Findings Of Fact During the month of September 1988, petitioner, David J. Caplan, agreed with, unbeknownst to him, a special agent with the Drug Enforcement Administration to secure and deliver to the agent 12 kilograms of cocaine for $16,500 per kilogram (kilo). On September 27, 1988, petitioner picked up one kilo of cocaine from his supplier and transported it in his vehicle to his residence. Within his residence, petitioner met with the agent and a confidential informant (CI), and delivered the one kilo of cocaine to the agent in exchange for $16,500. On September 28, 1988, following negotiations regarding the purchase of the balance of the cocaine, petitioner picked up two kilos of cocaine from his supplier, transported it by truck to his residence, and hid it in a garbage can adjacent to his garage. Upon the arrival of the agent and CI, petitioner removed the cocaine from the garbage can, and displayed it to the agent inside his residence. After examining the cocaine, the agent and CI left the residence under the announced intention of going to get the money for the purchase of the two kilos, and once away from the residence the agent gave the signal to other agents for petitioner's arrest. Upon arrest, petitioner cooperated with the agents, and directed them to the two kilos of cocaine, which he had hidden in the rafters of his garage. 1/ Subsequently, petitioner was charged and pled guilty to trafficking in cocaine. On February 21, 1990, respondent, Department of Revenue (Department), issued a Notice of Assessment and Jeopardy Findings which assessed a tax of $9,900, a penalty of $2,475, an additional penalty of $4,950, and interest of $1,589.25, together with interest thereon at the rate of $3.25 per day after February 21, 1990, against petitioner, pursuant to Section 212.0505, Florida Statutes. At petitioner's request, the Department reconsidered such assessment, and on May 7, 1991, issued a revised assessment against petitioner, assessing a tax of $9,900, a penalty of $2,475, and interest of $1,589.25, together with interest at the rate of $3.25 per day after February 21, 1990. The factual basis for the assessment was the petitioner's involvement in the cocaine transactions described in the foregoing findings of fact. Petitioner filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that the cocaine in question was not his, that he merely acted as a go-between for the agent and his supplier, and that he was therefore not involved in any sale, use or distribution of the subject cocaine. Moreover, with regard to the second transaction, which involved the two kilos of cocaine, petitioner contended that no liability for any tax could attach because the sale was not consummated, i.e.: petitioner had not yet actually exchanged the cocaine with the agent for the agreed purchase price. Petitioner's contentions regarding the limited nature of his involvement is contrary to the credible proof, and petitioner's contentions regarding the implications of that participation are contrary to the law, discussed infra. Succinctly, petitioner actively participated in the transportation, storage, distribution and sale of the cocaine, and he is subject to the implications of such activity under the provisions of Section 212.0505, Florida Statutes. Notwithstanding his active participation in the sale of the cocaine, petitioner averred at hearing that such participation was not voluntary. Rather, petitioner contended that his participation resulted from pressure asserted by a friend of long standing (Lupo) who, unbeknown to him, had become a confidential informant. 2/ According to petitioner, Lupo pressured him into locating a supplier of cocaine for the agent and CI involved in the subject transactions, as a consequence of hounding him for an old $1,600 debt petitioner had incurred for purchasing cocaine at a time he was addicted to the drug, and by an oblique remark the confidential informant made that "he knew my kid played outside," which petitioner averred he interpreted to be a threat to do something to his son. Petitioner's contention that his participation in the subject transactions was not voluntary or, stated differently, that he was entrapped, is rejected as contrary to the more credible proof. Here, the proof demonstrates that petitioner's motivation was financial and that he had a familiar relationship of long standing with Lupo and his ultimate supplier (Greenburg) which, coupled with the lack of sincerity and precision to his testimony, make his protestations of duress ring hollow. Regarding his financial motivation, the proof demonstrates that when approached by Lupo, petitioner was financially strapped, and stood to make $500 for each kilo he could deliver. Had the entire transaction been consummated for the agreed 12 kilos, petitioner stood to make a quick $6,000. Regarding the relationships that existed, the proof demonstrates that petitioner had been friends with Lupo and Greenberg for over twenty years, had actually lived with Greenberg for ten years, and that there was no apparent change in that relationship when he was approached by Lupo and introduced to the agent in this case. Considering the length of their relationship, and the lack of conviction in petitioner's testimony, it is concluded that petitioner's participation in this transaction was not compelled by any threat from Lupo, but by his own financial needs. In sum, the proof supports the conclusion that petitioner did engage in the unlawful sale, use, distribution, transportation or storage of cocaine as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of tax, penalty and interest set forth in its revised assessment was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order concluding that petitioner, David J. Caplan, is liable for taxes, penalties and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $13,964.25, plus interest at the rate of $3.25 per day from February 22, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March 1992.
