The Issue Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character.
Findings Of Fact On October 8, 1968, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-13556 was duly issued to Respondent by Petitioner. Respondent was employed as a police officer by the South Miami Police Department in April, 1988. Respondent was directed by his employer to present himself on April 27, 1988, for an annual physical examination at Mount Sinai Medical Center. Under the policy of the South Miami Police Department, all officers are required to submit to an annual physical examination, which includes an analysis of a urine sample from the officer for the presence of controlled substances. The specific date on which an officer is required by the South Miami Police Department to report for his annual physical is randomly selected. On the morning of April 27, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by the South Miami Police Department. At approximately 9:45 a.m., he was given a small sterile sample bottle in which he produced a sample of his urine as instructed. Nurse Joyce Hampton, the Mount Sinai employee responsible for the collection of urine samples from police officers undergoing annual physicals, received the urine sample from Respondent and promptly poured the urine sample into another sterile bottle and sealed the bottle with its cap and then with evidence tape. The sealed bottle containing Respondent's urine sample was labeled so as to identify it as Respondent's urine sample and placed in a locked box. On the afternoon of April 27, 1988, the sealed bottle containing Respondent's urine sample was picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the urine sample could not be tampered with without detection. On May 3, 1988, the sealed bottle containing Respondent's urine sample was opened by a laboratory analyst employed by Toxicology Testing Service. Respondent's urine was thereafter analyzed by Toxicology Testing Service. Toxicology Testing Service used adequate procedures to ensure that Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that the urine sample had not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order. A small amount of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for cocaine metabolite, a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled Controlled Substance Testing Procedures. Respondent's urine contained a metabolite of cocaine, in a concentration of 100 nanograms per milliliter. This result was due to Respondent's use of cocaine. Respondent contends his positive testing for cocaine was caused by his passive exposure to cocaine from the several cups of a type of coca tea that he drank on a daily basis. This contention is inconsistent with the results of the urine analysis and is rejected. Respondent took early retirement with the South Miami Police Department on May 19, 1988, the date the Department's internal affairs investigators had asked Respondent to give a sworn statement as to his use of cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0715 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 4. Addressed in paragraph 5. 6.-13. Addressed in paragraphs 6 and 7. 14-19. Addressed in paragraphs 8, 9, and 11. The proposed finding of fact submitted by Respondent that the positive testing for cocaine was produced by a coca tea that he drank is addressed by paragraph 11. Respondent's letter filed July 14, 1989, contains no other proposed finding of fact. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Milton Franklin 11635 Southwest 136th Terrace Miami, Florida 33176 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976. The above facts were as stipulated to by the parties.
Recommendation Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 H. R. Fallin, Esquire 1239 King Street Jacksonville, Florida 32204
The Issue Whether Respondent has been guilty of gross immorality or an act involving moral turpitude and/or guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.
Findings Of Fact At all times relevant hereto, Marilyn Joan Pelaez held Florida Teacher's Certificate No. 463945 covering the subjects of elementary and secondary physical education and secondary English. On February 20, 1989, while returning home from a party, Respondent became disoriented, sleepy and was in a section of Tampa of which she was not familiar. She pulled her car off the road and into the driveway of a business establishment (Cox Lumber Company) and went to sleep. Some time thereafter Deputy Sheriff Bradley Sanderson, on patrol, observed the parked car and, following standard procedures, stopped his vehicle to investigate. Upon approaching the car, he observed Respondent apparently asleep. He rapped on the windshield, Respondent awakened and opened the car door on the driver's side. When the door was opened, Deputy Sanderson saw what appeared to be drug paraphernalia in the pocket of the door and seized the "pipe". Although this pipe was offered into evidence, it was not accepted. In lieu thereof, a description of the "pipe" was read into the record. This paraphernalia seized is used for "snorting" cocaine rather than smoking it. The pipe was tested on the scene, and traces of cocaine were found in the pipe. Respondent was forthwith arrested for possession of drug paraphernalia and cocaine and transported to the sheriff's office. She was subsequently brought to trial on charges of unlawful possession of cocaine and having in her possession drug paraphernalia with intent to use to ingest unlawful drugs (Exhibit 1). Respondent pleaded nolo contendere to these charges, adjudication of guilt was withheld, and Respondent was placed on probation for one year (Exhibit 2). Respondent readily acknowledged the above facts but contends, without contradiction, that she did not own the "pipe" found in the car door pocket and was unaware that the instrument had been left there by an unknown person. She admitted that she was careless in not locking her car, but acknowledged that the car had been left unlocked and outdoors all weekend. Respondent further testified that she had never used cocaine since experimenting with it in college, and that she requested the officers who arrested her to test for cocaine in her system, and they refused. Had this not been true, the officers who arrested Respondent were present, heard the testimony and were available to rebut this evidence. The deputy who was called in rebuttal reinforced Respondent's testimony that she had opened the door immediately upon being aroused and did not try to close the door when he saw and reached for the pipe. Respondent pleaded nolo contendere because she had no defense to the charge that drug paraphernalia had been found in her car and, therefore, in her possession, and that plea would get her probation rather than a possible prison sentence if she contested the charges. No evidence was presented that Respondent's arrest had received wide publicity in the Hillsborough County School System, nor was other evidence presented respecting Respondent's effectiveness in the school system subsequent to her arrest.
