The Issue The issue is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS) pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, on the stipulations of the parties, and on the entire record of this proceeding, the following factual findings are made: Respondent is charged with managing, governing, and administering the FRS. The FRS is a public retirement system as defined by Florida law. The Duval County School Board (DCSB) employed Petitioner as a teacher at Ribault High School. As a teacher, Petitioner was subject to the Code of Ethics of the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.001. Petitioner also was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. Petitioner’s employment with the DCSB began on or about August 19, 1986. By reason of this employment, Petitioner was enrolled in the FRS as a Regular Class member. On or about December 7, 2001, Petitioner was arrested in connection with Officer David Coarsey's sworn information, which provided as follows in relevant part: On 12-07-01, Lt. Remolde called the Jacksonville Sheriff’s Office Sex Crimes Office and stated that a student at Ribault High School had reported to the principal, Mr. Ken Brockington, that she had penile/vaginal intercourse with this suspect. On 12-07-01, I arrived at Ribault High School and interviewed the victim. She stated that approximately three weeks ago, she went to the suspect’s classroom at his request after school hours. The suspect asked the victim to help him with some of his work. While she was there, the suspect put his arm around the victim and began rubbing her waist. The suspect then began talking to the victim about sex. The suspect then put his hand up the victim’s skirt and inserted his finger in her vagina. The suspect also pulled the victim’s shirt and bra down and “sucked” on her breast. The victim said that she did not attempt to stop the suspect. The victim then told the suspect, “I don't think we should do this”, and she walked out of the room. Approximately one week later, the suspect asked the victim to come back to his classroom after school. When the victim arrived at the room, the suspect began “rubbing” on the victim’s body. The victim stated that the suspect retrieved a condom from a “grey file cabinet” and then sat down in a chair. The suspect pulled his penis out and the victim put the condom on his penis. The victim pulled her shorts down and sat on the suspect’s lap, at which time the suspect put his penis in the victim’s vagina. After having penile/vaginal intercourse with the suspect for a short period of time, the victim stood up and the suspect masturbated until he ejaculated. On 12-07-01, the victim met the suspect in the “Book Room”. The suspect pulled the victim’s shirt and bra down and “sucked” on her breast. The suspect then pulled his penis out of his pants and asked the victim to masturbate him. The victim masturbated the suspect until he ejaculated. The victim wiped the suspect’s semen off of her hands with a paper towel and threw it in the trash can in the “Book Room”. The victim then left the room and reported the incident to a substitute teacher, Mr. Carlos Bowers (12-25- 59, 3701 Winton Dr., B/M), who in turn, reported it to the principal, Mr. Brockington. The victim stated to me that all of the sexual encounters with the suspect were consensual. I retrieved the trash bag that contained the above mentioned paper towel from the “Book Room” and put it in the JSO Property Room. The suspect was transported to the JSO Sex Crimes Office by Officer D.W. Holsey #6044 and I transported the victim to the Sex Crimes Office. I contacted the victim’s mother and asked her to come to the JSO Sex Crimes Office. When she arrived, she transported the victim to the Child Crisis Center for a medical exam (swabs of the victim’s breasts). I advised the suspect of his constitutional rights and asked him to sign the rights form. The suspect signed the form and agreed to speak to me and Det. Romano #7527 about the allegations. The suspect admitted to having penile/vaginal intercourse with victim one time, “sucking” on the victim’s breast on two different occasions, and rubbing on her vagina once. The suspect stated that all of the sexual encounters happened at the school. The suspect stated, “It was a huge mistake, my life is fucked”. The suspect gave a written statement in regards to having penile/vaginal intercourse with the victim. The suspect was arrested and transported to the PTDF. The information reported in the sworn information truly and accurately recounts the events that occurred and to which Petitioner admitted. The arrest and booking report is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. Petitioner resigned his employment with the DCSB on or about December 27, 2001, effective on or about January 15, 2002. By reason of his employment with DCSB, Petitioner earned approximately 15.80 years of service credit in the FRS. On or about February 14, 2002, Petitioner was charged, by amended information, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in case number 2002-599-CFA, with (a) one count of sexual battery, a second-degree felony, in violation of Section 794.011(8)(b), Florida Statutes; and (b) one count of lewd or lascivious molestation, a second-degree felony, in violation of Section 800.04(5)(c)2., Florida Statutes. The amended information provided in relevant part: HARRY.L. SHORSTEIN, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that ARTHUR JOHN MARSLAND, JR, on or between the 1st day of November, 2001 and the 7th day of December, 2001, in the County of Duval and the State of Florida, did, while in a position of familial or custodial authority, engage in an act which constitutes Sexual Battery with * * * a person 12 years of age or older, but less than 18 years of age, by placing his penis in or upon the vagina of * * * contrary to the provisions of Section 794.011(8)(b), Florida Statutes. SECOND