Findings Of Fact At all times material hereto, Respondent, Cheryl A. Odom, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), having been issued certificate number 02-028628 on June 4, 1982. The collective bargaining agreement between the Opa-Locka Police Department and its uniformed officers provides for an annual physical examination and drug screen for the uniformed officers. On January 2, 1991, Respondent was told that her annual physical examination and drug screen would be on January 3, 1991. On January 3, 1991, Respondent, as part of her annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. On January 4, 1991, Respondent reported back to TTS to provide a second urine sample for analysis. Both urine samples provided by Respondent to TTS were collected, stored, handled, and tested pursuant to procedures and methods adopted by TTS. The procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable analysis of Respondent's urine samples. The instruments used by TTS to analyze the two urine samples involved in this proceeding were in proper working order at the times the samples were analyzed. GCMS is accepted, scientifically, and the results it produces are acknowledged to possess a 99.99 percent accuracy rate. The urine sample taken from Respondent on January 3, 1991, was screened twice by TTS using a machine that was calibrated to detect benzoylecgonine, a cocaine metabolite, at a level of 50 nanograms per milliliter. Dr. Hall testified that the City of Opa-Locka had instructed TTS to use a screening cutoff of 50 nanograms per milliliter. This is a relatively low screening cutoff. In comparison, the screening cutoff the Commission has adopted by Rule 11B-27.00225(3)(b), Florida Administrative Code, is 300 nanograms per milliliter. The first screening of the sample of January 3, 1991, detected a level of benzoylecgonine at a level of 113, while the second screening detected a level of 115. Because the screening for cocaine was positive, Respondent's urine sample was subjected to analysis using GCMS, which more accurately analyzed the urine sample than the screening device. Upon analysis by the staff of TTS using the GCMS, the sample taken from Respondent on January 3, 1991, proved positive for the presence of benzoylecgonine in a concentration of 166 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. The GCMS analysis of the urine sample taken January 3, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 3, 1991, had benzoylecgonine in her urine at a level of 166 nanograms per milliliter. On January 4, 1991, the Opa-Locka Police Department notified Respondent that "a trace of something" had been found in her urine sample and that she would have to be re-tested. Respondent was not notified at that time that the substance detected was the cocaine metabolite. Respondent freely and voluntarily accompanied Sergeant Edward Moore of the Opa-Locka Police Department to TTS on January 4, 1991, at approximately 6:00 p.m., and provided the second sample for analysis. The analysis of this second urine sample taken from Respondent on January 4, 1991, proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 90 nanograms per milliliter. The GCMS analysis of the urine sample taken January 4, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 4, 1991, had benzoylecgonine in her urine at a level of 90 nanograms per milliliter. The reduced concentration of the cocaine metabolite detected in the second urine sample is consistent with the concentration of 166 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. The results of the TTS testing demonstrates the presence of cocaine metabolite in Respondent's system, and, consequently, establish that Respondent ingested cocaine. These results do not, however, establish that the ingestion was knowing and unlawful. Petitioner relies on an inference that it asserts should be drawn from the positive test results to establish its assertion that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to-wit: cocaine and did introduce said substance into her body." There is no evidence, other than the test results, to establish this assertion. Dr. Hall testified that the levels of the cocaine metabolite detected in Respondent's urine samples could have been the result of unknowing passive inhalation of cocaine or the result of unknowing ingestion of cocaine by food or drink. In a heavy user, cocaine can be detected for up to 40 days following ingestion. In the case of a light user, the metabolite can be detected for up to ten days following ingestion. 