The Issue Whether disciplinary action should be taken against the Respondents' respective educator's certificates upon proof of violations of Sections 231.28(1)(c), Florida Statutes [gross immorality or acts involving moral turpitude] and 231.28(1)(f), Florida Statutes [personal conduct which seriously reduces effectiveness as an employee of the school board], based upon allegations that Respondents possessed marijuana and drug paraphernalia.
Findings Of Fact Respondent Gregory J. Ramputi, Sr., held Florida educator's certificate 752393, covering Specific Learning Disabilities, which was valid through June 30, 1997. At all times material, he was employed at Forrest Heights High School in the Marion County School District. Respondent Joanna C. Ramputi, holds Florida educator's certificate 734502, covering Elementary Education, which is valid through June 30, 2000. At all times material, she was employed as a Fifth Grade Elementary School Teacher at Maplewood Elementary School in the Marion County School District. In November 1995, the Drug Task Force Headquarters in Marion County received a 50-pound package of marijuana from law enforcement officials in California. The package of marijuana was originally sent by Federal Express and addressed to the Ramputis' home address in Ocala, Florida. After they intercepted the package, Marion County Law Enforcement agents, in a covert operation, delivered it to the Ramputis' address on November 3, 1995. The Ramputis have been married for 18 years and in November 1995 had lived at the same address for approximately 12 years. As of November 3, 1995, Mrs. Ramputi had been certified as a teacher for one school year, and Mr. Ramputi was in his first year of teaching. The Ramputis have three children. On November 3, 1995, Gregory was 14; Jeffrey was 9; and Marina was 7. On November 3, 1995, Mr. Ramputi and his son Gregory left the house by the front door at approximately 7:00 a.m. Respondent Joanna Ramputi left the house by the front door at approximately 8:00 a.m. Marina had spent the night at her grandmother's house and was not there when the other family members left the residence. Jeffrey was the only person remaining at home after Mrs. Ramputi left. He remained at home only a short time until picked up by a second grandmother. Agent Edgar Leedy is employed by the Marion County Sheriff's Office. He has over 14 years' experience in law enforcement and has substantial experience investigating the cultivation and sale of marijuana. Agent Leedy is familiar with marijuana and is able to recognize harvested marijuana and marijuana plants. In conducting surveillance of the Respondents' residence on the morning of November 3, 1995, Agent Leedy observed a Ford Explorer arrive at the residence, park in the garage, and wait. The Ramputis' two boys "appeared" on the Ramputis' front lawn between the surveillance car's pass-bys. Gregory had been picked up at school, and both boys were dropped off by the second grandmother. No officer observed any communication between the children and the occupants of the Ford Explorer, but they were not continuously observed. It is not clear from the surveillance officers' testimony whether any of the Explorer's occupants had an opportunity to enter the house. The occupants of the Ford Explorer accepted the 50- pound package of marijuana from a law enforcement officer posing as a Federal Express driver and left the residence within seconds after receiving the package. The Explorer was immediately stopped by Special Agent Chris Crandon, and the package of marijuana was found unopened inside the vehicle. The occupants of the Explorer, including Mark Erp, were arrested. When asked where he was living, Mr. Erp indicated an address in Ocala different than the Respondents' address. He never indicated he was residing at the Respondents' home. Mark Erp is the son of Mr. Ramputi's female cousin. He is in his early twenties. He has a criminal record for dealing illegal drugs, as does his father. The father and mother, Mr. Ramputi's cousin, are divorced. Both live in Ocala, Florida. Mr. Ramputi has assisted Mark in a quasi-parental manner in the past and was aware of Mark's and his father's criminal records. Upon approaching the Respondents' residence, Agent Leedy immediately noticed a marijuana plant growing in a pot standing by the front door in plain view. Agent Leedy and Agent Brandt secured the residence to ensure that any potential evidence was not altered while a search warrant was being procured. The front door was opened to them by one of the Respondents' sons. After a search warrant was procured, the house was searched. Mr. Ramputi was telephoned at his school shortly after lunch and was requested to return home. He returned in mid- search. Agent Leedy was present in the living room, kitchen, and master bedroom suite in the course of about an hour. He conducted a search of the kitchen area of the Respondents' home. In the kitchen, he located an old meat scale with no marijuana residue on it. He also located a platter containing rolling papers and marijuana in the cabinet above the refrigerator in the kitchen. Agent Leedy was able to identify the marijuana and paraphernalia on the platter by sight and smell, but testified that no scent of marijuana use (smoke) was anywhere in the house. The platter and its contents were consistent with what law enforcement officers understand to be a "personal use platter." Agents Leedy and Crandon noted that marijuana cigarettes/roaches (partially burned marijuana cigarettes) were located throughout the house, including the living room. Agent Crandon has been employed by the Marion County Sheriff's Office for over 16 years and has been in the field of narcotics and narcotic detection since 1990. He has substantial experience in dealing with marijuana cases and is able to detect marijuana by sight and/or smell. He assisted in searching the master bedroom suite, which included two closets, a master bedroom, and a master bath. He also was responsible for collecting, testing, and documenting all seized evidence, wherever originally located throughout the house. Another phrase for his involvement would be "collecting, bagging, and tagging." Agent Crandon located a marijuana cigarette in plain view on top of the master bedroom dresser and a "bong" in plain view sitting on the bathroom counter. A "bong" is a pipe commonly used for smoking marijuana. The bong contained marijuana residue. Also found in the master bedroom were 175 grams of marijuana in the Respondents' dresser in two separate bags. This amount of marijuana is consistent with a "stash" for sale to others in smaller amounts. Marijuana possession in excess of 20 grams constitutes a felony. Also found in the master bedroom were approximately six quarter-ounce bags of marijuana, located in the bottom drawer of the night-stand next to Respondents' bed, together with a ledger which the officers interpreted as describing transactions of drug sales. This method of packaging is consistent with amounts for individual use sales. Approximately $5,500 in cash was found underneath the bottom drawer of the same night-stand. The envelope had been laid on the floor under the bottom drawer of the night-stand and bore some mathematical computations. The top drawer of the same night-stand contained hemostats a/k/a "clips" (devices commonly used to hold marijuana cigarettes while they are smoked), together with a small amount of marijuana in a plastic bag. Mr. Ramputi's closet was on the right of a small entryway within the master bedroom suite. Mrs. Ramputi's closet was on the left of this entryway. Both closets contained the Ramputis' respective clothing. Approximately $32,000.00 in cash was found in Mr. Ramputi's closet. It was contained in two small brown paper bags which were placed inside an unlocked and unlockable white canvas draw-string bag at the bottom of the closet with clothing and Mr. Ramputi's High School Annual. There was no lock on the closet door or any way to secure it. The cash within the two small brown bags was separated into $15,000+ in one bag and $16,000+ in the other. Each bag contained several stacks of $1,000 each, secured with rubber bands. According to the officers who testified, this method of packaging cash in $1,000 stacks is consistent with the way drug dealers keep track of cash transactions. The Respondents asserted ownership of the $37,000 cash found in the master bedroom suite, but denied any knowledge of, or connection to, the marijuana. However, both Respondents conceded that they had, at all times, access to the master bedroom suite. In addition to the Respondents' cash, many of their personal belongings were located in close proximity to the marijuana in the master bedroom suite. Personal belongings and mail addressed to Joanna Ramputi under her maiden name were in the night-stand in which marijuana was located. Mail in the Respondents' names was located elsewhere in the master bedroom, together with financial documents and tax certificates. An address book with Mark Erp's name inside, giving a Marion County address, was also located in the master bedroom. Presumably, this address book belonged to the Respondents. Mr. Ramputi's steroids, in unopened glass vials, and syringes for the administration of the steroids were also located in the master bedroom. A set of electric curlers and a woman's makeup bag were on the bathroom counter next to the bong. Agent Crandon was able to identify the marijuana found in the bedroom by sight and smell. In collecting, tagging, and bagging the two amounts of cash and the marijuana-related items from the house, Agent Crandon handled all of the listed items, including marijuana roaches, clips, the outside of baggies, and the cash with its paper and canvas containers. He did not recall if he wore gloves during this procedure, but related that if he had worn gloves, he would have worn the same pair of gloves the entire time he was in the Respondents' house. He did not open the baggies and actually sift through any marijuana. Agent Crandon conducted field reagent tests upon the marijuana-related items throughout the house resulting in positive findings that the substances were, in fact, marijuana. Agent Crandon dumped the cash out of its respective containers. He counted and photographed the cash from the closet on the bed. He counted and photographed the cash from the night- stand on the floor of the master bedroom suite. He then replaced the cash in the brown paper bags and envelope respectively and bagged and tagged them separately from any marijuana-related items. Subsequent testing at the Task Force's offices revealed that latent finger prints had not been recovered or that any fingerprints recovered were of insufficient quality to make a positive identification of anyone. All packages of cash located in the Respondents' residence (the two brown bags from the canvas bag in the closet and the paper envelope under the night stand) were forwarded for testing to the Marion County Sheriff's Office K-9 (dog) Unit. At the Sheriff's Office, the seized cash was stored separately from the seized marijuana. Officer Whitman, who did not testify, purportedly placed seized cash from each of the three separate bundles in three separate bags and neutral cash from the Sheriff's Fiscal Division in three other bags. The Sheriff's Fiscal Division gets its money from banks and takes no special steps to purify or cleanse the cash. Law enforcement witnesses conceded that a great deal of cash that is in general circulation has marijuana residue on it and further conceded that it is possible, under some circumstances, for someone who has touched marijuana in the course of an investigation to leave marijuana residue on cash seized at the same time. Talon, a trained dog of the K-9 Unit working with Officer Pistarelli, alerted on all three of the bags which Officer Whitman told