The Issue The issue for determination is whether just cause exists for termination of Respondent Mabel Johnson’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the employment of Respondent, Mabel Johnson. DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2005.
The Issue Is Petitioner qualified for practice as a real estate sales associate, when considering his criminal history record in its substance and point in time?
Findings Of Fact Petitioner was born on September 18, 1975. Petitioner applied to the Commission to become an associate. The application was received August 5, 2005. Petitioner made application to become an associate on the form provided by DBPR. In response to a question about his background, Petitioner revealed information concerning crimes he was accused of committing. On May 27, 1994, Petitioner was arrested by the Panama City Beach, Florida, Police Department and charged with marijuana possession over 20 grams, marijuana possession with intent to deliver, and marijuana sale or purchase, all under authority set forth in Section 893.13, Florida Statutes. The original marijuana case involved arresting charges for felonies. This case was assigned upon charges in the Fourteenth Judicial Circuit, Case No. 9401076CFA. On September 18, 1995, the case was disposed of when it was dropped/abandoned. On October 28, 1996, Petitioner was arrested by the Seminole County Sheriff's Office in Seminole County, Florida, on three counts of fraud related to checks written upon insufficient funds. One check from May 30, 1996, was for $40.00 to Bayou George Rainbow, two additional checks in the amount of $75.50 each from the date June 7, 1996, were written to Publix. When Petitioner was charged there were three counts, a single count for each check. This case originated in Bay County, Florida. On November 8, 1996, the Petitioner pled guilty to Count I within the charges. He pled nolo contendere to Counts II, III, and IV within the charges. He was assessed $149.00 in relation to Count I. The fourth count within the charges is of unknown origins, when considering the proof at hearing. Adjudication was withheld in relation to all counts. This disposition was made in Case No. 96004585MMMW. On May 14, 1997, Petitioner was arrested by the Pensacola Police Department for possession of marijuana, in an amount under 20 grams, pursuant to Section 893.13, Florida Statutes. This case was brought before the Escambia County Court, Case No. 9720966MMA. On June 4, 1997, Petitioner pled nolo contendere to a first degree misdemeanor pertaining to the marijuana possession. The adjudication was withheld. Petitioner was placed on probation for six months and required to pay $160.00 in court costs. On April 24, 1998, Petitioner was arrested by the Panama City Police Department for marijuana possession with intent to distribute, a felony under Section 893.13, Florida Statutes. He was also arrested for narcotic equipment possession under Section 893.147, Florida Statutes, a misdemeanor. He was charged before the Circuit Court of the Fourteenth Judicial Circuit, in Case No. 9800991CFA. On December 15, 1998, Petition pled nolo contendere to possession of a controlled substance and adjudication was withheld. He pled to what has been described in the proof as controlled substance possession, sell etc., a felony. He received four years' probation. Petitioner also pled nolo contendere to the narcotic equipment possession or the possession of paraphernalia on the same date, for which he was found guilty/convicted, with terms of probation for one year to run concurrent with the probation associated with the other offense. In relation to the present case, where Petitioner pled to offenses involving marijuana, information provided indicated that he was called upon to abide by any court restrictions placed on him. On November 26, 2002, Petitioner was arrested by the Walton County Sheriff's Office under Section 784.03, Florida Statutes, for battery, cause(d) by bodily harm associated with domestic violence, a first degree misdemeanor. He was charged in the County Court of the First Judicial Circuit, in and for Walton County, Florida, in Case No. 021299MM. On March 24, 2003, Petitioner pled no contest to simple battery. Adjudication was withheld and he was required to pay $301.00 in costs and to attend and complete an anger management course and have no violent contact with the victim. On January 17, 2006, the Commission entered a Notice of Intent to Deny Petitioner a license to become an associate based upon the criminal violations that have been described. The Notice of Intent established specific reasons for the denial that will be discussed in the Conclusions of Law. To place the criminal offenses in context Petitioner, his mother, step-father and a family friend testified about Petitioner's life. Petitioner began to have problems with his conduct when his parents had their marriage dissolved. Around that time Petitioner was in the transition between late adolescence and his teenage years. Eventually his mother remarried and the two families combined. That arrangement was difficult