Recommendation It is recommended that the charges contained in the Administrative Complaint dated June 19, 1989, against Marilyn Joan Pelaez be dismissed. ENTERED this 31st day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except for the following. Respondent became lost when she was fifteen minutes driving time from her home. Inconsistent with H. O. Finding #2. 9. Rejected as unsupported by the evidence. 18. Accepted as modified by H. O. #11. 21-24. Rejected as beyond the allegations contained in the Administrative Complaint. 25. Accepted insofar as included in H. O. #8. COPIES FURNISHED: Steven G. Burton, Esquire Post Office Box 3273 Tampa, FL 33601-3273 Marilyn Joan Pelaez 13809 Fletcher's Mill Drive Tampa, FL 33613 Karen B. Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399 Martin Schaap Administrator Professional Practices Services 325 W. Gaines Street, Room 352 Tallahassee, FL 32399 Mark Herron, Esquire 216 S. Monroe Street Suite 300 Tallahassee, FL 32301 =================================================================
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
The Issue Whether controlled substances were possessed, sold, or used at the Jolly Spot Lounge and, if so, whether the owner's alcoholic beverage license should be revoked or whether he should be otherwise disciplined.
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, in addition to the testimony found in the above-referenced depositions, the following findings of fact are made: The Petitioner is the State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Department). The Respondent is Lawrence C. Whitehead, (Whitehead), d/b/a/ the Jolly Spot Lounge located at 508 East Nelson Avenue, DeFuniak Springs, Walton County, Florida. At all times pertinent to the instant matter, Whitehead operated the Jolly Spot Lounge where alcoholic beverages were sold under Alcoholic Beverage License No. 76-00016, Series 2-COP. During the spring and summer of 1996, Whitehead was the subject of an undercover investigation regarding allegations of narcotic sales at the Jolly Spot Lounge. During the course of the investigation, Investigator James Lorenz of the Walton County Sheriff’s Department and other law enforcement officers met with a confidential source for the purpose of investigating complaints of narcotic sales at the Jolly Spot Lounge. The confidential source was instructed by the law enforcement officers to attempt to purchase narcotics at the licensed premises. At all time pertinent to the investigation, the confidential source was searched before the investigation to confirm that she had no contraband on her person. After each of the narcotic sales, the confidential source would rejoin the law enforcement officers where she would surrender the purchased cocaine. On eight separate occasions (May 7, 1996; May 24, 1996; May 24, 1996; May 31, 1996; May 31, 1996; June 7, 1996; July 27, 1996; and July 28, 1996) undercover police officers, confidential informants under the direct supervision and direction of law enforcement officers, or investigators entered the licensed premises in an attempt to purchase cocaine from employees or patrons. On each occasion, the officers, the informants, or the investigators were able to consummate a drug deal and purchase some form of cocaine. On May 7, 1996, the confidential source entered the Jolly Spot Lounge and met with a person identified as Ernest Whitehead (E. Whitehead). E. Whitehead was tending bar, and he told the confidential source that he was the manager. E. Whitehead and the confidential source discussed the purchase of crack cocaine and subsequently, E. Whitehead sold the confidential source crack cocaine in exchange for twenty dollars. Both the conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased from E. Whitehead was later analyzed at the Florida Department of Law Enforcement (FDLE) laboratory and determined to be cocaine. On May 24, 1996, a confidential source drove to the Jolly Spot Lounge, and while in the parking lot she was approached by a person identified as Darrell Guice. The confidential source and Guice engaged in a conversation regarding the purchase of narcotics. Subsequently, Guice entered the Jolly Spot Lounge and immediately returned with crack cocaine. The cocaine was sold to the confidential informant in exchange for twenty dollars. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. Later on May 24, 1996, the confidential source, returned to the Jolly Spot Lounge. While in the parking lot, E. Whitehead exited the Jolly Spot Lounge and approached the confidential source's vehicle. The confidential source and E. Whitehead engaged in a conversation regarding the purchase of one hundred dollars' worth of cocaine. E. Whitehead then sold the confidential source five pieces of crack cocaine in exchange for the bargained price. The conversations and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. On May 31, 1996, the confidential source returned to the Jolly Spot Lounge, and similar to past episodes, E. Whitehead exited the Jolly Spot Lounge and approached the confidential source’s vehicle. The confidential source and E. Whitehead engaged in a conversation regarding the purchase of fifty dollars worth of cocaine. Soon thereafter, E. Whitehead sold the confidential source three pieces of crack cocaine. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. Later on May 31, 1996, the confidential source returned in a vehicle and parked in a parking lot immediately across the street from the Jolly Spot Lounge. E. Whitehead exited the Jolly Spot Lounge and spoke with the confidential informant regarding the purchase of cocaine. E. Whitehead reentered the Jolly Spot Lounge and shortly thereafter, Donald Whitehead exited the Jolly Spot Lounge and delivered seven pieces of cocaine to the confidential source. After the transaction was completed, Donald Whitehead returned to the Jolly Spot Lounge. