Findings Of Fact At all times material hereto, respondent, Reyes P. Ramos, 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 (Department), having been issued certificate number 19-83-002-05 on October 29, 1983. On January 30, 1990, respondent, as part of his 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. Upon analysis, the sample taken from respondent proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 55 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. On February 5, 1990, the Opa-Locka Police Department notified respondent that the analysis of his urine sample had proved positive for the presence of cocaine, a controlled substance. In response, respondent offered to provide another sample for further analysis. Later that day, February 5, 1990, respondent provided a second sample of urine to TTS to be analyzed for the presence of controlled substances. Upon analysis, the second sample also proved positive for the presence of the cocaine metabolite, benzoylecgonine, but this time at a concentration of 9.2 nanograms per milliliter. Such reduced concentration is consistent with the initial concentration of 55 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. In concluding that the urine samples respondent gave proved positive for the presence of cocaine metabolite, careful consideration has been given to the collection, storage and handling procedures adopted by TTS, as well as its testing methods. In this regard, 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 measure of the concentration of cocaine metabolite in the body. 1/ While the testing demonstrates the presence of cocaine metabolite in respondent's system, and therefore the presence of cocaine, it does not establish how ingestion occurred. 2/ It may be reasonably inferred, however, that such ingestion was proscribed by law, absent proof that the subject drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained. In response to the testing which revealed the presence of cocaine metabolite in his urine, respondent credibly denied the use of cocaine, and offered the testimony of a number of witnesses who know him well to lend credence to his denial. Those witnesses, who also testified credibly, observed that respondent is a person of good moral character who, among other qualities has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and could be relied upon in a position of trust and confidence. Moreover, from the testimony of those witnesses who have known respondent for an extended period of time, commencing well prior to the incident in question, it may be concluded that, in their opinions, it is the antithesis of respondent's character to have ingested or used cocaine. Apart from his denial, respondent offered two possible explanations for the presence of cocaine in his system: (1) that, during the week of January 18, 1990, he had been in contact with four to five K-9 training aids, which contained pseudo-cocaine, while cleaning out his dog's possessions, and (2) that he had been in contact with 10 bags of rock cocaine, during the course of duty, in the early part of January 1990. As to the first explanation, the proof demonstrates that respondent was, and had been for some time, a canine officer with the City of Opa-Locka Police Department, and had a dog named "Eagle" as his partner. "Eagle" was a cross-trained drug and work dog. In or about September 1988, respondent and his dog attended narcotic detection training through the Florida Highway Patrol, and received training aids, which contained "pseudo-cocaine," for use in training dogs in the detection of cocaine. These aids were comprised of newborn baby socks, inside of which was placed pseudo-cocaine. The socks were then closed at the top with rubber bands and placed inside a folded towel, which was then rolled and taped. According to respondent, he continued to use these aids 2-3 times a week, after leaving the Florida Highway Patrol course, to keep his dog proficient. Eagle died in early January 1990 and, according to respondent, the week of January 18, 1990, respondent cleared a number of items that were used in the care or training of Eagle from a small aluminum shed in his back yard. Among those items were the training aids, which contained pseudo-cocaine. According to respondent, he disposed of the training aids by cutting the tape from the towels, removed the sock, and then shook the pseudo-cocaine into a trash can, which caused some residue to become airborne and contact him. Respondent's counsel theorizes that such contact with the pseudo-cocaine, as well as the possibility that some residue could have been lodged under respondent's fingernails, when coupled with the fact that respondent occasionally bites his nails, could be an explanation for the positive reading respondent received. Notably, respondent offered no proof at hearing, through representatives from the Florida Highway Patrol or otherwise, as to the chemical composition of the pseudo-cocaine. Under such circumstances, there is no showing of record that the pseudo-cocaine could have resulted in the positive reading he received, and it would be pure speculation to conclude otherwise. As to respondent's second explanation, that in early January 1990, during the course of duty, he had been in contact with 10 bags of rock cocaine, it likewise does not provide a rational explanation for his positive test results. Notably, according to respondent, that rock cocaine was bagged and, necessarily, he would not have had physical contact with the substance. Moreover, even if touched such would not explain its ingestion, and, considering the lapse of time from the event and his testing, is not a rational explanation for the source of his positive results. While the explanations respondent advanced at hearing were not persuasive, such does not compel the conclusion that his testimony is to be discredited. Indeed, if respondent never used cocaine, it is not particularly telling that he could not offer a plausible explanation for what he perceived to be an aberration. Here, while the results of the urinalysis point toward guilt, respondent's credible