The Issue Whether Petitioner is subject to the sales tax imposed on controlled substances by s. 212.0505, Florida Statutes, and if so, what is the appropriate tax.
Findings Of Fact On September 12, 1989, a search and destroy team assembled in Sebring, Florida, to survey Highlands County for evidence of the growing or possession of illegal drugs. The survey team consisted of a helicopter, pilot and crew chief from the Florida National Guard; and the ground crew of representatives from the Highlands County Sheriff's Office, State Highway Patrol, Fish and Game Commission, Florida Law Enforcement Officers and federal agents. The search commenced in the southwest quadrant of Highlands County with the helicopter and trained spotters flying a search pattern so as to view from the air any illegal substances being grown. On one, if not the first, leg of the search pattern, the helicopter, flying at an altitude of 500 feet, passed over the property on which Petitioner lives; and one of the observers spotted what he identified as marijuana growing near one of the outbuildings on this property. The marijuana patch was circled for both spotters as well as the pilot and crew to better see the growing marijuana. The ground party was alerted by radio of the find. They proceeded to the location and entered onto the property. There they met Petitioner, proceeded to the area where the marijuana was growing, and cut down the marijuana plants. Some 171 cut plants were counted, wrapped in bundles of approximately 10 plants each, and loaded into the back of a pickup truck. The deputies asked Petitioner if he would unlock the building next to where the marijuana plants were growing and he, knowing they could get a search warrant if necessary, unlocked the door. Inside they found some lights obtained for the purpose of growing marijuana indoors and other material listed on Exhibit 3A, all of which were confiscated. Petitioner was placed under arrest and the marijuana and other property seized was taken to the sheriff's office. The vehicle carrying the marijuana was weighed before the marijuana was unloaded and again immediately following the unloading. The difference in the weight of the vehicle with and without the marijuana was 450 pounds. Subsequent thereto, someone from either the sheriff's office or the Florida Department of Law Enforcement advised the Department of Revenue Collections and Enforcement agent in Lakeland, Florida, and the Notice of Assessment was prepared and served on Petitioner. To establish the value of the marijuana seized, the agent preparing the assessment used information received from the FDLE that the average street price in the district in which the marijuana was seized was $600 per pound in 1989. The document containing this information was admitted into evidence as Exhibit 6 after testimony was presented that each year the FDLE directs its five regional offices to submit street prices for various illegal drugs sold on the streets during that year. Exhibit 6 shows the marijuana street price at $600 per pound in the Tampa district (which includes Highlands County) as of June 7, 1989. To obtain the estimated retail price of the marijuana seized, the agent multiplied $600 per pound by 450 pounds. This price is for marijuana which has been processed and is ready for use. No evidence was submitted showing what parts of the marijuana plant are used in preparing the marijuana rolled into "joints" or smoked in a pipe. Nor was evidence presented showing how many pounds of processed and ready-to-use marijuana can be obtained from a given number of pounds of growing marijuana plants. In his testimony, Petitioner readily admitted that he had planted and cultivated the marijuana seized on September 12, 1989. He also testified that this is the first and only time he has ever attempted to grow marijuana; that he obtained the marijuana seeds and a book on how to grow marijuana from an advertisement in a magazine; that he had never sold marijuana in the past; that he had made no effort to locate a purchaser; or that he had any inkling of how to find a buyer for the plants after they were harvested or how much such plants were worth for use by marijuana users. Petitioner also testified the marijuana was planted a long distance from the nearest traveled road and from the nearest boundary of Petitioner's property; and that there was a canopy provided by trees among which he had planted the marijuana plants, and he didn't think the plants would be readily visible from the air. Petitioner's testimony that the helicopter passed over his property at tree top level, which he estimated at less than 75 feet, is rejected as being in conflict with the altimeter height provided by the helicopter pilot. In the U. S. District Court, Southern District of Florida, Petitioner pleaded guilty to possession of more than 100 marijuana plants.
Recommendation It is recommended that the assessment against Joe "Little Joe" Hatch of $270,999.02 plus interest from September 12, 1989, be dismissed. ENTERED this 26th day of March, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX Respondent's proposed findings are generally accepted and included in the Hearing Officer's findings of fact, except the following which are rejected. 12-18. Accepted as street value of processed marijuana. 26. Last sentence rejected as contrary to the record that the charge was possession of over 100 marijuana plants. Petitioner failed to timely submit a proposed recommended order. COPIES FURNISHED: Raymond E. LaPorte, Esquire 410 Ware Boulevard, Suite 601 Tampa, FL 33619 Steve Kackley, Esquire 357 S. Orange Avenue Sebring, FL 33870 Lee R. Rohe, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, FL 32399-1050 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 =================================================================
Findings Of Fact Based upon the record evidence, the following Findings of Facts are made: Idaliza Roman is employed by Respondent as a Collections Specialist II. She is assigned to Respondent's Plantation, Florida office. As part of her job responsibilities, she issues assessments against persons suspected of having engaged in illicit drug activity made taxable by Section 212.0505, Florida Statutes. On October 13, 1989, Roman issued such an assessment against Petitioner. She also issued and filed a tax warrant based on the assessment. The assessment alleged that, on or about August 16, 1989, Petitioner had engaged in a taxable transaction involving 27 kilograms of cocaine. In making this allegation, Roman relied exclusively upon information she had gleaned from a probable cause affidavit contained in a court file, as well as a laboratory report and a property room receipt. She conducted no further investigation into the matter before issuing the assessment. The probable cause affidavit upon which Roman relied reflected that Petitioner had been arrested on August 16, 1989, for a cocaine-related offense. It did not reveal, however, when the alleged offense had been committed. Roman assumed, erroneously, that it had been committed on or about the date of Petitioner's arrest. The arrest actually had been for an offense, involving substantially less than 27 kilograms of cocaine, that Petitioner had allegedly committed in January, 1989. The authorities had no information that Petitioner had been involved in any illicit, drug-related activity on or about August 16, 1989. On April 3, 1990, Roman discovered that the October 13, 1989, assessment against Petitioner and the tax warrant she had issued based on the assessment were incorrect. She thereupon issued and filed a "corrected" tax warrant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued sustaining Petitioner's challenge to the October 13, 1989, jeopardy assessment issued against him and rescinding the assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of May, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1990.
The Issue Whether or not the Department of Revenue has accurately and appropriately assessed Petitioner tax, penalty, and interest for unlawful production of marijuana.
Findings Of Fact During 1988, Petitioner cultivated a patch of marijuana located in abandoned phosphate pits in Loncala, northwest Marion County. On or about September 16, 1988 Investigator Glenn Hurst of the Ocala Police Department discovered and seized the marijuana referred to above. The marijuana seized by Officer Hurst ranged in height from approximately twelve to fourteen feet. The marijuana seized covered a tract of four acres within the above- described land. The seized marijuana when weighed by Officer Hurst weighed 2,910 pounds. The marijuana, when seized, was cut off at the base of each plant with a machete so that the roots were not seized with the plants themselves. The property where the marijuana was seized was under lease to one Sammy Long of Sumter County. At the time of seizure of the subject marijuana, the property under lease to Sammy Long was owned by one Stanley Cowherd of Planters Boulevard, Boca Raton. The property under lease to Sammy Long was being utilized by him for the grazing of cattle. Fred Brown, a longtime friend of Petitioner and of Sammy Long, assisted Petitioner in the cultivation of the subject marijuana. Kim Nixon, or Kim Mixon, was also involved in the cultivation of the subject marijuana with Petitioner and Fred Brown. In early August of 1988, Fred Brown moved a small trailer onto the Cowherd/Long property and lived in it during August and during the fall. The trailer was located approximately a mile from the marijuana patch. There were two electric meters on the property. One of the electric meters served a well pump used to pump water into a cattle trough. The meter and pole were located within several feet of Brown's trailer. The meter was already active when Brown brought in his trailer. The other electric meter and pole were located close to the marijuana patch. The meter served a pump for watering the marijuana patch. The electric meter near the patch had been inactive until March 30, 1988 when Petitioner applied for an electric meter from the Sumter Electric Cooperative (SEC). Petitioner did not have any cattle grazing on the subject property either before or after he applied for the meter. Fred Brown did not have any cattle grazing on the subject property either before or after Petitioner applied for the electric meter. When Officer Hurst arrived at the marijuana patch on September 16, 1988, he found that the meter Petitioner activated served a pump which was connected to an underground sprinkler system. The underground sprinkler system was located within the subject marijuana patch. On the same date, Officer Hurst found an old water trough near the meter activated by Petitioner, but the trough water was stagnant. Thus, Petitioner had not used the meter to fill the trough near the marijuana patch. Petitioner's fingerprints were found on the original of the electric meter application. The fingerprints of Fred Brown were also found on the original of the same application. On April 26, 1986, Petitioner was arrested for cocaine possession. Fred Brown was arrested on August 15, 1985 for possession of marijuana over 20 grams. Petitioner had hunted doves during the 1980's on the Cowherd/Long property and was familiar with the property prior to the September 1988 seizure of the subject marijuana. Fred Brown had also hunted and been familiar with the same property prior to the September 1988 seizure. Petitioner was responsible for cultivating the subject marijuana seized on September 16, 1988 by Officer Hurst. Pursuant to Section 212.0505 F.S., the estimated retail value of the subject marijuana is $244,300.00 as stated on the Revised Assessment dated March 27, 1990, which was introduced as the Department of Revenue's sole exhibit. The Revised Assessment was