest. The net difference between the two assessment documents is a reduction of $18,809.39 in the amount sought by the Department. The specific amounts assessed in the "revised" assessment are as follows: Tax, $22,000.00; Penalty, $5,500,00; and Interest, $6,225.03; for a total of $33,725.03. Interest continues to accrue at the rate of $7.23 per day. The factual predicate for the "revised" assessment is the same as that of the original assessment.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department of Revenue issue a final order in this case concluding that the Petitioner, Sam Anthony Ciotti, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1987), and assessing the amount of such liability at $33,725.03, plus interest at the rate of $7.23 per day since September 28, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of February 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February 1991.
The Issue This cause concerns the issue of whether the Petitioner should impose disciplinary sanctions against the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. Specifically the issues concern whether the Respondent has failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, requiring maintenance of good moral character by a certified law enforcement officer and, if he has not, what discipline is warranted.
Findings Of Fact The Petitioner is an agency of the state of Florida charged with licensing (certification) of law enforcement officers and with enforcing the practice standards embodied in Chapter 943 Florida Statutes and pendent rules. It regulates the practice of law enforcement officers through the enactment of regulatory standards and enforcement of such standards by rulemaking, as well as by implementation of policy decisions. The Respondent was certified as a law enforcement officer on June 17, 1982. He was issued certificate number 02- 331-00. The Respondent was employed as a police officer by the City of Gainesville Police Department at all times pertinent to this proceeding. Early on the morning of January 2, 1988, the Respondent returned from a trip to Atlanta, Georgia, of several days duration. He returned directly to his residence at the Gardenia Apartments, an apartment complex in Gainesville, Florida. On that morning, Sergeant Louis Aceveda of the Gainesville Police Department responded to a call to investigate a complaint of loitering and a possible illicit drug transaction at the apartment complex. Sergeant Aceveda is a narcotics investigator for that police department. Shortly after his arrival at the Gardenia Apartments complex, Sergeant Aceveda coincidentally encountered the Respondent, a fellow police officer, when the Respondent was driving into the parking lot of the complex. They engaged in a brief conversation about Sergeant Aceveda's purpose at the site and the Sergeant asked the Respondent if he could use the restroom in the Respondent's apartment. The Respondent readily agreed. Upon entering the Respondent's apartment the Sergeant smelled an aroma of burnt marijuana. No one else was present in the apartment at that time other than Sergeant Aceveda and the Respondent. The Sergeant made his way to the only restroom in the apartment and closed the door. Once he was in the restroom he observed a partially-burned marijuana cigarette in an ashtray lying in plain view on the top of the toilet tank. He confiscated that cigarette remnant, placed it in his pocket, and left the Respondent's apartment without revealing his discovery to the Respondent. After leaving the apartment he reported the incident to his supervisors and fellow investigators. Later that same day, Detective Drayton McDaniel of the Gainesville Police Department Narcotics and Organized Crime Section executed a probable cause affidavit in support of a search warrant application in order to attempt a search of the Respondent's apartment. The affidavit was based on Sergeant Aceveda's observations made earlier that day. It was presented to a county judge who found probable cause and issued a search warrant for the Respondent's apartment. At approximately 7:50 p.m. on January 2, 1988 Detective McDaniel and several other officers met the Respondent outside his apartment. Detective McDaniel knew the Respondent as a fellow police officer. He read the search warrant to the Respondent and the Respondent exhibited no specific reaction, asked no questions and made no comments concerning the search. Detective McDaniel and the officers assisting him then entered the apartment and began the search. Detective McDaniel collected, packaged and placed identification on certain seized items found during the search. Sergeant A. W. Smith, the Respondent's former supervisor, assisted with the search. He found a metal can top which contained approximately one tenth of a gram of marijuana (cannabis) as well as "rolling papers" commonly used to roll marijuana cigarettes. This material was in plain view on top of the Respondent's dresser in his bedroom. The Respondent's police badge and identification had been placed almost in contact with the metal can top on top of the dresser also. Investigator Richard Brooks of the Alachua County Sheriff's office also assisted in the search. He found an ashtray in the Respondent's bedroom which contained three marijuana cigarettes. Inside a drawer in the dresser Detective McDaniel found a black ceramic smoking pipe containing the residue of cannabis in the bowl. Sergeant Smith found a closed, purple handbag in the same bedroom on top of a chest at the foot of the bed. Inside the handbag was the Respondent's service revolver, issued to him by the Gainesville Police Department, as well as a small bag containing 1.5 grams of cannabis. Detective McDaniel found two cannabis cigarettes in the Respondent's automobile after he had obtained the Respondent's consent to search it. Sergeant Smith found four partially smoked marijuana cigarettes weighing approximately a tenth of a gram which were in a metal tray on the top of a dresser in the Respondent's bedroom. These were in plain view. Sergeant Smith also found a round tray under the dresser in the Respondent's bedroom which contained .1 gram of cannabis. During this lengthy search the Respondent was present. Despite this he made no statements nor asked any questions of his fellow police officers, who were known to him, while they were searching his home and his vehicle. However when Detective McDaniel discovered a small bag of suspected cocaine in his vehicle the Respondent indicated to him that his fingerprints would not be found on the bag. Other than this he was heard to make no comment during the entire search. After the search was concluded Detective McDaniel told him that he would be arrested. Again he made no statement. On January 4, 1988 Investigator Raymond Griffin of the Gainesville Police Department Internal Affairs Unit conducted an administrative interview of the Respondent. The Respondent was asked to submit to a urinalysis to determine if he had used narcotics but refused to do so. On January 5, 1988 the Respondent resigned his position with the Gainesville Police Department after having worked in that capacity for five and one- half years. On May 31, 1988 he entered a plea of nolo contendere on the charge of possession of cannabis before the County Court, In And For Alachua County. The Respondent maintained in his testimony that he had been to Atlanta on a vacation trip for several days, during which time his brother and some of his friends had used his apartment, apparently as a place for temporary residence and to "party". The Respondent indicated that he felt that his brother or other persons occupying the premises temporarily, during his brother's possession of them, had left the marijuana cigarettes and remnants of them on the premises. The Respondent maintained that he was gathering these items to begin investigating their origin and who might be responsible for them and that this was why he had the marijuana in the purple handbag and on top of his dresser. He had no explanation for the marijuana cigarette remnants from the bathroom or under the dresser or from his vehicle, however. The same is true of the discovery of the cocaine in his vehicle. The Respondent maintained that he was unable to locate his brother to secure his testimony for this proceeding because at some point after the Respondent's arrest and resignation from the Gainesville Police Department, and before this hearing, the Respondent's brother was convicted of a felony, and sentenced and incarcerated in the state prison system. The Respondent professed not to know his whereabouts at the time of the hearing. The Respondent's version of events concerning his gathering the marijuana in his bedroom as evidence, for purposes of conducting an investigation concerning its origin is not accepted. It is not credible to believe that a police officer of five and one-half years experience would gather marijuana and place it on his dresser in a convenient location, in the belief that persons not normally using his apartment had left those items there, without conducting a thorough search of his apartment so that he would have discovered the other marijuana remnants and also gathered them into a central location for preservation as evidence. If he had really intended gathering the marijuana in his bedroom as evidence, he would certainly have discovered that which was found in the bathroom, under the dresser and the marijuana smoking pipe from the dresser drawer. The fact that these other items were discovered not gathered and preserved in one location for transmittal to the police department, and the origination of an investigation, belies the Respondent's story in this regard. In fact, it appears that the Respondent was simply in possession of an illegal substance, marijuana, in his apartment and the search was conducted and the discoveries made before he could dispose of it. His story is further belied by the fact that cocaine and marijuana cigarettes were found in his automobile, which does not fit his description of events concerning his gathering of evidence to investigate who might have left the marijuana lying around the apartment. He was in possession of his automobile during the Atlanta trip. Further, his possession of the marijuana in question in the apartment was shown by the fact that he was present at home in the residence when the search warrant was served and the marijuana was lying around, or most of it was, in plain view. It is, thus, difficult to believe that he was unaware of its presence and did not have dominion and control over it. The fact that the marijuana in his apartment was under his dominion and control and, therefore, his possession, is corroborated by the fact that marijuana was found, along with cocaine, in his vehicle, which points to the fact that all the illegal substances found were possessed by the Respondent with his knowledge. There was certainly no evidence that Respondent's brother or other unknown persons had used his vehicle and left marijuana and cocaine therein unbeknownst to the Respondent. In summary, the marijuana being in plain view in the apartment at several different locations indicates that it was in the Respondent's actual possession, that he knew of it, and that he simply was surprised before he could discard it or otherwise dispose of it.
Recommendation Having considered the foregoing findings of fact and 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 Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement revoking the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 5th day of July, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings Of Fact: 1-28. Accepted. Respondent's Proposed Findings Of Fact: Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, and not entirely supported by the clear and convincing evidence of record. Accepted. Accepted. 5-13. Accepted. 14. Accepted, but not itself materially dispositive of the issues presented for adjudication. Copies furnished to: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Horace N. Moore, Sr. Attorney at Law Post Office Box 2146 Gainesville, FL 32602 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Parties The Department is the state agency responsible for regulating the practice of medicine in Florida, pursuant to chapters 456 and 458, Florida Statutes. The Department also oversees Florida’s medical marijuana program via the Office of Medical Marijuana Use, formerly known as the Office of Compassionate Use. Art. X, § 29, Fla. Const.; § 381.986, Fla. Stat. Section 381.986 provides that a “qualified patient” can receive medical marijuana from a medical marijuana treatment center.2 A qualified patient must have at least one of the statutorily-designated qualifying medical conditions and obtain a certification from a qualified physician. § 381.986(2) and (4), Fla. Stat. Section 381.986(2)(f) identifies “post-traumatic stress disorder” (“PTSD”) as a qualifying medical condition. A qualified physician must hold an active, unrestricted license as an allopathic physician under chapter 458 or as an osteopathic physician under 2 A marijuana treatment center holds a license issued by the Department to cultivate, process, transport, and dispense low-THC cannabis, medical cannabis, and cannabis delivery devices. § 381.986(8)(a), Fla. Stat. chapter 459, Florida Statutes. § 381.986(1)(m), Fla. Stat. A qualified physician must also “successfully complete a 2-hour course and subsequent examination offered by the Florida Medical Association or the Florida Osteopathic Medical Association, which encompasses the requirements of [section 381.986] and any rules adopted hereunder.” A qualified physician may not have a “direct or indirect economic interest” in a medical marijuana treatment center. § 381.986(3)(b), Fla. Stat. Dr. Davis is a qualified physician and a board-certified family practitioner who has been licensed to practice medicine in Florida since 2003. His practice focuses on holistic medicine and alternative treatments including medical marijuana. Dr. Davis is based in Gainesville, Florida, and practices via a corporation he founded in 2016 called “Florida Marijuana Doctors, Inc.” or “FMD Green.” Dr. Davis has treated hundreds of patients with PTSD and has prescribed medical marijuana to treat PTSD. The Ties Between Dr. Davis and Trulieve Trulieve is a medical marijuana treatment center that operates 43 of the 213 medical marijuana dispensaries in Florida. As measured by sales, Trulieve holds 50 percent of the medical marijuana market in Florida. In 2017, Trulieve’s Florida market share was approximately 80 percent. Trulieve opened a medical marijuana dispensary (“the Lady Lake dispensary”) in the Ocala/Lady Lake area in 2017 by leasing 2,243 square feet for $40,374 a year in a building located in the Oakland Hills Professional Center at 13940 Highway 441 in The Villages. In 2017, there were not enough qualified physicians to handle the number of Florida residents seeking medical marijuana prescriptions.3 In an 3 Benjamin Atkins was involved with ensuring Trulieve’s dispensaries were compliant with state law, and he was involved with opening the Lady Lake dispensary. He described the shortage of qualified physicians as “disastrous.” When Trulieve opened the Lady Lake dispensary, he was unaware of there being any qualified physicians practicing in that area. Mr. Atkins further testified that “[t]here’s approximately 45,000 licensed physicians in Florida, and when [the medical marijuana program] first started there were maybe five effort to alleviate that problem, Trulieve contacted qualified physicians and reached agreements for them to work one day a week or one day a month inside buildings with Trulieve dispensaries where there was a shortage of qualified physicians.4 Trulieve subleased office space to Dr. Davis and at least three other qualified physicians at the Lady Lake dispensary for $100 a month.5 Upon entering the Lady Lake dispensary one would immediately be in a lobby or waiting room with a Trulieve sign identifying the dispensary on one side and office space behind a door on the opposite side.6 physicians that were qualified and willing to see patients So I would call it a crisis. If you [had] that situation with something like pediatrics, the news would have been talking about what a crisis it is.” 4 With regard to how Trulieve contacted Dr. Davis about working in the Ocala/Lady Lake region, Mr. Atkins offered the following testimony: A: And then we would reach out to physicians we were aware of in other parts, and to be honest with you, some were very cold and uncaring and just focused on getting patients to make money, but then there were people like Dr. Davis who were compassionate and caring. And I remember at one time he drove all the way to Miami to see a child who nobody would see. There was just a lot of demand like that. So we would say to somebody like Dr. Davis, “Hey, you know, would you be able to work in the area of The Villages to see people,” and the compassionate physician would agree to one day a month or one day a week, go to different areas of the state that were underserved even though it wasn’t easy. Q: Did you seek out Dr. Davis to have him come to The Villages area then? A: I don’t remember exactly who sought who. What I can tell you is he was always regarded as somebody that was compassionate and, you know, passionate about helping people and was willing to in special circumstances travel around and see people and do stuff like that. I honestly don’t remember who said first, “Hey, would you come to The Villages,” or if he said, “I’m willing to come to The Villages,” or what. 5 Similar arrangements existed at other Trulieve dispensaries. 