testimony, the character evidence offered on his behalf, and respondent's employment record suggest otherwise. With regard to respondent's employment history, the proof demonstrates that respondent was on active duty with the United States military from 1966 until 1972, and with the Florida National Guard (FNG) from 1974 until 1983. Prior to reverting to an inactive status with the FNG, respondent attended and graduated from the Southeastern Institute of Criminal Justice, a police academy, and was thereafter certified as a law enforcement officer. Following certification, respondent was employed by the Village of Indian Creek as a police officer for one year, and from January 1985 until his severance in 1990 as a police officer with the City of Opa-Locka. Currently, respondent is employed by the FNG, with the rank of Sergeant First Class, as a military criminal investigator assigned to counter drug programs for the Department of Justice. From respondent's initial employment as a police officer through his current employment, but for the incident in question, respondent has consistently been recognized as a professional, loyal and dedicated police officer who has also dedicated substantial personal time and resources to community service. During this service, he was frequently commended for his performance, and he has further demonstrated dedication to his profession through continued training in the law enforcement field. Among those who testified on his behalf, and spoke approvingly of respondent's good moral character, were Christina Royo, a sworn law enforcement officer with the Florida Department of Law Enforcement, and Alejandro Suarez, a Sergeant First Class with the United States Military, employed as a criminal intelligence analyst, and currently attached to respondent's FNG unit. Each of these witnesses are employed in positions of trust involving sensitive areas of law enforcement, and have known the respondent well for over fifteen years. In their opinions, which are credible, respondent enjoys a reputation reflecting good moral character and, it may be gleamed from their testimony, the use of controlled substances by respondent would be most uncharacteristic. Given the nominal amount of cocaine metabolite disclosed by testing and the credible proof regarding respondent's character, the inference that would normally carry petitioner's burden following proof of a positive test for cocaine metabolite, that such finding reflected the unlawful ingestion of cocaine, cannot prevail. Rather, considering the proof, no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results. Accordingly, such results, standing alone, do not support the conclusion that respondent unlawfully ingested cocaine or that he is lacking of 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 in Tallahassee, Leon County, Florida, this 24th day of March 1995. 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 24th day of March 1995.
The Issue Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did sell marijuana (cannibas) to an employee, agent or servant of the Clearwater Police Department, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did possess marijuana (cannibas) in excess of five (5) grams with the intent to sell same, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess over five (5) grams of marijuana (cannibas), in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess gambling paraphenalia, in violation of the gambling laws, to-wit: Subsections 849.09(1)(k) and (2), Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact Marvin and Flossie Jones, husband and wife, are the holders of license No. 62-383, Series 2-COP, as held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license entitles the Joneses to sell beer and wine for consumption on or off their licensed premises which is located at 1104 North Greenwood Avenue, Clearwater, Florida, where the Respondents trade as Marvin's Beer and Nine. The Respondents are here charged by the Petitioner through a Notice to Show Cause/Administrative Complaint with' violations whose particulars are set forth in the issues statement of this Recommended Order. In consideration of this dispute, a formal hearing was held on February 27, 1980. The facts reveal that on May 17, 1979, one Henry Irving entered the licensed premises and purchased 5.2 grams of marijuana (cannibas) by weight, from the Respondent, Marvin Jones. At that time Irving was acting as an operative for the Clearwater Police Department, Clearwater, Florida, and while in the licensed premises, Irving paid Marvin Jones $20.00 for this purchase of marijuana (cannibas). The money that was paid was money provided by the Clearwater Police Department. On June 6, 1979, acting under the authority of an arrest warrant, officers of the Clearwater Police Department arrested the Respondent, Marvin Jones, based on the sale of marijuana (cannibas) which he had made to Henry Irving. In making a search of Marvin Jones incidental to the arrest, two manila envelopes were found in Marvin Jones's sock and these envelopes contained marijuana (cannibas), the weight of that marijuana (cannibas) in the aggregate was 4.2 grams. The Respondent Jones was given his statement of rights in accordance with Miranda and after receiving those warnings, Jones stated that it was his practice to buy marijuana (cannibas) in amounts of a pound or two pounds and he in turn sold it in small amounts to adults. He further stated that he had purchased marijuana (cannibas) on mere than one occasion. In searching Marvin Jones, the officers also discovered $400.00 in cash and a number of slips of paper with numbers on them. Those slips of paper were explained by Jones to be numbers or combinations of numbers for dogs running at pari-mutuel races in Sarasota, Florida, and they were numbers which persons wished to have bet for them. Of the $400.00 found on the Respondent, Jones indicated that $50.00 of that money was for placing bets at the race track in particular for daily doubles races in the pari-mutuel events. He further stated that he would place the bets himself or have someone place them for him.