Officer Pistarelli contained cash seized from the Ramputis' home. The K-9 sniff-test was not conclusive of guilt, nor is it, by itself, sufficient to constitute "probable cause" to arrest the owner of the money on drug-related charges. However, Agent Crandon testified that based upon his experience and the totality of the circumstances of this case, the cash claimed by the Respondents was connected to the drugs located in their master bedroom suite. The search warrant for Respondents' home was ultimately ruled defective. The criminal arrest and prosecution records were ultimately expunged. After the criminal case(s) against them was dismissed, Respondents asserted ownership of the $37,000 in cash, and it was returned to them. At formal hearing herein, Respondents asserted that the cash was not drug-related, but had been intended by them for ongoing repair and construction in their home. Respondents maintained that from the latter part of October until November 3, 1995, they had been sleeping in the living room of their home, and their two sons, Gregory and Jeffrey, had been sleeping in the master bedroom. They asserted that Mark Erp had temporarily moved into the master bedroom with their sons 4-6 days before November 3, 1995, because he was "having trouble with his girlfriend." Mrs. Ramputi testified that she provided a roll-out bed for Mark Erp, which normally was kept in her closet within the master bedroom suite. The Ramputis acknowledged possession of the injectable prescription steroid vials and syringes in their bedroom, stating that these had last been used a year before by Mr. Ramputi's mother for Mr. Ramputi's skin condition, but they maintained they had never seen or smelled anything in their home that would indicate marijuana use or possession. They denied any knowledge of the presence of marijuana or drug paraphernalia in their home. Specifically, they asserted that the kitchen was Mrs. Ramputi's territory solely, and each denied ever looking in the kitchen cabinet above the refrigerator, wherein the "personal use" platter had been discovered. It was the Ramputis' mutual contention that at all times material, their master bathroom was under construction with torn-up floor and bad plumbing in the shower, and was unusable; that their clothing had been removed to Marina's room; that their personal toiletries had been removed to the hall bathroom; that the hall bathroom adjoining the boys' bedroom was also under construction; that the rug and a wall of the boys' bedroom had been affected by water leakage from the hall bathroom; that the rug in the boys' bathroom had been pulled up; and that the smell of mildew was noticeable in the boys' bedroom. They further contended that all six occupants of the home used the hall bathroom and that no one used the bathroom in the master bedroom suite. According to the Ramputis, they had given up their bedroom for their boys, and ultimately for Mark Erp, because they did not want to have their children sleeping in the living room in the event guests came by and so that their children could go to sleep earlier than the adults did. They contended that the television in the master bedroom did not receive objectionable programming from HBO, whereas adult HBO programs could be viewed by adults on the living room television. According to Respondents, they had slept on the living room couch for some period of time and expected to do so until repairs had been made to the hall bathroom and boys' bedroom. Purportedly, the $32,000 found in Mr. Ramputi's closet was the result of a real estate sale which had closed twenty- three months earlier on December 29, 1993. Purportedly, this amount originally had been deposited into the Respondents' joint bank account in 1993, but Mrs. Ramputi had loaned it to her brother, Sal, in cash, so as to assist him in his business. When her brother repaid Mrs. Ramputi, also in cash, she had turned the cash over to her husband, who, in order to keep his wife from loaning the money back to her brother, had hidden it in the bottom of his closet. Mr. Ramputi stated that his reason for not putting the money in a bank was because he believed his wife was more likely to take money out of their joint bank account than out of his closet and that he needed the cash on hand to pay for building permits and construction supplies and to pay contractors during the house renovation. Mr. Ramputi's explanation for the cash under the night- stand was that he had earmarked this $5,500 amount, which the couple claimed had been received in cash accumulated from parental loans and gifts, for new windows. Respondents in these types of proceedings are not required to testify against themselves, but once they elect to take the stand in their own defense, their testimony is subject to the same tests of credibility as that of any other witness. Herein, the greater weight of the credible evidence renders Respondents' denial of knowledge and possession of marijuana and their explanation for the large amounts of cash they kept in their home incredible for the following reasons. Throughout the search, Agent Leedy was, at various times, present in the living room, master bedroom, and master bathroom. He observed no type of construction occurring in the residence, including but not limited to any construction or removed flooring in the master bathroom. Deputy Brad Smith was also present during the search of the Respondents' residence. He did not see any evidence of construction or repairs inside the residence. Officer Crandon saw no construction in the master bedroom. Mr. Ramputi testified that his brother, Sam Ramputi, had done most of the construction on the home. Sam Ramputi lives in Ocala, Florida, but was not called to verify the existence of construction in the Ramputis' home on or about November 3, 1995. The Ramputis offered no building permits in evidence, although Mrs. Ramputi testified that a new roof had just been completed the week before the search and seizure. They produced no bills for the new roof. Mr. Ramputi produced no estimates for the windows they intended to add. Respondents produced no prescription to verify their testimony with regard to the use of the steroids and did not call the grandmother who allegedly administered the shots. Respondents conceded that the sofa in the living room is not a sleeper sofa. Marijuana roaches were found even in the living room, where Respondents were purportedly sleeping. Three officers testified that they did not observe blankets, pillows, or anything at all to indicate that Respondents' living room was being used as temporary sleeping quarters. Agents Crandon and Leedy, who entered the master bedroom suite, did not observe or locate any children's clothing, toys, comic books, or other items consistent with children residing in the master bedroom suite, but they did locate items consistent with access and use by the Respondents, such as makeup, mail, and clothing. No personal belongings of Mark Erp were located in the master bedroom or anywhere in the house at the time of the search. No roll-away cot was located in Mrs. Ramputi's closet or elsewhere in the house. Mr. Ramputi testified that Mark Erp confessed to him that the marijuana found in the Ramputis' home belonged to Mark Erp. Mark Erp is currently residing in Ocala, Florida. The formal hearing was held in Ocala, Florida. However, Mr. Erp was not subpoenaed to testify. Mrs. Ramputi testified that one of the grandmothers had signed a statement to verify that Mark Erp was residing in the Respondents' home at the time of the search and seizure. However, that grandmother was not called to testify nor was her statement produced at formal hearing. The grandmother's alleged inability to speak English is not a credible reason not call her. Respondents did not call their children to verify their occupancy of the master bedroom, Mark Erp's occupancy of the master bedroom, or the presence of Mark Erp in the house on November 3, 1995. Respondents offered no explanation why their sons, ages 14 and 9, would not have reported to them the presence of a bong, hemostats, and marijuana in the master bedroom suite. Mr. and Mrs. Ramputi both testified that their parents had given them cash "for windows" at the end of October 1995. The parents of each of the Respondents live in Ocala. The parents were not called to verify the Respondents' testimony on this issue. In light of the evidence as a whole, it is not credible that this family, however closely knit, were regularly and legitimately transferring multiple thousands of dollars of cash among themselves. It is likewise incredible that anyone would pay for contracting work on one's home in multiple thousands of dollars in cash. Mrs. Ramputi testified that the federal Internal Revenue Service had investigated the Respondents for 13 months, during which time it had access to all Respondents' financial records and all financial records of Mrs. Ramputi's brother, Sal, and that the Internal Revenue Service then sent the Respondents a letter saying that the Agency was satisfied and was closing the case. However, this alleged letter from the Internal Revenue Service was not produced at formal hearing. Respondents produced no bank records to show withdrawals by Mrs. Ramputi between the December 29, 1993, closing and the November 3, 1995, search and seizure. They produced nothing to document any loans to her brother Sal or his repayments to her. Mrs. Ramputi's brother lives in Ocala but was not called as a witness to verify the several alleged transfers of $32,000 in cash from the Respondents' joint bank account to him and back to Mrs. Ramputi. He was not called to verify the Internal Revenue Service's favorable disposition of the situation. Mr. Ramputi's explanation of why he did not return $32,000 cash into the couple's joint bank account lacks credibility. He was aware at all times that it was possible for him to open a bank account solely in his own name so as to prevent withdrawals by Mrs. Ramputi. Unlike the safety of a bank account in Mr. Ramputi's name alone, his unlocked closet was not a reasonable precaution to prevent Mrs. Ramputi from using the cash for her own purposes or to prevent theft by any visitors, most significantly, Mark Erp, if Mark Erp were indeed present. Respondents had access to and control over all areas of the house where marijuana or cash was found. Each testified that s/he had not given Mark Erp a key to the house. Respondents testified that they have had only favorable and supportive comments from all prior educator/employers, community leaders, parents, and students whom they have taught. Mrs. Ramputi has remained employed almost full time as a substitute teacher since the dismissal of the criminal charges in July 1996. Mr. Ramputi has been unable to find employment as a teacher since his arrest. However, upon the testimony of Roddy Michele and James Nowell, it is clear that if the Respondents are determined to be guilty of possession of marijuana, their effectiveness as school teachers would be seriously reduced. Although Mr. Michele emphasized that his primary concern was with notoriety through newspaper and other media coverage of the search and seizure, Respondents' arrest, and their subsequent suppression hearing, it remains a matter of law that notoriety, of itself, is not an offense upon which the Respondents' teaching certificates may be disciplined.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency enter a Final Order that: Finds Gregory J. Ramputi, Sr., not guilty of illegal possession of steroids; Finds Gregory J. Ramputi, Sr., guilty of possession of marijuana and drug paraphernalia and thus guilty of violating Sections 231.28(1)(c) and 231.28(1)(f), Florida Statutes; Prohibits Gregory J. Ramputi, Sr., from applying to renew his teaching certificate for two years; Finds Joanna C. Ramputi guilty of possession of marijuana and drug paraphernalia and thus guilty of violating Sections 231.28(1)(c) and 231.28(1)(f), Florida Statutes; and Revokes Joanna C. Ramputi's teaching certificate for two years. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 David B. Kundin, Esquire Post Office Box 430 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Dept. of Education 325 W. Gaines St., Ste. 224-E Tallahassee, FL 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact The Petitioner is an agency of the State of Florida charged under Chapter 943, Florida Statutes, and related rules, with regulating the licensure status, including determination of entitlement to licensure, of law enforcement and correctional officers in the State of Florida. The agency is also charged by the Legislature with regulating and enforcing the practice standards for certified law enforcement officers, including correctional officers, embodied in Chapter 943, Florida Statutes, and related rules. The Respondent was certified by the Criminal Justice Standards and Training Commission (Commission) on or about March 7, 1991. She was issued corrections certification number 45-90-502-11. From March of 1991 through July 31, 1992, the Respondent was employed as a corrections officer for the Taylor County Sheriff's Office. She has no criminal record and no record of administrative discipline of any sort. During the course of her training to be a corrections officer, the Respondent received classroom training in the identification of controlled substances, including cannabis (marijuana). This training included the viewing of actual cannabis in the classroom but did not include training in recognizing it as a growing plant in the field. Charles R. "Chuck" Morgan is an employee of the Perry Lumber Company. On or about July 29, 1992, and until sometime in February of 1995, he was employed by the Taylor County Sheriff's Office. Danny Williams is an investigator with the Taylor County Sheriff's Office and has been employed in that capacity since January of 1990. Investigator Williams has had training in the aerial detection, and other means of identification, of marijuana. He participates in four to eight flights per year in aircraft searching for marijuana plants, essentially in rural areas of Taylor County. On July 29, 1992, Investigator Williams was the passenger in a helicopter, provided to the Taylor County Sheriff's Office by an unknown agency, participating in an aerial search for marijuana plants. During this search, he noticed what appeared to be marijuana plants growing in or adjacent to the backyard of a residence which proved to be the Respondent's residence. Investigator Williams, upon being landed at the airport, entered his patrol vehicle and drove to the residence of the Respondent and her husband, James Byrd. On route to that location, Investigator Williams, presumably by radio communication, summoned other law enforcement officers of the Taylor County Sheriff's Office. He was, therefore, met at the front gate of the residence premises in question by Captain Worsham and Sheriff Deputy Chuck Morgan and others. The front gate was on the portion of the premises immediately adjacent to the public thoroughfare by which the premises are normally entered by vehicles. The residence premises contained a wood-frame house on a well- landscaped yard of a fairly-open character with few or no trees. The rearward portion of the premises, analogous to the "backyard", was that portion of the premises most distant from the public highway (toward which the house faces). It is observable by an observer looking in the opposite direction or away from the public highway upon which the premises fronts. In this rearward portion of the premises, in a rearward corner of the backyard, there was a dog pen, located approximately 75-100 feet from the northwest corner of the rear portion of the house. Investigator Williams and Deputy Morgan observed an individual, who proved to be James Byrd, the Respondent's husband, recognized by Investigator Williams, standing behind the dog pen. They observed him in that location attempting to cut down several plants which were growing there. Deputy Morgan stopped Mr. Byrd from cutting any other plants and removed him from the immediate area. He was ultimately taken into custody that day. The plants he was attempting to cut down proved to be cannabis plants. Investigator Williams and Deputy Morgan observed 13 cannabis plants growing in that location behind the dog pen. Most of the plants were approximately 10-12 feet tall. Investigator Williams took samples from the grown plants, and a laboratory analysis proved the plants to be cannabis and that the samples taken totaled 27.3 grams of cannabis. The cannabis plants were in plain view from the residence. They were tall enough to be observed over the top of the dog pen, which lay between the back wall and back door of the residence, the site where the plants were growing and immediately adjacent to it. Deputy Morgan described the area where the cannabis was located as being in a clear, open area with grass but no high weeds which would conceal the cannabis from the plain view from the rear portion of the residence. Investigator Williams has received some training in the growth rate of cannabis plants so that he could make a somewhat educated estimate of the age of the plants found behind the dog pen. He estimates that they could have grown to a height of 10-12 feet in approximately 60 days, depending upon climatic conditions, care and maintenance, and the amount of fertilization they received. The mature plants, as well as the small plants, discovered growing adjacent to the dog pen, would in Investigator Williams' experience, produce something in excess of 13 pounds of cannabis leaf. Investigator Williams and Deputy Morgan also observed a bucket and flowerpot in the backyard containing several smaller cannabis plants. These containers and plants were in plain sight from the rear portion of the residence. Deputy Morgan escorted Mr. Byrd to the residence and obtained his consent to search it for cannabis. Deputy Morgan, with Mr. Byrd's cooperation, discovered a partially-smoked cannabis cigarette in a desk drawer in the family room of the residence and also found rolling papers and marijuana-smoking paraphernalia in the desk, as well. Deputy Morgan then proceeded to the bedroom shared by Mr. Byrd and his wife, the Respondent. In the bedroom closet, he located approximately one-half pound of marijuana in a grocery bag on the floor in the middle of the closet. In the closet were both male and female clothing, with each spouse having a designated side of the closet for their personal clothing and other items. The middle of the closet contained a filing cabinet, which was for the Respondent's use. A laboratory analysis determined that the bag found on the closet floor contained approximately 118 grams of cannabis. Mr. Byrd admitted to Investigator Williams and Deputy Morgan that the cannabis found belonged to him and that smoking cannabis was a bad habit he acquired during his service in the Vietnam War. He stated to them that he grew the cannabis for personal consumption and was not engaged in the sale or distribution of it. He stated that he smoked cannabis but that his wife, the Respondent, did not. He never stated to law enforcement officers that the Respondent had knowledge of the cannabis in the residence and on the surrounding curtilage. The Respondent was not present at the residence that day when the officers seized the cannabis and arrested Mr. Byrd. She was at Moody Air Force Base in Valdosta, Georgia, at the time and only learned of her husband's arrest and the incident when she returned late that afternoon. She learned of it from her father or daughter, who also resided on the premises. There is a separate mobile-home residence on the same parcel of property as the house in which the Respondent and her husband reside. Although the officers, on the day in question, interviewed Mr. Moore, the Respondent's father, who resided in the mobile home, they never questioned the Respondent and charged no one other than James Byrd. The Respondent was terminated from her position with the sheriff's office on approximately July 31, 1992 because of the above-described incident. After her termination from her job with the sheriff's office, the charges against her husband, James Byrd, were "nol prossed". The Respondent and Mr. Byrd have been married for approximately 35 years. They have resided in Taylor County since November 1, 1979 and have resided in the same residence where the cannabis was found and shared the bedroom and closet where some of it was found since that time, including on and around the date in question. The Respondent was not a record title holder of the premises on which the cannabis was found but considered herself as having a practical ownership interest in the residence. Despite his statement to law enforcement authorities that he had had the habit of smoking cannabis since returning from the Vietnam War, the Respondent denied knowledge of her husband's cannabis habit. Although they had been married for 35 years and resided in the same residence, including at the times when the marijuana in question was placed in the residence and grown in the backyard of the residence, the Respondent maintains that she had no knowledge of its presence on the premises. She maintains that she had no knowledge of her husband's cultivation and use of marijuana. Neither the Respondent's husband nor any other witness testified in corroboration of the Respondent's denial of knowledge of the presence of cannabis on the subject premises. Although, as the Respondent stated, Mr. Byrd commonly cared for the dogs which are normally kept in the dog pen, and the Respondent seldom went to that vicinity of the backyard, the marijuana plants growing adjacent to the dog pen were in plain view from the rear portion of the house itself. The Respondent's testimony is the sole testimony that is exculpatory. She is an "interested witness" testifying on her own behalf, in a proceeding where she can potentially lose the valuable right to practice her livelihood. In consideration of the totality of the evidentiary circumstances and the demeanor of the witnesses, it is found that, indeed, she knew of the presence of the growing marijuana on the premises and the marijuana which was found inside the residence. It simply strains credulity beyond acceptance that she could live with her husband in the same residence, in the same bedroom and use the same closet for a substantial period of years and not know of the marijuana smoking habit he freely admitted to and his activities involved in growing marijuana in plain sight on their marital premises. In addition to the Respondent having no record of any criminal or administrative offense, the above-found misconduct was not facilitated by the Respondent's official authority nor did it occur while she was performing her duties. There was no damage or danger caused to others by her conduct. The Respondent gained no pecuniary benefit from the misconduct and its effects, through penalties, can obviously damage her livelihood, which is already the case. Finally, her employing agency has already imposed the discipline of termination approximately three and one-half years ago. Rule 11B-27.005(6)(a- v), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that her certification be suspended for one year, with one additional year of probation, as well as such career development training or re-training as the Commission shall deem appropriate. DONE AND ENTERED this 29th day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3844 Petitioner's Proposed Findings of Fact 1-20. Accepted. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert J. Schramm, Esquire Post Office Box 29 Perry, Florida 32347-0029 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.