because of conflict between Petitioner and a step-brother. Petitioner concedes the problems that he had with marijuana. When Petitioner was charged with 20 grams of marijuana on one occasion, he admits to having seven grams on his person. In addressing the problem he participated in separate court-ordered drug programs which he completed. His drug abuse entered into the decision to write checks for insufficient funds. Concerning the incident involving the charge of domestic battery, which was resolved by a no contest plea to simple battery, Petitioner without contradiction, testified that this situation came about on the basis of an argument with his girlfriend, a verbal exchange not involving physical contact. The situation that led to his arrest for domestic misconduct took place when Petitioner and his girlfriend had an argument at the beach. He was arrested the next day. Petitioner attended the anger management course that he was ordered to attend. Petitioner indicated that there were no further confrontations with the girlfriend. Petitioner satisfactorily complied with the terms of his probation in each criminal case. Petitioner reports that he has been drug-free since 1998. Jimmy Ruthven, Petitioner's stepfather, described the family issues and conflict in the beginning of the relationship between the witness, Petitioner and their respective families. Mr. Ruthven has been the step-father for 15 years. He describes Petitioner in more recent times, as doing better, as being stable without problems. Brenda Ruthven, Petitioner's mother, identified the divorce from her former husband as the beginning point for Petitioner's problems. In this period Petitioner was rebellious, used drugs, had undergone counseling and so forth. During the last four or five years she has seen a turnaround in Petitioner's conduct. Over the last four years Petitioner has been more responsible. Renee R. Willoughby, a family friend who has been familiar with Petitioner over time, has noticed in the last six or seven years that Petitioner has improved in his conduct and has shown himself to be a person of intelligence and integrity. Petitioner attends Florida State University. He is a Dean's list student in Business Administration and Marketing. He served on the Student Council and the Campus Improvement Board at the Panama City, Florida, campus of the university. He expects to graduate in December 2006. Petitioner has worked at Criolla's Restaurant at Santa Rosa Beach, Florida, since February 2002, as a server and bar tender.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner a license as an associate. DONE AND ENTERED this 14th day of July, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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, 2006. COPIES FURNISHED: James D. Veal 209 South Cove Lane Panama City, Florida 32401 Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Nancy B. Hogan, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Should the Board of Nursing (the Board) impose discipline on Respondent's nursing license for violating Section 464.018(1)(n), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts At all times material to this Complaint, Respondent was a registered nurse (R.N.) within the state of Florida, having been issued license number RN 2055672. Respondent's address of record is Rt. 22, Box 2347, Lake City, Florida 32024. On or about April 21, 2004, Respondent submitted to a pre-employment drug screen. The drug screen returned on or about April 24, 2004, indicating a positive test result for cannabinoids - tetrahydrocannabinol, the principal active component of Marijuana. Marijuana is a schedule I controlled substance pursuant to Section 893.03(1)(c)35., Florida Statutes. A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and its use under medical supervision does not meet acceptable safety standards. Respondent did not have a lawful prescription or a legitimate medical reason for using Marijuana, or any other substance that might test positive for cannabinoids - tetrahydrocannabinol. Specimen Submission On April 21, 2004, when Respondent underwent a pre- employment drug screen, it was by providing a urine specimen. As the donor she signed a form with the following language: I certify that I provided my urine specimen to the collector: that I have not adulterated it in any manner: each specimen bottle used was sealed with a tamper evidence seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct. It was specimen ID number 190920 to be submitted for drug testing at Doctors Laboratory, Inc. (Doctors Laboratory) in Valdosta, Georgia. The reason Respondent provided the urine specimen was in relation to a job application with Shands, Lake Shore, Live Oak and Starke (Shands) whose business address is in Gainesville, Florida. Respondent was tested for drugs in accordance with the Florida Drug Free Work Place Program that is part of the pre-employment process for the prospective employer. The urine specimen was tested for the presence of amphetamines, cannabinoids, cocaine, opiates, phencyclidine, barbiturates, benzodiazepines and methaqualone. Respondent's