sent to Petitioner's former attorney, Ed Scott, on March 27, 1990 and received by him on March 30, 1990. The retail price estimated by the Respondent was based upon 12% of the total marijuana weight of 2,910 pounds. The factor of 12% represented that portion of the marijuana plants which is considered, by the Department, as usable for consumption after processing of the plants. The Revised Assessment is mathematically correct. The Revised Assessment is legally valid. Per the Revised Assessment, the 20% tax was imposed upon the estimated retail value to arrive at a base tax of $48,860.00. Per the testimony of Kevin Jackson, the total amount of tax owed by Petitioner to the Department of Revenue amounts to $94,450.42, including penalties and interest, as of March 27, 1990. No surcharge was applicable in this case. Interest on the above amount continues to accrue at a rate of $16.06 per day, making the total as of the date of formal hearing $100,215.96. (TR-12- 13) The Revised Assessment is prima facie correct in these proceedings. It is noted that all of Petitioner's "admissions," upon which many of the foregoing findings of fact were based, were couched in terms of "marijuana," which is not named in any applicable statute. (The genus "cannabis" is defined at Section 893.02 F.S. "Cannabis" is the material to be taxed under Section 212.0505(1) F.S., which statute incorporates Section 893.02 F.S. by reference.) No evidence was presented to establish that "marijuana" and "cannabis" are the same substance and the Department of Revenue made no request to officially recognize that they are one and the same. However, because of Petitioner's admissions to the prima facie correctness of the Revised Assessment, its mathematical correctness, and its legal validity against him, no further findings with regard to the nature of marijuana are necessary.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order upholding the Revised Assessment, assessing the Petitioner $100,215.96 as of the date of formal hearing plus statutory interest continuing to accrue from date of formal hearing. RECOMMENDED this 14th day of May, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1589 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner submitted no PFOF. Respondent's PFOF: 1-37 Accepted as modified to more closely reflect the greater weight of the evidence as a whole. Those matters not supported by the record have been rejected as contrary to the record. COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Robert Maynard Harris 13980 S.E. 80th Avenue Summerfield, Florida 32691 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact Respondent is a Florida corporation. Gary Popkin is its sole corporate officer and stockholder. He holds the positions of President, Vice-President, Secretary and Treasurer. Respondent is now, and has been at all times material hereto, the holder of alcoholic beverage license #16- 03 032 2-COP issued by Petitioner. The licensed business is a bar that operates under the name of Lynda's Lounge. It is located at 8007-8009 Kimberly Boulevard in North Lauderdale, Florida. C.G. is a paid confidential informant. The North Lauderdale Police Department is among the law enforcement agencies for whom he works. On the afternoon of July 19, 1989, C.G. entered Lynda's Lounge, sat down and ordered a drink. While in the bar, C.G. was approached by Vinnie Lavarello, another of the bar's patrons. They were joined by Popkin. A conversation ensued. Popkin advised C.G. that he had some "good pot" and asked him if he wanted to buy some. He suggested that C.G. act quickly because he only had a little left. Both Popkin and Lavarello told C.G. that there was no need to worry because everyone in the bar "smoked pot" and was "cool." C.G. informed Popkin that he would "let him know." He thereupon left the bar and paged Detective Gary Harris of the North Lauderdale Police Department. Harris instructed C.G. to meet him at the North Lauderdale police station, which is a short distance from the bar. In accordance with Harris' instructions, C.G. went to the police station. He provided Harris with a description of Lavarello and Popkin, as well as their names. Harris searched C.G. and C.G.'s car for drugs and found none. He then gave C.G. $20.00 with which to purchase marijuana from Popkin. C.G. drove back to the bar. He was followed by Harris in another vehicle. They arrived at the bar at approximately 5:55 p.m.. C.G. entered the bar, while Harris waited outside. Once in the bar, C.G. walked up to Lavarello and indicated that he was interested in consummating the deal they had discussed earlier that day. Popkin apparently overheard C.G. He gave C.G. a package containing marijuana (cannabis). In return, C.G. gave Popkin the $20.00 he had been given by Harris. Following this transaction, there was a discussion concerning the possibility of C.G. purchasing additional drugs, including cocaine, from Popkin. Popkin quoted C.G. prices for various quantities of the drug and encouraged C.G. to come back and do business with him. At approximately 6:10 p.m., fifteen minutes after he entered the bar, C.G. left and drove in his vehicle to a prearranged location to meet Harris. Harris observed C.G. leave the bar and followed C.G. in his vehicle to their predetermined meeting place. After they both exited their vehicles, C.G. handed Harris the marijuana he had purchased from Popkin and told Harris what had happened in the bar. Harris field tested the marijuana. It tested positive. Harris placed the marijuana in a sealed bag and forwarded it to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substance that Popkin had sold C.G. was indeed marijuana. After consulting with Harris regarding the matter, C.G. returned to Lynda's Lounge on July 21, 1989, to make arrangements to purchase an ounce of cocaine. As he had been told to do by Popkin, C.G. discussed the matter with Lavarello. C.G. and Lavarello agreed on a purchase price. C.G. then left the bar to get money to make the purchase. After leaving the bar, C.G. went to the North Lauderdale police station and met with Harris. Harris searched C.G. and C.G.'s vehicle for drugs and found none. He then gave C.G. money with which to purchase an ounce of cocaine from Lavarello. Although C.G. and Lavarello had agreed upon a purchase price of $700.00, because it is a common practice of drug dealers to raise their prices immediately before the transaction is to take place, Harris gave C.G. $800.00 in the event Lavarello raised his price. C.G. then drove back to the bar, followed by Harris in another vehicle. After parking, C.G. exited his vehicle and entered the bar. Harris remained outside, across the street from the bar. C.G. approached Lavarello. It was too noisy inside the bar to talk so C.G. and Lavarello left and continued their conversation in C.G.'s vehicle, which was parked in the lot in front of the bar. Lavarello indicated to C.G. that he did not have the cocaine with him and needed to pick it up, but that C.G. would have to give him the entire purchase price before he did so. C.G. then excused himself. He thereupon contacted Harris and they both returned to the North Lauderdale police station. Harris did not want C.G. to give Lavarello that much money and have to wait for the cocaine to be delivered. He therefore decided to have C.G. purchase an eighth of an ounce, instead of an ounce, of cocaine from Lavarello, the purchase price of which, C.G. had been told, was $150.00. Accordingly, Harris took back $600.00 of the $800.00 he had given C.G. earlier that day. Harris then again searched C.G. for drugs and found none. C.G. thereupon headed directly back to the bar, with Harris following behind him in another vehicle. C.G. met with Lavarello at the bar. He told Lavarello that he wanted to purchase a eighth of an ounce, rather than an ounce, of cocaine. He gave Lavarello $200.00 and made arrangements to meet Lavarello later that day at the bar to receive delivery of the cocaine he had purchased. At Lavarello's request, C.G. drove Lavarello to Lavarello's girlfriend's house. C.G. then returned to the North Lauderdale police station. At all times during this journey, C.G. and his vehicle were under Harris' observation. At the police station, Harris again searched C.G. for contraband and found none. Later that day, C.G. and Harris went back to Lynda's Lounge in separate vehicles. Harris remained outside, as C.G. exited his vehicle and headed towards the front door of the bar, where he encountered Lavarello. C.G. and Lavarello then proceeded to C.G.'s vehicle, where Lavarello handed C.G. a package containing cocaine. Upon receiving the package, C.G. complained that it appeared that he had received less cocaine than he had been promised. Lavarello admitted that he had given his girlfriend some of the cocaine that originally had been intended for C.G. To compensate for the missing cocaine, Lavarello gave C.G. a package containing marijuana. In addition to the cocaine and marijuana, Lavarello also gave C.G. a $20.00 bill and a gas receipt reflecting the amount of money he had paid for gasoline during his trip to pick up the cocaine. Following this transaction, C.G. and Lavarello went their separate ways. As he had done after the buy he had made on July 19, 1989, C.G. met Harris at a prearranged location. He handed Harris everything that Lavarello had given him. Harris searched C.G. and found no additional contraband. Harris then field tested both the cocaine and the marijuana. The test results were positive. After conducting these field tests, Harris placed the cocaine and marijuana in a sealed bag and forwarded the bag to the crime laboratory of the Broward Sheriff's Office. Tests performed at the crime laboratory reflected that the substances in question were indeed cocaine and marijuana. Popkin and Lavarello were subsequently arrested by Harris. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order finding Respondent guilty of the violations of Section 561.29(1), Florida Statutes, charged in the January 9, 1990, Notice to Show Cause and revoking alcoholic beverage license #16-03032 2- COP held by Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this & day of October, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675