6 Trulieve did not solicit nonqualified physicians or other businesses to sublease space. However, if a nonqualified physician had inquired about subleasing space in the facility, Lester Perling, a compliance attorney with Broad and Cassell, wrote the sublease, and Trulieve utilized the same sublease for all of the qualified physicians at the Lady Lake dispensary. Mr. Perling did not advise Trulieve what to charge for the subleases, but he did advise Trulieve that it had to be at or above the market price. Benjamin Atkins was responsible for the subleases between Trulieve and any qualifying physicians working at the Lady Lake dispensary. Mr. Atkins testified convincingly that $500 a month was the fair market price for such space. His testimony was substantiated by that of Department witness Thomas Oldenborg as discussed below. Trulieve’s leasing plan was to enter subleases with up to five qualified physicians, and charge each $100 a month to use the space one day a week, thus earning Trulieve $500 a month in rental income, i.e., the fair market value for the space. Dr. Davis’s one-fifth share of the $500 monthly fair market value rental rate for his one fifth share of the monthly occupancy was commercially reasonable. The evidence firmly established that the leasing arrangement was not a trick or scheme related to the practice of medicine. Furthermore, the evidence firmly established that Dr. Davis’s rental of office space at a commercially reasonable rate from Trulieve did not create a direct or indirect economic interest between Dr. Davis and Trulieve.7 Mr. Atkins testified that “we would probably lease to a variety of people so long as they were willing to abide by the lease and it was safe.” 7 Mr. Atkins’s calculations about how much revenue Trulieve realized from the sublease appear to be erroneous in that he believed Trulieve was receiving $100 per week from each sublease rather than $100 a month. Nonetheless, his testimony clearly established the underlying fact that “if somebody came and said I’ll give you $500 a month or something for that space, that was probably well within market.” The subsequent inflation of that figure based on a miscalculation of the lease term does not lessen the weight of his testimony that the total market value was $500 a month, and constitutes competent, substantial evidence that Trulieve was not offering the leases for a below market price. When questioned again about Trulieve’s methodology, Mr. Atkins reiterated his earlier testimony: While the sublease that Trulieve utilized for Dr. Davis and the other qualified physicians had provisions pertaining to late fees, common area maintenance, and a security deposit, the spaces for the associated amounts were left blank. As a result, Trulieve did not: (a) charge Dr. Davis for making late rental payments; (b) pass along the costs of common area maintenance; or (c) require a security deposit. Trulieve was not concerned with a late fee because it would have been an inconsequential amount. As for a common area maintenance charge, Trulieve deemed that to be immaterial given its belief that it was subleasing the physician suite for an amount far in excess of the fair market price.8 So we would take the space and say, okay, what would the space be leased out for in the fair market, and that space I recall was like $500 or something like that. So then to make sure you’re charging above market, say you have 30 days that you could lease in an average year – or in a year, 30 days per month, taking 355 and dividing it by 12, that you would essentially be charging different people to rent, and so charging $100 a month for the four days is like six times market. 8 When asked if Trulieve acted intentionally by omitting those incidental charges, Mr. Atkins testified as follows: A: I don’t want to say it was intentional or unintentional or misremember. I can just tell you from my state of mind sitting here today that when your rent from somebody is $100 a month, because you’re looking for 30 different people to pay that 100 or whatever, whatever the math is, you know, to charge a late fee of, you know, $8 or something would not have been something I would have been concerned with. *** Q: Mr. Atkins, in your experience dealing with the Trulieve dispensary subleases to qualified physicians, could you offer the Court what some typical or reasonable rates would be for late charges in any of those subleases? A: Yeah, my opinion is if it was $100 a month, a late charge would be like $5 or $6 or something. Q: Same question as to the past due on the common area maintenance, the CAM. From your experience with the As for other arrangements, qualified physicians were responsible for bringing their own equipment to the Lady Lake dispensary. Also, Trulieve had a policy prohibiting employees from directing patients to a particular physician. If a patient inquired about where he or she could locate a qualifying physician, a Trulieve employee was supposed to direct that patient to a state-run website or the “find-a-doctor” tool on Trulieve’s website. Qualifying physicians who subleased space from Trulieve did not receive preferential status on Trulieve’s website. Between January 1, 2016, and January 25, 2018, Dr. Davis prescribed 4,941,075 milligrams of medical marijuana. Trulieve filled 76.71% of that amount. Given Trulieve’s dominant position in the Florida market for medical marijuana, that number is not surprising. The Department’s Critique of the Sublease The Department presented the testimony of Thomas Oldenborg, a commercial real estate broker whose territory includes the Lady Lake area. Mr. Oldenborg deals with investment properties and lease analysis. Mr. Oldenborg noted that the main lease between Trulieve and the landlord of the Oakland Hills Professional Center does not allow for subletting. Mr. Oldenborg opined that $100 a month was not a reasonable rate for the sublease between Dr. Davis and Trulieve. He testified that it would be difficult to find parties interested in leasing a 500 square foot space for one day a week. Leases with such terms are not typically advertised to the Trulieve subleases to qualifying physicians, what would the CAM passthrough be? A: I mean, if you’re charging six times market rent, I wouldn’t charge the CAM. I would only charge a CAM if I was overcharging. general public. Instead, such leases are usually done privately between parties that have a preexisting relationship.9 9 Mr. Oldenborg’s full opinion was as follows: Q: Mr. Oldenborg, given your review of this lease and your knowledge of commercial real estate in the area, is the $100 per month rental rate a reasonable rate? A: No. Q: Why not? A: Because there would be, in my opinion, no possible way to facilitate the lease or the transaction as in there is no way to advertise that type of deal on a normal commercial real estate platform or any available commercial real estate platform. Q: Would you mind elaborating on that? A: Sure. Normally if somebody is to sublease a space it has to be pretty clear on what it is and put out to the general public. This, again in my opinion, seems that the two parties would almost have to have a personal relationship or something to come across this deal. Somebody would have to approach somebody in person and have this conversation. *** Q: Have you ever, in your time, seen a lease advertised on one of these lease platforms with restrictions on days of use? A: No, sir. Q: Have you ever seen time restrictions, as in specific hours? A: No, sir. Q: Are you aware of whether that can even be advertised on these platforms? A: I do not believe it can, which is the predication of my answer. I don’t know how they would list it. There’s really no availability to do so, in my knowledge. Q: If a client came in – if a client came in asking for a lease for one day per week for, say, three hours a day, would you be able to facilitate a search to find something of that sort? A: No. However, contrary to his initial opinion, when questioned about other parameters of the sublease between Dr. Davis and Trulieve, Mr. Oldenborg’s testimony indicated that the sublease was priced at fair market value: Q: In your experience and your knowledge of the area, what is the going rate for a single office or executive suite sublease of a comparable size, say 500 square feet in this region? A: You’re normally looking at – for an executive suite, you’re normally looking at a ten-by-ten office with access to a conference room and you’re looking at roughly $500 a month to a thousand dollars a month, [depending] on what area of The Villages you’re in, but you’re not getting very much square footage. *** Q: Could you estimate about how much square footage that $500 a month lease would purchase? A: It would come with a single office, which would be roughly a hundred square feet and then you would have access to a conference room, which is usually an appointment basis. *** Q: In your experience would you say that [the current lease space of Dr. Davis] is consistent with approximately 500 square feet of office space? A: Yes, sir. Mr. Oldenborg was then led through a series of calculations from which he ultimately agreed that the cost to Trulieve of the office space used by Dr. Davis was, based on all of the agreed upon assumptions, $107 per Q: So you would not be able to find a lease offered on the open market similar to this sublease? A: No, sir. month. He further testified that a payment by Dr. Davis to Trulieve of $100 a month is “[f]air market value, just not typical for that type of lease setup or sublease.” However, the qualification to his testimony that the lease was fair market value was reduced to near zero by the following: Q: And describe for me any experience that you’ve had with part-time leasing arrangements with physicians? A: Very little. Q: Okay. Can you recall any of those instances where you’ve done any kind of a part-time lease? A: No. Given that Dr. Davis only had access to the space in question for one day a week rather than five days a week, Mr. Oldenborg’s testimony established that Trulieve charged a fair price for the sublease. Findings as to Whether Dr. Davis Engaged in a Trick or Scheme Related to the Practice of Medicine or Had a Direct or Indirect Economic Interest in Trulieve Trulieve sought out qualified physicians to sublease unused space in Trulieve dispensaries. However, there is no evidence that the arrangement between Dr. Davis and Trulieve was an attempt to defraud Florida residents seeking medical marijuana or an attempt to “game the system” by circumventing any statutory requirements. There is no persuasive evidence indicating that Dr. Davis referred patients to Trulieve or that Trulieve referred prospective patients to Dr. Davis. As a result, the evidence does not clearly and convincingly demonstrate that Dr. Davis employed a trick or scheme related to the practice of medicine. Dr. Davis had no ownership stake in Trulieve. Thus, the evidence does not clearly and convincingly demonstrate that Dr. Davis had a direct or indirect economic interest in Trulieve. K.B.’s Appointment with Dr. Davis K.B. retired in 2015 after 35 years in law enforcement. After a year, she returned to the workforce and was employed as an investigator in the Department’s unlicensed activity section from August of 2017 through November of 2017. Her duties included undercover operations. K.B. used the alias of K.G. (“K.G.”) during her undercover operations. Her “K.G.” alias was a white female who had been in the military and had received treatment for PTSD. K.B. began an undercover investigation of Dr. Davis with the intent to get him to qualify her to receive medical marijuana for the treatment of PTSD. K.B. initially visited the Lady Lake dispensary on August 2, 2017, in order to gather information about the business. She walked through the front door of the Lady Lake dispensary and saw a Trulieve sign to her right. She saw no signs referring to Dr. Davis. K.B. met a security guard named Jason who wrote some information about Dr. Davis on a Post-It note and essentially referred to Dr. Davis as Trulieve’s “in-house doctor.” However, the security guard said that K.B. was not required to utilize Dr. Davis and mentioned other doctors in the area who could qualify her for medical marijuana. After her conversation with the security guard, K.B. returned to her office and ultimately went on-line in order to schedule an appointment with Dr. Davis for November 1, 2017. She used a prepaid card to pay the $300 appointment fee. She also faxed “K.G.’s” fictitious medical records to Dr. Davis’s office. Those fictitious medical records purported to memorialize treatment rendered to “K.G.” at Camp Pendleton in December of 2007, January 2008, and December 2008. Those records indicated that “K.G.” had witnessed a traumatic event while in the military and was experiencing difficulty sleeping and hallucinations. She also supposedly reported that she had become irritable, angry, and had withdrawn from friends and family. Dr. Davis received those records, reviewed them, and incorporated them into the medical records that he created for “K.G.” He also reviewed “K.G.’s” controlled substance history via E-Force, a database for controlled substances. K.B. arrived at the Lady Lake dispensary and waited in the lobby until Dr. Davis brought her back into his office. The appointment began with typical doctor-patient banter before turning to the reason for “K.G.’s” appointment, PTSD.10 Rather than relying on the fabricated medical records that K.B. had faxed to his office, Dr. Davis attempted to ensure that “K.G.” still suffered from PTSD. Accordingly, he had K.B. describe “K.G.’s” purported symptoms. In doing so, K.B. described experiencing nightmares and/or flashbacks for a long period of time and probably alluded to them being related to “K.G.’s” military service. K.B. also mentioned experiencing generalized anxiety and headaches.11 In addition to discussing PTSD and medical marijuana, Dr. Davis measured K.B.’s blood pressure, heart rate, temperature, respiration rate, height, weight, and body mass index. He noticed that her blood pressure was 10 The Department’s expert witness, Dr. Jeffrey Danziger, testified that PTSD “involves the development of certain characteristic symptoms following exposure to one or more extreme traumatic events. And the traumatic event must involve exposure to actual or threatened death, serious injury, or sexual violence. The person must directly experience the trauma, witness it occurring to others or learn that it occurred to a close family member or close friend. Or the exception is people exposed to – with repeated exposure to trauma such as first responders or police officers.” 11 Dr. Davis testified that K.B. “indicated a lot of symptoms. She had extreme nightmares, anxiety, insomnia, and social isolation, some depression, although she made it very clear to me that she wasn’t suicidal. I remember making it clear. She – and I said, ‘social isolation,’ she said she was gaining weight, she said she was having a lot of – she said flashbacks and having a lot of recurring thoughts about death or death of her friend. I think she may have said some other things but those were sort of the salient points and certainly were enough to corroborate her past medical history and her current symptoms.” moderately high and checked her lower extremities for edema. While her blood pressure was not high enough to cause him to prescribe a hypertension drug, Dr. Davis did recommend that she see a primary care physician about her elevated blood pressure. Dr. Davis also checked K.B.’s bodily strength and conducted a gait analysis. K.B. described her demeanor during the appointment as “somewhat brief and evasive” and acknowledged that she was intentionally attempting to give Dr. Davis as few details as possible about her purported symptoms. For example, K.B. deflected Dr. Davis’s questions about the nature of the nightmares and/or flashbacks by saying they were too painful to discuss.12 K.B. acknowledged during her testimony that there was no difference between the symptoms she described to him and the symptoms documented in “K.G.’s” fabricated medical records. Also, K.B. did not recall giving Dr. Davis any information that would suggest “K.G.” did not have PTSD. Dr. Davis and K.B. did not go into great detail about any PTSD treatment that “K.G.” had received between 2008 and the time of the appointment with Dr. Davis, and K.B. did not recall any discussion about taking any medications that might interact negatively with medical marijuana. However, K.B. did tell Dr. Davis that Xanax and Zoloft had not been helpful and were discontinued. She also told Dr. Davis that “K.G.” had previously used medical marijuana and that the treatment had been effective.13 12 While Dr. Davis estimated that the appointment lasted 24 to 30 minutes, K.B. estimated that it lasted 15 minutes. Nevertheless, K.B. testified that she did not feel rushed during the appointment and did not feel that Dr. Davis should have afforded her more time. “I can say this: From the discussion that we had and from the exam that he gave and the discussion we had about the product and he asked me if I had any additional questions, so – and I believe I said I did not at that time, so I think we were done having that discussion.” Also, in response to a question asking if the appointment would have taken longer if she had not been intentionally evasive, K.B. testified that, “I’ll say that Dr. Davis was willing to answer any questions I had if I had chosen to be longer-winded. So I don’t feel like I was rushed and I don’t feel like I was kept in there longer than I needed to be. I’d say it was fair.” 13 With regard to K.B.’s description of “K.G.’s” medical marijuana use, Dr. Davis testified that, “For her symptoms, she had used it previously and it was very effective for her in The fabricated medical records and what was relayed to him during the appointment convinced Dr. Davis that medical marijuana was appropriate for “K.G.”14 At that point, Dr. Davis discussed the risks and benefits associated with medical marijuana, the different types of medical marijuana, and the different delivery methods. Dr. Davis mentioned that one type of medical marijuana would be better to use at nighttime and another would be better for daytime use if she lacked energy. He instructed her to begin with very small doses and gave her a preprinted log to keep track of the amount she was taking. K.B. acknowledged during her testimony that Dr. Davis told her that she did not have to acquire medical marijuana at Trulieve and that she could acquire the product wherever she chose.15 K.B. also acknowledged that Dr. Davis never referred to himself as Trulieve’s “in-house doctor,” and that he never indicated that he had any relieving her symptoms. She also related to me that she had tried not only the – I think she had indicated not only the other medications that were specifically listed on here, but had tried multiple medications and treatments and had not had a lot of success or had had side effects, but that she had used marijuana in the past with excellent results.” 