urine specimen was packaged and shipped to Doctors Laboratory in Valdosta, Georgia, where it was received on April 22, 2004, for testing. The test designed to detect cannabinoids is referred to as "9 CARBOXY-THC." The laboratory test performed on Respondent's urine specimen returned as positive for the presence of cannabinoids, outside what would be considered an acceptable range. On April 23, 2004, Doctors Laboratory released Respondent's test results to the Occupational Health Services Unit within Shands, which was received by that unit on the same date as evidenced by a stamp found on the laboratory test information copy. On April 26, 2004, nurse Denise Cannon signed a document that is headed "Shands Healthcare Occupational Health Services Positive/Abnormal Drug Screen." It pertains to Respondent. It mentions the prospective hiring of the Respondent to work at Lakeshore in the position of R.N./ICU. It notes of the positive drug screen for: 9 CARBOXY-THC-Marijuana. It notes that nurse Cannon notified Respondent of the results on April 26, 2004. Part of the notification was to verify Respondent's identity by social security and date of birth and to advise Respondent of Shands Drug Free Work Place Policy, as well as rights/responsibility under the Florida Drug Free Work Place Act of 1988. The form indicates that Respondent requested a consultation with the MRO, short for Medical Review Officer. It comments that the Respondent was not hired. The comment section states that Respondent "would like to contest the drug screen." On April 28, 2004, a MRO Verification Worksheet was completed in relation to the Respondent and specimen ID 190920, which shows that a positive result was received on April 27, 2004. On April 28, 2004, the worksheet was signed by Dr. Ku-Lang Chang M.D., M.R.O. According to the MRO Verification Worksheet, an attempt was made to call Respondent on April 27, 2004. On April 28, 2004, as the worksheet describes, a message was left "LM with husband." The Verification Worksheet goes on to describe that on April 28, 2004, an interview was conducted in which the "applicant decided not to pursue this." This is understood to refer to Respondent as the applicant. In the April 28, 2004, conversation Respondent was informed of the test results. The MRO Verification Worksheet has a notation that "reported to IPN 5/3/04" IPN is read to refer to the intervention project for nurses. In conclusion, the MRO Verification Worksheet made a verification decision: positive for 9 CARBOXY-THC. On April 28, 2004, Dr. Ku-Lang Chang notified N. Denise Cannon, R.N., Occupational Health Unit within Shands, of the positive drug screen. On May 10, 2004, nurse Cannon executed a form provided by the Department reporting on Respondent's positive drug screen. On June 10, 2004, nurse Cannon wrote Ms. Julie Weeks, of the Department, outlining the drug screen process, notification of the results on April 26, 2004, and the advice to Respondent to contact IPN. The June 10, 2004, correspondence refers to Respondent's request that the results of the drug screen be turned over to Dr. Ku-Lang Chang, Medical Review Officer (MRO). The June 10, 2004, correspondence from nurse Cannon to Ms. Weeks speaks of the intervention project, the IPN, Intake Case Manager Pat Falke and Respondent's failure to follow through with the recommendations of IPN. As a consequence, Nurse Cannon corresponded with the Department to undertake an investigation. On May 28, 2004, Pat Falke, had written nurse Cannon indicating that efforts at gaining Respondent's participation with IPN had not succeeded and reminding nurse Cannon to proceed with the execution of the uniform complaint on the Department's form. Laboratory Analysis Doctors Laboratory where Respondent's urine specimen was analyzed is a clinical reference laboratory that serves Florida, among other states. Its affiliation with Florida is in relation to the Florida Drug Free Work Place Program in providing forensic urine drug testing for employment screening. Richard Earl Struempler, B.S., M.T., (ASCP), MS, MA, NRCC is the Director of Operations and the Director of Toxicology for Doctors Laboratory. As such, he is responsible for the day-to- day operations of the forensic urine drug testing laboratory pertaining to procedures and protocols, in the interest of making certain that the procedures followed in the laboratory comply with rules, regulations, and certification standards for the Florida Drug Free Work Place Program employment drug testing, among other affiliations. By stipulation, Mr. Struempler was accepted as an expert in toxicology and drug testing for purposes of his testimony. On April 22, 2004, Doctors Laboratory received Respondent's urine specimen for drug testing. Tests were performed to detect the class of drugs that have been described. Within that grouping was Marijuana which is also known as THC. THC stands for tetrahydrocannabinol, with delta nine tetrahydrocannabinol being the main psychoactive ingredient found in Marijuana. The test conducted on the urine specimen was designed to look for the metabolite of this