Findings Of Fact Richard English is registered as a physician by the Florida Board of Medical Examiners and at all times here relevant was so registered. In October 1979 Daniel Estes, a resident of Hollywood, California, telephoned Richard English, Respondent, in Miami, Florida, stated he was a friend of Karen's and discussed mutual acquaintances and general topics. Estes had obtained Respondent's name and phone number from Karen Netherton or Jeff Leonard. At this time Estes shared a residence with Jeff and another individual named Bryan. Estes met Karen, an airline hostess, when she visited Bryan at this residence on Hillside Avenue. At a general discussion of drugs one evening at the shared residence Respondent's name was mentioned as a source of Quaaludes. Following the initial call by Estes to Respondent a second call was made by Estes a few days later. At this time comments were made regarding Estes' desire to acquire drugs and Respondent stated he could provide them. Estes is now and was in 1979 employed as manager of a restaurant in Beverly Hills, California called the BAGELNOSH. The telephone number of the BAGELNOSH is (213) 274-8538. The telephone number of the residence Estes shared-with Jeff and Bryan is (213) 650-4935. Respondent's unlisted telephone number in Miami is (305) 821-1929. Telephone Company records of toll calls made from Respondent's telephone in October and November 1979 were admitted into evidence as Exhibit 2. These records reveal that between October 27, 1979 and November 16, 1979 a total of 21 direct dial calls were made from the telephone in Respondent's residence to the telephone numbers for the BAGELNOSH and for the Hillside Avenue residence. The last of these calls was made 16 November 1979. On Sunday, 18 November 1979, Estes departed Los Angeles airport and arrived in Miami around 7:30 a.m., 19 November. Upon arrival he called Respondent's residence and was given directions from the airport to the residence at 19708 Bobolink Drive. Estes journeyed from the airport to Respondent's residence near 67th Avenue and 197th Street N.W. by taxi. Upon arrival, in addition to the street address he had been given, a red Jaguar was parked in front of this townhouse as Respondent had been told to expect. When he rang the doorbell the intercom was answered by Karen, who opened the door to let Estes into the residence. There Estes, for the first time, met Respondent. After an hour or so of general conversation, Respondent and Estes went into the dining room, leaving Karen resting on a couch in the living room. There they discussed the quantity of drugs desired by Estes and other business arrangements. Respondent took from a closet in the dining room a quantity of pills, which he placed on the table for Estes to count. Respondent told Estes these pills were of pharmaceutical quality, which led Estes to believe they were counterfeit and not manufactured by the pharmaceutical house which stamps methaqualone tablets "LEMMON 714". For the next hour or more Estes counted out 2500 pills which had stamped on them "LEMMON 714". The pills were placed in small, clear plastic bags and these bags were placed in four larger plastic bags and the four larger bags were placed in a black, plastic garbage bag Estes had brought with him. This bag was placed in a brown suitcase Estes had also brought with him. During the discussion it was agreed that Estes would take the pills on consignment and remit money to Respondent as he sold them after his arrival in California. Respondent gave Estes a piece of paper from a small pad (Exhibit 5) on which Respondent had written the cost of the pills as $1.30 each, for a total cost of $3,250 plus $250 commission; sales of 2500 pills at $4.00 each for $10,000, leaving a profit of $10,000 - $3,500 = $6,500, which was to be split 50-50 ($3,250 each); and upon completion of the sale, Estes was to have remitted to Respondent $6,750 ($3,500 + $3,250). Estes further agreed to call Respondent every other day from California to keep him abreast of Estes' progress in selling the pills. A taxi was called and around 11:30 a.m. Estes departed Respondent's residence for the Miami International Airport. Upon his arrival there Estes paid the taxi driver and proceeded to the National Airlines ticket counter. Upon exiting the taxi, Estes was observed by members of the Dade County Police Department's narcotics squad. His actions created suspicions in these officers, one of whom asked the cab driver where the fare had been picked up. He was told 197 Street and 67th Avenue, N.W. These officers followed Estes to the ticket counter and observed him check the brown suitcase which had no identification on the outside. They then followed him through the main lobby of the airport to Concourse F, where Estes turned towards the National Airlines departure gate. He had observed these officers following him and appeared nervous. As soon as he reached Concourse F, the officers approached Estes, who was carrying a small blue carry-on bag, and identified themselves as police officers. They asked for Estes' name and identification and looked at his plane ticket. Asked if he had any additional luggage, Estes initially said "No", but soon thereafter acknowledged that he had checked a bag. When asked if he would object to the officers looking in the bag that had been checked, Estes gave them permission to do so. Before going to the luggage room the officers, with Estes' permission, removed a notebook (Exhibit 3) from the blue carry-on luggage and a Guest check (Exhibit 4) on which various information had been written and Exhibit 5 from Estes' pocket. At this hearing, Estes identified the writing on Exhibit 4 to be his except for the telephone number, 305 821 1929, (Respondent's number), which he testified had been written by Jeff or Bryan before he left California. On the page of Exhibit 3 marked at the hearing by a paper clip, Estes identified the blue ink writing as having been written by him before leaving California and the pencil writing thereunder as notes he made while calling Respondent's residence from the airport the morning of 19 November 1979. Thereon Bobolink Drive is identified as 67th Avenue and a notation of Red Jaguar appears. Upon arrival at the baggage area Estes' suitcase was recovered and, with his permission, opened by the officers. Therein was found the black plastic bag from which the four clear plastic bags containing the pills were extracted. Lemmon 714 on these pills could be seen through the plastic and the officers recognized this as methaqualone, a Class II controlled substance. Subsequent analysis of samples of these pills confirmed they were, in fact, methaqualones, known on the street as Quaaludes or "ludes". When compared to similar pills from the pharmaceutical company that stamps its pills Lemmon 714 the pills removed from Estes' bag did not appear to be exactly the same, either physically or chemically. The physical difference is apparent in the photograph introduced as Exhibit 7 where the pill taken from Estes is the lower left photograph in the exhibit, and the other three pills shown were purchased from a drug store. Estes was placed under arrest and taken to the police station for booking. En route he told the police where he had obtained the pills and the circumstances under which they were in his possession. After making a sworn statement to the police containing most of the relevant facts, with a few inaccuracies to protect his friends in California as well as Karen, whose name was not mentioned to the police, Estes was driven by the police to the address of Respondent at 19708 Bobolink Drive, where he pointed out Respondent's town house, in front of which the same car was parked when he left shortly before noon. Since Respondent occupied a town house similar in outside appearances to those on both sides, Estes' best identification, other than street address, was the parked vehicle on the street in front of the building. Estes was returned to the police station and a search warrant was obtained to search Respondent's town house. Results of that search are not relevant to these proceedings. Estes was subsequently charged with possession of controlled substances and released on bail. At his arraignment after his motion to suppress the evidence was denied, Estes pleaded nolo contendere. He is awaiting sentencing which is scheduled for 5 June 1980. At Estes' arraignment he was represented by Neil C. Schuster. Following his plea, Estes was advised by Schuster not to cooperate with the police in presenting evidence against Respondent. Estes testified that he pleaded guilty following the denial of the motion to suppress the evidence against him. On cross-examination he acknowledged that he did not know the difference between nolo contendere and guilty and that it was his intent at his arraignment to admit the facts surrounding his arrest and to cooperate with the police. However, his attorney did all the speaking for him at that time. Following his return to California, Estes became aware of the possibilities of obtaining probation and withholding adjudication of guilt in his own trial if he agreed to testify against Respondent. He did not contact Schuster to relay this idea, but called one of the police officers who had arrested him on November 19, 1979. Estes was advised that if he did cooperate with the police and the Petitioner in this case, that a recommendation for probation would be made to the judge if the judge asked for such a recommendation. Estes was not told or promised that testifying in these or any other proceedings against Respondent would result in a lesser sentence when his sentencing time arrived. The police officer contacted the assistant state attorney handling Estes' case, who put him in touch with Petitioners' attorney and the latter in touch with Estes. Arrangements were made to bring Estes to Miami for this hearing and Estes testified. Prior to taking the witness stand, Estes told Schuster, who had arrived to confirm the representations made to Respondent's attorney that Estes would invoke his privilege against self-incrimination if subpoenaed for deposition, trial or hearing, that he was dismissing him as his attorney. During his testimony Estes expressed dissatisfaction with the legal representation he had received from Schuster. Prior to meeting Respondent on 19 November 1979 Estes had never seen Respondent. No medical examination of Estes was conducted by Respondent and in no manner was Estes a patient of Respondent. Inconsistencies in Estes' statements initially made to the police, the sworn statement and his testimony at this hearing were minor and were explained by Estes as due to: He had taken one methaqualone prior to his arrival at the airport and, as a result, was somewhat groggy; he was frightened by the attention he received from the police; and He didn't want to involve any of his friends in California, including Karen, who was at Respondent's residence when Estes arrived. Estes' testimony that he had never been arrested or charged with a crime prior to November 19, 1979 was unrebutted, as was his testimony that he was not a user of drugs although he had taken a "lude" once or twice prior to November 19 for the purpose of helping him sleep. Generally, Estes was a credible and believable witness whose inconsistencies in prior statements were the type to be expected under the circumstances.