The Issue The issues to be decided are whether Respondent violated sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Findings of Fact below are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a licensed medical doctor holding DOH license number ACN 244. Respondent holds a temporary certification to practice medicine only in areas of critical need (ACN) approved pursuant to section 458.315. Respondent is the owner of and only physician practicing at Gulf Coast Holistic and Primary Care, Inc., a Department- approved ACN facility. Her current primary practice address is 219 Forest Park Circle, Panama City, Florida 32405. Medical Marijuana Regulation in Florida As a preliminary matter, this case is not about the wisdom of the policy decision to allow patients access to medical marijuana in the State of Florida, the efficacy of its use, or the nature of the regulatory scheme to implement the medical marijuana program. Rather, this case involves Respondent’s actions in ordering medical marijuana and whether those actions comported with Florida law as it existed at the time. Generally, at all times relevant to these proceedings, cannabis or marijuana was a Schedule I controlled substance pursuant to section 893.03(1)(c)7., Florida Statutes, meaning that it is a drug with a high potential for abuse and had no accepted medical use in treatment of patients. In 2014, the Florida Legislature created section 381.986, Florida Statutes (2014), which legalized the use of low-THC cannabis for medical use under limited and strictly regulated circumstances. In sum, low-THC cannabis would be available to patients suffering from cancer or a medical condition causing seizures or persistent muscle spasms that would benefit from the administration of low-THC cannabis. The 2014 version of the law is sometimes referred to as “Charlotte’s Web.” Section 381.986(2) contained the requirements that a physician had to meet to be qualified to order low-THC cannabis for his or her patients. A physician had to take an eight-hour course provided by the Florida Medical Association (FMA); register as the ordering physician in the compassionate use registry; and document the dose, route of administration, and planned duration of use by the patient. A physician also had to submit a treatment plan for the patient to the University of Florida. Further, registered physicians could only order low-THC cannabis for Florida residents. In 2016, the Florida Legislature amended section 381.986, effective March 2016, to include use of full-THC medical cannabis, sometimes referred to as medical marijuana, for terminal conditions. In November 2016, Amendment 2 passed, which created Article X, section 29 of the Florida Constitution, providing for the production, possession, and use of medical marijuana in Florida. During the 2017 Special Session, section 381.986 was amended to implement Amendment 2. Ch. 17-232, §§ 1, 3, 18, Laws of Fla. None of the amendments, which were passed in 2016 and 2017, were in place during the period relevant to this case. The first course offered by the FMA pursuant to section 381.986 was available on November 4, 2014. The substance of the course covered the requirements of section 381.986 and the lawful ordering of low-THC cannabis. The Office of Compassionate Use within the Department first allowed physicians to register as ordering physicians on July 1, 2016. On September 8, 2015, Respondent sent an email from her DOH email address to her personal email address with a hyperlink to the FMA course. Instead of taking the course at that time, which she knew to be the required course for ordering low-THC cannabis, Respondent instead took a free online course from an entity called NetCE, entitled “Medical Marijuana and Other Cannabinoids.” Respondent did not complete the required FMA course until August 25, 2016. She is presently an authorized ordering physician. Respondent’s Care and Treatment of R.S. Patient R.S. is a 66-year-old retired physician assistant, who resides in Minnesota. R.S. practiced as a physician assistant for approximately 40 years in Minnesota. For about four years, R.S. spent his winters in the Panama City area. R.S. suffers from a variety of medical conditions, including Stage IV metastatic renal cell carcinoma. When R.S. first presented to Respondent the fall of 2015, he had stopped all treatments for his cancer because he could not tolerate the chemotherapies or the immunotherapy prescribed for him. While wintering in Panama City, R.S. took his dog to a dog park and got to know some people who went there regularly. When some of those people learned that he had metastatic cancer, one person asked him if he had tried medical marijuana, and he told her that it was not then legal in Minnesota. R.S. was told that Dr. Skidmore could provide legal medical marijuana to him. At the time that R.S. presented to Respondent for treatment, it was not lawful to order, prescribe, or dispense medical marijuana in the State of Florida. R.S. called Respondent’s office to obtain an appointment. At the time of his call, he told the receptionist that he had heard Respondent could give him a prescription for medical marijuana. R.S. knew his cancer was incurable, but given his inability to tolerate conventional treatment, he was hoping that the medical marijuana might help reduce the size of his tumors and lengthen his life. R.S. first presented to Respondent on September 28, 2015. He provided to Respondent medical records from his local oncologist, which confirmed his diagnosis of terminal cancer, and contained his most recent laboratory results. Respondent took R.S.’s blood pressure and pulse, and most likely checked his respiration. She listened to his heart and chest with a stethoscope. She did not perform a review of systems, which is review of the patient from the head working down through the different systems of the body. As a physician assistant, R.S. was familiar with the components of a review of systems, and described them in detail at hearing. He testified that Respondent did not check his eyes, feel his lymph nodes, palpate his abdomen, or check his reflexes. R.S. testified that Respondent did not ask him about any history of depression, did not ask him to provide any additional medical records, and did not tell him she wanted to see more lab work than what he had provided to her. R.S. believes that Respondent may have mentioned meditation, which he was already doing, but did not recommend yoga, essential oils, or any modifications in his diet. Had she suggested them, he would have tried them. His testimony is credited. She also did not attempt to place Respondent in a federally-approved experimental marijuana therapy program. Respondent testified and her medical records indicate that she ordered labs for R.S. R.S. testified that no labs were ordered. The medical records indicate that labs were ordered, but do not indicate what tests were actually ordered, an omission that she blamed on her medical assistant. She testified in deposition that she ordered a lipid panel, Vitamin D panel, thyroid panel, and urine panel. The lab tests that R.S. provided to her from his oncologist contained none of these. R.S. never had the tests Respondent claims she ordered because Respondent never actually ordered them. The one treatment that Respondent performed was a form of acupuncture at this first visit. R.S. paid $140 in cash for his first visit to Respondent. R.S. was a cash-pay patient because medical marijuana was not a benefit under his existing insurance plan. Respondent advised R.S. that he would need to be seen three times over a 90-day period in order to obtain medical marijuana. R.S. returned to Respondent on October 19, 2015. R.S. paid $90 for this visit. As with the first visit, Respondent performed only a very limited physical examination, taking his blood pressure, pulse, respiration, and listening to his chest. While the electronic medical records for this visit indicate that labs were pending, none were actually ordered. Despite not having any lab results, the records state “will recommend medicinal marijuana after receiving previous records.” R.S.’s third visit was January 15, 2016. As with the previous visits, Respondent performed only a perfunctory examination, and the charge for this visit was $90. At this third visit, Respondent told R.S. that he had complied with the requirements in Florida to be seen for 90 days, and that she would send in her assistant with the paperwork R.S. would need to obtain medical marijuana from a dispensary in Pensacola. Respondent did not advise R.S. that medical marijuana, as described in the certificate, was not lawful in Florida at that time, and that he could be arrested if he purchased it in Florida. She did not advise him that he was ineligible for low-THC cannabis when it became available because he was not a resident of Florida. Respondent did not discuss the risks and benefits of medical marijuana. Respondent then provided to R.S., through her receptionist/medical assistant Caitlyn Clark, a document that she referred to as a “certificate” or a “recommendation.” The certificate, discussed in more detail below, appears to be a prescription for medical marijuana. It was not for low-THC cannabis. As R.S. described the document, it looked like a prescription to him, just not on a prescription pad. R.S. was required to pay $250 for this certificate, which was in addition to the visit fee of $90. Respondent provided this certificate despite the fact that, according to her records, R.S. had not completed the labs she claimed to have ordered for him, and did not comply with any recommendations for modification of his diet, or use of essential oils, yoga, or meditation. His electronic medical record for this visit included a plan of “1000 mg of canabis [sic] extract oil daily.” In addition to the certificate, R.S. received from Ms. Clark a flyer from an entity called Cannabis Therapy Solutions, with the names of Joe and Sonja Salmons and their telephone numbers. While R.S. received the flyer from Ms. Clark, copies of the flyers were also available on the tables in the reception area of the office. R.S. believed, based on the information given to him from Respondent and Ms. Clark, that he was being referred to Cannabis Therapy Solutions to obtain the medical marijuana, which he believed was prescribed for him through the use of the certificate. R.S. called the numbers on the flyer and was unable to reach anyone. One number was disconnected, and the messages he left on the other number were never returned. When R.S. was unable to reach the Salmons at the numbers listed on the flyer he received at Respondent’s office, he did some research on the Internet. Through this research, he learned for the first time that medical marijuana could not yet be obtained legally in Florida. R.S. felt that he had been “taken” by Respondent, and wanted to get his money back. R.S. returned to Respondent’s office in February 2016, and demanded a refund of the money he had paid. He told Respondent that he was unable to reach the Salmons, and had learned that medical marijuana was not yet legally available in Florida. Respondent told him that she was only trying to help him. She also tried to contact the Salmons, and was unsuccessful in doing so. Respondent’s staff initially offered to refund the $250 R.S. had paid for the certificate, but only if he returned it. R.S. refused to do so, and stated that it was his only proof to present to the Florida Board of Medicine. R.S. admitted at hearing that he was angry and loud when he visited the office to demand his money. He was intentionally loud because he wanted the patients in the waiting area to hear what was going on. While he was loud, he was not violent, and Ms. Clark testified that she did not feel threatened by him. It was only after he stated that Respondent would have to deal with the state licensing board that he was refunded all of the money he had paid to Respondent’s office. R.S. became a participant in the medical marijuana program eventually authorized in his home state of Minnesota. It has not provided the results for which he was hoping, in that his tumors have increased in size and number. “The Certificate” The certificate that Respondent issued to R.S. was on 8 1/2 by 11 inch paper. It was printed on security paper, meaning that when copied, the document is reproduced with the word “void” printed all over it. The document had Respondent’s office name, address, and telephone and fax numbers at the top, along with Respondent’s name, DEA number, and Florida medical license number. It lists R.S.’s name, patient number, and address, along with the date the document was issued to him. At the bottom of the document, there is a blank to fill in how many refills are allowed, and a statement “to insure brand name dispensing, prescriber must write medically necessary on the prescription.” Immediately below the patient name and address, the document reads: RX Allowed Quantity: 1-2 gm/d THCa-THC: CBD concentration in ratio of 1:1 or 1:2 via oral ingestion or vaporization, include plant vaporization. Max allowance 2 gm/d In the center of the document is the following statement: I certify that I have personally examined the above named Patient, and have confirmed that they [sic] are currently suffering from a previously diagnosed medical condition. I have reviewed the patient’s medical history and previously