1/ In response to the testing which revealed the presence of the cocaine metabolite in her urine, Respondent denied the knowing use of cocaine at any time. In determining whether this denial is credible, the undersigned has considered the testimony from the persons who have known Respondent for an extended period of time and the letters of commendation that were presented by Respondent without objection. From this evidence, it is found that Respondent is a person of good moral character who has respect for the law. Respondent has the ability to differentiate between right and wrong and the character to observe the difference. The evidence established that Respondent has a disdain for drugs that has been evident in her personal and professional life. There was other evidence that was considered in determining the credbility of Respondent's denial of knowing drug use. From the time of her certification through January 1991, Respondent submitted to periodic drug screens. All prior drug screenings during the course of her career were negative. Respondent had reason to believe that her annual physical examination, which included the drug screening, would be in January 1991 because the physical examination and drug screen for the years 1989 and 1990 were in January. It is doubtful that Respondent would have knowingly ingested cocaine if she had reason to believe that she would soon be subject to a drug screening. There was no evidence that Respondent used drugs, other than the test results, despite an internal investigation by the Opa-Locka Police Department following the positive testing in January 1991. From Respondent's initial employment as a police officer through her current employment, but for the incident in question, Respondent has consistently been recognized as a professional, loyal and dedicated police officer. During this service, she was frequently commended for her performance. Respondent could not explain how or when the cocaine may have gotten into her system. This inability to explain does not compel the conclusion that her denial of knowing and voluntary ingestion is to be discredited in light of Dr. Hall's testimony that the ingestion could have occurred days before the testing and been unknown to Respondent. It is concluded, based on the totality of the evidence, that Respondent's denial that she has ever knowingly taken drugs is credible. To sustain its burden of proof in this proceeding, Petitioner must establish that Respondent's cocaine use was knowing and unlawful. The fact that Respondent tested positive for cocaine ingestion, without the inference that the ingestion was knowing and unlawful, does not establish that Respondent lacks good moral character. Based on the evidence presented, including the Respondent's credible denial and Dr. Hall's testimony, the undersigned declines to draw the inference that Petitioner requires to sustain its burden of proof in this proceeding. 2/ Because the evidence in this proceeding failed to establish that Respondent unlawfully and knowingly ingested cocaine, the Petitioner failed to establish that Respondent lacks good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint filed against Respondent. DONE AND ENTERED this 8th day of August 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 8th day of August 1995.
Findings Of Fact At all times relevant hereto, Robert Moore, Jr., held a 2 COP License No. 39-00672 issued by the Division of Alcoholic Beverages and Tobacco (DABT) to operate The Cycle Lounge at 2818 D. Osborne Avenue, Tampa, Florida. (Exhibit 1) After receiving a report from the Tampa Police Department that the police believed cocaine was being sold in The Cycle Lounge, DABT brought in Agent Ray Thompson, a certified law enforcement officer and a ten-year employee of the Department, as an undercover agent to investigate the report. Thompson first visited The Cycle Lounge in the late afternoon on November 8, 1989. After seating himself at the bar and ordering a small beer, Thompson asked the bartender (later identified as Barry Atwood) if he knew where Thompson could get a 20 piece of crack. Atwood forthwith called a black male from the game room, who he called Bubba, and told Bubba that Thompson wanted to buy crack. Bubba took four or five "rocks" from his pocket for Thompson to select the one he wanted. Thompson did so and paid Bubba, subsequently known as Russ, $20. The purchase was later analyzed and determined to be cocaine. Thompson was in The Cycle Lounge a total of approximately 15 minutes between the time he entered, ordered and drank a beer, bought crack cocaine and departed. During his first visit, Thompson, a trained drug investigator, observed what appeared to be several transactions involving drugs in the lounge. Thompson returned to The Cycle Lounge on November 9, 1989, in the late afternoon and seated himself at approximately the same place at the bar he had occupied November 8, 1989. Atwood was behind the bar and appeared to be in charge of the operation of the lounge, and Bubba was in the pool room part of the lounge. Thompson again asked Atwood about crack and was told to go into the pool room to see Bubba. Thompson approached Bubba and again purchased crack cocaine for $20. At the time of this purchase, the noise level in the lounge was low as only the television was on, and the purchase was made with no effort at concealment or attempt to prevent others in the lounge from observing the transaction. Again Thompson was in the lounge a short time before departing. On November 10, 1989, at approximately the same time, Thompson returned to The Cycle Lounge; seated himself at the same place at the bar, behind which Atwood was managing the lounge; ordered a beer; and proceeded into the pool room where he bought a "dime" of crack cocaine for $10. At this time, he observed in the lounge a black male Thompson later identified as Robert Moore, Jr., the licensee. Thompson returned to The Cycle Lounge November 11, 1989, took