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. On June 7, 1996, the confidential source returned to the Jolly Spot Lounge and met with E. Whitehead for the purpose of discussing the purchase of a “cookie.” A cookie is a slang word for an ounce of cocaine. After brief negotiations, E. Whitehead informed the confidential source that the “cookie” would cost $1,100.00. Later on the same day, the confidential source returned in her vehicle, parked in the Jolly Spot Lounge parking lot, and met with E. Whitehead. After a brief meeting, E. Whitehead went into the Jolly Spot Lounge and immediately returned with a plastic bag containing the “cookie” of cocaine. The cocaine was given to the confidential source in return for $1,100.00. The conversation and the narcotics transaction occurred in an open manner without any attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was field tested with positive results for the presence of cocaine and confirmed by the U.S. Department of Law Enforcement, Drug Enforcement Administration Laboratory. On or about July 27, 1996, Investigative Aide T. Kent, a sworn correctional officer, entered the Jolly Spot Lounge in furtherance of the above referenced investigation. Kent met with persons identified as Charles Whitehead and “Sugar Man,” and engaged them in conversation regarding the purchase of crack cocaine. Charles Whitehead was tending the bar. During this conversation, a person identified as “Jody” approached, and “Sugar Man” advised Kent that “Jody” could sell her some crack cocaine. Kent ordered and “Jody” delivered two rocks of crack cocaine in exchange for $40.00. At or near the time of the transaction, “Jody” gave “Sugar Man” a piece of crack cocaine who in turn immediately began smoking it in the Jolly Spot Lounge. The conversation and the narcotics transaction occurred in an open manner without attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined to be cocaine. On July 28, 1996, Kent and Division Special Agent Beverly Causey entered the Jolly Spot Lounge. There were approximately 40 patrons inside the premises. Kent noted that there was the distinctive odor of crack cocaine inside the premises. “Sugar Man” met Kent and Causey at the bar. Kent told “Sugar Man” that they wanted some more crack cocaine and they were directed to “Jody.” Kent and Causey each purchased from “Jody” what he represented to be crack cocaine. The conversation and the transaction occurred in an open manner without attempt to conceal the subject matter of the conversation or the transaction. The substance purchased on this occasion was later analyzed by the FDLE laboratory and determined not to be cocaine. Administrative charges were brought against Whitehead based upon alleged violations of the controlled substance statute within the beverage statute.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Division of Alcoholic Beverages and Tobacco enter a final order revoking alcoholic beverage license number 76-00016, Series 2-COP, issued to Lawrence C. Whitehead, d/b/a the Jolly Spot Lounge, for premises located at 508 East Nelson Avenue, DeFuniak Springs, Walton County, Florida. DONE and ORDERED this 19th day of December, 1996, at Tallahassee, Florida. WILLIAM A. BUZZETT 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 19th day of December, 1996.
The Issue An Administrative Complaint, dated March 8, 1990, but amended with leave of the Hearing Officer in an order dated December 17, 1990, alleges that Respondent violated the provisions of Section 943.1395(5) and (6), F.S., and Rule 11B- 27.0011(4)(d), F.A.C., by failing to maintain the qualification established in Section 943.13(7), F.S., requiring "good moral character". The complaint, as amended, alleges that Respondent James E. Lyons, Jr., attempted to purchase, and introduced, cocaine into his body in violation of Section 893.03, F.S., on or about January 20, 1989. The issues are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact James Edward Lyons, Jr., Respondent, was certified as a law enforcement officer by the Petitioner on June 14, 1986, and was issued certificate number 02-86-002-02. At all times relevant to the issues in this proceeding, Officer Lyons was employed as a law enforcement officer by the Brevard County Sheriff's Department and was assigned to the Special Investigations Division, a vice/narcotics enforcement unit. Around midnight on December 31, 1988, Brevard County Sheriff's Deputies, Billy Mitchell Young and Timothy Pemberton, sat in their parked vehicle near Railroad Avenue, an area of the county well-known for illicit drug activity. They had binoculars and were looking for activity with the purpose of intercepting dealers or buyers. They observed a vehicle which, as Deputy Young remarked to his partner, looked alot like "Eddie's" (Respondent's) unmarked department vehicle: a white Thunderbird. Respondent was not a participant in the detail to which the two officers were assigned that evening. The Thunderbird was immobile, and there were two or three people standing around it and moving around in a manner consistent with activity of street dealers competing for a sale. The vehicle stayed parked for about 10-15 minutes. As the two deputies were leaving to back up another team on a traffic arrest, they noticed the Thunderbird run a stop sign at Cross Road and Highway U.S.