COUNT And for the second count of this information, your informant further charges that ARTHUR JOHN MARSLAND, JR., a person 18 years of age or older, on or between the 1st day of November, 2001 and the 7th day. Of December, 2001, in the County of Duval and the State of Florida, did in a lewd or lascivious manner force or entice * * * a child l2 years of age or older, but less than 16 years of age, to touch the genital area or clothing covering the genital area of Defendant, contrary to the provisions of Section 800.04(5)(c)2, Florida Statutes. The amended information is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. The victim of the alleged crimes was a student at the school where Petitioner taught. The alleged crimes took place in Petitioner's classroom or in the book room at the school where Petitioner taught. On or about April 8, 2002, Petitioner entered a plea of guilty to the second count of the amended information. Petitioner pled guilty because he was in fact guilty. Petitioner made the plea freely and voluntarily. On or about April 29, 2002, judgment was entered on Petitioner’s guilty plea. He was adjudicated guilty. The judgment and corrected order of sex offender probation are filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. During the hearing, Petitioner admitted that, but for his job position as a teacher, he “probably [would] not” have had an opportunity to have sexual relations with a student in the school’s classroom or book room. Petitioner also admitted that having sexual relations with one of his students was “obviously not” one of his duties and responsibilities as a teacher. Petitioner wrote three letters of apology in connection with the matter. He apologized in writing to the victim, to his spouse, and the DCSB. On or about September 27, 2002, Charlie Crist, as Commissioner of Education, filed an Administrative Complaint, before the Education Practices Commission of the State of Florida, in case number 02-0681-RT. The complaint sought disciplinary action against Petitioner’s educator’s certificate. The Administrative Complaint charged Petitioner in part with the following statutory and rule violations: STATUTORY VIOLATIONS COUNT 1: The allegations of misconduct set forth herein are in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation. COUNT 3: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. COUNT 4: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education. COUNT 5: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(j), Florida Statutes, in that Respondent has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate. COUNT 6: Section 231.2615(2), Florida Statutes, provides that the plea of guilty in any court or a decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate. RULE VIOLATIONS COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(2), Florida Administrative Code, in that Respondent has failed to have his primary professional concern always be for the student and for the development of the student’s potential and has failed to seek to exercise the best judgment and integrity. COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(3), Florida Administrative Code, in the Respondent has failed to be aware of the importance of maintaining the respect and confidence of his colleagues, of students, of parents, and of other members of the community and that Respondent has failed to achieve and sustain the highest degree of ethical conduct. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical safety. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 11: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code, in that Respondent has exploited a relationship with a student for personal gain or advantage. The Administrative Complaint is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. In consideration of the Administrative Complaint, the Education Practices Commission entered a Final Order permanently revoking Petitioner’s educator’s certificate. The Final Order is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. On or about October 20, 2003, Petitioner applied for early service retirement. Petitioner’s effective date of retirement was established as November 1, 2003. By certified letter dated May 2, 2008, Respondent notified Petitioner of the intended action to forfeit his FRS rights and benefits as a result of his guilty plea. The Division suspended payment of Petitioner’s monthly retirement benefits in May 2008. Petitioner had received approximately $41,309.56 in FRS retirement benefits from November 2003 through April 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Arthur J. Marsland, Jr. 1856 B Hereford Road Middleburg, Florida 32068-3104 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee,, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 15, 1982, and issued certificate number 02-29286. At all times pertinent hereto, Respondent was a certified law enforcement officer. The Respondent was employed as a police officer by the City of Miami Police Department from the time he went into the academy in 1981 through 1988. At the time of the formal hearing, Respondent was employed as a reserve police officer with the City of Virginia Gardens, a small municipality located in Dade County, Florida. On May 31, 1985, a drug rip-off occurred in Miami, Florida, at Nuta's Boat Yard. Approximately 187 kilos of cocaine were taken. On July 12, 1985, a second drug rip-off occurred in Miami at the Tamiami Marina. Between 400-450 kilos of cocaine were taken. On July 28, 1985, a third drug rip-off occurred in Miami at Jones Boat yard. Approximately 450 kilos of cocaine were taken. Several City of Miami police officers were involved in these three drug rip-offs and the subsequent resale of the stolen cocaine. The subsequent prosecution of these cases became known as the "Miami River Cops Cases". Respondent Menocal did not participate in any of these three drug rip-offs and