Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
The Issue Among the issues in this case are: Whether a court order sealing records of a criminal prosecution bars action by a school board against its employee on account of the facts underlying the prosecution? Whether the evidence showed that what was seized was actually marijuana? Whether the evidence established constructive possession? Whether the evidence showed that respondent's effectiveness as an employee of petitioner had been reduced? Whether petitioner can discipline an employee for "immorality" occurring before employment began? Whether petitioner can discipline an employee for "immorality" now that Section 231.36, Florida Statutes (1981) has been amended to delete "immorality" as such as grounds for dismissal or suspension?
Findings Of Fact After a telephone caller's report that a marijuana plant was visible in an apartment window was relayed by the Clewiston police dispatcher to Corporal Deese and Patrolman Meskin, they spotted the plant through a window on the ground floor of the Von Mach apartment building. Corporal Deese examined the specimen with binoculars, and photographs were taken. That afternoon, a warrant was issued authorizing the search of the corner apartment in which the plant stood. THE ARREST The following day, June 13, 1981, Officers Deese, Meskin and Hand executed the warrant. When they knocked at the apartment door, respondent Walton called out, "Come in." In one bedroom, they found towels lying around and men's clothing. They also found a marijuana plant and another species of plant growing in pots. A mirror had been positioned to reflect the sun's rays onto the plants. The only other bedroom in the apartment seemed to be unoccupied. The mattress in that bedroom lacked sheets. Respondent told them his roommate had moved out. Daniel Fairchild, employed, like respondent at the time, as a teacher at Clewiston High School, lived in the apartment from the beginning of October until mid-December, 1980. Norman Vaughn shared the apartment with respondent from early January of 1981, until June 12, 1981. When patrolman Meskin asked Mr. Walton to produce any other drugs in the house, respondent retrieved a plastic bag containing marijuana from among some newspapers on the floor. The searching party also seized a stained hemostat and a package of rolling papers. EFFECTIVENESS In the spring of 1981, there was "a widespread incident involving students in use of drugs" (T. 111) at Clewiston High School, with which respondent had nothing to do, as far as the evidence showed. Some students were expelled for the remainder of the school year, as a result. Mr. Walton's arrest for possession of marijuana was reported in the Clewiston News, a newspaper of general circulation in Hendry County, and became general knowledge in Hendry County. There was no evidence that any member of the public in Broward County had learned of Mr. Walton's arrest when these proceedings began. Respondent was employed by the Hendry County School Board on an annual contract basis. For reasons unrelated to this case, the 1980-1981 school year was his last as an employee of the Hendry County School Board. He finished working for the Board on June 12, 1981. PROPOSED FINDINGS CONSIDERED Both petitioner and respondent made post-hearing submissions, and their proposed findings of fact have been duly considered and, in large part, adopted in substance. To the extent they have been rejected they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the petition for dismissal filed against respondent. DONE AND ENTERED this 25th day of January, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 25th day of January, 1983. COPIES FURNISHED: Charles T. Whitelock, Esquire 1244 Southeast Third Street Ft. Lauderdale, Florida 33316 Richard H. Frank, Esquire Mark F. Kelly Law Offices of Frank & Kelly, P.A. 341 Plant Avenue Tampa, Florida 33606 William T. McFatter Superintendent of Schools The School Board of Broward County, Florida 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 =================================================================
The Issue Whether Respondent committed the violations alleged in Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations of fact, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since May 16, 1986, certified by the Commission as a correctional officer. He holds certificate number 12-86-502-02. Respondent was employed as a correctional officer with the St. Lucie County Sheriff's Department (hereinafter referred to as the "County") from October 9, 1985, until April 26, 1991, when he was terminated by the County. He was disciplined by the County on various occasions during the first several years of his employment. Thereafter, for a period of approximately two years, until the spring of 1991, he had an unblemished disciplinary record. On March 20, 1991, at approximately 5:00 p.m., Respondent was working in the intake and booking area of the St. Lucie County Jail when he was involved in an altercation with Mark Hornick, an inmate at the facility, as Hornick was being escorted, in handcuffs, through the area by another correctional officer, Deputy John Fischer. Hornick was complaining about not having been fed. Respondent approached Hornick and asked him if he wanted to file a grievance. Moments later he grabbed the much smaller Hornick from behind and then pushed him into a wall in an adjacent hallway. Hornick struck his head on the wall and sustained a cut just over his eye. After Hornick made contact with the wall, he turned around and faced Respondent. Respondent thereupon grabbed Hornick again and this time picked him off the ground. He held Hornick in the air for a brief period of time before releasing him. The force Respondent used against Hornick was not, nor should it have appeared