substance in the carboxylic acid form. Respondent's urine specimen was collected in Gainesville and taken by carrier to Doctors Laboratory in Valdosta, Georgia. When it arrived by carrier, it was placed in the accessioning area within the laboratory for immediate transfer to the drug testing area within the laboratory. The accessioning area is a secured facility within the laboratory with limited access, access only to the individual(s) who would need to work with the specimen. Shipping containers are opened in the accessioning area and the individual specimens are removed with an interest in discovering any damage or tampering that may have occurred during shipment. The sample is assigned an accessioning number and is marked as being received in the drug testing laboratory accessioning area. Nothing about Respondent's sample indicated that there were signs of tampering or damage. It was specifically indicated that the primary seal bottle for the urine specimen was intact upon arrival. The accessioning number for Respondent's drug specimen was 07163062. That number was utilized in tracking the urine specimen through activities associated with the urine specimen while in the laboratory. Two tests were employed to analyze Respondent's urine specimen in Doctors Laboratory. The first test, referred to as an initial test, was the immunoassay test designed to identify categories of drugs, to include cannabinoids. It is an antibody antigen reaction test to reveal a color associated with a given drug. At this stage the laboratory also does specimen validity testing, looking for the presence of any indicators that might show that the specimen was tampered with. These steps in the process were utilized in analyzing Respondent's urine specimen. The initial test was by use of an aliquot of the urine specimen. The immunoassay test is accepted in the scientific community and is contemplated as a protocol related to the Florida Drug Free Workplace Program. Respondent's results show the presence of cannabinoids at the cut-off level of 15 nanograms per milliliter or greater. Being within that range, it was considered to be a positive test. Recognizing the positive results, the laboratory staff tested the urine specimen further through what is referred to as confirmation testing. When the confirmation test was performed, a fresh aliquot was obtained from the urine specimen bottle. The confirmation test is designed to extract from the urine, delta 9 tetrahydrocannabinol or delta 9 THC carboxylic acid. The extracted material is concentrated in a small vial and derivatized or converted into a form that allows it to be analyzed by an instrument known as a gas chromatograph/mass spectrometer, also referred to as GC/MS. This step in the process is designed to separate THC from other things found in the urine specimen, breaking it down into molecular components. The components are measured as to size, weight, and amount. The GC/MS test is considered within the scientific community to be accurate and reliable. The results of the test on Respondent's urine specimen revealed the presence of delta 9 THC carboxylic acid at 57.5 nanograms per milliliter, a significant amount confirming the presence of the drug. The immunoassay and GC/MS test equipment was properly calibrated before performing the test on Respondent's urine specimen. The tests were properly performed. The chain of custody from the collection point through the testing regimen was not breached and is well documented. The chain of custody was maintained in accordance with standards required at Doctors Laboratory. Respondent's urine specimen that remained following the laboratory test was retained for at least a year, the period required for retention. During that time, no request was made to make the specimen available for independent testing outside the laboratory. As an expert, Dr. Struempler offered his professional opinion that Respondent's urine specimen was collected and submitted to the Doctors Laboratory in accordance with standard operating procedures, that the test and handling of the specimen was in accordance with standard operating procedures, and that the results of the tests reported on April 23, 2004, as being positive for the presence of cannabinoids, THC, was a true and accurate reflection of the nature of the substance found. No administrative or technical errors in the handling and testing occurred. Dr. Struempler expressed the opinion that the Respondent, donor, would have had to have consumed Marijuana or a Marijuana THC containing product one to four days prior to submission of the specimen or as long as 10 days prior to the submission under extreme circumstances. Dr. Struempler's expert opinion is accepted.