he has not been prosecuted criminally. Rudolfo Arias and Carlos Pedrera are former City of Miami police officers who were involved in the Miami River Cops Cases and were, at the time of the formal hearing, incarcerated in the federal prison system and had been placed in the Federal Witness Protection Program. Mr. Pedrera was called as a witness, but he was withdrawn as a witness before he gave any substantive testimony because he refused to testify. Mr. Arias had agreed as part of his plea agreement to implicate and to testify against other law enforcement officers in exchange for substantial benefits to him. Although Mr. Arias received no direct benefit for his testimony in this proceeding, his plea agreement required that he testify against those he had implicated. Mr. Pedrera's refusal to testify was in spite of a plea agreement similar to that of Mr. Arias. Mr. Arias was an officer with the City of Miami Police Department in 1985 and he knew Respondent as a fellow officer and as a friend. The gravamen of the complaint brought against Respondent is based on accusations made by Mr. Arias These accusations are buttressed by the hearsay testimony of Mr. Pedrera, but of no other testimony or evidence. The following is Mr. Arias's version of the pertinent events of July 12, 1985. According to Mr. Arias, he had gone to Mr. Pedrera's house to pick up Mr. Pedrera as part of their planned participation in the Tamiami Marina drug rip-off. Mr. Arias received a call from Respondent requesting him to come by Respondent's house to discuss a matter of importance. Mr. Arias and Mr. Pedrera went to Respondent's house before they went to the meeting place for the Tamiami Marina drug rip-off. When they arrived at Respondent's house, another person was present in the house, but the identity of this person was unknown to Arias or Pedrera. Mr. Arias contends that he and Pedrera were invited into Respondent's bedroom and shown a package shaped like a brick and wrapped in plastic which Respondent represented to be a kilo of cocaine. Neither Respondent, Mr. Arias, or Mr. Pedrera opened the package or attempted to test or weigh its contents. Mr. Arias contends that Respondent asked for Mr. Arias' assistance in selling the cocaine. Mr. Arias contends that Respondent wanted $25,000 for the sale, but that Respondent would give him the difference between the sales price and $25,000. Mr. Arias testified that when he told Respondent he would be unable to help sell the cocaine, Respondent told him that Oswaldo Cuello and Jose Benitez were coming to his house to discuss selling the cocaine. Mr. Cuello was a City of Miami police officer and Mr. Benitez was a drug dealer. Mr. Arias testified that after Cuello and Benitez arrived, he told them and the Respondent that he and other police officers were about to engage in the Tamiami Marina drug rip-off. Mr. Arias contends that Respondent wanted to participate in the drug rip-off, but that the leader of the expedition did not permit Respondent's participation. Mr. Arias contends that he and Pedrera then left to meet with the other participants in the drug rip-off. Respondent denies the accusations made against him by Mr. Arias and by Mr. Pedrera and contends that neither man was present at his residence on July 12, 1985. Little weight is given to Mr. Pedrera's hearsay testimony in light of his refusal to testify. Even if Mr. Pedrera's hearsay testimony was considered as buttressing that of Mr. Arias, the circumstances under which their stories were first given and the questionable credibility of Mr. Arias and Mr. Pedrera 1/ render their testimony an insufficient basis upon which it can be concluded that the factual allegations of the Administrative Complaint have been established by clear and convincing evidence. 2/ The denial of these accusations by Respondent is found to be credible based, in part, on his demeanor. In addition, the undersigned has considered that Respondent has never been prosecuted criminally, there was no evidence that his credibility has been called into question, and he was employed as a reserve police officer by the City of Virginia Gardens after a thorough background check. His performance as a reserve police officer by the City of Virginia Gardens has been above suspicion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the charges brought against Respondent, Ignacio F. Menocal. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of July, 1991. 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 3rd day of July, 1991.
The Issue Whether or not Respondent unlawfully and knowingly warned the subject of an ongoing narcotics investigation with the intent to obstruct the investigation and assist the subject of the investigation, and thereby failed to maintain the qualifications and good moral character required of a law enforcement officer.
Findings Of Fact Respondent, Mark R. Schlechty, was certified as a law enforcement officer by Petitioner, Criminal Justice Standards and Training Commission, on October 5, 1984, having been issued certificate number 35-84-002-03. Respondent was employed by the TPD for approximately four years. Respondent is presently employed as a reservations agent with Eastern Airlines, having resigned from the TPD following the culmination of an internal investigation by the TPD. During the first half of 1987, Respondent was assigned to patrol the downtown Tampa area (Kilo Squad) working the 4:30 p.m. to 1:00 a.m. shift. It was customary for Respondent and his squad to eat their evening meal at the Hyatt Regency Hotel in downtown Tampa, since it was one of the few downtown area restaurants open to eat after 9:00 p.m. As a result of dining at the Hyatt Regency Hotel, Respondent became friendly with several members of the hotel's restaurant staff, including waiters Mark Gotheer and Jeff Stuart. Respondent did not fraternize with Gotheer and Stuart away from the restaurant, although they spoke