The Issue The central issue in this cause is whether the Respondent is guilty of the misconduct alleged in the Amended Administrative Complaint dated January 26, 1987, and, if so, whether her certificate should be revoked.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Patricia M. Rosenfeld, was certified by the Criminal Justice Standards and Training Commission on November 11, 1981, and was issued Certificate Number 02-29462. At all times material to this cause, Respondent was employed by the Metro-Dade Police Department. During the fall of 1982, Carolyn Washington was employed as a dispatcher by the Florida City Police Department. Ms. Washington participated in the theft of some 1450 lbs. of marijuana from the evidence cellar at the Florida City Police Department. After the marijuana had been sold, Washington received a total of $20,000 (cash) as her portion of the proceeds. Alice Clanton Butler was a dispatcher for the Homestead Police Department during the fall of 1982. At all times relevant to the issue in this case, Butler shared an apartment with Respondent. References to "Wendy" or "Alex" in the transcript refer to this person. Washington confided the details of the marijuana theft to her friend, Butler. Washington was allowed to store some of the proceeds from the sale at Butler's and Respondent's apartment. During September, 1982, Washington agreed to loan Butler money. Washington gave Butler $2000 to keep and spend, and requested that Butler store an additional $8000. This money, all proceeds from the sale of the marijuana which had been stolen from the Florida City Police Department, was placed in a hope chest at Butler's apartment. Washington entrusted Butler with the money because she considered her to be a good friend. Some time later, Respondent became aware that Butler was storing money from Washington at the apartment. Washington was asked to come over, at which time she and Butler engaged in a conversation, in Respondent's presence, as to the storage of the money and its origin. On one visit to the apartment, Washington, Butler and Respondent sat at a table counting and arranging the money in stacks of $100, $50, and $20 denominations. During this incident Respondent asked Washington for a loan. This loan was to be used as part of a payment on a new car. Washington agreed to let Respondent use some of the money for the new car purchase. Respondent knew, however, prior to borrowing the money, the manner in which Washington had come by the funds. Respondent used the money borrowed from Washington to purchase a new car. This purchase was made during the month of October, 1982. Washington and Butler discussed the theft of the marijuana, as well as the identity of others who had participated in the theft, in Respondent's presence. Respondent acted as though she did not wish to become involved. The fact that one of the conspirators had purchased a Chili Shop with some of the theft proceeds was also discussed in Respondent's presence. Washington and Butler fabricated a story to explain the new found financial success Washington was having. They told Respondent, Patricia Rosenfeld (Respondent's mother), and Virginia O'Regan (a friend) that Washington had received an inheritance from her grandmother's estate. Thus, Rosenfeld and O'Regan believed the estate money to be the source for the car loan. Respondent, however, had been present during conversations wherein the true source of the funds had been disclosed. Additionally, Respondent knew the money (cash) was being stored in her apartment. Respondent did not file a police report on Butler or others involved in the theft. A memorandum filed regarding Washington alleged Washington may have been involved with cocaine. At no time did Respondent expose Washington as part of the marijuana theft group. On March 23, 1983, John Johnson, an investigator for the Dade County State Attorney's Office, subpoenaed Washington for questioning. At this session Washington admitted her involvement in the marijuana theft and named others, including Butler and Respondent. Washington explained how the thefts had been arranged and that she had stored the cash proceeds with Butler. Washington, Butler, and Virginia Ann Woodlief, a dispatcher at the Florida City Police Department who was a friend of Butler's and Respondent's, agreed to assist with the investigation regarding the Florida City marijuana theft. On several occasions they wore body bugs and attempted to engage Respondent in conversation. On one such occasion, Respondent told Woodlief that the cash could not be traced. Woodlief understood Respondent to be referring to the cash proceeds from the marijuana sale. Washington was not prosecuted for her role in the marijuana theft. Respondent was prosecuted and acquitted. On September 17, 1983, Respondent wrote a letter to the Florida Department of Law Enforcement wherein she admitted "a bad judgement (sic) call."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent's certificate number 02- 29462. DONE and RECOMMENDED this 15th day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0189 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact, paragraph 4. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact paragraph 5. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7. Accepted. Finding of Fact, paragraph 5. Accepted in material part in Finding of Fact, paragraph 6. Accepted in material part in Finding of Fact, paragraph 6. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary. Paragraph 19 is accepted. Finding of Fact paragraph 6. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car. Paragraph 22 is accepted. Finding of Fact paragraph 12. Rulings on Respondent's Proposed Findings of Fact: Accepted. Finding of Fact paragraph 2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5. Accepted. Finding of Fact paragraph 5. Accepted in material part in Finding of Fact paragraph 5. Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence. Accepted but unnecessary since true origin of funds was known to Respondent. 11 Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence. Accepted in material part in Finding of Fact paragraph 13. Rejected as contrary to weight of credible evidence. Rejected as argumentative. Rejected as argumentative. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael R. Fishman, Esquire 19700 Caribbean Boulevard Suite 240 Miami, Florida 33189 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to terminate Respondent for misconduct in office as alleged in the Administrative Complaint (“Complaint”) dated December 10, 2019.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At all times relevant hereto, Respondent was employed as a Student Services Manager at Belleview High School in Marion County, pursuant to a professional services contract with the Board. On November 5, 2019, following an incident in which Respondent intervened in a physical altercation between students, Respondent complained to administration that he may have been injured. Respondent was referred to a doctor who provides treatment to Board employees who are injured on the job. As part of his evaluation for a possible workers’ compensation covered injury, Respondent was administered a routine urine drug screen. The results of the drug screen were positive for THC and marijuana metabolites. Respondent does not dispute either the test administration or results. Respondent is approved by the State of Florida through the medical marijuana use registry to obtain medical marijuana for his personal medical treatment. Respondent obtained his medical marijuana card in October 2018, and uses medical marijuana to treat pain associated with injuries he received while serving in the U.S. Marines in Desert Storm in 1991. The Board maintains Alcohol and Drug-Free Workplace Policy 6.33. Section II.B. of that policy provides that “it is a condition of employment for [a Board] employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Section IV.B. includes marijuana within a list of substances use of which is considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R., §§ 1300.11 through 1300.15. However, this section notes that “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” At no time prior to his positive drug screen did Respondent notify his supervisor that he was using medical marijuana. Respondent has been employed by the Board since 2010. He began as a physical education coach at Horizon Academy, where he was subsequently promoted to a dean’s position. After the dean’s position at Horizon Academy was eliminated, Respondent transferred to Emerald Shores Elementary where he served as a dean. The record does not establish the date on which Respondent transferred to Belleview, but Respondent served as a dean of students at Belleview until he was placed on unpaid administrative leave on January 13, 2020. Respondent was placed on paid administrative leave on January 29, 2020, where he remains pending the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding the charges against Respondent Michael Hickman, and terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056.2 1 Respondent additionally argues that the Board’s position is unfair because it penalizes him for use of medical marijuana to treat chronic pain, but would allow him to continue teaching under the influence of opioid pain medications, which he took for years prior to the availability of medical marijuana. 2 The undersigned notes that the remedy of suspension is also available under the applicable rule. Further, the parties made no argument that the Board’s discretion to impose a different penalty is foreclosed, or that the Board may not consider mitigating circumstances. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of September, 2020. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times pertinent to the allegations and issues herein, Respondent was the holder of 2 COP alcoholic beverage license number 66-89, held since 1952, for his premises known as Eddie's Drive In, located at 1907 Avenue D., Ft. Pierce, Florida. Mr. Asbury has operated his establishment at that location under the above license since 1952 with only three former infractions of a very minor nature. In 1959, he was warned for a failure to have the fingerprints of an employee on file. In 1963 he was given a 15-day suspension when a minor was found in possession of whiskey as opposed to beer on his premises. In 1965 he was again given a 15-day suspension and, in addition, a $200.00 fine because gambling tickets were found in the premises. Until the instant case, these were the only derogatory incidents in Respondent's file. Respondent has been known to be very cooperative with the authorities and has always quickly corrected violations brought to his attention. In the latter part of 1982, based on a complaint from the Ft. Pierce police Department of numerous narcotics in the Avenue D area, Petitioner conducted an undercover investigation of several establishments in the area including that of the Respondent. Pursuant to that investigation, Beverage Officer Thompson, five year veteran with DABT, who has been given the normal police training in narcotics detection and identification as well as having attended various schools conducted by the U.S. Drug Enforcement Agency, and who, based on this education and his experience in the field, is quite familiar with marijuana and its various forms and methods of use, in the company of another beverage investigator, Hamilton, on September 17, 1982, entered Respondent's premises at approximately 9:30 P.M. and observed both Respondent and his bar maid, Lois, on the premises. He took a seat at the bar across from Respondent and several feet off to the side of Lois. He saw Lois pull a cigarette from beneath the bar and start to smoke it. From the way she handled the cigarette and from the way it looked and smelled, he felt it was marijuana. While Lois was smoking this cigarette, she made no effort to hide it and was in full view of the Respondent all the time. Thompson saw Respondent look over in her direction while she was doing it but made no issue of it or even acknowledged it. Though there were other patrons in the bar at the time, Thompson saw nothing else