14 Dr. Davis remarked that, “This was a pretty classic textbook case of post traumatic stress, as it was designed to be. She was a very good agent.” 15 Dr. Davis testified that patients frequently ask him to recommend a dispensary. However he does not do so because “that’s not my job. I have no interest in any dispensary. I actually have very good relationships with all the dispensaries, and my business is to educate people about – make sure that they’re qualified and then educate them about the safe use of marijuana and what products might be appropriate for them, et cetera, it’s not which dispensary. And it’s also a very individualized thing. You know, people like different dispensaries for different reasons, they have different products, and the system is actually designed specifically to encourage people to be allowed to go to different dispensaries, and that’s very different than narcotics where it’s very frowned upon. If you go to – if you get an Adderall prescription and then you go to another pharmacy, it’s very frowned upon, whereas this system is specifically set up to be transparent and allow people to go to any dispensary that they wish, and I encourage that.” relationship with Trulieve. Also, Dr. Davis corrected K.B. when she referred to Trulieve as “your dispensary.”16 Findings Regarding the Sufficiency of Dr. Davis’s Assessment of “K.G.” Dr. Davis’s medical records for “K.G.” list her problems as PTSD stemming “from traumas she witnessed in the military,” anxiety, flashbacks, and extreme nightmares. His medical records note that “K.G.” “[s]ays that the worst for her has been nightmares. She is looking for something that can help her. She has tried numerous medications in the past and they have not worked and she hates the side effects.” Dr. Davis also noted that “K.G.” “has tried [medical marijuana] in the past and it worked very well for her.” Dr. Jeffrey Danziger has been a Florida-licensed psychiatrist since November of 1986, and he has treated patients suffering from PTSD. Dr. Danziger based his testimony about the diagnosis of PTSD on the Diagnostic and Statistical Manual, Fifth Edition, the DSM-5. In addition to suffering a severe trauma, Dr. Danziger explained that someone suffering from PTSD must have “at least four categories of symptoms:” The first category is the presence of intrusion symptoms associated with the traumatic event, which can incur – involve recurrent and intrusive distressing memories, recurrent distressing dreams in which the content or nature of the dream are related to the trauma, dissociative reactions and/or if one is exposed to stimuli that symbolize or resemble the traumatic event they develop intense or prolonged psychological distress or marked physical reactions. The second broad category is persistent avoidance of stimuli associated with the trauma, which can be efforts to avoid distressing memories, thoughts or feelings, or avoidance or efforts to avoid external 16 When asked if she had any reason to believe that Trulieve and Dr. Davis were referring patients to one another, K.B. testified that, “I’m just basically saying that in my presence, no one did any direct referral from one – from the doctor to the business or from the business to the doctor. While the – while the employee of Trulieve did say that Dr. Davis was the in- house doctor, he did not state [that] I had to get product if I saw Dr. Davis at Trulieve.” reminders, people, places, conversations, objects or situations that remind them of the trauma. The third category is that of negative alternations in cognition and mood associated with the trauma, which begins or worsens after the trauma occurred. And there’s several – there’s seven factors, somebody must have two or more of them. Persistent or exaggerated negative beliefs about oneself or the world; trouble remembering a key event to the trauma; inappropriate guilt; distorted cognitions that lead them to inappropriately blame themselves or others; a persistently negative emotional state such as fear, horror, anger or guilt; markedly diminished interest in activities; feelings of detachment or estrangement from others; or, the inability to experience positive emotions. You need to have at least two of those seven. The fourth broad category is marked alternations in arousal and reactivity associated with the trauma. And people suffering from PTSD need to have two of the following six. Irritability and angry outbursts, reckless or self-destructive behavior, hypervigilance, an exaggerated startle response, problems with concentration or sleep disturbance. And a few other qualifiers are that this constellation of symptoms in response to a sufficiently severe qualifying trauma must last at least one month. That the syndrome causes significant distress or impairment in functioning, either social, occupational or other important areas. And the disturbance is not due to the effects of a drug or other medical condition. So these are the basis criteria for PTSD as defined in our Diagnostic and Statistical Manual, Fifth Edition. Based solely on a review of the medical records that Dr. Davis maintained for “K.G.”, Dr. Danziger offered the following critique: We know that, looking at the military records, that Criterion A [was] probably met. Criterion A means exposure to actual or threatened death or serious injury. So, if those records from 2007, what they reflected, that would be a sufficient stressor. Now what the patient talked about was, there’s references on the problem list to anxiety, flashbacks and nightmares. Now flashbacks and nightmares are intrusion symptoms, which are B. But there [were] no questions asked as to how often, how frequent, how distressing, tell me about the flashbacks which involve a literal – involve a sense that the incident is literally recurring. So, but Criterion A was probably in the old notes and if she did talk about extreme nightmares and was reluctant to discuss them, all right. I’d give him Criterion B. But what we’re not seeing is, was there any investigation as to avoidance of stimuli, negative alternations in cognition and mood or marked alternations in arousal and activity. So there’s some information as to a qualifying stressor contained in the old records and some information, albeit brief, about nightmares. But other important facets of PTSD were not addressed. Further, there’s a reference there to she’s been tried on numerous medications. Well, what medications? It’d be reasonable to ask what medications were you tried on that failed. And then secondly, in treating PTSD, there are various specific psychotherapies [that are] very useful in the treatment of PTSD. And that would include cognitive processing therapy, cognitive exposure therapy and EMDR, the eye movement resonance treatment. So there was, in other words, there was no inquiry into what medicines have you been on that failed and then have you had any counseling or psychotherapy. Because PTSD spontaneously resolves for up to half of those suffering from it, Dr. Danziger was adamant that Dr. Davis could not base his diagnosis solely on “K.G.’s” old medical records: The records from a decade earlier reflect Criterion A, which refers to a sufficient stressor. That’s there. And Criterion B. She says she’s having nightmares, she didn’t want to talk about it further. Okay. I’ll give him Criterion B. I’ll give Dr. Davis that and if someone didn’t want to talk about it, you don’t want to force it. But there’s no reference to C, D, and E, which is the avoidance behavior, negative alterations and marked alterations in arousal and reactivity. And no documentation as to, well, what treatments were tried, what medicines were you on, did they do individual therapy, group therapy, how did you respond. That’s what’s missing. So what’s missing in terms of PTSD assessment is the full dimension of PTSD, is it still present and what treatment did you or did you not receive before making his decision on how to treat. Despite the supposed shortcomings in Dr. Davis’s diagnosis of “K.G.”, Dr. Danziger declined to say that Dr. Davis’s diagnosis was erroneous: I would answer that by saying she had possible PTSD, but the examination was not complete enough to definitively make the diagnosis and proceed with treatment. So, possible PTSD, but insufficient data to verify that was the right diagnosis. Dr. Danziger also qualified his testimony by stating he was not comfortable opining about the standard of care in different specialties and, as a psychiatrist, he is not a qualified physician under section 381.986: Q: Is there any difference in what you would anticipate for an initial patient visit or an encounter to make a determination of posttraumatic stress between a psychiatrist and a non-psychiatrist? A: There likely would be. My colleagues in primary care treat hypertension, diabetes, asthma, arthritis, heart failure, a host of medical conditions that I don’t treat. Some may – some of my colleagues in primary care and internal medicine are very comfortable treating psychiatric conditions and only referring those who are the most severe or refractory to treatment, and others refer just about everything. So it depends on the practitioner. I want to be careful opining what’s an appropriate standard on a different specialty than mine. Dr. Davis had “K.G.’s” fabricated medical records at his disposal, and those records indicated that she had been diagnosed and treated for PTSD. In addition, Dr. Davis’s own exam indicated that “K.G.” had several symptoms indicating she was still suffering from PTSD. Section 381.986(4)(a) requires a qualified physician to conduct “a full assessment of the medical history of the patient,” and Dr. Davis did not gather a significant amount of information about “K.G.’s” struggles with PTSD during the years between the last fictitious appointment in 2008 and her appointment with Dr. Davis in 2017. However, the Department has not adopted a rule elaborating on what a qualified physician must do in order to conduct a “full assessment.” Also, the Department has not adopted a rule requiring qualifying physicians to follow the DSM-5. The evidence does not clearly and convincingly demonstrate that Dr. Davis violated section 381.986(4)(a) by failing to conduct a full assessment of “K.G.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine issue a Final Order dismissing the Administrative Complaint against Justin C.K. Davis, M.D. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 14th day of April, 2020. COPIES FURNISHED: Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Mark S. Thomas, Esquire Thomas Health Law Group, P.A. 5200 Southwest 91st Terrace, Suite 101-B Gainesville, Florida 32608 (eServed) Major Ryan Thompson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health Board of Medicine 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed)
Findings Of Fact On February 6, 2015, Respondent published a notice of proposed rulemaking in the Florida Administrative Register. The notice set forth the text of six proposed rules to implement the Compassionate Medical Cannabis Act of 2014 (the Act), chapter 2014-157, Laws of Florida, codified as section 381.986, Florida Statutes.2/ The Petition is directed to only one of the proposed rules: proposed Florida Administrative Code Rule 64-4.002, entitled "Initial Application Requirements for Dispensing Organizations." As part of the challenge to proposed rule 64-4.002, the Petition also "questions" the composition of a negotiated rulemaking committee used by Respondent to develop the proposed rules and the adequacy of Respondent's Revised Statement of Regulatory Costs (Revised SERC). Facts related to Petitioner are contained in two paragraphs, which set forth both factual allegations and conclusions offered to support Petitioner's standing. In their entirety, the two paragraphs related to Petitioner provide: Petitioner is a 4[-]year[-]old child living in the State of Florida who has been diagnosed with an inoperable brain tumor who is currently using medical cannabis extracts to treat her condition. For purposes of this proceeding, Petitioner can be contacted through her undersigned counsel. Petitioner is eligible under the Act and plans to register with the Office of Compassionate Use Registry to become a "qualified patient" for the medical use of low THC cannabis and thus is "substantially affected" and has standing to challenge the proposed rule. Florida Statutes § 120.56(2)(a). Petition, ¶¶ 4, 5. The Petition does not contain factual allegations describing any injuries that Petitioner would suffer by application of the challenged proposed rule if it were adopted. The Petition contains some general allegations of harm without an adopted rule because of a "desperate need for access to low THC cannabis." The Petition alleges that the Act requires expedited promulgation of rules, which is imperative because the "selected applicants will be responsible for ensuring access to ordered medication, with greater risk of public injury if there is no access to medicine." (Petition, ¶ 14). In seeming contradiction, though, the Petition also alleges that "numerous corporations can now lawfully ship laboratory tested low-THC cannabis based food product and cosmetics to all 50 States without a prescription[.]" (Petition, ¶ 21, footnote omitted). Most favorably construed to Petitioner, these allegations suggest some general harm caused by the delay in getting a rule in place, but do not suggest harm that would be suffered by Petitioner ("who is currently using medical cannabis extracts") nor harm caused by application of the proposed rule. The Petition also includes allegations of harm to potential applicants eligible to become dispensing organizations caused by an "overly burdensome" application, scoring, and selection process in the proposed rule. Petitioner alleges that the burdensome process to select dispensing organizations has "no reasonable justification given the safety profile of low-THC cannabis as one of the safest substances known to man and the urgent need for this medicine for thousands of critically ill patients." (Petition, ¶ 16). The Petition complains about "an unauthorized arbitrary selection committee to choose among eligible applicants based on a complex and overly burdensome scoring system[,]" from which the Petition concludes: "Overall, the proposed rule fails to provide any objective methods to determine whether an eligible applicant is superior at growing low-THC cannabis or filling out a lengthy application." (Petition, ¶ 19). Finally, the Petition characterizes the proposed rule as an "attempt to eliminate applicants' rights to challenge the selection by comparative administrative review." (Petition, ¶ 21). But the Petition does not allege that Petitioner is an eligible applicant whose rights allegedly would be burdened or harmed in these ways. Finally, the Petition raises a general concern about the proposed rule's failure to consider or address the economic impact to patients of having to pay for purchases of low-THC cannabis from dispensing organizations. (Petition, ¶ 22). Here, too, the concern is expressed generally and is not attributed to Petitioner. Although not entirely clear, it appears that this allegation is intended as a criticism of the Revised SERC by suggesting a "cost" that should have been considered.