tried medication(s) and/or treatment(s). Based on this review, I feel cannabis is medically necessary for the safety and well- being of this patient. Under Florida law, the medical use of cannabis is permissible provided that it’s [sic] use is medically necessary. See Jenks v. State, 566 So. 2d (1St DCA 1991). In making my recommendation, I followed standardized best practices and certify that there exists competent and sound peer-reviews [sic] scientific evidence to support my opinion that there exists no safer alternative than cannabis to treat the patient’s medical condition(s). In addition, I have advised the patient about the risks and benefits of the medical use of cannabis, before authorizing them [sic] to engage in the medical use of cannabis. This patient hereby gives permission for representatives of GreenLife Medical Systems to discuss the nature if [sic] their [sic] condition(s) and the information contained within this document for verification purposes. This is a non-transferable document. This document is the property of the physician indicated on this document and be [sic] revoked at any time without notice. Void after expiration, if altered or misused. The certificate that R.S. received was signed by both Respondent and R.S. The copy the Department obtained from Respondent is not signed. Respondent testified that she did not want the references to prescriptions to be on the certificates, but was told by the printer she used that the only security paper available was preprinted with that information. This claim is not credible. Much of what is contained on the document is preprinted. Had Respondent objected to the use of the word “prescription” on the document, she could have directed that the references to it be redacted or blacked out. She did not do so. Respondent testified that she issued only three of these certificates, which she referred to as “recommendations.”1/ Ms. Clark, testified that during her employment from May 2015 to April 2016, about 15 certificates were distributed to patients. Ms. Clark testified that the certificates were kept in a folder separate from the patient’s medical records. When Respondent directed that a patient was to receive a certificate, Ms. Clark would type in the patient’s name, patient ID, address and the date issued. She would print it out, making no changes to the allowed quantity, maximum allowance, or any other language in the certificate. Ms. Clark’s testimony is credited. The certificate given to R.S. does not indicate that R.S. would receive medical marijuana by extract oil, as noted in Respondent’s medical records for R.S. nor does it include a route of administration or planned duration for the substance prescribed. The markings and appearance of the certificate are consistent with what a reasonable person would expect to see on a prescription. Here, R.S. did not expect that it would be filled by a pharmacy. Instead, R.S. expected that it would be filled at a dispensary authorized to dispense medical marijuana. At that time, no such dispensary existed. The certificate was given to R.S. simultaneously with the flyer for Cannabis Therapy Solutions. In her deposition, Respondent stated that Joe and Sonja Salmons came to her office and said that they were able to grow a medical grade cannabis with CBD, as well as a concentrated oil, and that they were located in Pensacola. From the more persuasive evidence presented it is found that the coupling of the certificate with the flyer for Cannabis Therapy Solutions was intentional. Respondent only stopped providing certificates to patients when she learned that they could no longer obtain marijuana from the Pensacola dispensary. It is also found that the certificate provided to R.S. and described above is a prescription. DOH’s Complaint and Investigation While Respondent returned all of R.S.’s money, he nonetheless felt that Respondent’s actions were fraudulent. On February 24, 2016, R.S. filed a complaint with the Department, and provided a copy of the certificate he received, as well as a copy of the flyer from Cannabis Therapy Solutions. As a part of its investigation, the Department requested that R.S. provide a copy of his medical records from Respondent. R.S. wrote back, advising that when he requested his records in March 2016, Ms. Clark provided him with the clinical records he had brought with him from his oncologist on his first visit, and advised him that Respondent did not do patient care records on cash-pay patients. At hearing, Ms. Clark testified that Respondent uses electronic medical records for insurance patients and handwritten records for cash-paying patients. To her knowledge, cash-paying patients never had electronic medical records. Respondent’s Medical Records for R.S. On April 11, 2016, the Department issued a subpoena to Respondent, requesting all medical records for R.S. for a stated time period. Respondent received the subpoena on April 13, 2016. The records that Respondent supplied in response to the Department’s subpoena include forms filled out by R.S., prior medical records from R.S.’s oncologist, and electronic medical records from Respondent’s office. Curiously, the office note for R.S.’s visit September 28, 2015, visit is electronically signed by Respondent on April 18, 2016. The record for the October 19, 2015, visit is electronically signed April 19, 2016, and the record for the January 15, 2016, visit is electronically signed by Respondent on April 19, 2016. Also included with the medical records provided to the Department is an “addendum” that references an encounter date of January 15, 2016. In the body of the note, Respondent references R.S.’s visit to the office on February 17, 2016, when he demanded a refund of his money. Respondent described R.S. as having a “violent attitude,” and noted that he was asked to return the “recommendation” and refused to do so. This note was electronically entered on April 19, 2016, and, similar to the other medical records from Respondent’s office, electronically signed April 20, 2016, within a week after receiving the subpoena from the Department and months after R.S.’s last visit to the practice. Respondent is not charged with falsifying medical records. However, the evidence related to the electronic medical records is relevant in assessing Respondent’s credibility with respect to her claims that she completed a full examination of R.S., ordered labs for him, and made several recommendations for alternative treatments that she claims he failed to follow. It is found that Respondent did not complete a full examination for Respondent; did not complete a review of systems; did not order labs for him to complete; did not recommend the alternative treatments, such as yoga, essential oils, or meditation; and did not recommend that he modify his diet. The Advice upon Which Respondent Allegedly Relied The certificate that Respondent provided to R.S., as well as other patients, included a partial citation to Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991). Jenks stands for the premise that the common law defense of medical necessity is still recognized in Florida with respect to criminal prosecutions for possession and use of marijuana where the following elements are established: 1) that the defendant did not intentionally bring about the circumstances which precipitated the unlawful act; 2) that the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and 3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. 582 So. 2d at 679. Respondent relies on the medical necessity defense as justification for her issuance of the certificates, such as the one R.S. received. However, the genesis of her reliance on this defense remains a mystery. In Respondent’s written response to the Department’s investigation, she does not mention seeking the advice of counsel. Instead, she stated: As soon as I open [sic] my practice, I had a visit from a company in Pensacola, that showed me some documents about the medical necessity regulation for medical marijuana and how it was helping so many patients with cancer. One of my patients with cancer, said he was going to wait until it gets legalized and died waiting. The second patient requested the recommendation, and is in remission as we speak. At hearing, however, Respondent testified that she relied on the advice that she received from her lawyer, Billy-Joe Hoot Crawford, about the applicability of the medical necessity defense. Mr. Crawford is a criminal defense lawyer in the Panama City area. His experience in representing individuals in the professional license regulatory area is scant, by his own admission. Both Respondent and Mr. Crawford testified that they met when attending a meeting of people who were working on medical marijuana issues. Both testified that Mr. Crawford provided some advice to Respondent regarding the medical necessity defense. Both testified that Respondent did not pay for the advice. From there, however, their testimony diverges. Mr. Crawford testified that he could not remember the names of the people who attended the meetings, other than Dr. Skidmore. Despite his inability to remember their names, he believed that the group had people in each field necessary to “set up business” should medical marijuana become legal. He believed that there were a couple of meetings before Respondent attended one, but once she did, he met with her in conjunction with the meetings. Mr. Crawford testified that he met with Respondent approximately a dozen times. He said that their discussions were most likely after the meetings, because to discuss issues related to her patients in front of others would not be appropriate. Respondent testified that she met with Mr. Crawford once at a meeting of people discussing the legalization of marijuana, and that he gave her advice in the meeting itself. Her ex-husband also spoke to him on the phone once, to ask for some clarification regarding his advice. Mr. Crawford also testified that he traveled to Orlando to speak to a physician (unnamed), who was recommending marijuana to her patients, and got a copy of what she was using to bring back and provide to Respondent. Respondent testified that she wrote down “word for word” what he had told her that she needed to include in the recommendation and soon thereafter stated that he gave her a sample to use that was not on security paper. Respondent claims that the reference to GreenLife Medical Systems (GreenLife) was on the sample she received from Mr. Crawford, and that she did not know what GreenLife was. Mr. Crawford testified that while he knew about GreenLife before giving Respondent advice, he did not have a reference to GreenLife on the recommendation he provided. Most importantly, Mr. Crawford testified that he advised Respondent that she needed to tell her patients that they could be arrested if they were caught with medical marijuana and that he fully expected them to be. He also advised her that if any of her patients were arrested for possessing marijuana pursuant to her recommendation, then he would represent them for free. Respondent, however, did not remember the conversation that way. She stated, “in my mind, I remember he said, if, not when. ‘If’ was if they get in trouble, we give them free legal help.” She did not advise R.S. that he could be arrested, and when asked at hearing whether it concerned her that her patients might be arrested from what she was doing, her response was, “Yes. But life goes first in my priority algorithm.” She repeated this theme, saying, “my algorithm of priority, health and life go on top. On top of money. I’m sorry, but on top of law.” Indeed, she confessed that she did not read all of the Jenks case, because she found it boring. What is clear from the evidence is that, while Mr. Crawford provided some advice to Respondent regarding the medical necessity