that looked like marijuana use to him that evening. The following evening, September 18, both agents again entered the establishment and sat at the bar. This time the bar maid was Laverne. Thompson also saw a black female identified as Devonza at the counter with whom both he and the other investigator had a brief conversation. Later, Thompson saw another black female identified as Dot (Dorothy Battle), seated across the bar from Laverne, pull out and start smoking a cigarette he thought was marijuana. He also saw Dot pull small manila colored packages from a small pouch she carried and sell them for $5.00. These bags were similar in appearance to what he knew from his experience to be "nickle bags" of marijuana. He also saw Laverne smoking that evening and from the way she held the cigarette and from its odor and the way it was rolled and burning, he concluded it was marijuana. At this particular time, she was on duty behind the bar, but Respondent was not on the premises. No samples of the substance in question were taken either night. Both investigators went back to the premises on September 22 at about 8:30 P.M. There were few patrons in the bar at the time. Thompson went to the bar and sat talking to Laverne who was on duty. When Dot came up and sat at the bar, he asked her if she had any $5.00 bags and she said she did. She pulled out a small manila bag like he had seen her sell on September 18 and made no effort to hide the transaction. She made the transfer to him above the level of the bar. Thompson does not know if Laverne saw the sale or not, but Respondent was not on the premises at the time. The substance he purchased that night was later properly identified as marijuana. When he went back at about 10:00 P.M. on September 23, Thompson saw 10 or more patrons in the bar. He sat down at the bar across from Respondent and asked him if he knew where he could buy some "snow." Respondent indicated he did not, but that there was some around. Respondent's recollection of this conversation differs from that of Thompson. He says he thought Thompson was asking for snow, which is the nickname of a known drug dealer named Coleman, and he said he did hot know where he was but that he was around. Under either interpretation of the conversation, the result is the same. Thompson asked a question and got no assistance from Respondent's answer. There is nothing incriminating either in knowing that "snow" is available in the area (from all reports, drug use is rampant in this area), or in knowing that a known drug dealer, Snow, is around. Thompson had also been in the bar earlier in the day, about 3:00 P.M., when he saw both Laverne and Dot inside. After sitting at the bar for a while, he walked over to the video area where he saw black males rolling and smoking what he took to be marijuana cigarettes in a remote area of the club. While talking with Laverne at the bar, he saw her pass an empty 1/2 of a cardboard beer box to three black males sitting at a table. He saw these males use this box to hold large amounts of what appeared to be raw marijuana from which they were making small manila packages of the substances which they subsequently put into a brown paper bag under the table. During this same time, he saw Laverne smoking what he suspected to be a marijuana cigarette. At about 9:15 P.M. on October 8, Thompson again went back to the club and saw Laverne when he sat at the bar. Another black female, identified as Wanda, came to the bar and offered to sell him marijuana. She pulled out a small package of purported marijuana and laid it on the bar, offering to sell it for $5.00. She also offered to sell him a somewhat larger bag for $6.00. At this point, Thompson gave Laverne a $20.00 bill and asked for change which she gave him. She was standing right there and made no effort at all to stop this sale of marijuana. In fact, Thompson had asked her if Wanda's stuff was any good and she replied it was. While at the club that evening, he also saw other black males and females smoking what to him appeared to be marijuana at a remote area of the bar counter. He formed the opinion it was marijuana because of how the cigarettes were rolled, smoked, and passed around and from the distinctive smell it has. On October 9, 1982, Thompson again went into the place, this time with Hamilton. On this occasion, Laverne was on duty and he sat at the bar and propositioned her to buy him some marijuana. She said she had none then because she had smoked it all, and so he was unable to make a buy that evening, but he saw, while in there, other patrons at the bar and in the area smoking what he is convinced was marijuana. Again, he formed that opinion because of the way the substance was being smoked and handled. Thompson did not get back to Respondent's place until October 15, 1982, when he again went in with Hamilton. On this evening, Respondent was there and he could smell the heavy distinctive odor of marijuana in the premises. Thompson sat at the bar across from Respondent and observed a group of black males at a nearby table. While he was watching, he saw one black male inhale a large quantity of smoke and blow it into the nostrils of the other people at the table. When he saw this, he mentioned it to the Respondent who looked over and acknowledged it but made no effort to stop it or get these patrons out of his place. On this same occasion, the bar maid, Brenda, was smoking what appeared to be marijuana after Respondent left and Thompson was able to purchase marijuana from Dot, at the bar and in front of Brenda, who also made no effort to stop the transfer. Brenda also made no effort to stop other patrons who were rolling and smoking what he believed to be marijuana cigarettes right at the bar. Also on this same evening, Thompson observed Hamilton purchase what was subsequently identified as marijuana from Dot near the video games. The next afternoon, on October 16, 1982, at about 2:30 P.M., Thompson again went into the Respondent's establishment with Hamilton and sat at the bar. At this time, he saw the rolling and smoking of suspected marijuana cigarettes at nearby tables and at the bar by unidentified black males. The smell and packaging of the substance is what convinced him it was marijuana. Neither agent was in Respondent's establishment again until December 18, 1982, when both went in about 8:30 P.M. They sat at the bar where, on this evening, Beverly was the bar maid. While sitting there, Thompson saw various individuals smoking marijuana at different places on the premises and observed that Beverly made no effort to stop it. In fact, from the odor, the method of burning, and the way she smoked, he was convinced she was smoking it herself. Dorothy Lee Battle (Dot) denies ever having met Thompson before this hearing and indicates he is lying when he says he bought marijuana from her at Respondent's establishment. She admits that she was arrested for the sale and delivery of marijuana outside Respondent's place but absolutely denies ever having sold or transferred inside. Even though she refused to cooperate with the authorities who wanted to prosecute Respondent, she was placed on three years probation after being confined for almost 3 1/2 months. She indicates she has known the Respondent since she was a kid and knows that he is definitely opposed to the use of drugs and will not permit it to be sold in his establishment. In fact, he has told her that she was not to bring any marijuana into his place and if she had any he would call the police. She knows that Respondent is quite concerned about losing his license because she believes this is the only business he has. Because of that, there are a lot of signs warning against the smoking or selling of marijuana in there but notwithstanding, she has seen people smoking marijuana inside the bar. However, his patrons respect him and any marijuana smoking is done only when Respondent is not there and never when he is. These signs have also been seen by Mr. Daniel Cribbs, the supplier of Respondent's vending machines, whose family has dealt with him for 30 years or so. Mr. Cribbs has been in Respondent's establishment every two weeks for a long while and has seen these signs prohibiting the use of selling of marijuana up and down for several months or so. He gave no indication as to whether they were there two years or so ago when the incidents in question were alleged to have taken place. In any case, he has spoken with Respondent about marijuana in the past and recalls that Respondent has stated that he doesn't want it in there. These signs were also seen from time to time by Gary Coleman who, by deposition, indicated that they are the normal signs placed in all establishments where beer is sold. Coleman indicates he has also heard Respondent telling people who were smoking pot to leave his place. Coleman denies every smoking marijuana in Respondent's place or, for that matter ever doing anything unlawful there. He has lived in Ft. Pierce for about eight years and in all that time has only been in there about a dozen times or so. He is, however, by his own admission, on probation for selling narcotics. Therefore, neither his testimony or that of Ms. Battle are particularly credible and both Thompson and Young, who conducted the close out investigation of Respondent's premises indicate that on the times they were in there, neither ever saw any signs warning against the sale or smoking of marijuana. It is, therefore, most likely, that if any signs were posted, they were put up long after the incidents in question and were not there prior to official interest being shown. Respondent denies that Thompson ever saw Lois smoke marijuana in his premises. He also indicates that he discharged Laverne by telling her she need not come to work any more when he found out she was doing drugs. He contends he never had any idea people were doing drugs in his establishment. He has, he says, always been against that sort of conduct and has repeatedly told his employees to call either the police or him if they saw people smoking marijuana on his property. He has, on at least one occasion prior to the incidents in question here, called the police on people smoking marijuana in his bar. There is, he contends, only so much one can do about the problem short of that. Even on the occasion he called the police and they came and took the offenders outside, they were not arrested and, as he understood it, even after requesting the police to make these people stay out of his place, the police did not even take their names. Mr. Asbury had a schedule for his routine at the time these alleged incidents took place which had him arriving at his place about 6:00 P.M. to check out the bartender on duty and check the money. This took about 30 minutes. He would then leave and come back between 9:00 and 9:30 P.M. to check for a while, after which he would again leave and come back at 11:00 P.M. and stay for the rest of the evening. This would be his routine just about every night of the week. He has no knowledge of the things that are alleged to have taken place when he was there. As to the shot gunning incident (the blowing of the marijuana smoke into the others' nostrils) that Thompson said he observed, Respondent denies it ever happened. Respondent tries to hire only people he knows and trusts. He pays them in cash and keeps no employment records. During the period in question, he states he had two employees. One was named Vernel (he does not knew anyone named Laverne) and the other was named Lois. Since the incidents in question, Respondent checks on his establishment much more than he did before. He has added a new afternoon visit to his schedule and has hired new girls to tend bar. While prior to this time, no one ever warned him of the problems he was apparently having, even now he still has problems with people smoking marijuana in the place. When he learns of it, he tells them to get out and he is quite satisfied that law enforcement officials have not seen much selling and smoking of marijuana in his place recently.
The Issue Whether Petitioner is subject to the sales tax imposed on controlled substances by s. 212.0505, Florida Statutes, and if so, what is the appropriate tax.