Findings Of Fact The Parties. The Petitioner the Department of Business Regulation and Professional Regulation Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division") is an agency of the State of Florida charged with responsibility for enforcing Chapter 561 Florida Statutes. The Respondent Riffy's Inc. d/b/a Riffy's Pub (hereinafter referred to as "Riffy's") is a corporation. Scott Grant possesses an ownership interest in Riffy's. At all times relevant to this proceeding Riffy's held Florida alcoholic beverage license number 19-00616 series 2-COP (hereinafter referred to as the "License"). The License authorized Riffy's to sell and possess alcoholic beverages beer and wine only on the premises of Riffy's located at 948 S.W. U.S. Highway 41 Inverness Citrus County Florida. The Division's Investigation of Riffy's. Between September 15 1993 and December 15 1993 the Division conducted an investigation of possible narcotic laws violations at Riffy's. Special Agents Michael Bays Richard Hulburt Denise Deen Ashley Murray and Dean Pescia participated in the investigation. Throughout the investigation the agents involved who had the opportunity to smoke marijuana at Riffy's simulated smoking. No marijuana was ingested so that the agents' perception would not be affected. On a number of occasions the agents witnessed the smoking of cigarettes which appeared to be marijuana. The conclusion that marijuana may have been smoked was based upon the agents' observation of the manner in which the cigarettes were smoked and the smell of what was being smoked. Unless specifically indicated otherwise in findings of fact made in this Recommended Order the evidence failed to prove that marijuana or cannabis was actually being smoked. The findings concerning those incidents are made only as evidence of whether the owner of Riffy's should have suspected that illegal activities were taking place on or near the licensed premises. Results of the Division's Investigation. September 16 1993; Count 1: Agent Hurlburt entered the licensed premises of Riffy's (hereinafter referred to as the "Premises"). Agent Hurlburt met and spoke with a patron named Neil. After discussing the consumption of marijuana Agent Hurlburt and Neil left the Premises and went to a vehicle in the parking lot of the Premises. The parking lot was for the use of patrons of Riffy's. Agent Hurlburt purchased a cigarette suspected of being marijuana from Neil. Analysis of the cigarette revealed that it was cannabis commonly known as marijuana. Agent Hurlburt simulated smoking another suspected marijuana cigarette with three other patrons. A female patron suggested to them that they go around to the side of the Premises to smoke. The purchase and smoking of the marijuana cigarette took place approximately 15 to 20 feet from the Premises. The evidence failed to prove that Mr. Grant or any employee of Riffy's witnessed these events or that Mr. Grant was at the Premises. September 30 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons leave the Premises and go to the east side of the Premises where the female patron had suggested that Agent Hurlburt go to smoke on September 16 1993. They were then observed smoking a cigarette in a manner consistent with the manner in which marijuana cigarettes are smoked: the "joint" is held near the front end with the thumb and forefinger. The smell of the burning material was also consistent with the smell of marijuana. There were windows at the east side of the Premises. Patrons were allowed to smoke cigarettes in the Premises. They were not required to go into the parking lot of Riffy's in order to smoke. d. The individuals involved returned to the Premises. October 6 1993; Count 2: Agent Hurlburt returned to the Premises. He met an employee known as Mike. Mike was later identified as Mike Smith. Mike was a doorman for Riffy's. He collected entrance fees from patrons. Agent Hurlburt told Mike that he wished to purchase marijuana. Mike did not indicate that this was not permissible on the Premises. Mike told Agent Hurlburt that he could not get any marijuana that night but that he would have some the next night. Agent Hurlburt paid Mike for the marijuana that night with the agreement that delivery would be made the next night. The purchase was made in an open manner. No effort was made to speak softly or to hide the exchange of money. October 7 1993; Count 2: Agent Hurlburt returned to the Premises and met with Mike. Mike directed Agent Hurlburt to the restroom. Mike gave Agent Hurlburt a plastic bag containing 5.5 grams of cannabis. October 14 1993; Count 3 and 4. Agent Hurlburt returned to the Premises. Several patrons were witnessed leaving the Premises during a break by the band playing that night smoking what Agent Hurlburt believed to be marijuana and return to the Premises. Agent Hurlburt purchased 5.3 grams of cannabis from Mike. The sale took place in the restroom. Agent Hurlburt also purchased what Mike called "percs". The percs were percocet which were found to contain oxycodone. This transaction also took place in the restroom. October 22 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from Mike but Mike was unable to supply any. October 28 1993; Count 5: Agent Hurlburt returned to the Premises and asked Mike if he could purchase marijuana. Mike sold marijuana to Agent Hurlburt. The money for the marijuana was given openly to Mike inside the Premises. Later Mike gave the marijuana to Agent Hurlburt: Agent Hurlburt was on a concrete slab just outside the front door of the Premises. Mike held the entrance door open and stepped onto the concrete slab where he gave the marijuana to Agent Hurlburt. The marijuana purchased consisted of 5.5 grams of cannabis. October 30 1993: Agent Hurlburt returned and twice simulated smoking marijuana with patrons and "Ron" a member of the band playing at Riffy's that night. These incidents took place outside the Premises in the parking lot. November 4 1993; Count 6: Agent Hurlburt returned and asked Mike to sell him marijuana. Mike agreed to sell 5.1 grams of cannabis to Agent Hurlburt. This agreement was reached in the Premises. Delivery took place just outside the front door the Premises. November 17 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from an employee of Riffy's known as Crystal. Crystal indicated she was unable to find any that night. Crystal did not indicate that marijuana was not allowed on the Premises. Agent Hurlburt left the Premises and sat in a car in the parking lot with a patron known as "Keith." The car was parked in the front of the Premises. Agent Hurlburt simulated smoking what he believed to be marijuana based upon its odor and the manner in which Keith smoked the cigarette. The car windows were open. While in the car with Keith and while the cigarette was burning Mr. Grant and Casey manager of Riffy's walked immediately in front of the car. Casey laughing asked "what are you guys doing." Keith responded "what do you think." November 18 1993: Agent Hurlburt returned to the Premises and attempted to buy marijuana from Crystal. Crystal again told Agent Hurlburt that she could not find any marijuana that night. She again failed to tell Agent Hurlburt that Marijuana could not be purchased at the Premises. November 19 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons smoking what appeared to be marijuana cigarettes in the parking lot of the Premises. They did not attempt to hide what they were doing. The patrons returned to the Premises after smoking. November 20 1993: Agent Hurlburt returned to the Premises. He again observed patrons smoking what appeared to be marijuana cigarettes outside the Premises in the parking lot. The patrons then returned to the Premises. Mike approached Agent Hurlburt inside the Premises and asked if he was interested in purchasing marijuana. Mike was not able however to provide marijuana that night. November 24 1993; Count 7: Agent Deen and Agent Murray went to the Premises together. The agents met Kenny Smith an employee of Riffy's. Kenny worked in the kitchen. Kenny took the agents out of the kitchen through a door to the back of the Premises to smoke what appeared to be and Kenny identified as a marijuana cigarette. The agents simulated smoking the cigarette with Kenny. Kenny also sold a 6.2 grams of cannabis to Agents Deen and Murray. The sale took place outside in the back of the Premises near the kitchen door. c. Mr. Grant was on the Premises when this transaction took place. November 24 1993; Counts 8 and 9: Agent Hurlburt returned to the Premises. Agent Hurlburt asked Mike about purchasing marijuana. Mike agreed. This conversation took place in the Premises. Mike delivered the marijuana just outside the Premises at the front door. Agent Hurlburt was sold 6.5 grams of cannabis. Agent Hurlburt also simulated smoking marijuana with other patrons outside the Premises in the rear near the kitchen door. Agent Hurlburt also purchased 5.4 grams of cannabis from a patron named "Dave." This sale took place outside the Premises. Mr. Grant was on the Premises when these events took place. December 1 1993; Count 10: Agent Hurlburt returned to the Premises. Agent Hurlburt purchased 7.1 grams of cannabis from Mike. The sale took place inside the Premises at the front door. Mr. Grant was on the Premises when the sale took place. December 2 1993; Count 11: Agent Deen and Murray returned to the Premises. The agents were introduced by Kenny to Mr. Grant in the kitchen of the Premises. Inside the Premises Kenny gave Agent Deen what he described as a marijuana cigarette. Kenny smoked the cigarette and Agent Deen simulated smoking it just outside the kitchen door. Kenny sold 3.9 grams of cannabis to the agents outside the kitchen door. December 3 1993: Agent Deen and Agent Murray returned to the Premises. The agents simulated smoking a marijuana cigarette with Kenny outside the kitchen door. The cigarette contained .1 grams of cannabis. Casey opened the kitchen door while they were smoking the marijuana and told Kenny to come inside. December 4 1993; Count 12: Agent Deen and Agent Murray returned to the Premises. Kenny told the agent to wait for him outside the kitchen door where they simulated smoking what they believed to be a marijuana cigarette. While simulating smoking the cigarette Mr. Grant was at his truck approximately 15 feet away. Mr. Grant was speaking on a mobile telephone. The agents and Kenny were in plain view of Mr. Grant. The agents also purchased 2.4 grams of cannabis from Kenny at the same location. December 9 1993; Count 13: Agent Deen and Agent Murray returned to the Premises. Kenny sold and delivered 2.4 grams of cannabis to the agents in a room used by the bands that played at Riffy's. The room is part of the Premises. The agents also simulated smoking what they believed was marijuana with Kenny and a band member outside the kitchen door. Mr. Grant was only a few feet away when the agents were simulating smoking. Mr. Grant who admitted he is familiar with the smell of marijuana was close enough to smell what was being smoked and did not make any inquiry as to what the patrons were doing. December 2 and 9 1993: a. Agent Hurlburt returned to the Premises on these dates. 30b. Agent Hurlburt observed patrons exist the Premises smoke what appeared to be marijuana in the parking lot and return to the Premises. Mr. Grant was outside the Premises on December 2 1993 when patrons were smoking outside. December 10 1993; Count 14: Agent Hurlburt returned to the Premises. Mr. Grant was present at the Premises. Agent Hurlburt told Mr. Grant that he had purchased marijuana "here." Agent Hurlburt did not specify whether "here" meant the Premises Inverness or somewhere else. Mr. Grant however did not ask Agent Hurlburt whether he meant the Premises. Agent Hurlburt then asked Mr. Grant if he knew where he could purchase some sensemilla a type of marijuana. Mr. Grant indicated that he did not known where. Mr. Grant did not indicate that he did not allow the purchase or use of narcotics on the Premises. Agent Hurlburt also purchased 6.5 grams of cannabis from Mike that evening. The money was given to Mike inside the Premises and Mike gave Agent Hurlburt the marijuana inside the Premises. December 15 1993: The Division served a Search Warrant Notice to Show Cause and Emergency Order of Suspension on Riffy's. Agent Deen arrested Kenny and confiscated a bag of marijuana from Kenny. The bag contained 2.4 grams of cannabis. A bottle of Jim Bean whiskey was found in a room on the premises used by bands. All of the uses sales and delivery of marijuana described in the foregoing findings of fact took place in a relatively open manner and little effort was taken to disguise or conceal any illegal activity. Riffy's Efforts to Prevent Violations of Law. Mr. Grant testified that he instructed employees to not to engage in drug activities. One employee substantiated this testimony but that employee was Kenny one of the individuals involved in illegal activities on and near the Premises. Mr. Grant's and Kenny's testimony concerning efforts to prevent illegal activities on the Premises is rejected. There was not other evidence of efforts by the owners of Riffy's to insure that illegal activities did not take place on the Premises. In light of the open use of what appeared to be and smelled like marijuana in the parking lot of the Premises Mr. Grant should have taken some steps to prevent illegal narcotics activities on the Premises described in this Recommended Order. This is especially true based upon Mr. Grant's admission during the hearing of this matter that he smelled what he believed to be marijuana smoke "on the way to the dumpster."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco enter a Final Order finding that Riffy's Inc. d/b/a Riffy's Pub is guilty of Counts 2 3 4 5 6 8 10 11 13 14 and 16 of case number 94-0606. It is further RECOMMENDED that Counts 1 7 12 15 and 17 of case number 94-606 be dismissed. It is further RECOMMENDED that Riffy's alcoholic beverage license number 19-00616 series 2-COP be revoked. It is further RECOMMENDED that Riffy's be assessed a $1000.00 civil penalty. DONE AND ENTERED this 14th day of June 1994 in Tallahassee Florida. LARRY J. SARTIN 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 14th day of June 1994. APPENDIX Case Numbers 94-0606 and 94-1348 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Division's Proposed Findings of Fact Accepted in 4. Accepted in 5-6 31 and hereby accepted. Hereby accepted. Accepted in 7 and 9. Accepted in 7. Accepted in 10. Accepted in 11. Accepted in 12. Accepted in 13. Accepted in 14-15. The events described in the first sentence took place on October 22 1993. Accepted in 16. Accepted in 17. Accepted in 18. Accepted in 19-21. Accepted in 23. Accepted in 8 and hereby accepted. Accepted in 22. Accepted in 24. Accepted in 25. Accepted in 26. Accepted in 27. Accepted in 27. Accepted in 28. Accepted in 30. Accepted in 31. Accepted in 32. Riffy's Proposed Findings of Fact Accepted in 4. Accepted in 3. Not supported by the evidence. Accepted in 24. Accepted in 11. Accepted in 24. The evidence did fail to prove that Mr. Grant had actual knowledge of these events. Accepted in 22. Accepted in 28. See 28. Accepted in 30. Accepted in 30. Not supported by the weight of the evidence. Statement of law. Not supported by the weight of the evidence. Statement of law. Accepted in 17. Accepted in 4. Statement of law. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation 725 South Bronough Street Tallahassee Florida 32399-1007 Stephen C. Booth Esquire 7510 Ridge Road Port Richey Florida 34668 Sgt. Homer Scroggin Department of Business and Professional Regulation 1103 SW 1st Avenue Ocala Florida 32678-4218 Jack McRay DBPR Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792