Recommendation Upon the consideration of the facts herein and these matters in aggravation and mitigation, it is RECOMMENDED that the license No. 62-383, Series 2-COP, held by the Respondents, Marvin and Flossie Jones, be REVOKED. DONE AND ENTERED this 26th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Douglas Prior, Esquire CAMPBELL AND PRIOR, P.A. 205 South Garden Avenue Clearwater, Florida 33516
The Issue Should Petitioner discipline Respondent for his alleged involvement with a drug transaction based upon Respondent’s failure to maintain good moral character?
Findings Of Fact Petitioner licensed Respondent as a corrections officer on September 18, 1987. He holds corrections certificate number 81237. Respondent was employed as a corrections officer with the Sumter Correctional Institution from December 3, 1993, through June 9, 1994. In August, 1993, Respondent was the subject of a law enforcement investigation in which the DEA was the lead investigating agency. The investigation also involved Florida law enforcement agencies. The principle law enforcement personnel responsible for the investigation were certified in Florida. Investigation took place in Bradford County, Florida. The arrangement involved in the investigation was one in which Angel Allen, a police officer with the University of Florida police department, together with a confidential informant, contacted Respondent for purposes of purchasing drugs. The initial contact between Officer Allen, the confidential informant and Respondent was made on August 10, 1993. They met at a convenience store in Starke, Florida. At that time the confidential informant, who was known to the Respondent, introduced Officer Allen who was using an assumed name. Respondent then instructed the confidential informant to follow him. The parties went to a residential location off Lawtey Road. Respondent was in his vehicle, Officer Allen and the confidential informant followed in the confidential informant’s vehicle. Respondent entered the residence and passed another person who was coming out of the residence. The other person said to Respondent “I don’t know where its at.” Respondent entered the residence and then came back out and got into the car driven by the confidential informant. He sat next to Officer Allen on the passenger side. Respondent told the driver to proceed to the end of the block, and make a left, and then another left, and stop where a subject was standing on the street. Respondent then rolled down the window and spoke to a man who was standing there. Respondent used several names in referring to the individual during the conversation that ensued. Respondent instructed that individual to go around to the drivers side. When the individual reached the drivers side the confidential informant asked him how much an “eight ball” was, that is a street term referring to a certain amount of powdered cocaine. The man replied “two.” This refers to $200. The confidential informant handed the man $200. In turn the man gave the confidential informant a small plastic bag containing 2.406 grams of cocaine hydrochloride total net. The drug transaction took place in Respondent’s presence. Once purchased the confidential informant showed the cocaine to Respondent and asked if the drug seller had done her right. Respondent replied “yes.” The parties then returned to what was believed to be Respondent’s residence and he exited the vehicle. On August 17, 1993, further contact was made between Officer Allen, the confidential informant and Respondent. Respondent was reached through his pager. He returned the call to Officer Allen and the confidential informant and instructed them to come by his house in Starke, Florida. The purpose of the contact with Respondent was to purchase additional cocaine. When Officer Allen and the confidential informant arrived at Respondent’s house he entered their vehicle and sat next to Officer Allen and directed the confidential informant to the same location where the cocaine had been purchased on August 10, 1993. When the parties arrived at that location there was a person on a bicycle. The bicyclist came to the drivers side and Officer Allen gave the bicyclist $200, in return for cocaine which the bicyclist handed to the confidential informant, who in turn handed it to Officer Allen. Again the transaction took place in full view of Respondent. During this transaction Respondent made some comment to the effect of getting together with Officer Allen and the confidential informant and partying with them and having a “blow-out.” Respondent said that he had been “staying away from the stuff” referring to the cocaine, but that he would like to get together with the confidential informant and Officer Allen and have a “blow-out” in a couple of weeks. The bicyclist was the same person who had sold the parties drugs on August 10, 1993. On August 17, 1993, Respondent referred to that individual as “Frank,” a name that he had used in referring to the drug seller on the previous occasion. Respondent on this occasion stated that “Frank is good guy.” Respondent said that “Frank” was an up front guy and that he would make it right if it wasn’t right, referring to the cocaine if it wasn’t the correct amount, that “Frank” would make it the right amount of cocaine. After the transaction, Officer Allen and the confidential informant drove Respondent to what was believed to be his residence. The item that was purchased from “Frank” on August 17, 1993, was cocaine hydrochloride, 1.848 grams total net. Following these events, Respondent voluntarily gave a statement to Michael F. Page, Regional Inspector Supervisor with the Florida Department of Corrections, in which Respondent admitted being involved in the drug transactions. The statement was taken through a taped interview. In this statement, Respondent acknowledged knowing the drug seller “Frank” and that “Frank” was a person who sold drugs in the neighborhood. Respondent also admitted that he knew the purpose of the visits to the neighborhood was for the confidential informant to obtain drugs and that he took the confidential informant to a place where drugs were dealt. Respondent’s comment’s during the interview in which he said that his reason for accompanying Officer Allen and the confidential informant in purchasing drugs was to protect the confidential informant given the nature of the neighborhood, does not excuse Respondent’s conduct.