to Respondent to be, reasonably necessary to defend himself or anyone else against the imminent use of force, to overcome Hornick's resistance to any command that he had been given, or to accomplish any other legitimate objective. As a result of this March 20, 1991, altercation with Hornick, Respondent was given a ten-day suspension by the County, which determined following an investigation of the matter that Respondent, in his dealings with Hornick, had engaged in the excessive use of force. During his suspension, Respondent knowingly and voluntarily used marijuana. Upon Respondent's return to duty on April 15, 1991, he was ordered by his supervisor to report to a doctor's office to undergo urinalysis testing. Respondent went to the doctor's office on April 18, 1991, and provided a urine sample. The sample was given a unique identifying number and promptly sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was properly protected and transported to a forensic laboratory, where it was received in good condition without any evidence of tampering. At the laboratory, the sample was kept in a secure manner throughout the testing process. Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample. An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of 9-carboxy, a unique metabolite of tetrahydrocannabinol (THC), the biologically active compound found in marijuana. Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method, was utilized. The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of 9-carboxy in a concentration of 41 nanograms per milliliter. The nanogram per milliliter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana within a time frame of approximately one hour to one week prior to the collection of the urine sample. Passive inhalation of another's secondhand marijuana smoke would produce much lower results. After these results were made known, Respondent's employment with the County was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a correctional officer as punishment therefor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of October, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993.
Findings Of Fact Petitioner is Ronald Charles Brown. By application dated September 16, 1987, he sought licensure as a real estate salesman. Question number six of the application completed by Petitioner requires a "yes" or "no" answer to the question: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) , even if adjudication was withheld? Petitioner responded in the affirmative to question number six and disclosed that he was convicted in juvenile court of the offense of grand theft in Marion County, Florida in 1978; that he was charged with the offense of trespassing in 1982, which charge was subsequently dropped; and that he was charged with sale and possession of cocaine in Marion County in 1985. The court withheld adjudication of Petitioner's guilt of the drug sale and possession charge and placed him on probation for five years. By letter dated March 7, 1988, counsel for Respondent informed Petitioner of Respondent's intent to deny licensure to Petitioner on the basis of the 1978 grand theft conviction; a 1978 arrest and conviction for "hit and run" in Marion County; a 1978 arrest and conviction for contributing to the delinquency of a minor; and the 1985 cocaine sale and possession charge. In February of 1978, Petitioner was 17 years of age when, intoxicated by alcohol and drugs, he fell through a skylight into a jewelry store. He suffered minor cuts in the fall and remained lying on the floor at the scene until police, responding to a security alarm, arrived and took him into their custody. Petitioner was subsequently required to make restitution to the store for damages resulting from the incident in a Marion County, Florida, juvenile court proceeding. Petitioner reached his 18th birthday in May of 1978. He testified that in July of that year, he angrily backed out of the driveway of the residence of parents of a girl friend. In the process, he knocked over the parents' mailbox with the automobile he was driving. He went to his parents' home, obtained another mailbox and returned to install it at the residence of the girl friend's parents. Upon his arrival, he was met by law enforcement officials and arrested for "hit and run." A subsequent check by the officials disclosed his driver's license was invalid. The 16 year old girl friend, on a date undisclosed by the record but in close proximity to the mailbox incident, ran away from home to meet Petitioner at his parent's lake house in Marion County. Petitioner and she met there in the early evening. Her parents and law enforcement officials arrived that night. Petitioner was arrested and subsequently convicted of the offense of contributing to the delinquency of a minor. In 1985, Petitioner was arrested for sale and possession of cocaine. While the evidence fails to disclose Petitioner's plea to these charges, adjudication of guilt was withheld and Petitioner was placed on probation by the court. That probation was terminated July 19, 1988, by court order. At present, Petitioner is married. He and his wife have a small baby. He has been employed by a small chain of appliance stores for almost two years and now manages one of the stores. At the store managed by Petitioner, he exercises total control. He possesses the store keys, opens and closes the facility, oversees the inventory valued at approximately $300,000 and controls daily cash of approximately $5,000. He reports to a supervisor several miles away each morning to take and drive the delivery truck, loaded with products, to the store to which he Is assigned. Several informal inventories and one formal inventory have been performed at the store during the one year Petitioner has managed it and no losses have been noted. Petitioner denied he had ever sold cocaine; instead he insisted that his role was limited solely to that of being a delivery boy for other drug salespersons. He stated he has undertaken no specific drug rehabilitation program other than to discontinue involvement with controlled substances. In addition to his own testimony acknowledging and explaining his criminal record, he presented testimony regarding his character. Character witnesses consisted of Petitioner's mother and two other individuals. Both individuals testified they had known Petitioner only since February of 1986 or some point in time since the occurrence of his last criminal offense in 1985. Both individuals were impressed with Petitioner and indicated some knowledge, absence specific details, of his criminal background.