-1. They commenced pursuit, still unaware of the identity of the occupant. With blue lights flashing, and a spotlight on, the deputies followed the car about three miles before it finally pulled over. The Respondent got out and walked back to the deputies' car to present himself. They were his colleagues, and they knew him to be happy-go-lucky and affable. In this encounter he was very nervous and, according to Deputies Mitchell and Pemberton, he was uncharacteristically anxious to leave. He told them something about hearing about a traffic stop on his radio and going to the Railroad Avenue site to assist. This did not make sense, as the stop to which he referred had occurred much earlier. Mitchell and Pemberton were uncomfortable and somewhat saddened by the event and, at some point, mentioned it to Phillip Shimer, who at that time was in charge of the Brevard County Sheriff's Staff Services Division (including Internal Affairs). On January 20, 1989, Phillip Shimer became involved in an internal investigation involving James "Eddie" Lyons when he was contacted at home early in the morning and was informed that Deputy Lyons was being detained by the Melbourne Police Department on an alleged narcotics violation. The prior evening Deputy Lyons had been found in an area of the City of Melbourne known for narcotics activity. He was in his department Thunderbird attempting to buy crack cocaine from two undercover Melbourne police posing as drug dealers. When one of the undercover police pulled his gun to apprehend him, he fled and was arrested a few blocks away at a convenience store. In a voluntary interview given to Phillip Shimer after his release to the Brevard County Sheriff's personnel, Deputy Lyons explained that he was in the area to meet another Special Investigation Divisions Agent and drove into north Melbourne to see if he could initiate some case activity involving the sale of crack cocaine. He approached two black males on the street and initiated a conversation with them. He attempted to purchase a quantity of cocaine. As the transaction started to take place they identified themselves as police. Deputy Lyons feared that he was going to be robbed, and drove away. The account given by Respondent in his testimony at hearing was similar, but instead of affirmatively trying to make an arrest through a bogus buy, he claimed he was looking for a suspect, "Bobo", and was inquiring of his whereabouts of the two street males when one pulled a gun and he fled. The story would be more plausible if it were not for ensuing events. After listening to Deputy Lyons' explanation, Phillip Shimer suspended him with pay, removed his credentials and secured his department vehicle. He was released on his own recognizance by the Melbourne Police. He was ordered to return to Staff Services at 10:00 a.m. This was delayed until later in the day when Deputy Lyons contacted his superior officer and indicated that he was somewhat upset and did not feel he could respond yet. The parties' prehearing stipulation establishes the following: On January 20, 1989, the Respondent reported to Wuesthoff Hospital in Rockledge, Florida; [in the company of an Internal Affairs Investigator, as required by his superior officer.] At about 2:30 p.m., in a private area of Wuesthoff Hospital, the Respondent urinated into a sterile urine sample cup provided by Wuesthoff Hospital. The cup containing the Respondent's urine sample was promptly received from the Respondent by Wuesthoff Hospital laboratory employee Mr. Wade Wallace. Mr. Wallace immediately capped and sealed the sample cup and labeled it in a manner making it uniquely identifiable as the Respondent's urine sample. At about 2:35 p.m., the sealed sample cup containing the Respondent's urine sample was delivered to the Wuesthoff Hospital Toxicology Laboratory by Mr. Wallace. On January 20, 1989 at about 3:00 p.m., the sample cup containing the Respondent's urine sample was retrieved by laboratory employee Deborah Lanza. Ms. Lanza dispensed a portion of the Respondent's urine sample from the sample cup and performed an initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample. On January 20, 1989 at about 3:15 p.m., laboratory employee Valerie Lasobeck Davies dispensed a portion of the Respondent's urine sample from the sample cup and performed a confirmation analysis of the sample. Neither the sample cup nor the Respondent's urine sample had been tampered with, altered or adulterated since the respondent's urine sample was initially collected in the sample cup. Ms. Davies tested the Respondent's sample utilizing the fluorescence polarization immunoassay analysis method. The test results showed that the sample was positive, containing some 4,830 nanograms per milliliter of a metabolite of cocaine, benzoylecgonine. Shortly thereafter, Ms. Davies performed a confirmation analysis by gas chromatography/mass spectrometry. This analysis yielded a positive finding for the cocaine metabolite, ecgonine. Both benzoylecgonine and ecgonine are unique metabolites of cocaine. The quantity of cocaine metabolite in the Respondent's urine sample was indicative of illicit use of the drug by the Respondent within seventy-two hours previous to the time at which he gave the urine sample. The quantity of cocaine metabolite was wholly inconsistent with casual handling of articles contaminated with cocaine or the mere handling, as opposed to ingestion, of the drug itself. Although cocaine residue can be absorbed through the skin, the level that would be achieved on a drug analysis would be substantially less than a 300 nanogram cutoff for a "positive" finding. In addition to evidence of his use of cocaine, Respondent's explanations of the events of December 31st and January 20th are further discredited by the fact that his mode of operation was contrary to well- established instructions and prudent practices of undercover law enforcement. Officers must not work alone, for their own safety and to preserve the integrity of the operation. A witness is important for the legal proceedings that follow. When an undercover operation is planned, law enforcement agencies with concurrent jurisdiction are informed to avoid the obvious possible result: cops arresting cops. After a jury trial, Respondent was acquitted of the criminal offense of attempted purchase of a controlled substance.