defense, he did not provide any advice concerning the impact her actions could have on her license to practice medicine. Equally clear is that Respondent did not seek that advice.2/ Respondent’s contention that she accepted Mr. Crawford’s advice without question and did not concern herself with the technicalities is not credible. At deposition, Respondent was questioned about her blog posts, media interviews, and Facebook posts. What emerges from these documents and from her testimony is a woman who was quite aware of the status of medical marijuana, both in Florida and elsewhere. In fact, a blog she wrote in October 2014 details the requirements of the regulatory scheme for ordering low-THC marijuana. The blog includes the statement, “[a]ll physicians that plan to prescribe medical marijuana are required to keep strict documentation of all prescriptions and treatment plans and submit them quarterly to the University of Florida College of Pharmacy to maintain proper control.” The reality is that she knew the regulatory scheme to order medical marijuana, with all of its technicalities. She simply chose not to wait for the new law to be implemented. Assuming that Respondent truly believed that the medical necessity defense outlined in Jenks would protect her patients, she did not act to satisfy the three elements required for the defense. First, while the medical necessity defense might protect her patients if arrested, nothing in Jenks negates the regulatory scheme in chapters 456 and 458, or addresses a physician’s ability to prescribe medical marijuana. Second, the evidence indicated that R.S. did not follow through with the recommendations that Respondent claimed would benefit him before providing him with the prescription for medical marijuana. Under these circumstances, ordering medical marijuana would not be the last resort contemplated under Jenks. Most disturbing is the fact that a patient was required to pay $250 for a “recommendation” that the patient obtain a substance that could not be legally provided, with no assurance that he or she would receive anything to address their suffering. While Respondent claimed repeatedly that her goal was to help people, charging for this “recommendation” looks more like exploiting the hopes of those who are desperate for relief for Respondent’s financial gain, and providing nothing to actually ease her patients’ pain. Respondent’s Practice Address Respondent’s address of record, and primary practice address on file with the Department between August 11, 2014, and August 19, 2017, was 756 Harrison Avenue, Panama City, Florida 32401. Between June 2016 and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida 32405. The Department did not send a warning letter to Respondent regarding her address update. However, section 456.035 states that it is Respondent’s responsibility, not the Department’s, to ensure that her practice address on file with the Department is up-to-date. This is especially so where a physician’s eligibility to practice is predicated on practicing in an area designated as an ACN. Section 456.042 requires that practitioner profiles, which would include a physician’s practice location, must be updated within 15 days of the change. This requirement is specifically referenced in bold type on license renewal notices, including notices filled out by Respondent in 2012, 2014, and 2016, and included in her licensure file. On May 22, 2013, Respondent sought and received approval for Gulf Coast to be a designated ACN facility at 756 Harrison Avenue, in Panama City, Florida. On May 16, 2016, she sought and received approval for Gulf Coast to be a designated ACN facility at 105 Jazz Drive, also in Panama City. This approval however, is for the entity, not an individual licensee, and does not automatically update an individual licensee’s primary practice address. Between August 11, 2014, and August 19, 2017, Respondent’s address of record and primary practice address on file with the Department was 756 Harrison Avenue, Panama City, Florida 32401. Sometime between June and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida. Respondent did not update her practitioner profile with the practice address at 105 Jazz Drive. That address never appeared as her primary practice location in her practitioner profile. When Andre Moore, the Department investigator assigned to investigate R.S.’s complaint, went to interview Respondent, he went to her address of record, which was the Harrison Avenue address. When he arrived, he found a sign on the door stating that the practice had moved to 105 Jazz Drive. Mr. Moore went to the Jazz Drive location and interviewed Respondent there. At that time, Mr. Moore told Respondent that she needed to update her address. Normally, physicians can update their practice location address online using the Department’s web-based system. Physicians who hold an ACN license, however, must update their addresses in writing because verification that the new practice address qualifies as an ACN is required before an ACN can practice in the new location. All licensees, including Respondent, can update their mailing address online. Respondent had completed updates of her practice address before by sending a letter and a fax, so she was familiar with the process. The Department’s internal licensure database does not show any attempts made by Respondent between June and August 2016 to access the web-based system or otherwise update her practice address to 105 Jazz Drive. A search of the Department’s licensure information on Respondent, viewing every address change request, indicates that she did not update either her mailing address or her practice location address to list 105 Jazz Drive. On or about August 19, 2017, Respondent updated her mailing address online to 219 Forest Park Circle, Panama City, Florida 32405. The Department received a request from Respondent by mail on or about September 5, 2017, to update her practice location to the Forest Park Circle address. Respondent claims that she tried multiple times to update her address with no success, and when she called the Department, she was told by an unidentified male to just wait and update her address when she renewed her license. This claim is clearly contradicted by Florida law and by multiple notices for renewal that Respondent had received and returned previously. It is found that Respondent did not update her practice address as required with respect to the 105 Jazz Drive address.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015). It is further recommended that Respondent’s license be revoked. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2018.
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1983.
Findings Of Fact Teresa A. Collins was certified by the Criminal Justice Standards and Training Commission on April 19, 1985, and was issued Certificate No. 35-85-002- 02. On February 22, 1985, Respondent was employed by the City of Tampa Police Department as a police recruit and commenced training at the Police Academy. At this time, Respondent was considered to be a civilian employee of the police department. When Respondent applied for employment with the Tampa Police Department, a background investigation, polygraph test and physical examination including a urinalysis was done. Respondent acknowledged experimenting with marijuana in 1982 while in college. Following the background investigation and tests, Respondent was recommended as morally fit for duty as a police officer. On an evening in April 1985, Gloria Thomas observed Respondent, who she knew only by sight, sitting at a table in the rear parking lot at McDonald's with another woman. Ms. Thomas saw Respondent pass a cigarette to the other woman who held it between her thumb and forefinger while taking a puff off the cigarette. Ms. Thomas passed within five feet of the table and thought the smoke smelled like marijuana smoke. She did not see Respondent smoke the cigarette and could not definitely state the cigarette was a marijuana cigarette. At the time Respondent commenced her training at the police academy she roomed with Gina Rodriguez with whom she had formerly roomed at Florida State University. Sometime in mid February 1985, Respondent and Rodriguez had a fight during which Respondent struck Rodriguez in the face with her fist breaking her cheekbone. The date of this fight was not clear. Respondent testified it occurred in mid-February and that Rodriguez made demands on her for money for medical bills up to 21 February--the night before she was sworn-in as a police officer. The parties stipulated that Respondent was sworn in April 19, 1985, as a law enforcement officer and she entered the police academy February 22, 1985. Although not completely clear, it appears that Respondent and Rodriguez roomed together in Tampa from February 1, 1985 until the end of March, 1985. Following the fight Rodriguez threatened to see that Respondent never worked in Tampa. Gloria Thomas' observation of Respondent in the parking lot at McDonald's got back to the Tampa police by word of mouth as a rumor and an investigation was launched. On May 8, 1985, Rodriguez was interviewed by the police to inquire if Respondent smoked marijuana while she roomed with Rodriguez. At this interview Rodriguez denied Respondent ever smoked marijuana at the apartment. On May 29, 1985, Rodriguez contacted the police to give another statement about Respondent. At this interview Rodriguez told the police that she saw Respondent frequently use marijuana in late February and March 1985. At the hearing Rodriguez acknowledged making several conflicting statements about Respondent's use of marijuana but insisted that she saw Respondent smoke marijuana at least once in their apartment between February 22, 1985 and the end of March 1985, but could not identify the time of day this occurred, whether anyone else was present, or any detail at all regarding the circumstances in which this event occurred. Rodriguez also acknowledged she had threatened to "get" Respondent after the fight and they are still on unfriendly terms. These factors made her testimony less credible. Elaine Daniels, a friend of Rodriguez at the time of the fight, was interviewed by the police regarding Respondent's use of marijuana. She told the police she traveled in a car one night when Respondent had a package of marijuana with her. The exact date of this trip was not ascertained, but at the time the incidents were related to the police, Daniels was angry at Respondent for hurting her friend Rodriguez, and had been encouraged by Rodriguez to help her "get" Respondent. Daniels testified that she, herself, was stoned most of the time during this period and the only time she could definitely state she saw Respondent smoke marijuana was the end of January 1985. Daniels also testified to a party on Rodriguez's birthday, March 15, at which a marijuana joint was passed around while Respondent was present but she cannot recall Respondent taking a hit. Four women, who associated with Respondent from January through March 1985, never saw Respondent smoke marijuana during that period, but some of them had seen Respondent smoke marijuana a year or so prior to that period of time. In her testimony Respondent categorically denied smoking marijuana in April 1985 at the McDonald's parking lot and could not recall being there at that time; although she has been to this particular McDonald's on several occasions. Respondent acknowledged the "bad" fight she had with Rodriguez and that she had agreed to pay part of the medical bills resulting from that fight. However, Rodriguez never provided her with copies of bills for medical treatment. Respondent categorically denied smoking marijuana or possessing marijuana at any time subsequent to her entry into the police academy on February 22, 1985.