Recommendation Upon consideration of the fact finds and the conclusions of law reached it is RECOMMENDED that a final order be entered which revokes Respondent’s correction certificate number 81237.DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Simon L. Mitchell Route 3, Box 334 Starke, FL 32091 Simon L. Mitchell Post Office Box 63 Starke, FL 32091 A. Leon Lowry, II, Director Department of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue Is Petitioner entitled to exemption from disqualification by law with regard to working in a position of special trust and responsibility related to children, disabled adults, and elderly persons?
Findings Of Fact Petitioner is disqualified from working in a position of special trust because of: a 1990 conviction of cocaine possession, a 1990 conviction of sale of a counterfeit substance, two 1992 convictions for possession of cocaine, and conviction of a 1992 charge of failure to appear. Prior to these criminal convictions, Petitioner had worked as a mail carrier. Petitioner explained that the drug convictions really revolved around residue found on paraphernalia in his possession. He offered no explanation as to how this detail diminished the gravity of his conduct. After Petitioner's conflict with law enforcement and his release from subsequent incarceration in the state prison system, he has earned a bachelor's degree in social work. He is presently applying for admission to graduate school at Florida State University to work toward a master's degree in his chosen field of social work. Petitioner presently works with his church and with inmates at the correctional facility in Wakulla, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 9th day of June, 1999, in Tallahassee, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1999. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Andrew C. Greene Apartment K-103 2125 Jackson Bluff Road Tallahassee, Florida 32304 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1992.
Findings Of Fact At all times relevant hereto, respondent, Charles P. Williams, was a counselor at South Miami Heights Elementary School (SMHES) in Miami, Florida. He was under a continuing contract with petitioner, School Board of Dade County (Board). Respondent has been a teacher or counselor in the school system since 1967. On August 19, 1987 the Board voted to dismiss Williams without pay effective that date for "immorality and misconduct in office." The action stemmed from respondent being arrested in May, 1987 and charged with possession of cocaine, a felony. A Notice of Specific Charges was later issued on November 30, 1987 setting forth the charges in greater detail. On the evening of Friday, May 22, 1987 the City of Miami Police Department assigned a special task force unit known as the Street Narcotics Unit (SNU) to conduct a reverse sting operation in an area of the city where narcotics were being sold. In such an operation, the police officers became the sellers of drugs and then arrested their customers. On this day, SNU selected the area around 15th Avenue and 68th Street, a "known narcotic area" of the city. The officers took over the complete block and "moved out" all known sellers and lookouts. The officers wore baggy street clothes and were given cocaine rock, powder cocaine and marijuana to sell to buyers. They also carried weapons and a badge, both hidden. One officer was Sharon Troy who was assigned the job of "selling" drugs on the east side of 15th Avenue and 68th Street. Officer Troy is an experienced officer who has participated in some ten to fifteen sting operations and has made approximately 150 to 200 arrests. Around 10:58 p.m. that evening, Officer Troy was approached by respondent who happened to be in the neighborhood. Williams asked Troy where he could find some narcotics. She replied, "Well, what do you want?" Williams said "cocaine." When offered a choice between rock and powder cocaine, Williams chose "rock." Officer Troy then sold him two "rocks" for $20 cash. After the exchange of money and drugs took place, Officer Troy identified herself as a police officer and arrested Williams. She immediately placed the $20 cash and the two rocks in an empty pocket. Williams was escorted by Officer Troy and another officer to a nearby apartment complex that had been converted into a temporary holding area. At the holding area, Officer Troy elicited certain information from Williams and filled out an arrest affidavit received in evidence as petitioner's exhibit 4. The money and drugs were placed in an envelope, the envelope was sealed with tape, and Officer Troy placed her name, the