about meeting to socialize on a number of occasions including going surfing together and staying a weekend at the Hyatt in Orlando to visit Disney's Theme Park. Respondent, as were all members of the TPD, was required to be selective of their acquaintances. Respondent was familiar with TPD's rules and regulations that restrict an officer from associating with individuals known or suspected of engaging in illegal activities. During the spring of 1987, Respondent was unaware of any criminal activity occurring at the Hyatt or that the TPD's vice unit was conducting an active/ongoing drug investigation at the hotel. During the spring of 1987, Respondent's squad leader, Corporal Richard Olewinski, advised Respondent and the members of his squad that some of Hyatt's employees were suspected of dealing in illegal narcotics. Olewinski advised Respondent to be careful with whom he associated because employees Stuart and Gotheer were rumored to be involved in illicit activity at the hotel. Olewinski did not advise Respondent that the information was confidential or that TPD's vice unit was conducting an active/ongoing investigation of such employees. Likewise, Respondent did not consider the information received from Corporal Olewinski to be confidential, instead understanding Olewinski's advice to be a warning that other officers should be careful with whom they associate. As a result of Respondent's association with Gotheer and Stuart, while dining at the Hyatt, Respondent decided to confront them about the rumor based on his concern of being associated with them if they were, in fact, involved in illegal activity. To that end, Respondent approached Stuart on the next occasion that he frequented the Hyatt and inquired of Stuart if he and Gotheer were "dealing in cocaine or doing anything illegal." Gotheer was not at work, however, Stuart denied that either was engaged in any illegal conduct. Respondent also cautioned Stuart that they (TPD) were "looking at this place." Respondent told Stuart that if they were dealing drugs they would get caught and he cautioned Stuart to pass the word on to Gotheer, that if they were involved in any illegal activity, he could not deal with them as they were "bad news". Respondent's concern was to protect himself and admitted that "he did not care how they -- what they did with their personal lives if they use illegal narcotics. But, ... if they were to bring it out in front of me or do it around me, I would take action upon them." Detective Orrill was assigned to conduct an undercover investigation concerning allegations against Gotheer. Orrill met with a cashier at the Hyatt and obtained her assistance in conducting his investigation. During the interim, detective Orrill conducted a background investigation on Gotheer and planned to utilize the cashier to introduce him to Gotheer as her new boyfriend at an upcoming party at Gotheer's home. Within several weeks time, Orrill arranged for the cashier and himself to go to Gotheer's home for a party. On the day of the party, the cashier advised Orrill that she was unwilling to further assist in the investigation as Gotheer advised her of his awareness that he was being investigated by the TPD. Approximately one year later, detective Orrill again had an opportunity to investigate Gotheer. This came about when a detective-trainee under detective Orrill's supervision arrested a subject on narcotics charges. The subject named Gotheer as his narcotics supplier. With the subject's assistance, Gotheer was arrested for possession, in excess of 400 grams, of suspected cocaine. Gotheer agreed to provide information about Respondent's involvement in the 1987 investigation at the Hyatt. Gotheer advised Orrill that in 1987, he received a message from Respondent warning him of the original investigations. As a result of that arrest, Gotheer agreed to assist in the Department's investigation of Respondent by wearing a concealed microphone during an arranged meeting with the Respondent. During that arranged meeting with Respondent on June 6, 1988, Respondent restated his words of caution to Stuart to tell Gotheer to "lay low" because they were looking at the hotel employees and that they were going to get caught if they "f around." Respondent's intent, by sending the word to Gotheer and by advising Stuart to "lay low," was not based on any intent on his part to obstruct an investigation, but was rather to disassociate himself from them if they were engaged in illegal acts. On June 14, 1988, Respondent gave a sworn statement to Sergeant Stephen Hogue and A. Stertzer of the TPD Internal Affairs Bureau. During that statement, Respondent initially denied informing Gotheer either directly or indirectly about an ongoing police investigation directed at Gotheer. Respondent's concern was job retention and to protect himself from scrutiny by either internal affairs or his fellow officers. Respondent subsequently corrected his misstatements in his initial conversation and statement with officers Hogue and Stertzer, of the Internal Affairs Bureau. (Petitioner's Composite Exhibit 4.) Respondent's explanation for his conduct is consistent with his reputation as a police officer with the TPD. In his four years of service with the Department, Respondent has received several commendations and has a reputation of being a good and reliable officer who does not tolerate or condone the use or sale of illegal drugs. In this regard, Respondent was handpicked to serve on the Kilo Squad based on his tough stance on putting drug traffickers off the street. Nothing was introduced to indicate that Respondent was, in any manner, tolerant of drug users. Being a police officer or to be employed in law enforcement is a longtime career goal of Respondent, as his father served as a police officer and he admired his father for the work that he did as a law enforcement officer. In retrospect, Respondent admits that his conduct, in confronting employees Stuart and Gotheer about their drug involvement, may have been "immature and perhaps he did not look at the whole picture." Respondent has now learned a valuable lesson and is desirous of remaining eligible for employment as a law enforcement officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner enter a Final Order dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of July, 1990. Copies furnished: Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gene "Hal" Johnson, Esquire 300 East Brevard Street Post Office Box 11239 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James E. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State. The Respondent, 27th Avenue Corporation, doing business as Climax Lounge, holds Division of Alcoholic Beverages and Tobacco License No. 23-0358, Series 4-COP. At all times pertinent hereto John Ekberg and Daniel A. Wick were the sole corporate officers and shareholders of 27th Avenue Corporation. The Climax Lounge, the premises which are the subject of this proceeding, is located at 12001 N. W. 27th Avenue, Miami, Florida. In the early morning hours of January 17, 1981, undercover Beverage Officer Aurelius Thompson visited the Climax Lounge in the course of an investigation of suspected "drug violations" allegedly occurring on the premises. Officer Thompson approached a barmaid by the name of O. Z. Porter and engaged her in conversation, ultimately asking if she knew where he could obtain cocaine and she indicated she had none. At this time Officer Thompson observed a group of patrons "snorting a white powder" at the end of the bar where he was sitting. He spoke with an individual named "Larry" who indicated he had one gram of cocaine for sale for $75.00. Officer Thompson left the bar to get the required purchase price, and upon returning, Larry's brother Michael sold him approximately one gram of a white powdery substance which later proved to be cocaine. The parties in this proceeding have stipulated into evidence the lab reports and agreed that the substances obtained or purchased by the two investigating officers, Officer Thompson and Officer Alford, were cocaine and marijuana. The above described exchange of cocaine occurred inside the licensed premises at the bar. The exchange was made with the barmaid O. Z. Porter standing across the bar in close proximity to the transaction. Officer Thompson offered Ms. Porter some cocaine at the time of the exchange, but she refused, although she accepted some in a wadded up dollar bill for later use. In the early morning hours of January 23, 1981 this same officer returned to the Climax lounge. He went into the men's restroom and encountered an individual by the name of "Leech." "Leech" had a cellophane bag of capsules containing a white powder which he offered for sale for $10.00 each. He also had a bag with a larger amount of white powder selling for $25.00 per packet. Officer Thompson, during this encounter, purchased a foil package containing the white powder from Leech for $25.00. The contents of the packet proved to be cocaine. After concluding his transaction with the individual called "Leech" In the restroom, Officer Thompson then returned to the common area of the lounge and took a seat at the bar. He encountered and engaged in a conversation with the same individual named "Larry" whom he had met on his visit to the bar on January 17, 1981 in connection with the first purchase of cocaine on the premises. As a result of the second encounter, Larry ultimately sold Officer Thompson a packet of cocaine for $70.00. This transaction was conducted and concluded in approximately the center portion of the bar in plain view and was observed by "Norma", a barmaid employed by the Respondent. Beverage Officer Alford was also present on the premises the night of January 23, 1981 assisting in this investigation. While on the Respondent's premises he also purchased a quantity of cocaine from the individual known as Leech. The cocaine was contained in a capsule for which he paid $10.00, which transaction also occurred in the men's restroom of the Respondent's facility. Officer Thompson described his training in identification of cocaine and marijuana and established that on both visits of January 17 and January 23, 1981 he observed patrons in various areas of the lounge "snorting" what he believed to be cocaine and smoking or rolling marijuana cigarettes. Officer Thompson returned to the Climax Lounge on January 25, 1981. He approached a barmaid by the name of "Johnnie Mae" and inquired of her whether she knew who could sell him some marijuana. Johnnie Mae directed Officer Thompson to an individual called "Richard". The barmaid introduced Thompson to Richard and informed Richard that Thompson wanted to purchase some marijuana. Richard led Officer Thompson into the men's restroom where Thompson viewed "Leech" at the sink with a small quantity of marijuana in view. Thompson then purchased from Leech a small quantity of marijuana for $10.00. Upon leaving the restroom, Officer Thompson was summoned to the bar area by the previously identified individual, Larry, who informed Thompson that he had a gram of cocaine which he wished to sell him for $70.00. Thompson agreed and purchased the cocaine for that amount with the transaction taking place at the bar in front of the barmaid "Norma." Thompson thereupon asked Norma if she desired any cocaine, which she refused. On this evening, while he was in the restroom purchasing marijuana from Leech, Thompson observed approximately five individuals smoking marijuana. Pursuant to the investigation conducted by these officers, at this point, an Emergency Order of Suspension was entered against the license of the Respondent on January 29, 1981. On February 14, 1981 Officer Thompson accompanied by Officer Alford again entered the lounge on an additional visit. On this occasion Officer Thompson was approached