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 18th day of January, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1231 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-8. Adopted in substance. COPIES FURNISHED: Ronald Charles Brown, pro se 9400 Monte Carlo Blvd. Fort Pierce, Florida 33451 Lawrence Gendzier, Esquire 400 West Robinson Street Room 212 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801
The Issue Has Ms. Davis demonstrated that she is honest, truthful, trustworthy, and of good character, and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (Supp. 1980)?
Findings Of Fact In October, 1980 Ms. Davis filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated October 21, 1980 the Board acknowledged receipt of the application and requested additional information concerning Ms. Davis' answer to question #6. Ms. Davis responded on November 15, 1980 when she sent copies of her arrest record to the Board. Question #6 of the application states: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, or pardoned or paroled? Ms. Davis responded that, "yes," she had. The question further requested the details including the outcome in full. In response Ms. Davis attached a separate sheet in which she said: To whom It May Concern: I was arrested for illegal entry in 1974 or 1975 in Duval County, Jacksonville, Florida. The sentence was a misdemeanor. I was told if I pleaded guilty I would receive probation but if I tried to fight it in front of a jury I would receive time in prison if I lost. So I plea bargained with the Judge and Attorney. My car was at the scene but there was never proof of who entered the apartment. My sentence was 4 years probation which I have completed. The Judge told me my sentence would be with adjudication withheld. I have finished my probation and have not or ever will be in any other trouble. I am married now and my husband and myself have a very good a job managing a condominium. We both are bonded and I am also a Notary. I want very much to become a licensed Real Estate Salesperson. I believe that I will be an asset to the Real Estate Business. I would never do anything to tarnish the Real Estate name. Thank you in advance for any consideration you can give me concerning my past which I would like to bury and not have it interfere with a profession I want so much. At the time Ms. Davis answered question #6 she did not recall her arrest for cohabitation. It happened when she was eighteen years old and living with her boyfriend. The charges were dropped when she and her friend told the judge that they intended to be married, which they later did. The complaint against them was filed by Ms. Davis' mother. At the final hearing Ms. Davis explained that she failed to reveal the cohabitation arrest because she forgot it. To her it was quite insignificant because the charges were dropped and because of the considerable passage of time since the event. This testimony is credible. Ms. Davis voluntarily disclosed her more serious arrest (the one for breaking and entering) and informed the Board about the cohabitation arrest as soon as her memory had been refreshed when she first obtained her arrest records. There is no evidence that she intentionally attempted to conceal the cohabitation arrest. On December 10, 1974 Ms. Davis pled guilty to breaking and entering with intent to commit a misdemeanor. Adjudication was withheld and she was placed on probation for the term of three (3) years beginning on February 25, 1975. She paid $1,200.00 in restitution and successfully completed her probation term. Since her guilty plea Ms. Davis has been a trustworthy law abiding citizen of Florida. Beginning in November, 1979 she has been a rental manager at the Tradewinds Condominium in St. Augustine, Florida. At that 60-unit complex she manages the rentals for unit owners and has been treasurer for the owners association. She is bonded for $25,000.00 by Nationwide Insurance Company and handles an account amounting to over $250,000.00 per year. Two owners at the condominium have submitted letters of recommendation on her behalf to the Board. At the final hearing Ms. Davis was credible and mature. She was forthright in answering questions from both the Hearing Officer and from counsel for the Board. Her demeanor was excellent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Real Estate enter a final order finding Petitioner qualified pursuant to Section 475.17(1), Florida Statutes (Supp. 1980), to take the license examination provided for in Section 475.175, Florida Statutes (1979) to be licensed as a real estate salesperson in the State of Florida. DONE and RECOMMENDED this 9th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 9th day of June, 1981. COPIES FURNISHED: Ms. Lynette Helgerson Davis 121 Tradewinds Condominium Highway A1A South St. Augustine, Florida 32084 Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
Findings Of Fact At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976. The above facts were as stipulated to by the parties.