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 464.018(1)(n), Florida Statutes (2003), for failing to meet the minimal standards of acceptable and prevailing nursing practices through a violation of Florida Administrative Code Rule 64B9-8.005(2)(k) and that Respondent be fined $250, subject to IPN evaluation and placed on a period of probation for one year, in accordance with the disciplinary guidelines provision set forth in Florida Administrative Code Rule 64B9-8.006(2)(vv). DONE AND ENTERED this 2nd day of March, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 2nd day of March, 2007. COPIES FURNISHED: William F. Miller, Esquire Ellen Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Duncan Alden Jones, Esquire 330 Southwest Fourth Avenue High Springs, Florida 32643 Rick Garcia, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Tom Koch, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether or not Respondent is guilty of violating Sections 943.1395(5) and (6) and Section 943.13(7) F.S. and Rule 11B-27.0011(4) (a) F.A.C. so as to subject his certification to discipline by the Criminal Justice Standards and Training Commission.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on March 26, 1976 and holds Certificate No. 02-16273. At all times material hereto, he has been a certified law enforcement officer in the State of Florida. At the request of the Putnam County Sheriff's Department, the Florida Department of Law Enforcement (FDLE) conducted an independent investigation into suspicions and allegations that Respondent, a Putnam County Deputy Sheriff, had knowingly and unlawfully as a public servant requested, solicited, accepted, or agreed to accept pecuniary or other benefits not authorized by law, for performance or non- performance or an act or omission of an act within Respondent's discretion as a law enforcement officer or in violation of his public duty. Specifically, the Sheriff had a tip or a rumor to the effect that the Respondent had failed to enforce Chapter 893, "The Florida Comprehensive Drug Abuse Prevention and Control Act," for pecuniary compensation or other benefit and that the Respondent did unlawfully agree, conspire, combine or confederate with Franklin Kaymore and others to commit the crime of "unlawful sale or delivery of, or unlawful possession with intent to sell or deliver cocaine" at some unspecified time or times between May 1, 1985 and December 20, 1985. The FDLE investigation was spearheaded by Special Agent Jimmie Collins and focused on Franklin Kaymore, a dealer in narcotics in Palatka, Putnam County. When approached by Collins' confidential informer (CI), Kaymore told the CI to get away from him. Investigator Collins made two cognitive leaps of faith based on this reaction of Kaymore's: First, that Kaymore knew the CI was associated with law enforcement, and second, that Respondent or another "leak" in the Putnam County Sheriff's Department had tipped off Kaymore to the drug investigation and to the CI's true identity as a "narc." However, there is no direct evidence to support either of Collins' inferences. The initial tipster concerning both Kaymore and Respondent as conspiring to sell or deliver drugs and concerning Kaymore paying Respondent not to enforce Florida drug laws was one Waddell Johnson, and Collins conceded that Waddell Johnson had admitted at their initial interview that it had been Respondent who had arrested him and Kaymore had given evidence to convict him or at least had not been prosecuted for Johnson's and Kaymore's joint offense. (See Finding of Fact 9, infra.) Collins further conceded that Waddell Johnson, two members of the Putnam County Sheriff's Office, and Collins' Palatka Police Department contact could have "leaked" information on his investigation as easily or more easily than Respondent. Collins' investigation revealed nothing to involve Respondent with Kaymore's drug dealing money, and Collins never recovered any unlawful contraband or money or specific benefits that could be shown to have flowed from Kaymore to Respondent. Kaymore testified that he actually got his information concerning drug enforcement from some of his own street salesmen of drugs who were doubling as police "snitches." Franklin Kaymore, the admitted drug dealer, now incarcerated on fraud and forgery charges, had been a neighborhood acquaintance of Respondent in Palatka, Florida, for approximately 20 years. Throughout this period of time, Kaymore was one of those community characters without visible steady employment but who always had money to spend or to loan to others. Many people borrowed money from him over the years, including Respondent. For years, Kaymore's employments were transient and unsteady but existed sporadically, and he was known in the community to be a proficient and extraordinarily successful dog track gambler, pool hustler and crap shooter. Presumably, he also collected interest on his various loans. Occasional legitimate jobs in demolition, electronics installation, and migrant labor and in the foregoing borderline activities camouflaged Kaymore's true income sources, but he was also widely rumored to be dealing in illicit drugs. At some point in 1984 or 1985, Kaymore "took up" with Celestine Cross a/k/a Lisa Cross, the Respondent's goddaughter. This brought Kaymore and Respondent into a much closer relationship than before. On one occasion, the Respondent and his wife visited Kaymore because their goddaughter had moved in with him, and in Respondent's presence, Kaymore