by the same individual "Larry" from whom he had made the previous purchase and ultimately bought from Larry a quantity of cocaine for $65.00 on this occasion. Officer Thompson's observations on each occasion were approximately one to three hours in duration and he observed the use of cocaine and marijuana on each occasion, as did Officer Alford. Both officers indicated that they saw security guards on duty and circulating through the licensed premises, but were apparently unaware of the extent and vigor of enforcement procedures by the security guards. Officer Thompson did describe a plain clothed individual, whom the Respondent established was its security guard Larry McFadden, who forced he and other patrons to leave the men's restroom of the facility on the occasion of the February 14, 1981 visit. Other than this incident, the two officers testifying did not observe security guards attempting to curb the use or sale of drugs on the premises other than the management attempting to keep out of the restrooms people who had been there an inordinate period of time. The Respondent presented testimony from its corporate owners and several employees regarding their policy and efforts designed to curb the use of drugs on the premises. The manager, Ira Maxwell, verbally informed his employees of the licensee's prohibition of the presence or use of drugs on the premises and promulgated a set of written rules against certain activities, including the use of drugs or condonation by employees of the presence of drugs on the premises. The employees were required to sign acknowledgments that they had read and were informed of these rules. Employees Norma Jean Riley and O. Z. Porter signed these acknowledgments. The Manager' testimony established that the licensee's policy regarding controlled drug presence and drug transactions was to ask the possessors of drugs to leave the premises and, if their behavior was repetitive, to permanently bar them from the premises. Both the licensee's manager and its owner, Mr. Ekberg, established that warning signs prohibiting the use of drugs, or transactions involving drugs, were posted at several points in the common areas of the club at all times pertinent herein. Officer Thompson stated that he had simply not noticed the signs while he was on the premises. The club's manager, Ira Maxwell, testified that although he made personal observations of the public areas of the premises, most of his time was spent in the office. The principle stockholder and owner, Mr. Ekberg, is on the premises daily, but generally leaves around 10:00 p.m. each night. The lounge's open hours are from 9:00 p.m. to 5:00 a.m. Three security officers patrol the club at all times it is open with instructions to eject drug traffickers, users or possessors from the premises. Employees are instructed to advise management when a patron is observed using or possessing controlled drugs. The principle security officer, Larry McFadden, Jr. corroborated the fact that the drug warning signs were posted at the club during all times pertinent hereto. Be is constantly on watch for drug use and orders such people to leave the premises if he suspects their use or involvement with drugs. McFadden established that at certain times, although he maintains a constant vigil, it is difficult to observe everything that transpires. Sometimes he must make rapid judgments in deciding whether situations involving violence or use of weapons are more critical at a given moment than apprehension of patrons who have brought drugs onto the premises. Neither McFadden nor the club's manager, Ira Maxwell, had ever summoned police in an effort to curb the possession or use of controlled drugs on the Premises. Mr. Ekberg, the Respondent's president, inquires daily of McFadden regarding problems occurring the previous evening and primarily relies on his manager, Ira Maxwell, to maintain order. His inquiries are generally directed to instances of property damage and fights. He too emphasized that the Respondent's policy towards drug use is to eject those possessing drugs and permanently bar those suspected of dealing in drugs from entry on the premises. His primary duties when present at the club involve ordering supplies, preparing the payroll and other administrative duties. He has in the past had difficulty obtaining police assistance and controlling drug use at his club. On one occasion Mr. Ekberg suggested to the police that they place undercover officers at the club for curbing drug usage and he has inquired of his employees on occasion regarding individuals suspected of being drug users, but has not made a practice of seeking law enforcement assistance nor have his management and employees ever summoned police in an effort to eliminate illegal drug activity. Mr. Ekberg believes that only hiring an undercover, unknown security staff would permit him to obtain any better results in eliminating the presence of drugs on his licensed premises. He has been in the liquor business for approximately 20 years with no previous violations. No testimony was offered however which could establish that any member of management or any employee of the Respondent attempted to learn the identities of patrons alleged to have been using or trafficking in drugs on the licensed premises or to aid in apprehending them, even after being served with the subject emergency suspension orders. On April 22, 1981 the second Notice to Show Cause (Case No. 81-1218) was served on the Respondent with the identical charges relating to the observations by the Petitioner's officers occurring on February 13 and 14, 1981 at the licensed premises referred to above which observations occurred after the initial suspension order entered in Case No. 81-1090 was served on the Respondent.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, who holds a Florida teaching certificate, on the basis of allegations regarding the Respondent's purchase of crack cocaine.