Recommendation Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 H. R. Fallin, Esquire 1239 King Street Jacksonville, Florida 32204
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate Number 276769. On or about July 3, 2008, Respondent was driving his vehicle on State Road 20 in Calhoun County. Trooper Philip Spaziante of the Florida Highway Patrol observed Respondent speeding and conducted a traffic stop of Respondent’s vehicle. After Respondent pulled to the side of the road and stopped, Trooper Spaziante explained to Respondent why he had stopped him. As he spoke to Respondent, he noticed that Respondent appeared to be exceptionally nervous. Respondent told Trooper Spaziante that he was on his way to Port St. Joe to spend the weekend at the beach. Trooper Spaziante then asked Respondent if he would consent to a search of his vehicle. Respondent consented to the search. Trooper Spaziante found a purple cloth “Crown Royal” bag in the driver’s side door of Respondent’s vehicle. Trooper Spaziante found a small quantity, less than 20 grams, of cannabis (marijuana) inside a Skoal (chewing tobacco) container which was inside the Crown Royal bag. Trooper Spaziante is trained in the recognition of the smell of burnt cannabis. During his nine years as a State Trooper, he has encountered cannabis many times, during traffic stops in particular. Based upon his experience, Trooper Spaziante was able to identify the substance in the Skoal can as cannabis. Trooper Spaziante then placed Respondent under arrest for possession of a controlled substance. After finding the marijuana, Trooper Spaziante contacted Deputy William Dalton of the Calhoun County Sheriff’s Office and requested that he come to the scene and assist. After Deputy Dalton arrived, the two officers continued the search of Respondent’s vehicle. Deputy Dalton is a police canine handler. Deputy Dalton is also trained in recognition of cannabis and cannabis paraphernalia. He is the handler for Gina, a K-9 dog certified in narcotics investigation by the American Canine Police Association. Deputy Dalton deployed Gina to conduct an exterior “sniff” of Respondent’s vehicle. Gina "alerted" as a result of her sniff of Respondent’s vehicle, indicating that narcotics were in the vehicle. Deputy Dalton then continued to search Respondent’s vehicle. The officers found a marijuana “blunt,” which is a cigar with some of the tobacco removed and replaced with marijuana. Trooper Spaziante observed some loose tobacco that appeared to have been removed from the cigar. The officers found a duffle bag in the back seat of the vehicle. The Respondent told the officers that the bag was his and that it contained clothing and personal items for his trip to Port St. Joe. Deputy Dalton took the duffle bag out of the vehicle where Gina “alerted” as a result of her sniff of Respondent’s duffle bag. Deputy Dalton then searched the duffle bag. Inside the duffle bag was a small smoking pipe commonly used to smoke marijuana. Deputy Dalton also observed marijuana residue in the bowl of the pipe. Respondent stated that he had forgotten that the pipe was in the duffle, and that it had been in there a long time. Respondent was arrested and charged with possession of less than 20 grams of marijuana and possession of drug paraphernalia.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order revoking the corrections certificate of Respondent, Ben C. Cramer. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 22nd day of October, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ben C. Cramer Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 9th day of June, 1987.