The Issue The issue to be determined is whether Respondent is guilty of violating Sections 943.1395(7) and 943.13(7), Florida Statutes (2007), and Florida Administrative Code Rule 11B-27.0011, as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact At all times material to these proceedings, Respondent was certified by Petitioner as a correctional officer, and issued certificate number 183026. On June 25, 2008, Respondent was a passenger in a vehicle that he owned but that was driven by his son, James Donaldson. The car was pulled over by Officer Paul King of the Starke Police Department because its brake lights were not working. Officer King explained to the driver the reason for the stop. Officer King smelled what he recognized to be burnt cannabis coming from inside the vehicle. He asked both occupants if they had any marijuana in the vehicle, and both men denied having any. Officer King asked James Donaldson to exit the vehicle. Upon searching his person, Officer King found in a pocket of James' trousers a plastic bag containing less than 20 grams of cannabis. He also seized a package of cigarette rolling papers, of a type commonly used to roll marijuana, from the seat of the car. James Donaldson identified the rolling papers as belonging to him. At that point, Officer King arrested James Donaldson, and placed him in handcuffs. Officer King then asked Respondent to exit the car, and asked him if he had anything on his person. Respondent stated that he had marijuana. A search revealed that in his right-front shorts pocket, there was a silver metal grinder with marijuana residue. In Respondent's left-front shorts pocket, Officer King found a clear plastic baggy containing a green leafy substance, less than 20 grams, along with a package of rolling papers. The metal grinder was of type commonly used to prepare cannabis for smoking, and was approximately the size of a chewing tobacco can. Officer King used a field test kit to test the specimens taken from both men. Both tested positive for cannabis. Officer King then arrested Respondent for possession of cannabis and possession of drug paraphernalia. Respondent did not deny having the marijuana or the metal grinder on his person. However, he claimed that both were hidden within a pack of cigarettes that belonged to his son, but that he had picked up the pack and put it in his shirt front pocket at his son's request. He claimed that he did not smell the marijuana because he has difficulty smelling anything. Respondent's claim is not credible. Even assuming that the metal grinder and the baggie of marijuana would fit in a cigarette package, it is not believable that Respondent would pick up a cigarette package containing such an implement and not realize the cigarette package contained something other than cigarettes. Officer King's testimony that he did not confiscate a cigarette package, on the other hand, was clear, straightforward and candid.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent has violated Section 943.13(7), Florida Statutes (2007), and revoking his certification. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 31st day of December, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Harry J. Donaldson Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Petitioner may terminate the continuing teaching contract of Respondent on the grounds that she has been guilty of misconduct in office, immorality, breach of contract, and other just causes for dismissal. Petitioner alleges that Respondent had in her possession two pipes for the purpose of smoking marijuana.
Findings Of Fact Respondent is a 37 year-old second-grade teacher. She has continuing contract status. She has taught continuously for 10 years in the Osceola County School District, until she was suspended in early January, 1992, as a result of the subject incident. At the time of her suspension, she was completing her third year at Ventura Elementary School, which has only been open for three years. She taught the prior five years at Boggy Creek Elementary School. Respondent has always had good relations with principals, fellow teachers, and parents. Her students stand out when they enter third grade. Respondent has a unique ability to maintain rapport and control in the classroom. She is an enthusiastic teacher who invests considerable energy in teaching. Respondent has enjoyed excellent evaluations. The most revealing indicator of her exceptional value as a teacher rests in the fact that other teachers with children entering second grade select Respondent much more frequently than they select the other second-grade teachers. Respondent has consistently produced students better prepared than their counterparts to meet the academic and social demands of third grade. Since being divorced several years ago, the center of Respondent's life has been teaching. About a year prior to the subject incident, Respondent met Richard Kenny. Mr. Kenny, who apparently lives out of town, shares Respondent's residence when he visits. On December 20, 1991, Mr. Kenny and Respondent invited four casual acquaintances over to Respondent's home for a barbecue. Respondent invited her guests to make themselves at home. At some point after the party began, Respondent and Mr. Kenny re-entered the house. Respondent smelled burning marijuana and, although she saw no one smoking it, immediately informed her guests that she would not tolerate the consumption of marijuana in her home. Offended, the guests left. The following day, Respondent and Mr. Kenny were cleaning the house. Winter break had already begun, and they were planning to drive to New Hampshire to visit Mr. Kenny's family. In the course of cleaning the living room, Respondent found two marijuana pipes that had been left by her guests the prior day. There was no more than trace amounts of marijuana residue in the pipes so, without considerable thought, Respondent took them into her bedroom and placed them on the dresser. It is unclear what Respondent intended to do with the pipes. Her focus at the moment was on completing a hurried housecleaning, so she and Mr. Kenny could get on the road and begin their vacation. She typically placed in her bedroom all misplaced items found during housecleaning. On the evening of December 21, Respondent and Mr. Kenny went out to eat. When they returned, Respondent changed and went to the utility room to turn on the water heater, which she turned off when unneeded in order to save money. She noticed that a window had been broken in the utility room in an apparent attempt to burglarize her home. Respondent called the police. A female sheriff's deputy arrived about five minutes before a male deputy arrived on the scene. The deputies, who are young and inexperienced, remained on the scene together. The male deputy arrived while Respondent was showing the female deputy the utility room, which was at the other end of the house from Respondent's bedroom. Because the house was in the male deputy's territory, he assumed the primary responsibility of investigating and filling out the police report. The male deputy and Mr. Kenny sat down in the living room to fill out the police report. Respondent went back to her bedroom to find a sweater and a lighter in order to smoke a cigarette. Unknown to her, the female deputy had followed her. Standing in the doorway, the deputy saw one of the pipes on the dresser. Returning to the living room, the deputies conferred momentarily about the pipes. The female deputy returned to the bedroom, seized the pipes, brought them out to the living room, and confronted Respondent with them. Respondent initially denied ownership of the pipes. In the course of questioning, Respondent became emotionally upset and, defying the instructions of the deputies, kept walking back into her bedroom. Exasperated, the male deputy, who is 21 years old and had been in law enforcement less than one year, handcuffed Respondent. He and possibly the female deputy expressed a concern, unfounded as it turned out, that Respondent might be returning to her bedroom to destroy evidence. Neither deputy could give credible testimony as to when Respondent was given her Miranda rights. In fact, she was advised of her rights as the handcuffs were applied. The details are unclear as to how an investigation of a house burglary transformed into the arrest of the homeowner without any criminal record for possession of drug paraphernalia in the form of two empty pipes (except for residue) commonly available in the Central Florida area. At some point prior to being handcuffed, Respondent "admitted" that the pipes were hers. But the admission was induced by what can be characterized as nothing less than a fraudulent inducement on the part of one or both deputes, who assured Respondent that if she admitted to ownership of the pipes, nothing would happen. Numerous material inconsistencies exist between the stories of the two deputies. Based on all of the circumstances, the State Attorney's office agreed that Respondent could enter a pretrial diversion program designed to leave Respondent without a criminal record. After being booked and obtaining release on bail, Respondent returned home in the early morning hours of December 22. She and Mr. Kenny proceeded to leave town on their trip. When she returned, Respondent learned that Petitioner had been advised of her arrest. On the second day of school following Winter break (car trouble had delayed Respondent's return by one day), Petitioner informed Respondent that she was suspended without pay due to the incident. Considerable evidence was produced at the hearing concerning a teacher's effectiveness following two versions of the subject facts. The first version is that Respondent possessed the pipes without any intent to smoke marijuana. This is the version adopted in the present case in which one or more guests had, without permission, lighted the pipes to consume marijuana, had been told to leave, and had left the pipes. There was no evidence that such innocent possession of the pipes, together with a subsequent arrest, would impair Respondent's effectiveness as a teacher, constitute immorality, jeopardize the welfare of Respondent's students, or establish other grounds for the cancellation of Respondent's contract. The second version is that Respondent possessed the pipes with an intent to smoke marijuana. Petitioner has failed to establish such guilty possession. Even if Respondent had been guilty of possession of the two pipes with an intent to smoke marijuana, Petitioner has failed to establish, absent any evidence suggesting that this would have been more than an isolated incident, that Respondent's effectiveness as a teacher would be impaired, the welfare of her students would be compromised, or that prevailing community standards of morality would be violated. Petitioner has undertaken considerable efforts at eradicating drug abuse among students. Justifiably concerned that the subject incident could undermine these critically important efforts, Petitioner prudently decided to initiate a process that would trigger an administrative factfinding process in which both sides could present evidence for impartial consideration under principles of law. Not surprisingly, there is no uniformity of opinion as to Respondent's fitness as a teacher had been she been proved to have had guilty possession of the two pipes in an isolated incident. However, several critical facts emerge. First, Respondent is an outstanding teacher. There is no evidence that any aspect of her personal life has ever had an adverse bearing on her ability to teach. Second, Respondent's effectiveness as a teacher would be unaffected, even if Respondent were found guilty of possession of the two pipes with an intent to smoke marijuana in an isolated incident. Respondent has for many years maintained firm control of her classroom. There is no evidence that her effectiveness in this regard, especially given the tender age of her students, would be impaired if she were to return to the classroom, even after having been found guilty of possessing the pipes with an intent to smoke marijuana. The majority of parents and fellow teachers would not be troubled by Respondent's return to the classroom even if she had possessed the pipes with an intent to smoke marijuana in an isolated incident. To the contrary, with the exception of managerial-level school administrators, the evidence suggests that all components of the relevant community would want Respondent to be able to bring her considerable talents back to the classroom even if she had been guilty of possessing the pipes with an intent to smoke marijuana in an isolated incident. The willingness of the parents and teachers to receive Respondent back in the classroom, even if she had been proved guilty of wrongful possession of the pipes in an isolated incident, is based in part upon the recognition of her unique talents working with students. The opinions of many teachers and parents are informed by a willingness to tolerate a considerable separation between a teacher's private and public lives. These persons focus on the work of the person rather than aspects of her personality or personal life when these latter factors do not impact her teaching. Parents and teachers offered a variety of explanations as to why Respondent should be allowed to return to the classroom, even if she were guilty of wrongful possession of the pipes. The most articulate explanation was offered by Elizabeth Williams, who had a daughter in Respondent's class during the 1991-92 schoolyear. She also has another daughter who will be in second grade in the 1993-94 schoolyear. Explaining why Ms. Williams would want her younger daughter to be taught by Respondent, even if she were guilty of wrongful possession of the pipes in an isolated incident, Ms. Williams first described her older daughter's reaction when Respondent was abruptly suspended in January. The daughter told her mother that she wanted to quit going to school. As a mother residing in the neighborhood served by Ventura Elementary School and a teacher at Ventura, Ms. Williams explained that second graders, unlike older students, are not thinking about drugs. Ms. Williams' attitude toward Respondent's return to the classroom, even if Respondent had possessed the pipes with an intent to smoke marijuana in an isolated incident, reflects conservative values prevalent in the community. Describing herself as a member of a conservative Christian denomination, Ms. Williams, while rejecting a repetitive cycle of sinning followed by repentance, emphasizes the importance of forgiveness in an isolated incident. Expressing this core aspect of the community's moral code, Ms. Williams testified that she would welcome Respondent back to the classroom and send her younger daughter to Respondent's class as long as there was no evidence that the guilty possession was other than an isolated incident. The core community value of forgiveness was recently embraced by the administration in connection with a principal of another school in the district. He was arrested for driving under the influence of alcohol. Unlike Respondent, the principal was convicted of the offense. Petitioner decided in his case to impose a two-week suspension without pay and other relatively minor sanctions. In part, the attitude of the administration, which is an important community with which Respondent must interact in order to be an effective teacher, appears to have been based on a misreading of the attitudes of other members of relevant communities, such as teachers and parents. For example, one representative of Petitioner identified several teachers by name as opponents to Respondent's return to the classroom. But when these persons were called as witnesses, they testified differently. In any event, there is no evidence that Respondent would have trouble working with any member of the administration if she were not found guilty of wrongful possession of the pipes. Even under the guilty-possession scenario, the weight of the evidence is that the administration is properly mindful of the vital need to protect students from the scourge of drug abuse, the support for Respondent from the parent and teaching communities, and the importance of maintaining exceptional teachers. After weighing these factors, even under the wrongful- possession hypothetical scenario, the evidence is that the administration would continue to work professionally with Respondent, despite in an isolated incident, as it has with the principal who was actually convicted of driving under the influence. Petitioner has failed to establish that Respondent was guilty of possession of the two pipes with an intent to smoke marijuana. The evidence shows that she came into possession of the pipes under innocent circumstances so that, notwithstanding her arrest, there is no question surrounding her moral fitness and effectiveness as a teacher or the welfare and safety of her students. Even if Petitioner had proved that Respondent possessed the pipes with an intent to smoke marijuana in an isolated incident, Petitioner failed to prove that, under the circumstances of this case, her contract should be terminated. Even under this scenario, the evidence fails to show that Respondent's effectiveness as a teacher would have been impaired, she would have been guilty of immoral behavior or moral turpitude, or that the safety, health, or welfare of her students would have been imperilled.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Osceola County enter a final order reinstating Lynn Epstein and awarding her full back pay for the time that she would normally have worked following her suspension. ENTERED this 27 day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Chris Colombo, Superintendent Osceola County School Board 817 Osceola Blvd. Kissimmee, FL 34744-4495 Andrew B. Thomas Rowland, Thomas & Jacobs, P.A. 1786 N. Mills Ave. Orlando, FL 32803 Joseph Egan, Jr. Egan, Lev & Siwica, P.A. P.O. Box 2231 Orlando, FL 32802 ROBERT E. MEALE 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 27 day of July, 1992.