contents and the arrestee's name on the outside of the envelope. The envelope was then placed in an evidence box which was carried to the property unit of the Police Department. Williams was transported from the holding area to the Metro-Dade jail where he was fingerprinted, photographed and placed in a small cell with approximately twenty to thirty other arrestees. He remained there until Monday morning. After the evidence was taken to the property unit, Officer Troy retrieved the envelope, broke the seal and placed the money and drugs into two separate envelopes. The envelopes were resealed with evidence tape and given to the property specialist who placed them in the vault. The sealed envelope with the drug was not broken until the contraband was hand- delivered to the Metro- Dade laboratory on September 9, 1987. There, a Metro-Dade criminalist tested the substance and determined the rocks contained 0.2 grams of cocaine, a controlled substance. The envelope was resealed and remained in that posture until final hearing. The seal on the money bag was not broken until the bag was opened in the undersigned's presence at final hearing. Therefore, it is found that the chain of custody was not broken between the time of the arrest and the submission into evidence of the money and drugs. A few days after respondent's arrest, a Metro-Dade social worker heard a radio news report on a Spanish radio station, WQBA, concerning the arrest of an unnamed SMHES counselor. At SMHES, a few secretaries made comments about respondent's arrest and most of the faculty asked the principal about the matter. There was no television or newspaper commentary on the arrest nor was there any indication that students, parents or other community members were aware of the same. According to Dr. D. Patrick Gray, who has been accepted as an expert in the area of ethics and professional standards for educators, respondent's effectiveness as a counselor and employee of the Board has been seriously impaired by virtue of his arrest for possession of cocaine. This opinion was echoed by the school principal. It was also Dr. Gray's opinion that respondent has violated the standards of ethical conduct of the teaching profession. More specifically, Dr. Gray opined that Williams failed to maintain the respect and confidence of his colleagues, students, parents and other community members. Both at hearing and at a conference for the record, respondent denied that he purchased the drugs. Instead, he maintained that he was in the neighborhood that evening searching for a funeral home to ascertain the time of a family friend's funeral to be held on Saturday, May 23. According to Williams, Officer Troy approached him and, after asking what he was doing, without any cause handcuffed and arrested him for purchasing cocaine. Although there are two funeral homes within a few blocks of where Williams was arrested, his story is not deemed to be credible and is accordingly discredited. Williams received a satisfactory evaluation at SMHES for school year 1986-87. He was the school's only full-time counselor and worked with troubled students. Ironically, he was in charge of the school's "say no to drugs" program and the youth crime watch" program. His principal described him as having done a good job at school and characterized his work as "very satisfactory." There is no evidence of any prior disciplinary action against the licensee. Williams stated he loves the teaching profession and desires to continue teaching. He has successfully completed a court imposed "Self-help Program" which required, among other things, that respondent submit himself to a weekly test for drugs. After completion of the program, the court withheld adjudication of guilt and authorized the expunction and sealing of respondent's criminal record. Williams has taught for some twenty years, and during his recent suspension, has taken additional college course work to sharpen his education skills.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be suspended from his position for two years, said suspension to be retroactive to August 19, 1987. The remaining charge should be dismissed. DONE AND ORDERED this 14th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of September, 1988.
The Issue The issue is whether, as provided by Section 943.1395(7), Florida Statutes, Petitioner may discipline the correctional and law enforcement certificates of Respondent due to his failure to maintain good moral character, as required by Section 943.13(7), Florida Statutes. If Respondent is subject to discipline, an additional issue is the penalty that Petitioner should impose.