Findings Of Fact The Respondent, Wayne Thurston, holds Florida teaching certificate number 479646, covering the area of physical education, which is valid through June 30, 1995. During the period from April 1991 to July 1991, the Respondent was employed as a teacher at James H. Bright Elementary School, in the Dade County School District. On April 5, 1991, Detective Laurick Ingram was working as an undercover police officer with the Metro-Dade Police Department, assigned to a tactical narcotics team detail. As part of his assignment, Detective Ingram was posing as a seller of cocaine in what is termed a "reverse sting" operation. It was an operation in which several undercover police officers posed as sellers of crack cocaine at premises which were previously know by the police to be the location of frequent drug sales. The reverse sting operation in question took place in the front yard of a house located at 2520 N.W. 159th Street, Miami, Florida. At approximately 8:00p.m. on the evening of April 5, 1991, the Respondent approached Detective Ingram at the location described above and asked the Detective for $20.00 worth of cocaine. Detective Ingram gave the Respondent two rocks of crack cocaine and in exchange the Respondent gave Detective Ingram $20.00. Detective Ingram did not conduct any tests on the substance sold to the Respondent to verify that it was, in fact, cocaine. However, it is the regular and consistent practice of the Metro-Dade Police Department, in conjunction with reverse sting operations, to use genuine cocaine. Detective Ingram then gave a signal to one of the other police officers and one of the other police officers then arrested the Respondent. The Respondent was processed and was subsequently charged by information in the Circuit Court for Dade County with one count of purchasing cocaine and one count of possession of cocaine. On or about July 11, 1991, the Respondent was accepted into the Dade County Drug Treatment Pretrial Release Program. During the period from February 27, 1992, to May 7, 1992, the Respondent was subjected to urinalysis examinations on eighteen occasions and on each occasion the results were negative for use of drugs. Ms. Joanne Goberna Molina has been the principal of James H. Bright Elementary School since January 23, 1992. During the year that she has been the principal at that school, the Respondent's performance as a teacher has been acceptable. During that period the Respondent has not been tardy. The fact that the Respondent was arrested has received very little notoriety among the faculty, staff, students, or parents of the school where he works.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the Respondent is guilty of the violation alleged in the Administrative Complaint and imposing a penalty consisting of a three year period of probation, which probation shall include the requirements that the Respondent: Shall make arrangements for his immediate supervisor to provide the EPC with quarterly reports of his performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent; Shall make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance; Shall satisfactorily perform his assigned duties in a competent professional manner; Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006; and Participate fully and to its completion in a substance abuse program and submit to random drug testing as directed by his employer or the Education Practices Commission. DONE AND ENTERED this 27th day of July, 1993, at Tallahassee, Leon County, Florida. 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 27th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7063 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in whole or in substance. Paragraphs 8 and 9: Rejected as constituting primarily argument about conflicting testimony, rather than specific proposed findings of fact. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraph 11: First sentence rejected as unnecessary procedural details. Second sentence rejected as subordinate and unnecessary details. Paragraph 12: Rejected as based on speculation or conjecture, rather than on reliable evidence. Paragraph 13: Accepted in substance with some unnecessary details omitted. Findings submitted by Respondent: Paragraph 1: This paragraph is rejected because as stated it is nothing more than an unnecessary summary of the allegations of the Administrative Complaint. (It should be noted, nevertheless, that findings have been made to the effect that the acts alleged in the Administrative Complaint have been proved.) Paragraphs 2 and 3: These paragraphs are rejected as constituting summaries of testimony, rather than statements of specific proposed findings of fact. (It should be noted, nevertheless, that findings have been made consistent with the testimony summarized in these two paragraphs.) Paragraph 4: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 5: Rejected as constituting a summary of testimony, rather than a statement of a specific proposed fact. Also rejected for the reason that the exculpatory explanation offered by the Respondent has not been credited. Paragraph 6: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 7: The first line is rejected as not supported by persuasive, credible evidence. The remainder is rejected as subordinate and unnecessary details. Paragraphs 8, 9, 10, 11, and 12: Accepted in whole or in substance. COPIES FURNISHED: William T. Jackson, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
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