The Issue The issues are framed by a notice to show cause/administrative complaint brought by Petitioner against Respondent charging Respondent with violations under 561.29(1)(a) and (c) and 561.58, Florida Statutes. These alleged violations pertain to alleged drug activities on or about the premises for which Respondent holds a license issued by the Petitioner allowing Respondent to sell alcoholic beverages at that licensed premises. Respondent is also accused of maintaining the licensed premises for purposes of illegal drug activities. More particularly Respondent is held accountable for any violations associated with Sections 823.10, 893.03, 893.13(1)(a) and (f), and 893.13(2)(a)5., Florida Statutes.
Findings Of Fact Petitioner regulates the alcoholic beverage industry in Florida pursuant to Chapter 561, Florida Statutes. Among its functions Petitioner issues various licenses which allow alcoholic beverages to be sold. The license number 34-00017, series 1-COP has been issued to Respondent by Petitioner allowing on-premises sales and consumption at Respondent's premises in Jasper, Florida. Petitioner seeks to discipline Respondent's beverage license for reasons discussed in these facts and the conclusions of law section within the recommended order. Randall R. West is a beverage agent employed by the Petitioner. He was assigned to conduct an undercover investigation at Respondent's licensed premises. That investigation commenced in May, 1991 and was concluded in August, 1991. Over that period West tried to ascertain to what extent drug activities were occurring on or about the licensed premises. West talked to a patron in the licensed premises on May 10, 1991. That patron was Gary Cribbs. The discussion concerned the purchase of cocaine. Cribbs told West that he could get one-half gram of cocaine for $50.00. This discussion took place in the main bar area of the licensed premises in an area near the back pool table. After the arrangement for purchase had been made Cribbs approached West in the licensed premises and told West to follow him to the men's bathroom which was located outside the main bar area. To get there one walks out the back door across an open area to the bathroom which is attached to and part of the building proper. Only a few steps separate the back door from the bathroom. Once inside the men's bathroom, which is lighted, Cribbs produced a small container from his wallet. He asked West if he, Cribbs, could use some of the cocaine that he had produced from the wallet. Cribbs took some of the substance and poured it on the top of the toilet lid, chopped it up and snorted it up his nostrils. Then Cribbs' wife came into the men's bathroom and both Cribbs and his wife consumed the cocaine. The balance of the cocaine was turned over to West. On May 10, 1991 at different times the odor of marijuana could be detected in and around the licensed premises but West was uncertain of its origin. On May 15, 1991 West encountered Lou Brown and Charles Burnett at the licensed premises. Lou Brown arrived on a motorcycle in an area behind the premises. While in this area on a concrete foundation five feet from the building, Brown and Burnett smoked marijuana. West returned to the licensed premises on May 17, 1991 and once inside spoke to Charles Burnett. Burnett had approached the beverage agent reference a purchase of marijuana. This was a follow-up to a previous conversation about purchasing marijuana. Burnett asked West if West was still interested in purchasing marijuana and West replied in the affirmative. Burnett asked West to step outside the bar. Burnett said that he could get marijuana inside that was already weighed for a price of $40.00. West gave Burnett $40.00 while they were standing behind the building. Burnett went back inside the bar proper. West could not see where Burnett went in the bar. In a few minutes Burnett approached West in the bar and asked West to go outside. They went to West's vehicle which was approximately 20 feet from the entrance to the establishment. There Burnett produced a bag of marijuana. On May 17, 1991 when Burnett and West had walked through the premises in the direction of the men's bathroom at the back of the building they had observed several people standing outside the back door smoking a marijuana cigarette. When West attempted to gain entry into the men's bathroom the door was partially opened and he observed two additional persons smoking marijuana in the bathroom. On the evening of May 17, 1991 the Respondent was in the licensed premises. West returned to the licensed premises on May 22, 1991 and engaged in a conversation with Charles Burnett. Burnett asked West if West had a marijuana cigarette and West stated that he did not. Burnett asked West if he wanted to buy some marijuana and West said that he did. Burnett asked how much marijuana West wanted to purchase. West said he wanted a quarter of an ounce. This conversation took place while they were standing at the bar counter and it resulted in a purchase of marijuana off premises. On May 22, 1991 while at the licensed premises while going to use the men's bathroom West observed patrons standing just outside the back door of the building engaged in smoking marijuana. During most of that evening the smell of marijuana pervaded the inside of the premises. On two occasions Frank Bell who was the bar manager on duty was observed going out the back door of the premises and smoking marijuana with patrons while standing in back of the building. At this time the front door and back door to the building were propped open. When West returned to the licensed premises on May 24, 1991 he observed that the Respondent was present. Throughout that evening West observed patrons smoking marijuana behind the building outside the back door. Because of the ventilation system that was within the licensed premises the marijuana smoke from outside was being drawn into the premises such that anyone inside could have detected the marijuana smell if familiar with that aroma. On May 24, 1991 West observed three persons outside the rear door of the premises smoking a marijuana cigarette. Those persons were Greg Sapp, Jeff Gritzs and Jack Walker. On May 24, 1991 West was approached by Burnett and asked if West wanted to buy some marijuana. This conversation took place while West was seated at the bar area within the licensed premises. After that conversation West watched Burnett engage in a conversation with Jack Walker. After Burnett and Walker talked Burnett came back to West and told West that he could get a bag of marijuana for $25.00. This second conversation between Burnett and West took place at the bar within the licensed premises. West gave Burnett $25.00 in furtherance of the discussion they had at the bar and Burnett walked around inside the premises and started to exit the rear of the premises. Believing that Burnett was looking for Jack Walker, West went to Jack Walker who was playing a pinball machine within the licensed premises near the front and told Jack Walker that Charlie was looking for him. Charlie refers to Charles Burnett. Walker and West stepped out the rear of the premises and went to a vehicle that was parked directly behind the premises in an alley. That vehicle was parked about 50 feet away from the licensed premises. Walker got into that vehicle and retrieved a bag of marijuana. Walker than handed the bag of marijuana to Burnett, West handed $25.00 to Burnett and then Burnett handed the $25.00 to Walker. Then a marijuana cigarette was rolled at which time while standing in this area Burnett and Walker smoked a marijuana cigarette. West returned to the licensed premises on June 6, 1991. While there he observed a patron, who was determined to be James Alford, engaged in a drug transaction with another patron, Michael Brooks. This transaction took place in the dance floor area of the licensed premises near the front in which Alford passed Brooks a bag of what by appearance was marijuana. Brooks then came over to the area where West was seated and while standing up and speaking in a somewhat loud voice told another person that he had "a big bag of pot" (pot is a slang expression for marijuana) and he then pulled it halfway out of his pants pocket. Subsequent to the events between Brooks and Alford, West approached Alford and asked Alford if Alford had another bag of marijuana for sale. Alford responded that he did for $35.00. West asked if the purchase could be made for $25.00 and Alford said that he would try. This conversation between West and Alford occurred in the licensed premises near the front door in the area of the front pool table. As a result of this conversation Alford gave West a bag of marijuana while they were standing within 20 feet of the front entrance of the building that is the licensed premises. This exchange took place in plain view of anyone coming in or out of the building. On June 6, 1991 Burnett invited West to smoke a marijuana cigarette with him. In furthering the invitation West followed Burnett to the men's room associated with the licensed premises. When they reached the men's room they encountered a Billy Willis and Kevin Mercer. (In the investigation West had observed Billy Willis play records and tapes in the licensed premises in the manner of a disc jockey and had seen Willis turn off the lights at the licensed premises. This does not lead to the conclusion that Willis was an employee there.) The back door was open and Willis was holding a plastic bag with what appeared to West to be marijuana. Willis was putting this substance in a rolling paper. Burnett produced something that he referred to as hash or hashish and this substance was put together with Willis's apparent marijuana and formed into a cigarette by Mercer. The marijuana cigarette that was then passed around and smoked by Burnett, Willis and Mercer, all standing at the back door of the premises just outside, within two feet of the building. On June 6, 1991 while inside the licensed premises Burnett approached West and again asked West if he wanted to step outside and smoke another marijuana cigarette. Burnett and West exited the rear of the premises and encountered a man identified as Austin. Austin produced a marijuana cigarette at which time the cigarette was smoked by Austin, Burnett, Willis and a person named Doug Parr. This occurred within twenty feet of the rear door of the licensed premises. On June 7, 1991 West returned to the licensed premises and engaged in a conversation with Kevin Mercer about purchasing a bag of marijuana and Mercer advised that he could get the marijuana but it would be later before he could obtain it. This conversation took place while the two were standing near the front pool table of the licensed premises. West was then approached by a white male patron who introduced himself as Bruce Adams. At this time West was seated on a stool inside the dance floor area of the licensed premises. Adams told West that he had a marijuana cigarette and invited West to go out and smoke it with him, assuming that West had rolling paper. After this conversation West and Adams stepped out the back door of the premises. Adams produced a plastic bag of marijuana. A marijuana cigarette was rolled at which time Adams smoked the marijuana cigarette and there were several other unidentified persons all standing around that engaged in smoking the marijuana cigarette. This event between Adams and the other patrons took place approximately three feet from the door of the premises. On June 7, 1991 Kevin Mercer approached West while West was standing near the front pool table and asked West if West still wanted a bag of marijuana that had been discussed earlier that evening. West replied in the affirmative. West and Mercer then stepped outside the front entrance at which time Mercer produced a bag of marijuana and handed it to West and West paid Mercer $20.00 for the marijuana. This took place within ten feet of the front door on the sidewalk adjacent to the licensed premises. This transaction was in plain view. On June 8, 1991 West returned to the licensed premises and while there stepped out back to a car that was parked behind the licensed premises in the alley. Approximately nine people were seated in that car. They were engaged in smoking a substance that was said to be hash or hashish. They were using a coke can converted into a pipe. There was a conversation that went on in which Jack Walker said the cost of a block of this substance being described as hash would be $150.00. After the events outside with the nine persons in the automobile West returned to the licensed premises where Billy Willis was sitting at the disc jockey booth playing records and tapes. West engaged in a conversation with Willis and asked if he had any hash for sale. Willis advised that he had a small amount which he produced while seated at the D.J. booth and sold to West for $10.00. Later a conversation took place between West and Michael Brooks while seated in a booth across from a bar in reference to hash. West asked Brooks if he had any hash for sale and West advised that he did and directed West to follow him to the men's bathroom. While in the bathroom Brooks produced a block of suspect hash and West told him he would take $20.00 worth. Brooks took West's knife and cut off a chunk of the suspect hash and handed it to West. Willis and Brooks had been among the nine persons in the vehicle located out behind the licensed premises earlier in the evening. That's how West became familiar with the idea of hash and its possible availability for sale. Later laboratory testing of the substances which Willis and Brooks sold to West did not reveal that the substances were hashish. Later on June 8, 1991 West engaged in a conversation with Kevin Mercer while standing near the pool table. This conversation was about the purchase of marijuana. West gave Mercer $60.00 in advance to buy marijuana which Mercer said he could get. Subsequently Mercer delivered marijuana to West outside the front door of the licensed premises within a foot of the door. On June 8, 1991 West spoke to Jack Walker about purchasing marijuana. They went out back within ten feet of the back door and West paid $80.00 to Walker for the purchase of marijuana. West went back in the licensed premises on June 8, 1991 and engaged in a conversation with Michael Brooks. This conversation took place while seated in a booth across from the bar area. Brooks invited West to go and smoke hash with him. They exited the back door along with another patron named Robert Corey. They stood directly behind the men's room where the roof overhangs. Brooks had a coke can stashed in the rafters above the woodwork of this overhang. That coke can had been converted into a pipe. At that point Corey and Brooks smoked suspect hash. West had been advised that it was hash and it had that appearance. In addition to the events that have already been described concerning June 8, 1991, West made observations of several groups of people at different times smoking marijuana behind the licensed premises and during these occasions the aroma of the marijuana could be detected inside the licensed premises proper. West returned to the licensed premises on June 13, 1991. While there he observed Billy Willis standing out back near the men's bathroom. Willis advised West that he had enough marijuana for a marijuana cigarette and asked West if he had rolling paper. West gave Willis rolling paper at which time a marijuana cigarette was rolled and Willis smoked it. While Willis was engaged in smoking the marijuana cigarette, Frank Bell, the bar manager, exited the back door of the premises and looked over at West and Willis. West and Willis greeted Bell and Bell stepped back into the premises. Later on June 13, 1991 while inside the licensed premises seated at the bar, Charles Burnett advised West that he had marijuana. West and Burnett went outside near the men's bathroom and Burnett rolled a marijuana cigarette and smoked it. West