Recommendation Based on the foregoing, it is hereby, recommended that the Criminal Justice Standards and Training Commission enter its final order finding Respondent guilty as charged in the Amended Administrative Complaint and imposing the penalty of revocation of his certificate. RECOMMENDED this 7th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 7th day of May, 1991. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 James E. Lyons 415 18th Street, S.E. Winter Haven, FL 33880 Jeffrey Long, Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Dept. of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302
The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida, FRED L. BUCKINE 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 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material hereto, Respondent, Cheryl A. Odom, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), having been issued certificate number 02-028628 on June 4, 1982. The collective bargaining agreement between the Opa-Locka Police Department and its uniformed officers provides for an annual physical examination and drug screen for the uniformed officers. On January 2, 1991, Respondent was told that her annual physical examination and drug screen would be on January 3, 1991. On January 3, 1991, Respondent, as part of her annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. On January 4, 1991, Respondent reported back to TTS to provide a second urine sample for analysis. Both urine samples provided by Respondent to TTS were collected, stored, handled, and tested pursuant to procedures and methods adopted by TTS. The procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable analysis of Respondent's urine samples. The instruments used by TTS to analyze the two urine samples involved in this proceeding were in proper working order at the times the samples were analyzed. GCMS is accepted, scientifically, and the results it produces are acknowledged to possess a 99.99 percent accuracy rate. The urine sample taken from Respondent on January 3, 1991, was screened twice by TTS using a machine that was calibrated to detect benzoylecgonine, a cocaine metabolite, at a level of 50 nanograms per milliliter. Dr. Hall testified that the City of Opa-Locka had instructed TTS to use a screening cutoff of 50 nanograms per milliliter. This is a relatively low screening cutoff. In comparison, the screening cutoff the Commission has adopted by Rule 11B-27.00225(3)(b), Florida Administrative Code, is 300 nanograms per milliliter. The first screening of the sample of January 3, 1991, detected a level of benzoylecgonine at a level of 113, while the second screening detected a level of 115. Because the screening for cocaine was positive, Respondent's urine sample was subjected to analysis using GCMS, which more accurately analyzed the urine sample than the screening device. Upon analysis by the staff of TTS using the GCMS, the sample taken from Respondent on January 3, 1991, proved positive for the presence of benzoylecgonine in a concentration of 166 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. The GCMS analysis of the urine sample taken January 3, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 3, 1991, had benzoylecgonine in her urine at a level of 166 nanograms per milliliter. On January 4, 1991, the Opa-Locka Police Department notified Respondent that "a trace of something" had been found in her urine sample and that she would have to be re-tested. Respondent was not notified at that time that the substance detected was the cocaine metabolite. Respondent freely and voluntarily accompanied Sergeant Edward Moore of the Opa-Locka Police Department to TTS on January 4, 1991, at approximately 6:00 p.m., and provided the second sample for analysis. The analysis of this second urine sample taken from Respondent on January 4, 1991, proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 90 nanograms per milliliter. The GCMS analysis of the urine sample taken January 4, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 4, 1991, had benzoylecgonine in her urine at a level of 90 nanograms per milliliter. The reduced concentration of the cocaine metabolite detected in the second urine sample is consistent with the concentration of 166 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. The results of the TTS testing demonstrates the presence of cocaine metabolite in Respondent's system, and, consequently, establish that Respondent ingested cocaine. These results do not, however, establish that the ingestion was knowing and unlawful. Petitioner relies on an inference that it asserts should be drawn from the positive test results to establish its assertion that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to-wit: cocaine and did introduce said substance into her body." There is no evidence, other than the test results, to establish this assertion. Dr. Hall testified that the levels of the cocaine metabolite detected in Respondent's urine samples could have been the result of unknowing passive inhalation of cocaine or the result of unknowing ingestion of cocaine by food or drink. In a heavy user, cocaine can be detected for up to 40 days following ingestion. In the case of a light user, the metabolite can be detected for up to ten days following ingestion. 1/ In response to the testing which revealed the presence of the cocaine metabolite in her urine, Respondent denied the knowing use of cocaine at any time. In determining whether this denial is credible, the undersigned has considered the testimony from the persons who have known Respondent for an extended period of time and the letters of commendation that were presented by Respondent without objection. From this evidence, it is found that Respondent is a person of good moral character who has respect for the law. Respondent has the ability to differentiate between right and wrong and the character to observe the difference. The evidence established that Respondent has a disdain for drugs that has been evident in her personal and professional life. There was other evidence that was considered in determining the credbility of Respondent's denial of knowing drug use. From the time of her certification through January 1991, Respondent submitted to periodic drug screens. All prior drug screenings during the course of her career were negative. Respondent had reason to believe that her annual physical examination, which included the drug screening, would be in January 1991 because the physical examination and drug screen for the years 1989 and 1990 were in January. It is doubtful that Respondent would have knowingly ingested cocaine if she had reason to believe that she would soon be subject to a drug screening. There was no evidence that Respondent used drugs, other than the test results, despite an internal investigation by the Opa-Locka Police Department following the positive testing in January 1991. From Respondent's initial employment as a police officer through her current employment, but for the incident in question, Respondent has consistently been recognized as a professional, loyal and dedicated police officer. During this service, she was frequently commended for her performance. Respondent could not explain how or when the cocaine may have gotten into her system. This inability to explain does not compel the conclusion that her denial of knowing and voluntary ingestion is to be discredited in light of Dr. Hall's testimony that the ingestion could have occurred days before the testing and been unknown to Respondent. It is concluded, based on the totality of the evidence, that Respondent's denial that she has ever knowingly taken drugs is credible. To sustain its burden of proof in this proceeding, Petitioner must establish that Respondent's cocaine use was knowing and unlawful. The fact that Respondent tested positive for cocaine ingestion, without the inference that the ingestion was knowing and unlawful, does not establish that Respondent lacks good moral character. Based on the evidence presented, including the Respondent's credible denial and Dr. Hall's testimony, the undersigned declines to draw the inference that Petitioner requires to sustain its burden of proof in this proceeding. 2/ Because the evidence in this proceeding failed to establish that Respondent unlawfully and knowingly ingested cocaine, the Petitioner failed to establish that Respondent lacks good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint filed against Respondent. DONE AND ENTERED this 8th day of August 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August 1995.