Findings Of Fact Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact. Sweet's Lounge, Inc., held alcoholic beverage license number 16-350, Series 2-COP, for the location of Sweet's Lounge, 706-710 Northwest First Street, Dania, Florida, at all times relevant to the charges in this case. On April 24, 1985, Beverage Investigator Frank Oliva drove his automobile to the front of the premises of Sweet's Lounge. He was approached by a male who asked what he wanted, and Oliva responded that he wanted "Boy," a street name for heroin. The male answered that he did not have any. Another male approached Oliva, who again indicated that he wanted some "Boy". Oliva observed the male enter the premises of Sweet's Lounge. Beverage Investigator Alphonso Junious was inside the licensed premises of Sweet's Lounge and observed the entire transaction with Oliva. He observed the male enter the premises of Sweet's Lounge and approach a female patron known as Ramona, who handed the male a tinfoil package. The male returned to Investigator Oliva and exchanged the tinfoil package for $20.00. The male then reentered Sweet's Lounge and gave the $20.00 to Ramona. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Beverage Investigator Frank Oliva returned to the front of the premises of Sweet's Lounge. He discussed the purchase of some "Boy" from an individual named William Rainey. Rainey went inside the premises of Sweet's Lounge and returned with a tinfoil package which he delivered to Oliva in exchange for $20.00. The substance alleged to be heroin was laboratory analyzed to contain no controlled substances. On April 25, 1985, Investigator Junious returned to the premises of Sweet's Lounge. The on-duty barmaid, Beatrice, left the premises for a short time and asked a female, later identified as the barmaid Linda, who was sitting at the end of the bar counter smoking a marijuana cigarette, to watch the bar until Beatrice returned. Beatrice said nothing to Linda about the marijuana cigarette. Linda walked behind the bar and continued smoking the marijuana cigarette while performing bartending duties. When Beatrice re-entered the premises, Ramona was standing in the doorway handing a tinfoil package to a male in the view of Beatrice. Junious entered into conversation with Ramona and, during the conversation, Ramona delivered a small tinfoil package to an unknown male patron. Investigator Reylius Thompson was also inside the premises of Sweet's Lounge on April 25, 1985. He observed several patrons smoking marijuana cigarettes, which he was able to identify through their appearance, smell, and the manner of smoking. On May 1, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. They observed the bartender Beatrice seated at the bar counter with two male patrons who were smoking a marijuana cigarette. After the bartender Linda came on duty, the officers observed her remove a marijuana cigarette from her purse and begin to smoke it behind the bar counter. Junious asked Linda for change for a $20.00 bill so he could buy cocaine. Linda asked what Junious wanted, and he told her a $10.00 piece of cocaine. Linda removed a tinfoil package of cocaine from her purse behind the counter and sold the cocaine to Junious for $10.00. While Investigator Thompson was seated at the bar on May 1, 1985, he also asked Linda for some cocaine. Linda again removed a tinfoil package of cocaine from her purse and delivered it to Thompson in exchange for $10.00. On May 3, 1985, Investigators Junious and Thompson returned to the licensed premises of Sweet's Lounge. While Beatrice was bartender, Junious observed several patrons smoking marijuana cigarettes. After Linda came on duty, Junious asked to purchase $10.00 piece of cocaine from her. Linda requested Beatrice to hand her her purse, from which she removed a tinfoil package of cocaine. Junious observed a plastic bag containing numerous tinfoil packages inside of Linda's purse. Linda sold the package of cocaine to Junious for $10.00 While Investigator Thompson was sitting at the bar on May 3, 1985, he asked Linda for some cocaine. Linda asked Beatrice to pass her purse to her from behind the bar. Beatrice handed the purse to Linda and Linda took out a tinfoil package of cocaine which she sold to Thompson for $10.00 On May 8, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. While the investigators were seated at the bar counter, they observed three male patrons also seated at the bar counter smoking a marijuana cigarette in the presence of Beatrice, the bartender. After Linda came on duty, Junious asked her for a $10.00 piece of cocaine. Linda removed her purse from behind the bar, removed a tinfoil package of cocaine from her purse, and sold the cocaine to Junious for $10.00. Later that evening, Thompson asked bartender Linda for a $10.00 piece of cocaine. She again removed a tinfoil packet containing cocaine from her purse and sold the cocaine to Thompson. ll. On May 10, 1985, Investigators Junious, Thompson and McKeithen went to Sweet's Lounge. Junious asked the bartender Linda for $10.00 worth of cocaine, and she replied that she only had rocks. Junious agreed to purchase the rocks and received a tinfoil package of cocaine from Linda, which she had removed from her purse behind the bar. Later that same evening, Investigator Thompson also asked Linda for $10.00 worth of cocaine. She removed from her purse a tinfoil package containing cocaine which she sold to Thompson for $10.00. That same evening Investigator Thompson observed a male disc jockey smoking marijuana in the presence of patrons and passing the marijuana cigarette to some of the patrons. On May 14, 1985, Investigators Thompson and McKeithen returned to Sweet's Lounge. Thompson observed four patrons seated at a table cutting a white powder and snorting it from the top of the table. He also observed Ramona and a male patron, while seated at the bar, snort a white powder through an empty cigarette paper tube in view of the bartender Beatrice. On May 15, 1985, Investigators Junious and Thompson returned to Sweet's Lounge. Junious asked the bartender Linda if she had any cocaine, and she responded that she did but Junious would have to wait until she served a customer. After serving a customer, Linda sold Junious a small tinfoil package containing cocaine for 510.00. Junious also observed several patrons smoking marijuana cigarettes, sniffing white powder, and removing tobacco from regular cigarettes, inserting white powder into the cigarettes, and smoking same. On that same date, Investigator Thompson also asked Linda for cocaine. She replied that she had rock or powder cocaine and Thompson ordered rock. Linda walked into the package store portion of the lounge and returned shortly to Thompson, handing him a tinfoil package containing a small rock of cocaine in exchange for $10.00. On that same date Thompson observed Ramona using an empty cigarette paper tube to snort a white powder. On May 22, 1985, Investigators Junious and Thompson entered the licensed premises of Sweet's Lounge. The officers observed patrons seated at the bar counter smoking a marijuana cigarette in the presence of bartender Beatrice. The officers also observed Ramona seated at a table with several male patrons, all of whom were snorting a white powder from the table top and smoking a white powder in cigarettes. On May 29, 1985, Investigator Thompson returned to Sweet's Lounge. He observed Linda smoking a marijuana cigarette behind the bar counter and observed Ramona sitting on the west side of the premises with a quantity of white powder on the table. Thompson approached Ramona, sat down next to her, and began to talk to her about cocaine. While Thompson was seated with Ramona another female patron smoked a marijuana cigarette. Later that same evening, Thompson asked bartender Linda for cocaine and she responded that she had rock or powder. He ordered powder and Linda removed a tinfoil package of cocaine from her purse, which she sold to Thompson for $10.00. On the majority of the occasions described above when the investigators were inside the premises of Sweet's Lounge, there was a pervasive odor of marijuana smoke throughout the entire premises. The white powder which was being sniffed by patrons on the licensed premises at the various times described above was cocaine. In brief summary, the following relevant events took place at the licensed premises during the period of the investigation: 4/24/85: A patron participated in sale of a counterfeit controlled substance. 4/25/85: A patron participated in sale of a counterfeit controlled substance, an employee smoked a marijuana cigarette while on duty, and a patron delivered two small tinfoil packages to other patrons, and several patrons smoked marijuana cigarettes. 5/01/85: Two patrons smoked a marijuana cigarette, an employee smoked a marijuana cigarette while on duty, and an employee made two sales of cocaine. 5/03/85: Several patrons smoked marijuana cigarettes, and an employee made two sales of cocaine. 5/08/85: Three patrons smoked marijuana cigarettes in immediate presence of an employee, and an employee made two sales of cocaine. 5/10/85: A disc jockey smoked marijuana and shared it with patrons, and an employee made two sales of cocaine. 5/14/85: Six patrons sniffed cocaine; two did so in immediate presence of an employee. 5/15/85: Several patrons smoked marijuana and sniffed cocaine, and an employee made two sales of cocaine. 5/22/85: Several patrons smoked marijuana cigarettes in the immediate presence of an employee and several patrons sniffed cocaine. 5/24/85: A patron had cocaine in open view on a table, a patron smoked a marijuana cigarette, an employee on duty smoked a marijuana cigarette, and an employee made one sale of cocaine. Mr. Ebbie Sweet was never on the licensed premises on any of the occasions described above when the investigators were on the licensed premises. At all times material to this case, Mr. Andrew Johnson has been the manager of Sweet's Lounge. The owner, Mr. Ebbie Sweet, has given the manager various instructions about the operation of the premises. The instructions include: (a) keep the premises clean, (b) keep drugs out of the premises, (c) tell all employees to do the same, (d) put up signs about what can and cannot be done on the premises [including a sign reading "No Drugs Allowed"], (e) post the DABT flyer, and (f) put a "no loitering" sign outside the premises. The "no loitering" sign has not worked very well. When Mr. Andrew Johnson is on the premises he spends most of his time in the package store portion of the premises and very little of his time in the bar portion. On one occasion prior to the events described above, the Dania Police Department told Mr. Andrew Johnson there was a drug problem in Sweet's Lounge. He told them to come in anytime they wanted to and to arrest anyone they wanted to. Mr. Johnson did not change any procedures at Sweet's Lounge after the Dania Police Department told him about drug problems. Mr. Andrew Johnson knows Ramona. He has never seen her buy or use drugs, but he has heard that she is suspected of being a drug user. Ramona was a frequent visitor at Sweet's Lounge. Mr. Ebbie Sweet is the president of and the principal functionary of Sweet's Lounge, Inc. A sister and a nephew of Mr. Sweet also have some nominal connection to the corporation, but neither of them is active in running the licensed business. Mr. Ebbie Sweet enjoys an excellent reputation in his community. He is active in community affairs and has engaged in various charitable activities for the betterment of his community. It has always been his desire to run a reputable business and if he had known what was going on inside the lounge he would have fired those involved and would have closed the place up himself. In sum: Mr. Ebbie Sweet appears to be a good citizen who was trying to do the right thing. Unfortunately, for both him and the community, he wasn't trying quite hard enough. Some time ago Mr. Ebbie Sweet's wife passed away. As a result of that misfortune Mr. Sweet slowed down a lot and became less active in many things, including the amount of time and energy he devoted to the licensed business. He had at one time visited the licensed premises on a regular basis, but during the past ten months he only made a couple of trips a month to the licensed premises, and those were primarily to check on the inventory. During the past ten months he has hardly ever visited the licensed premises after dark. Mr. Sweet was relying on Mr. Andrew Johnson to manage things for him at the licensed premises even though he knew that Mr. Johnson was not the most reliable of managers. As Mr. Sweet put it, Mr. Johnson "has a few faults." Some years ago Mr. Sweet had an alcoholic beverage quota license which permitted him to sell all types of alcoholic beverages at Sweet's Lounge. When he had that license he had written instructions for his employees, he had doormen, and he had security guards. Since he sold the quota license and obtained his present license (which is limited to beer and wine sales), he has not had written instructions for his employees, he has not had doormen, and he has not had security guards. Mr. Sweet does not perform polygraph examinations or background checks on his employees. He has thought about hiring undercover people to patrol the premises, but has never done anything about it. The area of town in which Sweet's Lounge is located is one in which controlled substances are readily obtainable. Sweet's Lounge has had a recurring problem with undesirable people loitering in front of the lounge, people Mr. Sweet described as "hoodlums." All of the employees who worked in the bar portion of the licensed premises knew that marijuana and cocaine were being used by patrons inside the licensed premises on a regular, frequent, and flagrant basis. None of the employees took any action to prevent, discourage, or terminate the use of controlled substances by patrons. The foregoing findings of fact include the majority of the findings of fact proposed by the Petitioner. They do not, however, include any proposed findings based solely on the testimony of Investigator McKeithen. Some of the proposed findings based on McKeithen's testimony are irrelevant to the disposition of this case. Other proposed findings based solely on McKeithen's testimony are rejected because much of her testimony was neither persuasive nor convincing. While I have no doubts at all about her candor, honesty, or integrity, I have certain doubts about her attention to detail and her ability to recall and describe with accuracy events that took place in her presence. In making the finding that the employees who worked in the bar portion of the licensed premises were aware of the extensive use of drugs by patrons, I have not overlooked the testimony of the employees denying such knowledge. I find the denials to be unworthy of belief in light of all the other evidence in the record.