observed the smoke from the marijuana cigarette wafting into the licensed premises. On June 13, 1991 while in the licensed premises West asked Jack Walker if Walker had marijuana to sell and Walker replied in the affirmative. Walker said that the marijuana had to be weighed. Later Walker was seated at the bar and West approached Walker and asked about the marijuana purchase. Walker advised West to step out back. Walker and West went into the men's bathroom where Walker produced the plastic bag of marijuana and a set of handscales. Walker weighed the bag of marijuana and advised West that it would cost $45.00. West paid Walker $40.00 and gave him the balance of the money later. On June 13, 1991 while seated at the bar next to Amy West, a patron, the female patron advised West that she had some "speed" also known as amphetamines. West asked the patron how much it would cost. The patron said it would be free. She put her purse on top of the bar and retrieved a pill bottle and produced a couple of white pills. She handed West four of the pills and told him that they were "white crosses". Later laboratory testing revealed that this was not a controlled substance. The pills were epherdrine. In a further conversation on June 13, 1991 between West and Amy West while seated at the bar, discussion was made about cocaine. Amy West asked the beverage agent if the beverage agent would sponsor half the money necessary to buy half a gram of cocaine. The beverage agent said that he would and was told by Amy West that the beverage agent's share would cost $50.00. West, the beverage agent, put three twenty-dollar bills on top of the bar and asked Frank Bell for change for one of those twenty-dollar bills and then slid $50.00 across the bar to Amy West. She took the money and handed it to Gary Wayne Boyd who was seated next to her. Later Boyd asked beverage agent West to step out front with him. Beverage agent West, Amy West and Boyd then went out front to a pickup truck that was parked there. Boyd and Amy West were seated in the pickup truck and Boyd produced a quantity of suspect cocaine. Boyd divided the cocaine and delivered approximately half of that cocaine to beverage agent West. This took place within 40 or 50 feet of the front door. On June 14, 1991 West returned to the licensed premises and while in the premises seated at the bar engaged in a conversation with Kevin Mercer about the purchase of marijuana. He gave $40.00 to Mercer to purchase the marijuana. Later Mercer delivered the marijuana to West while standing outside the front door of the licensed premises within about 40 feet of that door. The delivery took place in a corridor between the licensed premises and another building. Later on June 14, 1991 West engaged in a conversation with Jack Walker while seated at the bar counter. Walker had squeezed between West and the Respondent at the bar. At that time Walker told West that he had a few bags of marijuana for sale at $50.00. West and the Respondent were seated and Walker placed himself between those two individuals. Walker was not seated. West had a further conversation with Walker at the back pool table and they departed to an area behind the men's bathroom at the licensed premises. There they encountered a man named Bart Harvey. Harvey gave two bags of marijuana to Walker who in turn gave the marijuana to West and West paid Walker $50.00. On June 14, 1991 during the course of the evening West observed the odor of marijuana inside the licensed premises and he observed persons outside the premises smoking marijuana. The aroma of marijuana was even noticeable in the lobby of the licensed premises because of the ventilation system and during this time Respondent and his wife were present in the licensed premises. On June 15, 1991 West returned to the licensed premises and engaged in a conversation with James Thomas Alford concerning the purchase of marijuana. This conversation took place in front of the premises between two parked cars. West gave Alford $50.00. Alford later approached West while West was in the licensed premises and asked West to step outside with him. Alford and West stepped outside to an area between two cars parked in front of the premises at which time Alford delivered a bag of marijuana to West. This location was within 30 feet of the front entrance to the licensed premises. A patron saw this delivery being made and asked if he could purchase marijuana from the beverage agent. On June 19, 1991 West returned to the licensed premises and engaged in a conversation with Amy West. Amy West asked the beverage agent if he wanted to smoke a marijuana cigarette with her at which time Amy West, Charlie Burnett, Gary Wayne Boyd, and the beverage agent exited to the rear of the premises. They walked around behind the men's bathroom. They then came back in the licensed premises and went to the dance floor area side. When they entered the area of the dance floor inside the premises, Frank Bell, Jack Walker, and another unidentified white female and an unidentified white male were there smoking marijuana. Another marijuana cigarette was rolled by the unidentified white male and it was smoked. While they were in this location a patron Bobby Don Staten banged on the door and hollered out "Everybody put your hands on top of the bar." This person Staten was pretending to be a police officer. On June 20, 1991 West went back to the licensed premises. While there he stepped out the back door near the men's bathroom and observed Frank Bell and Lou Brown engaged in smoking a marijuana cigarette. This was approximately three feet from the exit at the back. On June 20, 1991 West engaged in a conversation with Kevin Mercer reference the purchase of marijuana. This was related to a purchase of marijuana off premises. This conversation with Kevin Mercer took place in the area where Lou Brown and Frank Bell had been observed smoking marijuana. The conversation between West and Mercer was overheard by Frank Bell, the bar manager. On June 24, 1991 West returned to the licensed premises and while seated at the bar was approached by Gary Wayne Boyd. Boyd told West that he had cocaine for sale. Later Boyd came back to the bar where West was seated and motioned for West to follow him outside. They went to the men's bathroom. There West observed Robert Corey and Charles Burnett. Burnett was sitting backwards on the toilet making lines of what appeared to be cocaine on the tank lid to the toilet. West considered this to be cocaine given its appearance. While Burnett was conducting this activity Boyd and West were standing at the doorway. Boyd produced a white powdery substance and West asked him how much it would cost to purchase that substance. Boyd said that a gram would cost $100.00. West told Boyd that he wanted to buy a gram and gave Boyd $100.00 to purchase the cocaine Boyd handed him. On June 25, 1991 West returned to the licensed premises and was approached by Billy Willis while seated at the bar. Willis advised that he had a joint, meaning a marijuana cigarette. He invited West to step out back with him for the purpose of smoking marijuana. While standing just outside the back door of the premises Willis, Charles Burnett and another patron identified as Farmer smoked the marijuana cigarette. At that time the back door was closed; however, patrons were exiting the back door to use the men's bathroom. West returned to the licensed premises on July 17, 1991. During that evening West and Jack Walker stepped out the back door of the premises. On the way out Walker made a motion for Walt the bartender on duty to come with West and Walker. While standing just outside the back door Walker produced a small amount of marijuana, rolled a marijuana cigarette and Walt and Walker engaged in smoking the marijuana. They were within three feet of the back door. On July 18, 1991 while at the licensed premises West went to the men's bathroom and observed Robert Corey and an unidentified white female behind the premises engaged in smoking marijuana. Corey and this woman were within fifteen feet of the door. The odor of the marijuana being smoked could be detected inside of the premises. Corey and the woman were not trying to hide their activities in smoking the marijuana. West returned to the licensed premises on July 19, 1991. He engaged in conversation with Jack Walker about the purchase of a quarter pound of marijuana while standing at the front pool table of the licensed premises. Later, while seated in the dance floor area of the bar, Walker asked West if he had a pocket knife. West replied in the affirmative and was told to follow Walker outside that he had something to share with him. They went into the men's bathroom at the licensed premises and while there Walker produced a quantity of what appeared to be cocaine and made it into lines on the toilet lid. Walker told West that this substance was cocaine. Walker snorted the suspect cocaine up his nose and they reentered the licensed premises. On July 20, 1991 West returned to the licensed premises and went with Charles Burnett, Corey and Farmer out back. While outside near the back door Corey produced a marijuana cigarette while standing near the air conditioned compressor. Lou Brown and two other unidentified persons were already in the area. Those three individuals were engaged in passing a marijuana cigarette between them and were smoking it. While these activities were occurring other patrons stepped out of the back door of the premises either to use the bathroom or just to look around. The patrons were in a position to observe the marijuana being smoked. The back door was also propped open. On July 22, 1991 West returned to the licensed premises. He was seated at the bar and there were only about five patrons present at that time. The patron known as Butch Brown entered the premises with his wife and hollered out "Who's got the best dope around." Jack Walker walked up to Butch Brown and produced a marijuana cigarette from his shirt pocket. This action by Walker could be clearly observed. Brown then produced his own marijuana cigarette from his shirt pocket. Brown and Walker compared the marijuana cigarettes while standing at the bar. Walker then said in a voice loud enough to be heard that when this "joint was gone he had a bag that he would smoke." These events took place in the licensed premises standing at the corner of the bar near the front pool table. Shortly thereafter West, Walker, Brown and Burnett went out behind the men's bathroom at which time the marijuana cigarette that Brown had earlier and the marijuana cigarette that Walker had earlier were smoked by Walker, Brown and Burnett. They were standing under the roof overhang near the bathroom. On July 23, 1991 West returned to the licensed premises and while standing out back he engaged in a conversation with Jack Walker. Charles Burnett approached them and produced a marijuana cigarette and smoked it. This was within ten feet of the rear entrance to the licensed premises. Later on July 23, 1991 West and Burnett were seated at the bar when they were approached by Walker who asked them to step out back with him. The three of them entered the men's bathroom at which time Walker produced a quantity of suspect cocaine. Walker put the suspect cocaine on the back of the toilet at which time Burnett began chopping the suspect cocaine into a finer powder and putting it into lines. Walker and Burnett inhaled the suspect cocaine up their nostrils. While this was occurring the door to the bathroom was closed. While in there someone banged on the door and said, "Hey, now ya'll get out of there with them drugs." On July 23, 1991 while back inside the licensed premises Jack Walker was seated at the corner of the bar near the front pool table Walker motioned West to come over to him at which time Walker handed West a bag of marijuana in an open manner. This was done by pulling the bag of marijuana out of his pants pocket and handing it to West. This transfer occurred at the corner of the bar near the front pool table. West then stepped out back of the licensed premises with the bag of marijuana at which time Charles Burnett rolled a marijuana cigarette from that bag. Kevin Mercer and Charles Burnett engaged in smoking the marijuana cigarette. This took place within ten feet of the back door of the licensed premises. On July 23, 1991 when West reentered the licensed premises Burnett had the previously described bag of marijuana that belonged to Jack Walker. Burnett was seen to walk over to where Walker was seated and in an open manner handed the bag to Walker. On July 31, 1991 West returned to the licensed premises and was seated at the bar with Charles Burnett on his right and Jack Walker to Burnett's right. West overheard a conversation between Burnett and Walker in which Burnett was asking Walker about where something was. He observed Burnett walk to the dance floor area of the premises which was closed. Burnett then came back from the dance floor area and handed the person attending the bar a package wrapped up with a wrapper made of a brown paper bag. He asked the person tending bar to put it in the microwave for ten seconds. The bartender placed the package in the microwave in the bar area for ten seconds. After ten seconds he opened the door and smoke rolled out of the microwave and the smoke revealed the presence of marijuana which pervaded the licensed premises. Burnett then took possession of the marijuana. Burnett stated that a hole needed to be bored into the package of marijuana until his hands could cool down and then Burnett placed the package in his pants pocket. Frank Bell, who was the bar manager, was present playing the pinball machine. When the odor of marijuana started he made a comment to Burnett to not be cooking that marijuana in his microwave anymore. On August 2, 1991 West went back to the licensed premises and noticed that Respondent was present. On that evening Walker approached West while West was standing at the pinball game and asked West if he wanted to buy an ounce of marijuana. West replied in the affirmative. Later Walker and West stepped out back of the licensed premises and while standing there Walker produced a plastic bag containing suspect marijuana and West purchased it from him for $65.00. There was a pickup truck parked next to the back door and the purchase was made while standing at the back of the pickup truck. On August 3, 1991 West returned to the licensed premises. He saw Lou Brown, a patron, arrive at the premises on his motorcycle. Several other patrons and West stepped outside to take a look at the motorcycle Brown was riding. The motorcycle was parked directly in front of the premises. At that time Lou Brown produced a marijuana cigarette and lit it and began smoking it and passing it to Charlie Burnett to smoke as well as Farmer. Farmer was squatting down next to the front door. Frank Bell opened the door, poked his head out, looked at the motorcycle and said "nice bike." When Bell did this, Farmer who was engaged in smoking the marijuana cigarette, had his head turned toward Frank Bell and blew marijuana smoke in the direction of Bell. On August 3, 1991 West went to the men's bathroom and saw several patrons smoking marijuana just outside the back door. He made a similar observation when going to the men's bathroom later on that evening. West returned to the licensed premises on August 8, 1991. Burnett invited West to step out back of the premises to smoke marijuana with him. Once out back Burnett produced a bag of marijuana and a marijuana cigarette was rolled. Farmer and a white female identified as "Ditty-Bop" joined in with Burnett in smoking marijuana. They were within ten feet of the back door. On August 8, 1991 Michael Brooks invited West to step out back of the premises to smoke marijuana with him. They were accompanied by Billy Willis and once outside Willis and Brooks went in the men's bathroom and with the door opened rolled a marijuana cigarette. Once the cigarette was rolled Brooks