denied a point-blank question from Respondent's wife as to whether or not he was dealing drugs. By the time in 1985 that the whole of Kaymore's income was derived from drug dealing, he and Respondent's goddaughter were openly living together in a new house, rented from Respondent's cousin. Respondent and his wife helped them move and settle in, and Respondent then often visited in their home. Kaymore testified that he warned his drug customers and street salesmen not to come to his house when they saw the Sheriff's car which Respondent drove or Respondent's wife's car in his driveway; that he "always have had respect for [Respondent about] doing my business" and did his drug sales out of Respondent's sight; and that he often sent potential drug customers to his street operatives just to keep them away from his house. On the other hand, Kaymore assumed that although Respondent never saw money or "boosted," i.e., stolen, goods exchanged to Kaymore for drugs, Respondent "must have known" Kaymore was selling and trading for drugs. Therefore, after he was "busted" in 1986, in his quest for a "deal," Kaymore expressed this latter opinion to law enforcement officers in the course of negotiating his and "Lisa's" plea bargain. In 1985, Respondent had borrowed approximately $300-$400 from Kaymore, and Respondent's wife accepted some dresses as a gift from Kaymore. The details of the loan or its repayment, if any, are not in evidence, but there is also no evidence that Respondent did anything or refrained from doing anything either personally or in his official capacity as a law enforcement officer in order to get the loan from Kaymore. Kaymore had also previously loaned Respondent money before Respondent entered law enforcement and before Kaymore began to deal drugs for a living. Kaymore categorically denied that Respondent ever offered him protection or threatened prosecution in exchange for the loan in 1985. The only inference possible from all the evidence is that the dresses were "boosted" by one of Kaymore's drug customers, were accepted by Kaymore in exchange for drugs, and were then passed off by Kaymore to Respondent's wife because the dresses were not "Lisa's" size. However, there is insufficient credible evidence to show that either Respondent or his wife could be certain of the origin of these dresses. On one occasion, Kaymore bought a stolen cassette player from Waddell Johnson. Kaymore assumed the cassette player was stolen because Johnson delivered it to Kaymore in the original Sears box with all its original paperwork. When Respondent came to Kaymore's house and viewed the cassette player, he told Kaymore that it was stolen and later returned with a detective. After questioning Kaymore, Respondent and the detective impounded the stolen cassette player and told Kaymore he would have to be a witness against Johnson. Apparently, Kaymore admitted he knew the cassette player was stolen, and the detective, not Respondent, made a deal for his testimony against Waddell Johnson. Kaymore was not charged or prosecuted, and he did not have to testify, but there is no evidence Respondent had anything to do with that result. Willie Johnson, a former runner and drug customer of Kaymore's during the period of time material to these proceedings, also was once arrested by Respondent. In Willie Johnson's view, the arrest was "for something I didn't do," and he was in fact released after seven days. Nonetheless, Willie Johnson presented no evidence to clearly show Respondent had knowledge of any drug dealing. According to Johnson, he had bought drugs in Kaymore's house while the Respondent was there, but he did not fear arrest by Respondent since the drug transaction occurred out of Respondent's sight in another part of the house. Elbert Grant knew Kaymore sold "reefer and cocaine" from his house but Respondent was never present when Grant was buying drugs at Kaymore's house, and Grant had no knowledge of whether Respondent ever saw any outside drug transactions. The testimony of Princess Robinson, a convicted felon with a long history of retail theft convictions, was not directed to the charges within the four corners of the Administrative Complaint. It was also not credible. The testimony of Connie Hodges was internally unreasonable and not credible upon the application of simple logic and further was not credible because of Ms. Hodges' clear bias against Respondent due to prior arrests he had participated in either directly or peripherally. The external credibility of Hodges' testimony was utterly destroyed by her observable lack of candor and demeanor on the stand, which demeanor clearly demonstrated Hodges' current substance abuse. Moreover, Hodges, who maintained she is currently "clean", acknowledged that her former drug ingestion had affected her reason and judgment and that her memory as of the date of formal hearing was unclear. The criminal charges filed against Respondent in connection with all events material hereto have been heard before the Circuit Court in Putnam County and have been either dismissed or tried by jury trial with a verdict of "not guilty".