Findings Of Fact At all times pertinent to the allegations in the Notice to Show Cause herein, Respondent, Grand Saloon Tavern, Inc., was the holder of a valid alcoholic beverage license number 15-00028, Series 4-COP issued by Petitioner (DABT) to Respondent for the Inner Room located at 74 North Orlando Avenue, Cocoa Beach, Florida. On the evening of April 24, 1984, Beverage Investigator Gloria Smith and Special Agent Terry Altman, both in an undercover capacity, entered Respondent's licensed premises and took a seat near the disc jockey's booth. Smith asked an employee of the bar, a dancer named Janice Decker, who used the stage name "Angel," whom she had met weeks previously and established a friendship with, if Angel could get her some cocaine. Angel agreed and made arrangements for some cocaine, which she told Smith and Altman would arrive in about a "half hour." Somewhat later, Angel came up to the two agents where they were sitting in the bar, told them the cocaine had arrived, and received a $100 bill from Smith. Smith saw Angel engage in an exchange between Angel and the courier known to Smith as "Tommy" after which Angel came back to the agents' table and delivered to them a match box and told them it contained cocaine in two half-gram packages. When Angel left the table, Smith opened the match box and observed it contained two clear plastic bags which both had a white powder in them subsequently properly identified as cocaine. She took one of the bags out of the match box to check it. In Altman's opinion, the disc jockey saw her do this but that individual denies having done so. He contends that, given her position in the booth, with the lights adjusted as they are, he cannot see the people sitting at the tables below him and he knows nothing of any sale of drugs by Angel to Smith. Smith and Altman had gone into the Inner Room as a part of an ongoing investigation of several establishments to see if they could purchase drugs in them. Smith had met Angel at the Show Bar, another Cocoa Beach bar, in early March when Angel, who was working there at the time, did a personal dance for Agent Altman. After that, she made several purchases from Angel at the Show Bar using the cover story that she the, widow of an older man, who had been left a good income, and was now out looking for some "fun" with some younger man of whom Altman was supposed to be one. She said she wanted the cocaine for recreational use. The first time she want into the Inner Room she went in part to meet people and see the atmosphere of the place. On the first occasion, when she asked for Angel, Angel was not there. Smith returned to the Inner Room on May 10, 1984, this time in the company of United States Drug Enforcement Agency (DEA) Special Agent Eslingor and the two of them sat along the east wall of the lounge. On this occasion, she met Mr. Johnson, one of the owners who introduced her to the other owner, Mr. Crockett. The licensed premises is divided into three general areas--a small lounge, a larger lounge, and a game room. The east wall, where Smith sat, is in the area near the disc jockey's booth. Smith spoke with Angel about Angel's inability to deliver the cocaine she had promised on a previous occasion and asked her if she knew of anyone else who might have any cocaine for sale. When inquiry by Angel failed to reveal any available sources that evening, Smith gave Angel $100.00 for 1 gram of cocaine to be delivered the next night. Just about that time, Smith observed another dancer, Danielle, going into the restroom and followed her in. She went after Danielle because, based on information she had received from a third dancer, Deosia, she thought Danielle might have some for sale. When she got into the restroom, Smith asked Danielle if she had any cocaine to which Danielle replied she had only a little in her personal stack, of which she could give Smith a "line." Danielle then poured some white powdery substance, subsequently identified as cocaine, from a plastic triangular bag into a cellophane cigarette wrapper and handed it to Smith. Smith does not recall if Danielle asked for payment, but when Smith handed her $5.00 and when asked if that was enough, Danielle replied, "That's what I usually get." When Smith and Eslinger went back the following night, approximately 11:15 p.m., Angel, to whom Smith had given $100.00 the previous evening, told her that she had the cocaine Smith had asked for. She then delivered the substance, later identified as cocaine, and stated that she had taken a "line" for herself out of it. Smith agreed to that. Smith does not recall if the cocaine was delivered in a matchbook or in a folded $1.00 bill. In either case, however, consistent with her routine practice, upon delivery she checked the delivered substance out in the open by opening the package, tapping the enclosure on the table, and examining it, a procedure, he feels, that takes about 10 seconds. On this occasion, as on all other occasions, when she was in this lounge, she sat in an area off to the side of the bar which is visible from all other areas of the bar except the entrance. There are also other tables there as well. On May 25, 1984, Smith, Altman and Eslinger went into the Inner Room, actually at about 12:15 a.m. on May 28. On this occasion, Angel told Smith she had gotten rid of the cocaine she had promised to get for Smith because she had fronted the money for it. However, she stated she would have her husband bring some more, and later the same evening came back to the table where Smith and the others were sitting, sat down with them, and handed Smith a folded $1.00 bill for which Smith gave her $100.00. From this $1.00 bill, Smith took a small plastic bag which contained a substance later identified as cocaine. Not all cocaine sales ware arranged at the licensed premises, however. On June 4, 1984, Agent Smith phoned Angel at home and suggested that Angel get her some cocaine and deliver it at the Inner Room. She thereafter took $100.00 to Angel at her home and made the definite arrangements for the delivery of the cocaine at the licensed premises. When Smith, Altman, and Eslinger went to the Inner Room at approximately 9:30 p.m. that evening, Angel came over to them