and Willis while standing behind the premises just outside the back door smoked the marijuana cigarette. They were within two or three feet of the back door when smoking the marijuana. On August 9, 1991 West returned to the licensed premises. At that time he saw the Respondent and the Respondent's wife present. He also observed Frank Bell open the front and back doors and turn on the ventilating fans. When this was done West observed people standing outside the back door. He also observed that the smell of marijuana was sucked into the premises by the ventilating fans. On August 9, 1991 West and Burnett went to the rear of the premises near the men's bathroom. Burnett produced a plastic bag of marijuana. A cigarette was rolled and Burnett smoked it. While Burnett and West were standing right at the corner of the men's bathroom, West observed the Respondent exit the premises. The Respondent entered the men's bathroom, exited the bathroom and looked back at West and Burnett. When the Respondent looked back Burnett was engaged in smoking the marijuana cigarette. Burnett was smoking the cigarette in an open manner. When Burnett would exhale the smoke of the marijuana it entered in through the back door of the premises. Respondent took no action to stop Burnett from smoking marijuana. On August 9, 1991 while West was standing in front of the licensed premises, he ordered a bag of marijuana from Kevin Mercer and paid $25.00 in advance. Back inside the licensed premises seated near the lift windows inside the dance floor area Mercer approached West and asked him to step out back. They went out the back of the licensed premises and near the back door Mercer delivered a bag of marijuana to West. The delivery was made in an open manner within one foot of the exit on the side of the licensed premises where the D.J. booth is located. On August 10, 1991 West entered the licensed premises and engaged in a conversation with Walker while standing next to the pool table. This discussion involved the purchase of marijuana. Walker told West that he had a bag of marijuana in his pocket and would have to look at it and see what it was worth. Walker and West stepped out back of the premises just outside the door. Walker produced a plastic bag of marijuana and told West that it would cost $20.00. West paid $20 for the marijuana. They were within two feet of the back door at that time. Later on August 10, 1991 Burnett asked West to go outside and smoke a marijuana cigarette with him. As they were exiting West leaned over and told Frank Bell, bar manager, that West and Burnett were going outside to smoke a joint, meaning marijuana. Bell replied "good, I'll be right out". Later Burnett, Robert Corey and Frank Bell engaged in smoking a marijuana cigarette outside. West returned to the bar on August 15, 1991. When he entered the bar the man named Walt was tending the bar. There were approximately eight patrons present. West ordered a beer and asked Walt where everybody was located. Walt explained that people were in the other portion of the licensed premises known as the dance floor, which was shut off and the door closed and the windows that separate the dance floor from the other part of the licensed premises were pulled down. West entered the dance floor area and saw several patrons. Those patrons were at the back of the dance floor near a service bar. Among them was Jack Walker. He commented that he had a bag of "pot," meaning marijuana, to smoke a joint from. Walker was trying to explain to Charlie Burnett where the bag of "pot" was. He explained that it was in a Budweiser beer box next to the bar on the other side, that is the main part of the premises. Burnett was having difficulty understanding Walker's directions and West offered to go get the marijuana. He walked over to the main part of the bar where approximately six patrons were present. He went to the boxes that were stacked in the area of the bar in the main part of the licensed premises. The box that he was looking for was among boxes where empty beer bottles are kept. He found the marijuana in a baggie and removed it and observed Walt the bartender watching what he was doing. He retrieved the bag of marijuana with his left hand and carried it around the main bar area back to the dance floor area. Once back in the dance floor area a white female patron named Sherry rolled a marijuana cigarette on top of the service bar in the dance floor area. That cigarette was then passed around and smoked. Eventually the persons in the dance floor area went back to the main part of the bar. At that time, Walt the bartender commented that the smell of marijuana was stinking up the bar. His reference was to "pot" smelling up the bar, meaning marijuana. Walt then went and turned the big ventilating fan on located in the wall and this cleared the marijuana smoke out. Later Burnett asked West to go smoke a marijuana cigarette with him at which time Burnett and West went through a door at the back of the dance floor area. Walt opened the door behind them in the dance floor area and told West and Burnett not to smoke any more dope back there. He said that if you want to roll one back there you can roll it but don't smoke it back there. Burnett could not find any rolling papers to prepare a marijuana cigarette so West and Burnett exited the dance floor area and went back to the main area of the bar. Subsequently, Burnett, Walker, Billy Willis, Sherry and West entered the dance floor area of the premises and Burnett produced a marijuana cigarette and rolling papers and a marijuana cigarette was rolled and smoked. There were times other than the dates described when beverage agent West entered the licensed premises in the period May through August, 1991 and nothing irregular occurred. On the Friday nights when Respondent would be in attendance there was a great deal of noise inside the licensed premises. Concerning an awareness of the possible problems with drugs in the licensed premises, on April 19, 1990 Chief of Police John Franklin Osborn of Jasper, Florida spoke with the Respondent at Respondent's instigation. Chief Osborn also spoke with the sheriff's office of Hamilton County about getting an undercover officer to examine that potential problem. Osborn had previously spoken with the Respondent in November or December, 1990 about having an undercover person in the bar to look at the issue of possible drug activities there. At that time Osborn checked with the Hamilton County Sheriff's Office about an undercover officer doing surveillance. An undercover surveillance or investigation by the sheriff's office was not conducted. In conversation Respondent had told Osborn that if sales of drugs were going on in the licensed premises the Respondent wanted to do something about it. Osborn described the alley behind the licensed premises as one in which lighting is available at the local telephone office at the opposite end of the alley from the licensed premises. Osborn is also aware that a light exists in the men's bathroom of the licensed premises which provides light immediately outside that convenience. There are no lights in the alley proper. His description of the lighting is that it is medium quality lighting and that at night you can identify people if you are in the alley but if you are outside the alley you cannot look into the alley and identify who the people are. Osborn established that no drug arrest had been made in the licensed premises other than arrests associated with the case that has been described here. Osborn heard the Respondent tell Jack Walker to leave the licensed premises on one occasion, but the Respondent allowed Jack Walker back into the bar at a later date. The nature of the patrol activity around the bar area was once on Friday and once on Saturday night. This refers to patrol activity by the Jasper, Florida Police Department. Margaret Bell, who is the sister-in-law of Frank Bell, had managed the licensed premises in the past, as recently as the summer of 1990. She describes the Respondent's instructions to her were that she not allow drugs, unauthorized liquor, or fighting, and to call Respondent if problems occurred. In her experience the Respondent would be at the bar on Friday night. Respondent would return on Sunday or Monday morning to check up on the week's business. Frank Bell who worked at the bar with his sister-in-law, Margaret Bell, had been informed of Respondent's conditions about misconduct in the bar. Frank Bell was recommended to replace his sister-in-law as bar manager and was the manager in the period of the subject investigation. The recommendation came from Margaret Bell. Margaret Bell worked on July 5 and 6, 1991 as an employee under the management of Frank Bell and did not observe any problems in the bar. She established that Billy Willis is not an employee of the bar but someone who was allowed to play the records and tapes as disc jockey and would be given chips and cokes in return for his service. Margaret Bell identified that on Friday and Saturday night with the noise level up you might have to yell at the person next to you to be heard above the din. Margaret Bell identified that to get the kind of ventilation necessary to deal with the number of people in the bar in the summer that the employees would open the front door in the dance area and the back door on the main bar side. Margaret Bell states that she has smelled marijuana in the bar when the exhaust fans were on and had told patrons to leave from the area behind the bar. She also told persons out front who were smoking marijuana to leave. These requests to have these persons leave were in accordance with the Respondent's instructions to her. Margaret Bell has also seen Frank Bell ask patrons to leave five or six times. Margaret Bell did not call law enforcement when she smelled marijuana out back which had occurred on seven to nine occasions. Additionally, she did not post signs about drug usage or receive any specific instructions about drug matters beyond those described before concerning Respondent's remarks to her. Margaret Bell was told that Frank Bell had smoked marijuana during the period when she and her husband had first been married but she had not witnessed this personally. Frank Bell was the bar manager from August, 1990 to August 23, 1991. His instructions as bar manager, based upon what the Respondent told him about management, was that no drugs and no unauthorized liquor would be allowed in the bar. Respondent made mention of those basic rules on many occasions. Frank Bell identified the fact that he had told people to leave the outside area who were smoking marijuana. In this connection Frank Bell had asked people to leave the back door area on many occasions. The record does not reveal that he had called for law enforcement assistance to deal with this problem. Frank Bell didn't post signs concerning prohibition against drug usage in the licensed premises. Frank Bell's arrangement with the Respondent concerning his employment status was that he would share 50% of the net profits for his work as manager. Frank Bell identified that Jack Walker, Gary Wayne Boyd, Billy Willis, Kevin Mercer, and Charles Burnett are customers of the licensed premises. Frank Bell has also experienced the exhaust fans pulling marijuana smoke into the licensed premises. Frank Bell was arrested based upon facts that are described, and charged with a criminal law violation based on those facts. Respondent has been associated with the establishment for 33 years and has been the licensee since 1977. His practice in the past has been to hire someone to run the licensed premises and to split the profits with them. He is typically at the licensed premises on Friday. His instructions for management are no drugs, unauthorized liquor, fighting or card games. Respondent corroborates that the noise level on Friday night is loud and that you need to be close to the person that you are conversing with to hear and be heard. Respondent has never overheard people discussing drug transactions inside the bar. In the one instance where a transaction was discussed in his presence he did not hear because he has impaired hearing. Respondent in describing his conversations with Chief Osborn spoke in terms of having the Chief check on the possibility of drugs at the licensed premises, although Respondent says he has never seen drugs in his business. He has smelled the marijuana smoke in the place. Respondent has smelled the odor of marijuana on three or four occasions and that led him to tell Frank Bell or the person running the bar to tell people to leave who were smoking the marijuana. Again, the record does not reveal that Respondent sought the assistance of law enforcement on these occasions. Respondent has never seen a drug transaction on or about the premises. Respondent's attendance at the bar is usually from 7:00 p.m. until closing on Friday nights. Otherwise he just drops in occasionally. Respondent has not put up lights out back so that patrons could be seen more clearly and their activities monitored, nor has he put signs up concerning the prohibition against drugs and he has not asked the Petitioner, local police department, or sheriff's office to talk to employees about drug problems.
Recommendation Based upon a consideration of the facts found and conclusions of law reached, it is recommended that a final order be entered which revokes license no. 34-00017, Series 1-COP held by the Respondent. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida. CHARLES C. ADAMS 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 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5349 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is subordinate to facts found, except with the reference to Billy Willis as being an employee of the Respondent. That reference and others that suggest that Willis was an employee is incorrect. Paragraphs 7-37 are subordinate to facts found. Paragraph 38 is subordinate to facts found with the exception that the facts were not presented to show that the odor of burning marijuana was prevalent inside the licensed premises. Paragraphs 39-47 are subordinate to facts found as is Paragraph 48 with the exception of the proposed fact that Respondent did a "double take when he came out of the men's restroom." That is rejected. Paragraphs 49-51 are subordinate to facts found. Paragraph 52 is rejected. Paragraphs 53-57 are not necessary to the resolution of the dispute. Paragraph 58 is subordinate to facts found. Paragraphs 59 and 60 are not necessary to the resolution of the dispute. Paragraphs 61-63 are subordinate to facts found. Paragraph 64 is not necessary to the resolution of the dispute. Paragraphs 65-69 are subordinate to facts found. Paragraph 70 is not necessary to the resolution of the dispute. Respondent's Facts Paragraph 1 in the initial sentence is subordinate to facts found. The balance of that paragraph is not necessary to the resolution of the dispute. As to Paragraph 2 while the 1977 sketch of the licensed premises that was filed with the application did not show the men's bathroom in the same location as it was in 1991, the men's bathroom in 1991 is still considered part of the licensed premises. Paragraphs 3-11 are subordinate to facts found. Paragraph 12 is rejected. Paragraph 13 is subordinate to facts found. Paragraph 14 is rejected in that Chief Osborn described the available lighting behind the licensed premises as moderate. Paragraphs 15-18 are subordinate to facts found. Paragraph 19 is rejected in that Respondent indicated that he had some belief that marijuana was used outside the premises on occasion based upon its odor. Paragraph 20 is subordinate to facts found. Paragraph 21 is rejected. COPIES FURNISHED: Nancy C. Waller, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1007 Donald K. Rudser, Esquire Post Office Drawer 1011 Jasper, FL 32052 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
The Issue The 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