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaint. DONE and ENTERED this 13th day November, 1989, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989. COPIES FURNISHED: John Rosner Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 32615 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did sell marijuana (cannibas) to an employee, agent or servant of the Clearwater Police Department, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did possess marijuana (cannibas) in excess of five (5) grams with the intent to sell same, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess over five (5) grams of marijuana (cannibas), in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess gambling paraphenalia, in violation of the gambling laws, to-wit: Subsections 849.09(1)(k) and (2), Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact Marvin and Flossie Jones, husband and wife, are the holders of license No. 62-383, Series 2-COP, as held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license entitles the Joneses to sell beer and wine for consumption on or off their licensed premises which is located at 1104 North Greenwood Avenue, Clearwater, Florida, where the Respondents trade as Marvin's Beer and Nine. The Respondents are here charged by the Petitioner through a Notice to Show Cause/Administrative Complaint with' violations whose particulars are set forth in the issues statement of this Recommended Order. In consideration of this dispute, a formal hearing was held on February 27, 1980. The facts reveal that on May 17, 1979, one Henry Irving entered the licensed premises and purchased 5.2 grams of marijuana (cannibas) by weight, from the Respondent, Marvin Jones. At that time Irving was acting as an operative for the Clearwater Police Department, Clearwater, Florida, and while in the licensed premises, Irving paid Marvin Jones $20.00 for this purchase of marijuana (cannibas). The money that was paid was money provided by the Clearwater Police Department. On June 6, 1979, acting under the authority of an arrest warrant, officers of the Clearwater Police Department arrested the Respondent, Marvin Jones, based on the sale of marijuana (cannibas) which he had made to Henry Irving. In making a search of Marvin Jones incidental to the arrest, two manila envelopes were found in Marvin Jones's sock and these envelopes contained marijuana (cannibas), the weight of that marijuana (cannibas) in the aggregate was 4.2 grams. The Respondent Jones was given his statement of rights in accordance with Miranda and after receiving those warnings, Jones stated that it was his practice to buy marijuana (cannibas) in amounts of a pound or two pounds and he in turn sold it in small amounts to adults. He further stated that he had purchased marijuana (cannibas) on mere than one occasion. In searching Marvin Jones, the officers also discovered $400.00 in cash and a number of slips of paper with numbers on them. Those slips of paper were explained by Jones to be numbers or combinations of numbers for dogs running at pari-mutuel races in Sarasota, Florida, and they were numbers which persons wished to have bet for them. Of the $400.00 found on the Respondent, Jones indicated that $50.00 of that money was for placing bets at the race track in particular for daily doubles races in the pari-mutuel events. He further stated that he would place the bets himself or have someone place them for him.
Recommendation Upon the consideration of the facts herein and these matters in aggravation and mitigation, it is RECOMMENDED that the license No. 62-383, Series 2-COP, held by the Respondents, Marvin and Flossie Jones, be REVOKED. DONE AND ENTERED this 26th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Douglas Prior, Esquire CAMPBELL AND PRIOR, P.A. 205 South Garden Avenue Clearwater, Florida 33516
The Issue Whether petitioner should take disciplinary ace ion against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact On and after June 19, 1985, respondent Mack T. Short has been certified as a law enforcement officer, holding certificate No. 14-85-502-05. Two years ago, when, like respondent, he worked at the Florida State Prison as a correctional officer, Guy William Carstens "usually had some" (T. 84) marijuana with him. Messers. Carstens and Short "carpooled" (T. 83) to and from work in the spring of 1987. On "a couple of occasions after work," (T. 84) in April or May of that year, Mr. Short accepted Mr. Carstens's offer to share a pipe or cigarette filled with marijuana. All told, in the course of a year or so, the two men smoked marijuana together five or ten times. T. 88,92. Dale D. Farrow, another correctional officer at the Florida State Prison who bought marijuana from Mr. Carstens periodically over a year's time and regularly smoked it, grew apprehensive of finding himself "up for criminal charges possibly" (T. 80) when he learned from Mr. Carstens that an inmate had threatened to turn Mr. Carstens in, after a $10,000 marijuana transaction went sour. In fact, the inmate did report the drug deal he had with Mr. Carstens to prison authorities, but they did nothing about it. After speaking to the inmate, Mr. Farrow, who has worked at Florida State Prison as a correctional officer for more than seven years, contacted the Florida Department of Law Enforcement (FDLE), informing personnel there that Mr. Carstens "was dealing in narcotics and that several other correctional officers were buying narcotics from him and using narcotics." T. 16. FDLE passed this information on to the Inspector General's Office within the Department of Corrections. When Mr. Carstens was eventually apprehended, arresting officers found more than a pound of marijuana in the trunk of his car. At one time Mr. Carstens Stored marijuana in a shed behind the house respondent shared with his wife and small child. Mr. Short, who had made the shed available to him as storage for two bucket seats and some motorcycle parts, was apparently unaware of any marijuana in the shed. He was not home when Mr. Farrow saw Mr. Carstens unlock the shed door, enter and remove a sizable quantity of marijuana After his arrest, Mr. Carstens, who was Promised more lenient treatment if he implicated others, named respondent (among Several other correctional officers) as a drug offender. Convicted of Possession (but not distribution despite, e.g. testimony under oath in the present case that he did distribute), Mr. Carstens was placed on five years' probation. Mr. Farrow, who, like respondent, was never Prosecuted criminally, continues to work as a guard at Florida State Prison. There was no indication that Petitioner intends to take any action affecting Mr. Farrow's certification as a law enforcement officer.