Findings Of Fact At all material times, Respondent was a certified law enforcement officer, holding certificate number 200241, and a certified correctional office, holding certificate number 182381. Petitioner certified Respondent as a correctional officer in 1998 and as a law enforcement officer in 2001. As a correctional officer, Respondent has worked at the South Florida Reception Center and Broward Correctional Institution. In December 2001, the Town of Golden Beach Police Department hired Respondent as a law enforcement officer. Respondent was employed at the Town of Golden Beach Police Department until December 31, 2002. He is presently unemployed. On December 12, 2002, Respondent visited a local lounge while off-duty. Sitting by himself, Respondent ordered a drink and visited the restroom before the server delivered the drink. Upon returning from the restroom, Respondent found the drink where he had been sitting. Respondent consumed the drink and went home. The next morning, Respondent reported to the police station and performed his usual duties, which included transporting witnesses to the State Attorney's Office, appearing in court, and picking up uniforms. Upon his return to the office, a fellow officer informed Respondent that the police chief had received a tip that Respondent had been smoking crack cocaine the prior night and had ordered Respondent to undergo a urinalysis. As directed by the chief, Respondent and the fellow officer immediately drove to the laboratory so that Respondent could provide a urine sample. Four days later, on December 17, 2002, the chief told Respondent that the urinalysis had returned a positive result for cocaine and placed Respondent on administrative leave. Two weeks later, Respondent resigned. The laboratory that conducted the urinalysis is certified by the National Institute of Drug Abuse as a forensic toxicology laboratory and is authorized by the Agency for Health Care Administration to perform drug-free workplace testing. On December 16, 2002, the laboratory screened the urine sample and found a positive result for a cocaine metabolite, benzoylecgonine. As is typical with initial screens that produce positive results, on December 20, 2002, the laboratory retested the urine sample by gas chromatography mass spectrometry (GC/MS), which is a sophisticated, sensitive test. The GC/MS confirmed the presence of benzoylecgonine at the level of 36,900 nanograms/milliliter (ng/ml). This level of cocaine metabolite is indicative of a large amount of cocaine ingested not long before the production of the urine sample. At the request of Respondent, the laboratory retested the urine sample a few months later and detected significant levels of a wide range of cocaine metabolites. At the request of Respondent's attorney, the laboratory sent part of the urine sample to a second, independent laboratory, which, performing GC/MS on December 10, 2003, reconfirmed the presence of cocaine metabolites. The reported level, presumably of benzoylecgonine, was over 10,000 ng/ml. The second laboratory reported a lower level because this was the maximum threshold of its testing equipment and protocol and possibly because the cocaine metabolites decompose over time, even in urine that has been frozen, as the first laboratory had done in preserving Respondent's urine sample. The only anomaly in the confirmatory test performed by the first laboratory appears at page 16 of Petitioner Exhibit 2. This document concerns the confirmatory testing performed on several samples, including Respondent's. In reporting testing parameters, the document states that the "ion ratio int. std." for Respondent's sample was 3.67. The bottom column suggests that the permissible range is 2.44-3.66. The form contains a statement at the very bottom: "REVIEWER: RESULTS OF GC/MS WERE WITHIN THE TOLERANCES ACCEPTABLE UNDER OUR SOP [STANDARD OPERATING PROCEDURE] FOR RETENTION TIME, QUANTIFICATION OF CONTROLS, MASS RATIOS, AND IDENTIFICATION WITH THE FULL SCAN MASS SPECTRUM." After this preprinted statement, the reviewer added in handwriting: "except 326340." This is the number assigned to Respondent's sample. Unfortunately, the parties did not address this anomaly in the confirmatory test, and the record does not explain the meaning of the reviewer's note or the out-of-range ion ratio. The only unusual feature of the first laboratory's confirmatory test, as revealed in the record, is that the laboratory used a smaller sample size because the results were so high that, absent a diluted sample, the first laboratory's equipment could not produce a concentration level. However, the process by which this adjustment is made is not unusual, and the first laboratory performed the necessary calculations to produce a correct result. The uncertainty introduced by the reviewer's note is eliminated, though, by the extremely high levels of cocaine reported by the second laboratory a few months later, and the wide range of cocaine metabolites reported by the first laboratory in its reconfirmation testing one year after the initial screening. Respondent's defense is that, unknown to him and while he was in the restroom, someone at the lounge poured a large amount of cocaine into his drink. This defense is unworthy of belief. Respondent claims that he conducted a personal investigation into his case after the drug test showed cocaine metabolites in his urine. In the course of this investigation, Respondent interviewed a bartender at a lounge some distance from the one that Respondent had visited on December 12, 2002. During this interview, a woman at the bar, Stacie Dalgleish, who had once been an inmate at a correctional facility at which Respondent had served as a correctional officer, overheard him talking about the facts