and delivered a cigarette package to Smith. After Angel left, Smith took a plastic bag from the cigarette pack and checked it on top of the table so that it could be seen by other patrons and Hank, the manager, was standing over near the disco booth talking with two men who appeared to be Cocoa Beach police officers. Smith cannot say that her actions were seen by these people, but the package contained what was later identified as cocaine. Smith was not arrested by these police officers even though they did not know she was an undercover agent. This leads to the conclusion that her "checking out" of the deliveries was not so open or notorious as, by Smith's own admission, had they seen what she was doing, they probably would have had cause to arrest her. When Smith first bought cocaine from Angel in the Inner Room, she had already made two or three purchases from her at another bar in the area and it was always Smith who made the purchases. She also paid Angel to "dance" for her "boyfriend" Altman several times and for each "dance" paid Angel $3.00. Over the period of the investigation, including this establishment and others, she got to know Angel and liked her. In doing so, she built up Angel's trust in her which Angel contends was the only reason she sold Smith cocaine. Smith purchased from only Angel and Danielle at the Inner Room. There is no evidence of other drug sales by other employees to other agents nor does Smith have any personal knowledge of any drugs on the premises except for those forming the bases of the allegations here. Altman played the part of the hanger-on sponging off a rich lady consistent with Smith's cover story. He was introduced to one of the co-owners, Mr. Johnson, on one occasion but had no conversations with him or anyone else regarding drugs. He made no drug purchases because his DATF investigation related to firearms. Though he was in the Inner Room quite a few times with and without Smith, he never saw any independent opportunity to buy drugs except for Smith's buys and he has no personal knowledge of anyone other than Angel or Danielle who had drugs for sale or were dealing drugs there. While in the Inner Room, Smith had several general conversations with owner Johnson during which she says she may have mentioned her "mid-life crisis" cover story. She denies any conversations with him, however, in which she tried to entice him into using drugs with her or when he said he did not use drugs or permit them on the premises. She does not recall them discussing what steps he took to keep drugs out. She did not notice any posted rules or notices regarding drugs. On each occasion Smith was in the Inner Room, either one or both of the owners were there in addition to a manager. She does not know what this latter individual's responsibilities were. There were also always men at the door but she does not knew what their function was other than to collect the entrance fee. Angel, whose real name is Janice M. Decker, was employed at the Inner Room as a dancer. She had just returned there prior to April 24, 1984, after working at the Show Bar, another club in Cocoa Beach, for 9 months. Prior to that, she worked at the Inner Room for 3 1/2 years. When she was first hired, she was instructed by owners that their rules included no drugs, no alcohol, and no solicitation for prostitution on the premises and during the first 3 1/2 years she worked there, she never had any drugs or saw any there. She first met Agent Smith at the Show Bar in July 1983 and developed a friendship with her. Smith did not make any requests for cocaine until their fourth meeting. By this time, Angel had accepted Smith's cover story and thought she was a nice lady. They had talked of going shopping together and of going out to dinner with their respective man as couples. In fact, Smith gave Angel her home phone number, but whenever Smith would call Angel, she would say she was out of town. Smith's first request for cocaine from Angel came at the Show Bar. Angel contends that even though she did not use cocaine and did not have any, because of her friendship for Smith and the fact that she felt sorry for her, she agreed to try to get some from someone. She found a source and whenever she bought any for Smith, she would deliver all she got and keep more for herself. She also felt close enough to Smith to front the money for these purchases and each time Smith requested cocaine, the purchase details ware always secondary to social conversation and "girl talk." When Angel quit the Show Bar and went back to the Inner Room, though she had fears about bringing drugs into the premises because she knew the owners' anti-drug policy, she did so because: (1) she knew her reputation there was as a "straight," and (2) she felt sorry for Smith and wanted to help her. As a result, she deceived her employers. On several of the occasions alleged, Angel didn't want be deliver on the premises but Smith insisted she deliver there. Their agreement was to meet outside for the transfer on two occasions, but each time Smith was not there and since Angel had to go to work, she had to go inside and when Smith showed up deliver there. Aside from the sales to Smith, Angel contends she has never had any drugs inside the Inner Room, nor has she ever seen any other employee with it in their possession there. She got the cocaine from a supplier she knows as Terry who she would meet at McDonald's-- never her husband. When she would get cocaine for Smith, she would keep it in her work purse with her in the lounge and not in her street purse in her locker. Neither she nor her locker has ever been searched for drugs. In her opinion, the licensees run a legitimate operation. They are strict about people who break the rules and seem to know what is going on there. Either one or both owners are on the premises every night along with two security people. This opinion is shared by other club employees like the dancers Angie and Danielle. Angie worked for the licensees for 11 months before they closed on June 8 and never saw any drug dealings or employees with drugs on the premises. Customers have asked her about drugs on various occasions but she always refused to get involved. When she was hired, she