Recommendation For all of the foregoing reasons it is recommended that the Director of the Division of Alcoholic Beverages and Tobacco enter a Final Order revoking alcoholic beverage license number 16-350, series 2-COP issued to Sweet's Lounge, Inc., for the premises located at 706-710 Northwest First Street, Dania, Florida. DONE AND ORDERED this 16th day of August, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1985. COPIES FURNISHED: Louisa Hargrett, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Chesley V. Morton, Esquire 604 Southeast Sixth Avenue Ft. Lauderdale, Florida 33301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr. Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: On February 17, 1990, Frank Vitale was arrested at or near the ABC Liquors at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). On February 17, 1990, Noel Frederick Shumann was arrested at or near the ABC Liquors (ABC) at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). Noel Frederick Shumann was acquitted for both the charges of trafficking in cocaine and conspiracy to traffic in cocaine on May 2, 1991. Noel Frederick Shumann was present at the ABC on February 17, 1990. Noel Frederick Shumann denies that he was involved in any illegal drug transactions; however, he admits that an illegal drug transaction occurred on February 17, 1990 at the ABC. Frank Vitale, who was convicted of the charges, testified on behalf of Noel Frederick Shumann at the criminal proceeding. Mr. Vitale's testimony is as follows: That the money used to purchase the estimated retail value of cocaine of $9,400.00 was in fact Mr. Vitale's money. That Mr. Vitale had accumulated this money from the sale of an interest in some green houses and monies from the sale of jewelry from his flea market business. He stored the money at Mr. Shumann's house while living there for a brief period of time. On February 17, 1990, he called Mr. Shumann and asked Mr. Shumann to bring envelopes containing the money to the ABC Lounge. Mr. Vitale was not living at Mr. Shumann's house at the time he called Mr. Shumann and asked him to bring the envelope containing the money to the ABC Lounge. These envelopes were stored in the bedroom Mr. Vitale resided in while living in Mr. Shumann's house. Mr. Shumann acquiesced with Mr. Vitale's request. Mr. Vitale further testified that Mr. Shumann had nothing to do with the drug transaction, did not know there was a drug transaction taking place at the ABC Lounge until such time as he arrived and remained at the lounge for a period of time. Mr. Vitale further testified that Mr. Shumann was not to share in the cocaine or any expected profits from the sale of the cocaine. The drug transaction involved 500 grams of cocaine. The estimated retail value of the cocaine was $9,400.00. The money used to purchase the cocaine was in Noel Frederick Shumann's vehicle. Mr. Shumann was assessed on February 26, 1990, pursuant to Section 212.0505, Florida Statutes, for the delinquent tax, penalty and interest relating to the drug transaction which took place on February 17, 1990. The jeopardy assessment is a correct and proper assessment both as to form and content of an illegal drug transaction involving cocaine with the retail value of $9,400.00. Mr. Shumann does not contest the mathematical accuracy of the tax assessment nor the procedures followed in issuing the notice. Mr. Shumann has not paid the sales tax assessed and the amount claimed has not been paid by another on his behalf. Mr. Shumann asserts that the assessment is improper only because he was not personally involved in the illegal transaction and, therefore, committed no act to give rise to the tax. Consequently, he argues the assessment against him should be dismissed. Prior to February 17, 1990, Agent Cannon, an undercover narcotics investigator, was introduced to Frank Vitale. Mr. Vitale met Agent Cannon through a third party, a confidential informant, named Barbara Anderson. Ms. Anderson advised Agent Cannon that Mr. Vitale wanted to purchase cocaine. Ms. Anderson had known Mr. Vitale for some time prior to February 17, 1990. On some occasion prior to February 17, 1990, Mr. Vitale spoke to Ms. Anderson regarding his partner in the drug transaction. When Noel Frederick Shumann arrived at the ABC on February 17, 1990, Mr. Vitale introduced Mr. Shumann to Ms. Anderson as "his partner." Because he remained present during the activities that followed, and because he told Ms. Anderson that he was there to keep an eye on his money, Ms. Anderson presumed Mr. Shumann was the partner in the drug transaction to whom Mr. Vitale had earlier referred. When Agent Cannon arrived to complete the drug transaction, Mr. Vitale introduced Mr. Shumann to him as his partner but maintained he (Vitale) would be handling the deal. In fact, Mr. Vitale became very upset any time Agent Cannon attempted to speak with Mr. Shumann instead of dealing with him exclusively. At one point in time, Agent Cannon threatened to abort the transaction since Mr. Vitale would not let him count the money. The money, which was stored in Mr. Shumann's car at that time, was not counted until Mr. Shumann told Mr. Vitale to let Agent Cannon count the money. Mr. Shumann was aware that Mr. Vitale was attempting to purchase cocaine from Agent Cannon and was aware that the money to be utilized in that purchase was in his (Shumann's) car. During a second conversation, Mr. Shumann directed Mr. Vitale to weigh and test the cocaine to be purchased and to proceed with the transaction if the substance looked good. Mr. Vitale then left the lounge with Agent Cannon and proceeded across the street to the van where Agent Cannon's partner was located with the drugs. Following the exchange of the money for the cocaine, Mr. Vitale was placed under arrest and the MBI team converged. Subsequently, Mr. Vitale and Mr. Shumann were placed in a police patrol car that was wired to record their conversation. The taped conversation (Petitioner's exhibit 1) contains statements by Mr. Vitale to the effect that he knew the police were listening, that he was sorry to get Mr. Shumann into "this," and that Mr. Shumann should "put everything on me (Vitale)." During the counting of the money, the weighing and testing of the cocaine, and the sale and purchase of the cocaine between Agent Cannon and Mr. Vitale, Mr. Shumann remained in the lounge. Mr. Shumann continued to talk to Ms. Anderson even though he knew a cocaine transaction was proceeding, knew that he had been introduced as Mr. Vitale's partner, knew that the money for the transaction was stored first in his house then in his vehicle, and knew that the supplier (Agent Cannon) had sought authorization from him to count the money and complete the deal. It is wholly incredible to conclude that a disinterested party would have remained in the lounge throughout the foregoing events. Cocaine is a controlled substance as defined by Florida law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a final order confirming the notice of assessment and jeopardy findings and finding the amount due to be $10,575.00 plus interest (1% per month until paid). DONE and ENTERED this 5th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Petitioner submitted proposed findings in a form such that rulings cannot be entered. Petitioner summarized: the testimony of Chuck Cannon; the testimony of Mr. Shumann; the patrol car tape (Petitioner's ex. 1); the stipulated statements of facts submitted by the parties; the deposition of Vernon Taylor; and the testimony of Barbara Anderson. Such summaries did not present paragraphs with factual allegations in a form such that specific rulings can be made. Such summaries included argument, irrelevant information and comment on the evidence. Except as set forth in the findings of fact above, they must be rejected as not supported by the weight of credible evidence or as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent listed the stipulated facts submitted by the parties. They have been accepted and incorporated in the foregoing recommended order as findings of fact. As to the proposed findings of fact submitted by Respondent, which began on page 4 of the proposed order, the following specific rulings are given. Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that Mr. Vitale introduced Mr. Shumann to Ms. Anderson as his partner. It is not accepted that he specifically told Ms. Anderson that Mr. Shumann was his partner in this drug transaction. That factual conclusion has been reached based upon a preponderance of all evidence presented in this case. Paragraphs 11 through 20 are accepted. Copies to: Robert J. Buonauro 14 E. Washington Street Suite 602 Orlando, Florida 32801 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue This case is presented on the basis of a certain Notice to Show Cause/Administrative Complaint placed by the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco against Toney Hatfield McDonald Koenemann d/b/a McDonald's Liquor Store and Lounge. The Administrative Complaint contains the following allegations On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEBRA LYNN HART, at your licensed premises did unlawfully solicit or conspire with a B/M identified as DENNIS to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in violation of F.S. 893.13 to wit: F.S. 561.29. On or about January 10, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee at your licensed premises, to wit: DEBRA LYNN HART, did solicit Beverage Officer R. THOMPSON to buy her an alcoholic beverage, to wit: beer, said alcoholic beverage subsequently purchased by THOMPSON and given to DEBRA LYNN HART, in violation of F.S. 562.131. On or about January 13, 1981, you TONEY HARTFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or hour [sic] agent, servant, or employee, GWENDOLYN HENRY, at your licensed premises, did unlawfully sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer J. BATES, in violation of F.S. 893.13 to wit: F.S. 561.29. On or about January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMAN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws and/or your agent, servant, or employee, DEDRA LYNN HART, at your licensed premises did unlawfully criminally solicit or conspire with a B/M identified as "COOKIE" to sell and/or deliver a controlled substance, to wit: cannabis, to Beverage Officer R. THOMPSON in violation of F.S. 893.13 to wit: F.S. 561.29. Between January 10, 1981 and January 15, 1981, you, TONEY HATFIELD MCDONALD KOENEMANN, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:4-COP, your agent, servant, employee, did maintain a place to wit: your licensed premises at 15966-15974 N. W. 27th Avenue, Miami, Dade County, Florida, which is resorted to by persons rising controlled substances for the purpose of using these controlled substances, to wit: canabis and cocaine, or which place is used for keeping or selling them in violation of FSS[sic] 893.13(2)(a)5. within F.S. 561.29(1)(a). Between January 10, 1981 sod January 15, 1981, you, TONEY HATFIELD MCDONALD, D/B/A MCDONALDS LIQUOR STORE AND LOUNGE, licensed under the beverage laws, license #23-2362:40 COP [sic], your agent, servant, end/or employee, did keep or maintain a public nuisance on your licensed premises, to wit: maintaining a building or place which is visited by persons for the purpose of unlawfully using substances controlled under Chapter 893 (Florida Statutes as amended) or which is used for the illegal keeping, selling, or delivering of same, contrary to F.S. 823.10 and F.S. 561.29 (1)(c).