Findings Of Fact In July 1975, in Hillsborough County, Florida, Petitioner was arrested on the charge of buying, receiving and concealing stolen property. He was placed in the Pretrial Intervention Program, which he successfully completed. As a result, formal charges were either never filed or were dismissed by the State Attorney. On January 18, 1982, Petitioner entered a nolo contendere plea to one charge of trafficking in excess of ten thousand pounds of cannabis in Hernando County, Florida. Adjudication of guilt and imposition of sentence was withheld by the court. Petitioner was placed on probation for twelve years. On August 1, 1983, in Pinellas County, Florida, Petitioner entered pleas of nolo contendere to the offenses of aggravated assault with the use of a firearm and carrying a concealed weapon on or about his person. The court accepted Petitioner's pleas. Adjudications of guilt were withheld on August 1, 1983. Petitioner was placed on probation for a period of five years, to run concurrent with his probation in Hernando County, Florida. Petitioner's probation in the trafficking case was terminated early in Hernando County, Florida, on March 14, 1985. Petitioner's probation for the aggravated assault and the concealed weapon was terminated early in Pinellas County, Florida, on December 11, 1985. Petitioner was never adjudicated guilty of the charges the Division used as the basis for the denial of his application. As a result, he has not been convicted of any of these crimes as the term "conviction" is defined in Subsection 493.6101(8), Florida Statutes. Petitioner submitted eleven letters of good moral character from people in the community who have known him throughout the years and are aware of the prior criminal charges.
Recommendation Based upon the foregoing, it is RECOMMENDED: Petitioner's application for a Class "CC" Private Investigator Intern License should be granted. ENTERED this 17th day of June, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY 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 17th day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Hearing Officer finding #7. The Department's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Contrary to prehearing stipulation. See Preliminary Statement. Accepted. See Hearing Officer finding #1. Reject. Contrary to fact only one charge of trafficking in the Information and only one nolo contendere plea on a charge of trafficking. As the basis given for licensure denial was alleged trafficking charges, the importation of cannabis charge and nolo contendere plea were not considered by the Hearing Officer pursuant to Subsection 493.6118(3), Florida Statutes. See Hearing Officer finding #2. Accepted. See Hearing Officer findings #3 and #5. Accepted. See Hearing Officer finding #7. COPIES FURNISHED: Joseph H. Ficarrotta, Esquire 600 Madison Street Tampa, Florida 33602 Henri C. Cawthon, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire Honorable Jim Smith General Counsel Secretary of State Department of State The Capitol The Capitol Tallahassee, Florida 32399-0250 Tallahassee Florida 32399
The Issue Whether Respondent may be disciplined for failure to maintain the qualifications established by Subsection 943.13(7), Florida Statutes, which requires that a correctional officer have good moral character.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent, Kalangie J. Serrano, is a state certified correctional officer holding certificate No. 186788. In the early morning hours of February 9, 2002, Respondent was observed by Orlando Police Department Officer Jonathan Cute sitting in the driver's seat of Respondent's automobile. As Officer Cute approached the vehicle, he smelled a strong odor of marijuana coming from the vehicle and observed smoke in the passenger compartment of the automobile. As Officer Cute approached the vehicle, he noticed Respondent place something onto the center console of the vehicle. As Respondent exited the vehicle at Officer Cute's request, Officer Cute observed and smelled a cloud of marijuana smoke in the interior of the vehicle and determined that the object placed on the vehicle's console was a red metal pipe typical, in his experience, of the type of pipe used for smoking marijuana. Noting the presence of a burning residue in the pipe and suspecting it to be marijuana, Officer Cute performed a field test on the substance which tested positive determining that the substance was cannabis. Officer Cute arrested Respondent and charged him with possession of less than 20 grams of cannabis and possession of drug paraphernalia. No admissible evidence was received as to any determination of the charges filed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Law Enforcement Criminal Justice Standards and Training Commission, enter a final order finding that Respondent, Kalangie J. Serrano, violated Subsection 893.147(1), Florida Statutes, and, as a result, failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and that he be placed on probation for two years, be required to submit to drug testing, be enrolled in drug prevention education, and such other associated penalties as Petitioner deems appropriate. DONE AND ENTERED this 19th day of June, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kalangie J. Serrano 4340 Lauren Lane Titusville, Florida 32780 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