was advised that the club rules included no use or sale of drugs and called for the employee to be fired if this rule was violated. Danielle, who has worked there for 9 or 10 months, had the same understanding of the rules. When she was hired, she was given a copy of the posted rules and the owners have periodic meetings of the employees at which they are reminded of the rules regarding no alcohol, no drugs, no prostitution, and the need to report any infractions. She knew that a violation of those rules would result in termination. Regarding the sale to Smith, Danielle admits the transfer, but contends she at first refused and gave Smith the cocaine only after Smith said it was for her boyfriend who needed it badly. She didn't ask Smith for any money, intending it to be a gift even though she had never met Smith before. After the transfer, Smith threw her $5.00 and left. She is concerned about her job even though she has not been told she was fired. The disc jockey, Ken Carlin, who has worked at the Inner Room for 4 years, relates much the same story regarding the owners' efforts to keep drugs out as do the dancers. There are frequent meetings of all personnel regarding illegal activities and anyone caught involved in them is fired. Whereas the dancers disclaim any knowledge of any employees involved in drugs, Mr. Carlin, however, indicates at least one a month is fired. This must be for other reasons, however, because, according to him, he has seen drugs on the premises only once about a year ago and had fired the dancer who had them immediately. In addition to his job as disc jockey, his responsibilities also include policing the premises on a frequent basis and this includes inspecting the dancers' dressing room which he does about three times each night. When he does these inspections, he does not go into the house, however. In addition to the owners, the managers and Carlin, all of whom exercise the responsibility to check the premises for drugs, Gary O. Greenwald, one of the doormen and bouncers, also patrols the inside for violations. He has bean briefed regarding certain known drug users or dealers who are barred from entering the club. He has also been instructed to throw anyone suspected of possessing drugs out and if anyone is caught with it, he is to hold that person and call the police. During the three months he has worked there, ha has not observed any drugs on the premises. The Inner Room's reputation with at least a portion of the Cocoa Beach police force is high. William McDonald, who has been an officer for 11 years, has visited the licensed premises two or three times a week for 11 years and has never, at any time, seen any drug activity there. He has been called there by the owners several times (never for drugs) and has made some arrests for such offenses as drunk and disorderly, firearms, and assaults. In his opinion, none of the bars in the area are completely drug-free, but comparing this bar with others in the area, it is run better because the owners are more conscientious. Mr. Johnston has talked with him repeatedly about the effort made to keep drug activity out of the bar and considering the fact that the owners are not police, he feels they do a good job of it. So, too, does David E. Schoch, also a Cocoa Beach Police Officer who has gone into the Inner Room three to four times a week on duty and at least one night a week off duty for the past several months. In all that time, he has never seen drugs on the premises except one time when he was called there on duty. By the time he arrived, one of the owners and the bouncer had the situation under control and had confiscated some cocaine. He finds this bar to be one of the better and safer bars in the area due to the preventive actions of the management. He is convinced it is one of the more drug-free bars in the area due primarily to these efforts and considers that, considering their lack of training, the owners do a good job of it. Lamar L. Johnston has been a co-owner of the Inner Room with Jesse Crockett for 8 1/2 years. During that time, the bar has never been cited for any infractions of the beverage laws. He has what is to him a lot of money invested in this bar and to keep from losing it, he has worked hard and been through in indoctrinating his people on the no drug policy. He has published a list of employee rules which are made known to every employee at monthly meetings and are posted in the dancers' dressing room, behind the bar, and in the disc jockey booth. He keeps tabs not only on his employees but also on his clientele and if he sees someone in the bar who he knows to be involved in any type of illegal activity, he advises his bouncers to keep that person out. He personally patrols the bar on a regular basis each night and has his disc jockey, managers, 2 bouncers, and security men do the same. He requests the Police Department to come in on duty and has given off-duty policemen passes to come in without paying the admission charge. With the exception of the one occasion described by Officer McDonald, he has never seen any drugs in his club. With regard be the personnel he hires, he keeps tabs on all dancers in the area including as far away as Orlando and Daytona Beach, by real and stage names, who have been arrested or fired for prostitution or drugs. If one of these apply for work, he will not hire them. However, he contends he cannot prevent an employee from breaking a rule if that person is bent on doing so. All he can do is publicize the rules and warn his employees of the consequences of breaking them. He checks the dressing room six times a night and, recognizing that thirty pairs of eyes are better than one, put into effect the rule relating to firing employees who have knowledge of but fail to report drug activity. His bar is not brightly lighted because, in his experience, bar patrons do not like a brightly lighted bar. Because of that, he tries to patrol as much as possible. On top of that, his lounge caters to a higher element clientele such as engineers from Cape Kennedy Space Center, Administrators from Brevard Community College, and professional people. His bouncers are instructed to keep the lower element out and a dress code is enforced.