of this case and interrupted Respondent's conversation to tell him that she had witnessed what happened to Respondent that night. As Ms. Dalgleish testified at the hearing, she told Respondent that, on the night in question, she had been at the same lounge and had seen another woman, Lisa Binger, who had been incarcerated with Ms. Dalgleish. While in a stall behind a closed door, Ms. Dalgleish witnessed Ms. Binger and another woman snort cocaine. Ms. Dalgleish explained that she had been able to see Ms. Binger because she was lined up perfectly with the crack between the stall door and the frame. Ms. Dalgleish testified that she then heard Ms. Binger tell her friend that she was going to get Respondent because he had gotten her friend. Later, while seated near the bar, Ms. Dalgleish testified that she saw Ms. Binger pour the white powdery contents of an envelope into Respondent's drink, while Respondent had left his drink unattended. For his part, Respondent "explained" that he had caused a friend of the Ms. Binger to lose her job as a bartender when he had reported to the bar owner that Respondent had seen the woman stealing cases of beer. The improbability that Ms. Binger would part with a large amount of cocaine to incriminate Respondent is moderate. The improbability of the chance encounter between Respondent and Ms. Dalgleish, while Respondent was conducting his investigation is high. The improbability that, in a public restroom, Ms. Binger would theatrically announce her plans to surreptitiously pour cocaine into Respondent's drink, as she recklessly snorted cocaine with another woman--all while observed by Ms. Dalgleish sitting in a closed stall, but peering through a crack in the door that happened to reveal the scene that she described--is incalculably high. Exacerbating these credibility problems was Ms. Dalgleish's performance as a witness. She was an eager witness who, upon concluding her testimony, quickly walked over to Respondent to obtain his approval of her unconvincing performance. Respondent is lying about how he came to ingest a large amount of cocaine a short time before his drug test.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order revoking Respondent's correctional officer and law enforcement officer certificates. DONE AND ENTERED this 14th day of July, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James C. Casey, Esquire Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134-6020 Rod Caswell, Program Director Division of Criminal Justice Professional Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In September of 1979, John Williamson, an undercover police agent with the Department of Law Enforcement, was involved in narcotic investigations in the Pensacola area. Mike Abbott, who is the brother of respondent Thomas Abbott, and Williamson negotiated for the purchase of one kilo of cocaine in October of 1979. The transaction was to occur in West Palm Beach. On or about October 15 or 16, 1979, Mike Abbott and Robert Covington came from Pensacola to West Palm Beach and stayed at the home of respondent Thomas Abbott. Mike Abbott came to West Palm Beach for the purpose of introducing "one person to another person for the sale" of the cocaine. Apparently, the two people who were to be introduced were Robert Covington and Duane Hutchins. For this degree of involvement in the transaction, Mike Abbott was to receive $7,000.00. On October 16, 1979, Duane Hutchins came to the respondent's West Palm Beach residence for the purpose of meeting Mike Abbott and Robert Covington. The meeting lasted approximately thirty to forty minutes, during most of which time respondent Thomas Abbott was sleeping on the living room floor. Respondent did awaken several minutes before Hutchins left and was introduced to him. At some point after this meeting at respondent's home, Mike Abbott returned to Pensacola with the understanding that his $7,000.00 fee would be delivered to him after the sale of cocaine was consummated. Covington remained at respondent's home, and he and respondent went out for drinks that evening. According to Hutchins, Mike Abbott told him that he had to return to Pensacola and that respondent Thomas Abbott, Mike's brother, would be the person to contact in absence. It was arranged that Hutchins would call respondent's house the following day and speak to either respondent or Mr. Covington to determine the details of the meeting with the purchasers. Undercover agent John Williamson arrived in West Palm Beach on October 17, 1979, and met with Jack Maxwell, a vice officer with the Palm Beach County Sheriff's Department. Williamson placed a telephone call to the respondent's residence, but he did not know to whom he spoke. Arrangements were made to meet at Victoria Station, a local restaurant and lounge in West Palm Beach, at approximately 4:30 that afternoon. When respondent returned to his residence after school at about 3:00 p.m. on October 17, 1979, Covington and Hutchins were there. They invited respondent to go to Victoria Station with them. Respondent drove back to school to ask a student to fill in for him on a part-time job that evening, and Covington and Hutchins followed respondent in another car. Respondent then left his car at school and rode to Victoria Station with Covington and Hutchins. Covington, Hutchins and respondent arrived at Victoria Station at about 4:00 or 4:30 p.m. on October 17, 1979. Shortly thereafter, agents John Williamson and Jack Maxwell arrived. The five men sat at one table, conversed and ordered several rounds of alcoholic beverages which were made of double strength. It was Hutchins plan to view the money to be used for the cocaine purchase and then place a telephone call to a Mr. Cunningham who was to join them for the