Findings Of Fact On September 12, 1989, a search and destroy team assembled in Sebring, Florida, to survey Highlands County for evidence of the growing or possession of illegal drugs. The survey team consisted of a helicopter, pilot and crew chief from the Florida National Guard; and the ground crew of representatives from the Highlands County Sheriff's Office, State Highway Patrol, Fish and Game Commission, Florida Law Enforcement Officers and federal agents. The search commenced in the southwest quadrant of Highlands County with the helicopter and trained spotters flying a search pattern so as to view from the air any illegal substances being grown. On one, if not the first, leg of the search pattern, the helicopter, flying at an altitude of 500 feet, passed over the property on which Petitioner lives; and one of the observers spotted what he identified as marijuana growing near one of the outbuildings on this property. The marijuana patch was circled for both spotters as well as the pilot and crew to better see the growing marijuana. The ground party was alerted by radio of the find. They proceeded to the location and entered onto the property. There they met Petitioner, proceeded to the area where the marijuana was growing, and cut down the marijuana plants. Some 171 cut plants were counted, wrapped in bundles of approximately 10 plants each, and loaded into the back of a pickup truck. The deputies asked Petitioner if he would unlock the building next to where the marijuana plants were growing and he, knowing they could get a search warrant if necessary, unlocked the door. Inside they found some lights obtained for the purpose of growing marijuana indoors and other material listed on Exhibit 3A, all of which were confiscated. Petitioner was placed under arrest and the marijuana and other property seized was taken to the sheriff's office. The vehicle carrying the marijuana was weighed before the marijuana was unloaded and again immediately following the unloading. The difference in the weight of the vehicle with and without the marijuana was 450 pounds. Subsequent thereto, someone from either the sheriff's office or the Florida Department of Law Enforcement advised the Department of Revenue Collections and Enforcement agent in Lakeland, Florida, and the Notice of Assessment was prepared and served on Petitioner. To establish the value of the marijuana seized, the agent preparing the assessment used information received from the FDLE that the average street price in the district in which the marijuana was seized was $600 per pound in 1989. The document containing this information was admitted into evidence as Exhibit 6 after testimony was presented that each year the FDLE directs its five regional offices to submit street prices for various illegal drugs sold on the streets during that year. Exhibit 6 shows the marijuana street price at $600 per pound in the Tampa district (which includes Highlands County) as of June 7, 1989. To obtain the estimated retail price of the marijuana seized, the agent multiplied $600 per pound by 450 pounds. This price is for marijuana which has been processed and is ready for use. No evidence was submitted showing what parts of the marijuana plant are used in preparing the marijuana rolled into "joints" or smoked in a pipe. Nor was evidence presented showing how many pounds of processed and ready-to-use marijuana can be obtained from a given number of pounds of growing marijuana plants. In his testimony, Petitioner readily admitted that he had planted and cultivated the marijuana seized on September 12, 1989. He also testified that this is the first and only time he has ever attempted to grow marijuana; that he obtained the marijuana seeds and a book on how to grow marijuana from an advertisement in a magazine; that he had never sold marijuana in the past; that he had made no effort to locate a purchaser; or that he had any inkling of how to find a buyer for the plants after they were harvested or how much such plants were worth for use by marijuana users. Petitioner also testified the marijuana was planted a long distance from the nearest traveled road and from the nearest boundary of Petitioner's property; and that there was a canopy provided by trees among which he had planted the marijuana plants, and he didn't think the plants would be readily visible from the air. Petitioner's testimony that the helicopter passed over his property at tree top level, which he estimated at less than 75 feet, is rejected as being in conflict with the altimeter height provided by the helicopter pilot. In the U. S. District Court, Southern District of Florida, Petitioner pleaded guilty to possession of more than 100 marijuana plants.
Recommendation It is recommended that the assessment against Joe "Little Joe" Hatch of $270,999.02 plus interest from September 12, 1989, be dismissed. ENTERED this 26th day of March, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX Respondent's proposed findings are generally accepted and included in the Hearing Officer's findings of fact, except the following which are rejected. 12-18. Accepted as street value of processed marijuana. 26. Last sentence rejected as contrary to the record that the charge was possession of over 100 marijuana plants. Petitioner failed to timely submit a proposed recommended order. COPIES FURNISHED: Raymond E. LaPorte, Esquire 410 Ware Boulevard, Suite 601 Tampa, FL 33619 Steve Kackley, Esquire 357 S. Orange Avenue Sebring, FL 33870 Lee R. Rohe, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, FL 32399-1050 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 =================================================================
The Issue The issue in this case is whether proposed Florida Administrative Code Rule 64-4.002 (the “Proposed Rule”) is an invalid exercise of the legislative authority delegated to the Department of Health (the “Department”).
Findings Of Fact In order to better contextualize the facts presented at final hearing and discussed below, the following excerpts from the Proposed Rule and the underlying statutory provision are provided: Section 381.986, Florida Statutes (8) Medical Marijuana Treatment Centers.- (a) The department shall license medical marijuana treatment centers to ensure reasonable statewide accessibility and availability as necessary for qualified patients registered in the medical marijuana use registry and who are issued a physician certification under this section. * * * The department shall license as medical marijuana treatment centers 10 applicants that meet the requirements of this section, under the following parameters: [Previously denied applicants meeting certain requirements not relevant to the instant action.] [One applicant from a specific class pursuant to a federal lawsuit.] As soon as practicable, but not later than October 3, 2017, the Department shall license applicants that meet the requirements of this section in sufficient numbers to result in 10 total licenses issued under this subparagraph, while accounting for the number of licenses issued under sub-subparagraphs a. and b. For up to two of the licenses issued under subparagraph 2., the department shall give preference to applicants thatdemonstrate in their applications that they own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana. (Emphasis added). Florida Administrative Code Rule 64-4.002 (Proposed) (1)(f) For applicants seeking preference for registration as a medical marijuana treatment center pursuant to ss. 381.986(8)(a)3., F.S., the applicant must provide evidence that: The property at issue currently is or was previously used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses. In order to demonstrate the property meets this criteria, the applicant may provide documentation that the applicant currently holds or has held a registration certificate pursuant to section 601.40, F.S. A letter from the Department of Citrus certifying that the property currently is or was previously used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses will be accepted as sufficient evidence. The applicant as an individual holds, in his or her name, or the applicant as an entity holds, in the legal name of the entity, the deed to property meeting the criteria set forth in subparagraph 1. above; and A brief explanation of how the property will be used for purposes of growing, processing, or dispensing medical marijuana if the applicant is selected for registration. * * * Subject matter experts will substantively and comparatively review, evaluate, and score applications using [the Scorecard incorporated by reference]. * * * (a)7.(b) Scores for each section of the application will be combined to create an applicant’s total score. The department will generate a final ranking of the applicants in order of highest to lowest scores . . . . (c) In accordance with ss. 391.986(8)(a)3., F.S., the two highest scoring applicants that own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of medical marijuana will receive an additional35 points to their respective total score. Licenses will be awarded, subject to availability as set forth in ss. 381.986(8)(a)2. and 381.986(8)(a)4., F.S., based on the highest total score in the following manner: The highest scoring applicant that is a recognized member of the Pigford or [the Black Farmers Discrimination Litigation] will receive a license. The remaining highest scoring applicants, after the addition of the preference points for applicants pursuant to paragraph (7)(c) above, will receive licenses up to the statutory cap set forth in ss. 381.986(8)(a)2., F.S. The remaining highest scoring applications, after removing any preference points received under paragraph (7)(c), will receive licenses up to the statutory cap . . . . (Emphasis added). The Department is an agency of the State of Florida charged with administering and enforcing laws related to the general health of the people of the state. § 381.0011(2), Fla. Stat. As part of this duty, the Department is charged with implementing the Compassionate Medical Cannabis Act of 2014. See § 381.986, Fla. Stat. Favero is a Florida corporation in good standing since its incorporation in 1974, primarily engaged in the business of growing orchids. Favero aspires to file an application for licensure as a medical marijuana treatment center (“MMTC”). Following the passage of Senate Bill 8A by the 2017 Florida Legislature, which substantially rewrote section 318.986, Florida Statutes, Favero decided to seek the citrus preference described in section 381.986(3)(a)3. (hereinafter referred to as the “Preference Statute”). To that end, Favero purchased a citrus processing business in Safety Harbor, Florida, for approximately $775,000, including the business’s real property and all facilities located thereon. The purchase took place prior to publication of the Proposed Rule. The purchase of the Safety Harbor property reduced Favero’s financial liquidity but, presumably, not its net worth as the value of the property would replace the cash expenditure made for the purchase. It is Favero’s intent to convert the citrus processing facility located on the property into a medical marijuana processing facility if Favero receives the requisite license as a MMTC. Favero contends, as stated in the following paragraphs of its Petition Challenging the Invalidity of Proposed Rule 64-4.002: The Proposed Rule grants a preference to an applicant who owns “property” that was once used for citrus processing. The statute, however, clearly grants the preference only to applicants who “own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing ” By using the broader word “property” rather than “facility,” the Department is granting the citrus preference to a broader group of applicants than the statute permits, such as owners of packinghouses and other properties that fail to meet the definition of “processor” or were not used for “canning” or “concentrating.” The statute is clear and unambiguous. The use of the word “property” rather than the statutory term “facilities” renders the rule invalid because the use of that term exceeds the Department’s rulemaking authority, enlarges and modifies and contravenes the requirements of Section 381.986(8)(a)3., is vague, fails to establish adequate standards for agency decisions, vests unbridled discretion in the agency and is arbitrary and capricious. See § 120.52(8)., Fla. Stat. * * * The Proposed Rule allows for a preference to only some applicants that own a citrus processing facility. Under the scoring system, applicants demonstrating that they own a citrus processing facility may receive an additional 35 