The Issue The issue is whether Respondent allowed his employee to purchase stolen property while working on the licensed premises and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds alcoholic beverage license number 21- 00579, series 2-APS, for the licensed premises known as S&A Food Mart. S&A Food Mart is a convenience store located at 516 West Main Street, Immokalee, Florida. The sign outside the convenience store identifies the premises as “Coastal Mart,” in reference to the independent company that owns the retail gasoline business operated at the same location. Respondent owns four convenience stores or gasoline stations in the Immokalee area. In the summer of 1996, he owned three such businesses. Respondent owns another convenience store with his brother, Ribye Eid. Respondent is the exclusive owner of the S&A Food Mart and the remaining businesses. Respondent’s businesses are open from around 5:00 am until late in the evening. Respondent works at the S&A Food Mart with two or three other employees, including Fuzan Eid, who is Respondent’s nephew. On August 26, 1996, an undercover Collier County sheriff’s deputy with a confidential informant entered the S&A Food Mart and spoke with Fuzan, who was the only employee working in the store at the time. The deputy informed Fuzan that she had sold a stolen VCR to someone at nearby convenience store and asked if he wanted to buy a stolen computer keyboard. Fuzan called someone at the other convenience store to confirm that he had purchased the VCR. Learning that he had, Fuzan told the deputy that he was interested in buying the keyboard. The informant went outside to retrieve the keyboard from the deputy’s vehicle. While she was gone, the deputy told Fuzan that the price of the keyboard was $20. Fuzan agreed to pay this amount and told the deputy and informant that he wanted to purchase an entire computer. The deputy agreed to sell a complete computer to him piece-by-piece. The informant returned to the store with the keyboard in a bag. After examining the keyboard, Fuzan told the deputy that he wanted to take possession of the keyboard outside of the store and outside the presence of the informant. As the deputy and Fuzan exited the store, Fuzan locked the door to the store, took the keyboard, and placed it in his truck. Fuzan then paid the deputy $20, which he had removed from the store’s cash register. Fuzan then unlocked the door to the store and reentered the premises. On August 27, 1996, the deputy returned to the S&A Food Mart. The lone employee in the store was Respondent. The deputy said that she had a stolen VCR to sell and showed it to Respondent. He said that he was not interested. She then asked when Fuzan would be back. Respondent told her that he worked the next day. The next day, the deputy and confidential informant returned to the S&A Food Mart and found Fuzan working in the presence of another employee who was not Respondent. The employee was probably not able to understand spoken English. The deputy told Fuzan that she had a fax machine to sell and showed it to him in a bag. She said she also had for sale a VCR, air impact wrench, and TV/VCR combo. Fuzan said that he wanted the fax machine. He put it aside, and the employee took it into a nearby office inside the store. Fuzan then called a person named Richard to see if he wanted to buy the remaining items. After instructing the employee to load the fax machine in the truck and watch the store, Fuzan and the deputy went outside to see the rest of the merchandise. After seeing the VCR and TV/VCR combo, Fuzan and the deputy each carried an item back into the store, which did not stock such items for sale at retail. The deputy told Fuzan that she had talked to his uncle the previous day. Fuzan wanted to know what his uncle had said and if he had bought any merchandise. The deputy told him that Respondent had not. Fuzan then put the TV/VCR combo and VCR behind the cash register and they waited for the person whom Fuzan had called earlier about the merchandise. The person arrived and they looked at the merchandise. The deputy and the person negotiated the sale in the store with Fuzan and the buyer behind the sales counter and the deputy on the other side of the counter. At times, store customers arrived and the deputy had to step back from the counter. There was no effort to disguise the nature of the transaction. Eventually Fuzan purchased the fax machine and TV/VCR combo. He and the other buyer asked the deputy to bring more stolen items to the store. Fuzan paid $250 for the property with money that he had taken from the cash register. The deputy next visited the store on September 12, 1996, when she went alone to try to sell six 12-packs of stolen Miller Lite beer. Fuzan was working at the time, and Respondent was not present. Fuzan agreed to purchase the beer for $25 and paid for the beer with money from the cash register. Fuzan then sent the same employee out to the deputy’s vehicle to get the beer. He returned with the beer and placed it in a stack of beer already in the store for sale at retail. In the meantime, Fuzan said that he wanted a CPU for a computer. He asked for a chip speed of 133 MHz or 166 MHz. The deputy suggested that he write down what he wanted, and she would buy it for him. The investigation ended with the arrest of Fuzan. Respondent audited the cash register nightly at the S&A Food Mart and never found any shortages. Evidently, Fuzan replaced the money each day prior to the audit. Although there are suspicious circumstances surrounding the extent of Respondent’s knowledge of the illegal activities of Fuzan at the store, Petitioner has failed to prove that Respondent was aware of the criminal activity of his nephew.
Recommendation Based on the foregoing, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order dismissing the Administrative Action against Respondent. ENTERED in Tallahassee, Florida, this 6th day of May, 1997. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street ROBERT E. MEALE 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 6th day of May 1997. Tallahassee, Florida 32399-1007 John E. Spiller, Esquire Broadman & Spiller Post Office Box 5250 Immokalee, Florida 34143-5250 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