his usual seat at the bar, ordered the usual beer, and was approached by Bubba while seated at the bar with Atwood behind the bar. After open negotiations, Thompson paid Bubba $10 for crack cocaine and shortly thereafter departed the bar. On November 15, 1989, Thompson entered The Cycle Lounge around 7 p.m. at which time he observed more people in the bar than had been there all week long. While going through the parking lot behind the lounge building, several people tried to sell Thompson marijuana and crack. Atwood was just outside the lounge playing checkers and appeared upset. When Thompson entered the lounge, Atwood followed and sold him a beer. Thompson then went into the pool room where he purchased crack cocaine from Bubba from whom he learned that Atwood was upset because other dealers were selling crack to his customers. When Thompson returned to the bar, Atwood asked if he wanted to buy something. Thompson returned to The Cycle Lounge on November 17, 1989, and observed Atwood selling crack cocaine. Shortly after Thompson arrived, the police raided The Cycle Lounge and made some arrests. During the period between August and November 1989, Louis Murray, a confidential informant (CI) employed by the Tampa Police Department, made several visits to The Cycle Lounge in company with another CI. Both CI's were transported to the vicinity of The Cycle Lounge by Tampa police detectives, searched to insure they had no contraband, and given money with which to buy cocaine in The Cycle Lounge. During August, Murray visited The Cycle Lounge twice. The first time, he observed the CI accompanying him purchase crack cocaine from Morris Moore, the brother of Robert Moore. On the second August visit, Murray purchased crack cocaine from Atwood. These purchases were turned over to the police when the CI's left the lounge. Murray, in company with another CI, made two visits to The Cycle Lounge in September and again in October. Each time one of the CI's purchased crack cocaine in the lounge in an overt, unconcealed manner. On at least one occasion Murray saw Robert Moore, Jr., in the lounge while cocaine was being openly sold. All of the buys made by the CI's were in an open area of the lounge, and on each visit they observed what appeared to be other drug transactions. The Tampa Police Department received several complaints about The Cycle Lounge and drug-related traffic to and from this place. Neighbors had complained about this traffic, and the lounge was well known as a place at which crack cocaine could be bought. As such, The Cycle Lounge was a public nuisance. Morris Moore, the brother of the licensee, was the manager of The Cycle Lounge before he was arrested for selling cocaine. He was replaced as manager by Grady Atwood. Respondent testified that he made no background investigation of Atwood before installing Atwood as manager at The Cycle Lounge. Respondent further testified that he spent only a short time each day in The Cycle Lounge after he opens up in the morning and that he never observed any drug deals in The Cycle Lounge. He further testified that he doesn't think Thompson saw him in the lounge while crack sales were being negotiated because the person he saw was probably his brother Morris who bears a striking resemblance to him.
Recommendation It is recommended that a Final Order be entered revoking the 2 COP licenses of Robert Brown, Jr., d/b/a The Cycle Lounge. ENTERED this 20th day of February, 1990, in Tallahassee, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1990. COPIES FURNISHED: Elizabeth C. Masters, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000 Joseph H. Ficarrotta, Esquire 600 Madison Street Tampa, FL 32602 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000 Stephen R. MacNamara Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32399-1000
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
Findings Of Fact Petitioner is the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Lillian Marie Reynolds, d/b/a Diamond Lil's, who currently operates under beverage license number 54-00573, Series 2-COP, at U.S. Highway #1, Lot #5, Big Coppitt Key, Monroe County, Florida. On August 7, 1986, the Monroe County Sheriff's Department and Petitioner began an undercover narcotics investigation entitled "Operation Sabre". As part of that investigation, two of Petitioner's beverage agents conducted surveillance of Respondent's licensed premises. On August 15, 1986, Petitioner's investigators, Deloach and Warner, entered this licensed premises. They met a patron known as "Ken" and discussed the purchase of marijuana. Subsequently, Ken sold Investigator Deloach approximately 3.4 grams of marijuana, in exchange for $10. This transaction occurred in plain view and took place in an open and notorious manner inside the licensed premises. On that same day Investigator Deloach was invited into the ladies' bathroom by two other patrons to use cocaine. He observed the patrons "snort" cocaine in the licensed premises. On August 16, 1986, Investigators Deloach and Warner reentered the licensed premises. Investigator Deloach was approached by the patron Ken regarding the sale of marijuana. During the conversation, Ken displayed a marijuana cigarette in plain view. Later in the