Findings Of Fact Having been charged with the allegations set forth in the Issues statement of this Recommended Order, which were brought by the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, the Respondent, Toney Hatfield McDonald Koeneman d/b/a McDonald's Liquor Store and Lounge, requested a Subsection 120.57)1), Florida Statutes, hearing. The formal hearing in this cause was conducted on May 15, 1981. This Recommended Order is being entered in furtherance of that hearing and after granting the parties an opportunity to offer memoranda of law, proposed findings of fact, conclusions of law and recommendations and in keeping with the schedule designed to effectuate that opportunity. 1/ The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is a regulatory agency within the State of Florida, which has among its functions, the licensure of individuals who sell alcoholic beverages in the State of Florida and the responsibility to discipline those several licenses, should the licensees violate the underlying regulatory statutes and rules. The Respondent, Toney Hatfield McDonald Koenemann, operates a business known as McDonald's Liquor Store and Lounge at a location on Northwest 27th Avenue, Miami, Dade County, Florida. Respondent is the holder of License No. 23-2363, Series 4-COP, issued by the Petitioner. This license allows the sale of alcoholic beverages at the business location for purposes of consumption off premises. At all times pertinent to the Administrative Complaint, the Respondent was the holder of that license. On January 10, 1981, Beverage Officers R. Thompson and Eddie Alford went to the licensed premises to determine if drugs were being sold or used at the licensed premises. When Thompson and Alford approached the front door to the licensed premises, they asked the man who was at the window in the vicinity of that door, how much it would cost to be admitted. The employee replied that the cost was $2.00. Thompson then asked this individual where they might obtain marijuana and the response was, "you ran get it back there," while pointing to the area in which the licensed premises were used as a discotheque club. This gesture made by the employee at the door was by one Rollins Donald, who was the bar manager. The officers entered the bar area to commence their surveillance: however, Officer Alford only stayed in the licensed premises for a period of approximately fifteen (15) minutes, after which time he left the building for fear that he had can recognized by persons in the bar. Alford was concerned that his identity not be revealed in view of the fact that the beverage officers were operating in an undercover capacity and when operating, law enforcement personnel do not wish persons to know their identity. This revelation would inhibit the investigation. While in the licensed premises, Alford did not observe any form of narcotics violation. Once Thompson had entered the licensed premises, he took a seat at the bar area where certain female dancers were performing a nude dance routine. The dancers were employees of the Respondent. One of those dancers was a person identified as "Debra." While at the bar, a conversation was held between Thompson and "Debra" and Thompson asked her to obtain marijuana for him. "Debra" walked over to a man in the licensed premises who was sweeping the floor and the man gestured with his head, after which time the dancer returned and said, "he didn't have any." "Debra" then left Thompson and returned with a second man and in the presence of "Debra" negotiations were held and Thompson bought a $7.00 quantity of marijuana, which is also known as cannabis sativa L. During the transaction, the non who was identified as "Dennis," left the licensed premises, and after returning, the transaction was concluded. On the same date, January 10, 1981, another team of investigators from the Beverage Division went to the licensed premises. These officers were Sergeants Allan F. Nash and James P. Bates. The officers entered the licensed premises and observed the dancing of the female employees, and undertook the investigation but did not observe any sale or use of narcotics. On January 13, 1981, Sergeants Nash and Bates returned to the licensed premises. The officers, upon entering the licensed premises, purchased beers from the bartender and were seated at a table inside the premises. They were approached by a dancer employed at the bar who identified herself as "Tiny." She asked them for money related to her dancing. Nash gave her $2.00 and Bates gave her $1.00. Bates asked the dancer where he might obtain "reefer," meaning marijuana. The dancer responded that he should give her $5.00. The dancer then left and spoke to a woman behind the bar and obtained a bag from that woman. "Tiny" returned to the officers and sold Bates the contents of the bag for a price of $5.00. The bag contained marijuana, also known as cannabis sativa L. While at the licensed premises on January 13, 1981, Sergeants Bates and Nash observed two men at the bar smoking cigarettes which had an aroma which the officers associated with burning marijuana, a substance which they had the sufficient expertise to detect when confronted with a similar aroma. The barmaid behind the bar where the men were seen to be smoking this material did not take steps to prevent this activity on the part of the men. On the evening of January 13, 1981, Sergeants Nash and Bates took no further steps to purchase narcotics in the bar after the purchase from the dancer "Tiny." Officer Thompson was also at the licensed premises on January 13, 1981. While in the bar proper, he observed a man and woman sitting in a corner of the bar. From that location he noticed a smell which had an odor similar to marijuana. The officer was familiar with the smell of marijuana. Thompson then went to the location of the man and woman and spoke to the woman and asked her if she knew where he might purchase some "coke," meaning cocaine. This woman then accompanied Officer Thompson to the restroom area, and after being introduced to a man identified as "Wallace" concerning the subject of the possible purchase of cocaine, Thompson negotiated with "Wallace" and purchased a quantity of cocaine in the amount of $25.00. "Wallace" then inquired of Thompson about a further purchase of cocaine and Thompson was amenable to that transaction. "Wallace" left the area of the licensed premises and returned and spoke with one of the employees of the bar, a barmaid named "Carrie." He then returned to Thompson and they went to the restroom area again and Thompson paid "Wallace" a price of $37.00 for an additional Quantity of cocaine Thompson then returned to the bar proper and soaks with the barmaid "Carrie" and asked her what she thought he had, referring to the cocaine, and she replied to the effect that she knew and for him to do what he wanted. This same "Carrie" had been at the bar on January 10, 1981, as an employee and Thompson had asked her about cocaine and she indicated that she had used cocaine before but did not use it at present. Officer Thompson returned to the licensed premises on January 15, 1981, in the company of Beverage Officer Ted Fagan. When entering the licensed premises, they spoke to the bar manager, Rollins Donald, and Thompson asked Donald if he wanted to smoke some "grass," meaning marijuana. Donald said that he did not "mess with it" but that "you can go back there," referring to the lounge area and Donald stated that if someone comes in, "I will let you know." Officer Thompson and Fagan then entered the licensed premises and sat in the northwest corner of the discotheque portion of the bar at a table where four or five females were located. One of those females was the individual "Debra" an employee in the licensed premises who worked as a dancer and who is the same "Debra" referred to before in this matter. There were other dancers employed in the licensed premises who were seated around the table. While at the table, cigarettes were passed around and smoked by those persons seated at the table, with the exception of the officers, and those persons included the dancers employed in the licensed premises and a barmaid employed in the licensed premises. The cigarettes that were being smoked had an aroma which was similar to burning marijuana and was identified by the two officers who have a knowledge in the identification of burning marijuana. Thompson, while seated at the table, struck up a conversation with "Debra" and asked her about purchasing marijuana. She then went to another table and returned with a man and after conversing with that man in the presence of "Debra," Thompson purchased marijuana for $6.00 paid to the man. This marijuana is also known as cannabis sativa L. Thompson had identified his request to "Debra" as being a request for "smoke." On the subject of bar management, the Respondent goes to the licensed premises four to six times a week. Visits which the Respondent makes to the licensed premises are during the daylight hours or from noon through the afternoon. She has instructed the manager Donald that she does not like to have narcotics in the lounge and to refuse the entrance of "undesirables." The business has a policy against the usage of drugs by employees. Persons who are employed by the licensed premises are asked if they use drugs and fired if they do. The manager, Rollins Donald, hires employees and after the incidents in question, fired all the employees at the licensed premises. The nude dancers were employed in the licensed Premises for a period of five to six months; however, following the instance of the current Administrative Complaint, the business no longer employs the nude dancers. The police have been contacted about drug violations in the past.