points. However, the Proposed Rule does not guarantee that any applicant owning a citrus processing facility will actually receive those points or get a license. The Proposed Rule merely grants an additional 35 points to two applicants. The Department of Citrus has indicated that more than a dozen companies will qualify for the citrus preference. Under the Proposed Rule, most of those applicants would receive no additional points despite qualifying for the statutory preference. Additionally, the Proposed Rule provides no assurance that any applicant qualifying for the citrus preference will actually receive a license. The Form adopted by the Proposed Rule allows Department evaluators to award a maximum of 1,150 points in several categories. The additional 35 points available under the Proposed Rule amount to an addition of just a 3% bonus. If those extra 35 points are not enough to exceed the scores of other applicants, then no citrus-preference qualifying applicant will receive a license. Favero contends that reduction of its liquid assets could have a negative impact on its overall financial condition when considered by the Department as it reviews Favero’s MMTC application. Favero is concerned that this negative impact may not be completely offset by the citrus preference it is seeking. Mecca is a Florida corporation located at 7965 Lantana Road, Lantana, Florida. It has existed since November 15, 1973, has operated in Florida since the early 1970s, and began citrus farming on approximately 2,000 acres in 1983. Mecca has been and is currently licensed as a citrus dealer and a regulated citrus processing plant and citrus packinghouse. The “processing” done by Mecca does not involve canning or concentrating citrus. Mecca “processes” citrus in its “fresh fruit form” (discussed more fully below). Mecca intends to convert its property and facilities for the purpose of growing, processing or dispensing medical marijuana if its application for an MMTC license is approved. Mecca contends the citrus preference in the Proposed Rule needs further clarification. Mecca also asserts the evaluation and scoring system with respect to the citrus preference constitutes an invalid exercise of the Department’s delegated legislative authority. The Scoring System The MMTC application has 16 separate sections. An applicant may be awarded up to 50 points on some sections, up to 100 points on other sections. The total number of points any application might receive is 1150, presuming a perfect score on each section. Each of the individual sections, whether for 50 or 100 points, is graded in accordance with an evaluation rubric. The rubric contains five categories of scores which are used by reviewers, allowing for a range of points in each section. The five categories each have a range depending on whether the section allows 50 or 100 points. The rubric directs that a category 5 response could be awarded between 40 and 50 points in the 50-point sections, or between 80 and 100 points in a 100-point section. A category 4 response could get between 30 and 39 points (or 60 to 79 points); a category 3 could award 20 to 29 points (or 40 to 59 points); a category 2 could be worth 10 to 19 points (or 20 to 39 points); and a category 1 might award 0 to 9 points (or 0 to 19 points). Thus, an applicant may be awarded points anywhere within the range in each category for each section of the application. By way of example, category 5 under the rubric (wherein a reviewer may give an application 40 to 50 or 80 to 100 points) directs the reviewer as follows: Applicant addressed all items. When necessary, each item has multiple, specific examples of experience and knowledge. Experience and knowledge are connected to specific, identifiable people in the application. Plans are clear, detailed, well documented, and thorough. All charts, photographs, maps, sketches, and other supplemental information are clear and legible. When necessary, applicant provides full documentation for representations of future performance. Responses related to financial reflect robust financial resources and clear lines of authority within the organizations. By comparison, under Category 3, which could award 20 to 29 or 40 to 59 points, the rubric directs the reviewer to consider: Either: Applicant responded to all items. Applicant responds to items addressing experience and knowledge, though answers tend to lack specificity. Plans are provided, but are lacking in clarity, documentation, or thoroughness. When necessary, some supplemental information is provided. Responses related to financials do not reflect robust financial resources, but do not raise doubts of applicant’s financial viability, or the organization has unclear lines of authority, or; Most responses are sufficient to be considered Category 4 or 5 Responses, but applicant fails to address some items. Favero asserts that allowing a reviewer to award points from an allowable range gives unbridled discretion to the Department. The argument misses the point that the ranges in each category direct the reviewer on how to score, while allowing some leeway in determining which applications are slightly better or worse than their competitors. Depending on the strength or weakness of one applicant’s response vis-à-vis another applicant, it is reasonable to assign more or fewer points in a comparative review. The rubric is quite descriptive and allows for a nuanced review of responses by the Department reviewers. The Preference The Preference Statute asserts a preference “for up to two of the licenses issued,” i.e., past tense. There are no licenses “issued” during the application review process, so the preference is actually assigned before licensure. The Preference Statute is somewhat confusing in this regard. The Proposed Rule attempts to reconcile this discrepancy by assigning preference points as a part of the application review process, while still approving the most qualified applicants. That approach is reasonable and has merit; it allows the preference to be assigned but does not attempt to insert it into the actual licensure process. The Proposed Rule assigns the preference points at the end of the review, i.e., after an application receives its “total score.” Thus, an applicant could conceivably be awarded 1185 points on the 0 to 1150 point scale. Regardless of how the points are assigned, Favero contends that the 35 preference points are too insignificant as compared to a possible (perfect) score of 1150 during application review. That number of points (35) would be only about three percent of a perfect score. The lower the average scores of all applications, however, the more the 35 points might come into play. If all applicants received an average score of 575 total points, the preference points would be twice as important as compared to perfect 1150 scores. The assignment of the preference points only after totaling the scores is a legitimate and acceptable method. Taking the 16 sections of the application separately, 35 points assigned in any one section could be quite significant. In fact, the Department arrived at the 35 points by taking the average number of possible points per section, i.e., 72, and assigning approximately half of that amount to reach the 35- point preference. The preference points are not just an arbitrary number assigned by the Department. Favero also objects that the Proposed Rule only assigns the 35 preference points to the two highest scoring, eligible applicants, i.e., those who will convert a citrus facility to process medical marijuana. If those two eligible applicants were more than 35 points below other, non-eligible applicants’ scores, assignment of the preference points would not result in the approval of any eligible applicants. The plain language in the Preference Statute and the Proposed Rule allows for a preference of “up to two” applicants. There is, therefore, no mandate that any applicants must receive the preference. While the Legislature can be presumed to have wanted preference points to be awarded (else why would the Preference Statute exist?), the language of the statute merely limits the number of entities which could get such a preference. The Department, interpreting a statute it is charged with implementing, interprets section 381.986(8)(a)3. to mean the issuance of available licenses to as many as two entities which are eligible for the preference. The Proposed Rule allows the Department to assess an applicant’s entitlement to the preference, to assign the preference, and to meet its statutory obligation. Property versus Facility The Legislature clearly intended to give a preference to applicants who “own . . . facilities that are, or were, used for canning, concentrating, or otherwise processing of citrus . . . and will use or convert the . . . facilities for the processing of medical marijuana.” The Legislature failed, however, to provide guidance by way of definitions. While the Legislature chose the words “facility or facilities” in the Preference Statute, the Department complicated the issue by using the word “property” for the most part, but also using the words “facility” and “facilities” at times. Favero contends that a property is much broader in scope than a facility, and the Department therefore exceeded its delegated legislative authority. The Department argues that facilities used to process citrus must be located on some property, obviously. But, facilities located on a property might be leased, so that the fee simple owner of the property is different from the leaseholder of that facility. Thus, if an applicant for a medical marijuana treatment center license wants to avail itself of the preference, it would need to own the facility. Whether that means the applicant must own the property on which the facility is located is not clear in the Preference Statute or in the Proposed Rule. The Department argues that the way to show ownership of a facility is by way of a deed to the property on which the facility is located. In fact, Favero will use a warranty deed to prove ownership of the facilities it purchased in order to obtain the preference. But if Favero purchased land on which citrus had been grown but not processed, i.e., if there had been no facilities on the land to can, concentrate or otherwise process the fruit, except in fresh fruit form, the preference would not apply. And if an applicant obtained a leasehold interest in a facility, it would not be able to “show ownership” by way of a deed to the property. The Preference Statute requires the applicant to convert the facility in order to gain the preference. It is unclear how a piece of unimproved property can be “converted” to another use; land is land. This begs the question of whether growing citrus on a piece of property, and then removing all the citrus trees in order to grow medical marijuana, is a “conversion” of a facility as contemplated by the Legislature. Neither the Preference Statute nor the Proposed Rule contain any definitional assistance to answer that question. An important question to be answered is whether the growing of citrus constitutes “processing” as alluded to by the Legislature. The Preference Statute provides no definition of the word. The Citrus Code (chapter 601, Florida Statutes) also does not define “processing,” but does describe a “processor” of citrus as: ‘[A]ny person engaged within this state in the business of canning, concentrating, or otherwise processing citrus fruit for market other than for shipment in fresh fruit form.” § 601.03(32), Fla. Stat. (Emphasis added). Processing must therefore mean something other than merely growing citrus and packing it up for shipment. That being the case, a property where citrus is grown that is “converted” to a property growing marijuana would not afford an applicant a preference. There must be some “facility” that is or has been used to process citrus, i.e., doing something more with the raw product, in order to constitute “processing.” Therefore, a “packinghouse,” i.e., “[a]ny building, structure, or place where citrus fruit is packed or otherwise prepared for market or shipment in fresh fruit form,” would not be engaged in “processing” citrus. See § 601.03(29), Fla. Stat. Mecca, which owns property where citrus was grown, picked, graded, sorted, polished, cleaned and packaged for transfer “in fresh fruit form,” would not be a processor, either. Mecca owns a packinghouse only, not a processing facility as that term seems to be used by the Legislature. Its operations were not part of the “canning, concentrating, or otherwise processing citrus fruit other than for shipment in fresh fruit form.”