evening, the investigators were approached by Steve Anderson, a member of the band that played at Diamond Lil's. Anderson discussed future sales of marijuana to the investigators. Anderson then sat on the floor just inside the front door of Diamond Lil's, rolled a marijuana cigarette, lit it, smoked it, and passed it to Investigator Deloach who simulated smoking it. On August 18, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Respondent's son Kevin Blackburn was acting as the bartender/manager. The investigators were approached by Steve Anderson, who inquired whether they would be interested in purchasing some marijuana or cocaine. In response thereto, Investigator Deloach handed Anderson $10 for the purchase of some marijuana. However, Anderson later returned Investigator Deloach's money and stated that his supplier was not at home. On that same day the investigators approached Kevin Blackburn to inquire as to whether he could get them cocaine or marijuana. In response thereto, Blackburn stated that he had been on a "three day buzz" and that there were no drugs available at this time. The term "three day buzz" is a slang term which is generally understood to mean a narcotics-induced euphoria. Investigator Deloach also asked Blackburn to advise him when drugs became available. On August 19, 20 and 21, 1986, Investigators Deloach and Warner returned to the licensed premises. No actual drug purchases were made on these occasions; however, the investigators had loud conversations with Steve Anderson relative to the purchase of cocaine and marijuana. On August 22, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, the licensee and her son were sitting at the bar, facing the investigators, in the vicinity of a patron known as "Jackie Francesia". While at the bar, Investigator Deloach asked Jackie Francesia if he could purchase some cocaine. In response, Jackie Francesia sold Investigator Deloach one-half (1/2) gram of cocaine for $35. This transaction occurred in plain view and took place in an open and notorious manner, some fifteen feet from the licensee and her son. On August 25, 1986, Investigators Deloach and Warner returned to the licensed premises. Investigator Warner met with band member Steve Anderson to inquire as to the availability of marijuana. Anderson stated that he did not have any but that he would check in the bar for some. Anderson then left the immediate vicinity of Investigator Warner and approached Kevin Blackburn, who was tending bar. Investigator Warner observed Kevin Blackburn talking with Anderson and pointing out another patron, who was seated in the premises. Anderson went directly to that patron and spoke with the patron. Shortly thereafter, Anderson returned to Investigator Warner and told her that the cocaine was available but that his motorcycle was not running. Also on this date, the investigators observed three patrons standing just outside the main entrance of the licensed premises, smoking marijuana. On August 26, 1986, Investigators Deloach and Warner returned to the licensed premises. On this occasion, Kevin Blackburn was working behind the bar in a managerial capacity. The investigators met with Jackie Francesia to inquire as to the availability of cocaine. In response, Francesia handed Investigator Warner one-half gram of cocaine in exchange for $35. This transaction occurred in plain view and took place in an open and notorious manner in the licensed premises. After the cocaine delivery, Investigator Deloach approached Investigator Warner at the bar of the licensed premises and held out his wallet in full view of several patrons and Kevin Blackburn. Investigator Warner removed the cocaine from her pants pocket, held it up in plain view of Kevin Blackburn and placed it in Investigator Deloach's wallet. Subsequently, Investigator Deloach approached Kevin Blackburn and told him that he had just purchased cocaine from Jackie Francesia at the bar. In response thereto, Kevin Blackburn voiced his approval of the narcotics transaction occurring on the licensed premises. On August 28, 1986, Investigators Deloach and Warner returned to the licensed premises. Again, Kevin Blackburn was tending bar. The investigators approached Steve Anderson in the presence of Kevin Blackburn to inquire as to the availability of cocaine. Anderson stated that a patron known as "Miguel Vasguez" had some in his possession. Investigator Deloach then gave Anderson $40 for the purchase of cocaine. Anderson left the immediate vicinity of the investigators and returned shortly thereafter with one-half gram of cocaine. He then handed the cocaine to Investigator Deloach. This transaction occurred in plain view and took place in an open and notorious manner on the licensed premises. After taking delivery of the cocaine, Investigator Deloach again approached Kevin Blackburn and told him that he had just purchased cocaine in the licensed premises. Kevin Blackburn again acknowledged his approval of the narcotics transaction. In addition to being the licensee of record in the instant case, Lillian Marie Reynolds operates another premises which has an alcoholic beverage license and at which business she spent almost all of her time. Sometime prior to the commencement of "Operation Sabre", Reynolds