purpose of finalizing the location of the transaction. After spending approximately forty-five minutes at the table, agents Maxwell and Williamson took Hutchins across the street to their Sheraton Motel room in order to show him the cash money. Hutchins was shown a briefcase containing some $100,000.00 in cash. He then returned to Victoria Station and placed a phone call to Cunningham. Hutchins left to pick up Cunningham in his car and then returned to Victoria Station with Cunningham. The six men then had discussions as to the location of the transaction. During these conversations, respondent Thomas Abbott offered the use of his house as the location for the exchange of the money for the cocaine. At approximately 8:00 p.m., Hutchins left Victoria Station for another engagement. Agents Maxwell and Williamson returned to their motel room for the purpose of waiting for information as to the location of the final transaction. Respondent Abbott and Covington left Victoria Station with Cunningham and went to Cunningham's apartment. While there, Cunningham made several phone calls. Thereafter, Cunningham drove Covington and respondent to respondent's house and dropped them off. Cunningham then went over to the Sheraton Motel room where final plans were made with agents Maxwell and Williamson for the purchase to occur in Miami. Thereafter several persons, not including the respondent, drove to Miami and completed the purchase and sale of cocaine. Those participants were arrested, and nearly one kilo of 43 percent to 52 percent pure cocaine was confiscated. Agent Williamson returned to the Palm Beach Sheriff's Department during the early morning hours of October 18, 1979. At approximately 4:30 a.m. he placed a telephone call to Mike Abbott in Pensacola for the purpose of obtaining instructions as to how he was to be paid for his part of the transaction. The telephone conversation was recorded on tape. After determining that Mike Abbott expected $7,000.00 for his part of the transaction, Williamson asked Mike Abbott "Do you want me to bring the $7,000.00 to you or do you want me to give it to your brother." "Give it to my brother," was Mike Abbott's response. Later in the same conversation, Williamson told Mike that what he was going to do was "see your brother now, and then I'll lay the seven on him." Mike responded, "Okay, that'll be excellent." After that taped telephone conversation between Williamson and Mike Abbott, law enforcement officers went to the respondent's residence and arrested respondent Thomas Abbott and Robert Covington. Mike Abbott testified that his brother knew nothing about the purchase and sale of cocaine until he was arrested on October 18, 1979. Respondent testified that he knew nothing about the drug deal and that he was too intoxicated to realize what the conversation concerned while in Victoria Station. Agent Maxwell testified that while they all were drinking alcoholic beverages at Victoria Station, respondent appeared to be cognizant of occurring events and conversation. Some three to four weeks after respondent was arrested, he went to the residence of Deputy Sheriff Robert C. Anderson whom he had known since 1969. When Anderson asked him why he had gotten involved in drugs, respondent replied that he thought it was exciting, very professional and that he wanted to be in big money. Respondent went on to describe the excitement of talking of $50,000.00, throwing money around and everybody buying drinks for each other. Anderson and respondent discussed the morality of dealing with drugs and respondent stated that he did not feel it was morally wrong since drugs had been accepted by society. During the same conversation, respondent later told Anderson that the reason be became involved was for his brother. Two administrative officials of the Palm Beach County School Board testified that, in their opinion, respondent's effectiveness as a teacher would be diminished if the charges of conspiracy to sell or traffic cocaine were sustained.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: That portion of the "Petition for the Revocation of the Teacher's Certificate" charging that respondent conspired to traffic cocaine in his home on or about October 16, 1979, be DISMISSED; Respondent be found guilty of conspiracy to sell cocaine while drinking in the Victoria Station in West Palm Beach on or about October 17, 1979; The conduct described in paragraph (2) above constitutes gross immorality or an act involving moral turpitude and seriously reduces respondent's effectiveness as an employee of the school board; and Respondent's teaching certificate be revoked for a period of three (3) years. Respectfully submitted and entered this 6th day of March, 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 Hearing this 6th day of March, 1981. COPIES FURNISHED: Craig R. Wilson Ruffolo and Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Thomas Abbott, Jr. and Thomas Abbott, Sr. Route 9, Box 514D Jasper, Alabama 33501 Robert C. Apgar Peeples, Earl, Smith, Moore and Blank 300 East Park Avenue Post Office Box 1169 Tallahassee, Florida 32302 Juhan Mixon Professional Practices Commission 319 West Madison Street Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Educational Practices Commission 319 West Madison Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA EDUCATION PRACTICES COMMISSION RALPH D. TURLINGTON COMMISSIONER OF EDUCATION, Petitioner, vs. CASE NO. 81-002-RT DOAH CASE NO. 80-1515 THOMAS H. ABBOTT, Respondent. /
Findings Of Fact At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976. The above facts were as stipulated to by the parties.
Recommendation Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 H. R. Fallin, Esquire 1239 King Street Jacksonville, Florida 32204