turned over the management of Diamond Lil's to her son Kevin Blackburn. Although Reynolds was only present during one of the drug transactions described above, Blackburn was present during most of the others. Neither Reynolds nor Blackburn voiced any disapproval of the drug transactions taking place in Diamond Lil's. Furthermore, Reynolds admitted she had given no specific directions to her son regarding prohibiting drug use or transactions in the premises even though she had told the Sheriff prior to "Operation Sabre" that drug dealing might be taking place in Diamond Lil's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Notice to Show Cause and assessing a civil penalty against Respondent in the amount of $5,000. DONE and RECOMMENDED this 4th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2095 Petitioner's Proposed Findings of Fact numbered 1-14 and the first two sentences of finding numbered 15 have been adopted verbatim or in substance in this Recommended Order. The remainder of finding numbered 15, however, has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's Proposed Findings of Fact numbered 1, 2, and 4-7 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Respondent's Proposed Findings of Fact have been rejected as follows: 3 and 9 as being immaterial to the issues under consideration herein; 12 as being contrary to the evidence in this cause; and 8, 10, 11, and 13 as not being supported by the evidence herein. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 John P. Rotolo, Esquire 627 Whitehead Street Key West, Florida 33040 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The petitioner, Albert Charles Harris, is also known as Bert or Albert Harris. During the month of July, 1986, Petitioner was employed to copilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing 460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States. Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes. Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The "mission" of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida. Petitioner did not own the substance transported. Petitioner's employers did not own the substance transported. Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida. Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986. The street value of cocaine in the Miami area in July, 1986 was $35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the tax warrant and jeopardy assessment filed against Albert Charles Harris be affirmed. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988. COPIES FURNISHED: Douglas Stratton 505 Lincoln Road Miami Beach, Florida 33139 William Watson and Jeffrey Dikman Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Sam D. Alexander Executive Director 102 Carlton Building Tallahassee, Florida 32399-0100 William D. Townsend General Counsel 104 Carlton Building Tallahassee, Florida 32399-0100 =================================================================
The Issue Whether the Respondents, ORLANDO MULKEY and LORETTA MULKEY, d/b/a SONNY'S SERVICE CENTER, should have their alcoholic beverage license suspended or revoked.
Findings Of Fact The Respondents ORLANDO MULKEY and LORETTA MULKEY hold Beverage License No. 36-00019, Series No. 2-APS for the premises known as SONNY'S SERVICE CENTER located at 635 and 637 Alabama Avenue, Clewiston, Florida. On July 14, 1987, the Respondent ORLANDO MULKEY was adjudicated guilty of the offense "Sale of a Controlled Substance, Cocaine" in Circuit Court Case No. 87-59 in Hendry County, Florida. Although the specific statute number was not set forth in the judgment and sentence as suggested in the uniform judgment and sentence found in Rule 3.986, Rules of Criminal Procedure, it appears that ORLANDO MULKEY was found guilty of a felony under Section 893.13(1)(a) and Section 893.03(2)(a)4, Florida Statutes. This finding is based upon the length of the probation term (5 years) and the written description of the offense in the judgment. The judgment and sentence were a result of a criminal offense which took place on November 13, 1986. During the hearing, after receiving instruction from the Hearing Officer concerning his Constitutional right against self-incrimination, which he appeared to understand, ORLANDO MULKEY admitted to possessing crack cocaine on the premises of SONNY'S SERVICE CENTER on November 13, 1986, during his management shift. ORLANDO MULKEY and LORETTA MULKEY conducted business in SONNY'S SERVICE CENTER on different shifts. LORETTA MULKEY was not aware that ORLANDO MULKEY, her co-licensee, was using crack cocaine. She was not aware that he had crack cocaine in his possession on the licensed premises during his shift. As the managerial and supervisory responsibilities were divided between the co- licensees on the basis of their respective shifts, LORETTA MULKEY, had no connection with any drug related activities. On June 18, 1987, ORLANDO MULKEY quitclaimed his interest in the real property where SONNY'S SERVICE CENTER is located to LORETTA MULKEY. Although ORLANDO MULKEY and LORETTA MULKEY are co- licensees, there is no evidence in the record to establish that a legal entity relationship exists between the MULKEYS in the conduct of business as SONNY'S SERVICE CENTER.
The Issue Whether Respondent has been guilty of gross immorality or an act involving moral turpitude and/or guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.
Findings Of Fact At all times relevant hereto, Marilyn Joan Pelaez held Florida Teacher's Certificate No. 463945 covering the subjects of elementary and secondary physical education and secondary English. On February 20, 1989, while returning home from a party, Respondent became disoriented, sleepy and was in a section of Tampa of which she was not familiar. She pulled her car off the road and into the driveway of a business establishment (Cox Lumber Company) and went to sleep. Some time thereafter Deputy Sheriff Bradley Sanderson, on patrol, observed the parked car and, following standard procedures, stopped his vehicle to investigate. Upon approaching the car, he observed Respondent apparently asleep. He rapped on the windshield, Respondent awakened and opened the car door on the driver's side. When the door was opened, Deputy Sanderson saw what appeared to be drug paraphernalia in the pocket of the door and seized the "pipe". Although this pipe was offered into evidence, it was not accepted. In lieu thereof, a description of the "pipe" was read into the record. This paraphernalia seized is used for "snorting" cocaine rather than smoking it. The pipe was tested on the scene, and traces of cocaine were found in the pipe. Respondent was forthwith arrested for possession of drug paraphernalia and cocaine and transported to the sheriff's office. She was subsequently brought to trial on charges of unlawful possession of cocaine and having in her possession drug paraphernalia with intent to use to ingest unlawful drugs (Exhibit 1). Respondent pleaded nolo contendere to these charges, adjudication of guilt was withheld, and Respondent was placed on probation for one year (Exhibit 2). Respondent readily acknowledged the above facts but contends, without contradiction, that she did not own the "pipe" found in the car door pocket and was unaware that the instrument had been left there by an unknown person. She admitted that she was careless in not locking her car, but acknowledged that the car had been left unlocked and outdoors all weekend. Respondent further testified that she had never used cocaine since experimenting with it in college, and that she requested the officers who arrested her to test for cocaine in her system, and they refused. Had this not been true, the officers who arrested Respondent were present, heard the testimony and were available to rebut this evidence. The deputy who was called in rebuttal reinforced Respondent's testimony that she had opened the door immediately upon being aroused and did not try to close the door when he saw and reached for the pipe. Respondent pleaded nolo contendere because she had no defense to the charge that drug paraphernalia had been found in her car and, therefore, in her possession, and that plea would get her probation rather than a possible prison sentence if she contested the charges. No evidence was presented that Respondent's arrest had received wide publicity in the Hillsborough County School System, nor was other evidence presented respecting Respondent's effectiveness in the school system subsequent to her arrest.
Recommendation It is recommended that the charges contained in the Administrative Complaint dated June 19, 1989, against Marilyn Joan Pelaez be dismissed. ENTERED this 31st day of May, 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 31st day of May, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except for the following. Respondent became lost when she was fifteen minutes driving time from her home. Inconsistent with H. O. Finding #2. 9. Rejected as unsupported by the evidence. 18. Accepted as modified by H. O. #11. 21-24. Rejected as beyond the allegations contained in the Administrative Complaint. 25. Accepted insofar as included in H. O. #8. COPIES FURNISHED: Steven G. Burton, Esquire Post Office Box 3273 Tampa, FL 33601-3273 Marilyn Joan Pelaez 13809 Fletcher's Mill Drive Tampa, FL 33613 Karen B. Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399 Martin Schaap Administrator Professional Practices Services 325 W. Gaines Street, Room 352 Tallahassee, FL 32399 Mark Herron, Esquire 216 S. Monroe Street Suite 300 Tallahassee, FL 32301 =================================================================
Findings Of Fact Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old. Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed. Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared. Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams' money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash. After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient. In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style. In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances. Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused. During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex. In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams. Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs. On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced. Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances. On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection. Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license. On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finding the Respondent guilty of violations of Florida Statutes 561.29(1)(a) and 561.29 (1)(c), that respondent be fined $1,000.00 and that his beverage license be suspended for a period of six (6) months or until payment in full of the $1,000.00 fine, whichever last occurs. RECOMMENDED this 5 day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9575 FILED with the Clerk of the Division of Administrative Hearings this 5 day of September, 1984.