Recommendation Particularly in light of the treatment Petitioner has accorded Mr. Farrow, whose moral character the evidence called at least as clearly into question as respondent's, it is RECOMMENDED: That Petitioner reprimand the respondent. DONE and ENTERED this 9th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of November, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5249 Petitioners Proposed findings of fact Nos. 1 through 7, 10, 11, 13, and 14 have been adopted, in substance, insofar as material. Petitioners Proposed findings of fact Nos. 8, 9, and 12 were not convincingly established by credible evidence. COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 628 Alachua, FL 32615 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 88-5249 CJSTC CASE NO. C-1390 MACK T. SHORT, Certificate Number 14-85-502-05. Respondent. /
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes (2015),1/ Petitioner forfeited his Florida Retirement System (“FRS”) Investment Plan account by entering a nolo contendere plea to two counts of violating section 893.13(2)(a)1., Florida Statutes, a second-degree felony.
Findings Of Fact The Events Giving Rise to this Proceeding Mr. Combs began working for DOC on May 25, 2001, as a Correctional Officer Level 1 at the Union Correctional Institution (“Union Correctional”) in Raiford, Florida. Union Correctional is a maximum security facility housing approximately 2,000 inmates, and Mr. Combs assisted with their care and custody. In January of 2006, Mr. Combs earned a promotion to Correctional Officer, Sergeant. While his responsibilities were very similar to those of his previous position, Mr. Combs was now supervising other correctional officers. In October of 2011, Mr. Combs earned a promotion to Correctional Officer, Lieutenant, and was responsible for supervising 50 to 70 correctional officers at Union Correctional. In April of 2013, Mr. Combs earned a promotion to Correctional Officer, Captain, and transferred to Florida State Prison in Starke, Florida. A captain is the highest ranking correctional officer on a given shift, and Mr. Combs supervised approximately 50 correctional officers at a time, including sergeants and lieutenants. Like Union Correctional, Florida State Prison is a maximum security facility housing approximately 2,000 prisoners. A colonel manages Florida State Prison, and it has two separate units. One of those units is a work camp housing lower- custody inmates who may work outside the facility, and the main prison is the other unit. Each of the units is run by its own major. In February of 2015, Mr. Combs was promoted to Major and took charge of the work camp at Florida State Prison. At some point in 2014 and prior to his promotion to Major, Mr. Combs had begun taking Oxycodone recreationally. Mr. Combs typically purchased one Oxycodone pill three to four times a week, and Dylan Hilliard (a Correctional Officer 1 at Florida State Prison) was Mr. Combs’ primary source of Oxycodone. Mr. Hilliard usually worked at the main prison, but he occasionally worked at the work camp. Mr. Combs knew Mr. Hilliard because of their employment with DOC. Mr. Combs purchased Oxycodone from Mr. Hilliard at the latter’s home in Lawtey, Florida. However, some transactions occurred in Mr. Combs’ state-issued housing on the grounds of Florida State Prison. Mr. Hilliard charged Mr. Combs $35 for an Oxycodone pill, and that was a discount from the $38 price Mr. Hilliard charged others. Mr. Combs allowed his subordinates (Sergeants Jesse Oleveros and Evan Williams) to leave Florida State Prison during their shifts in order to purchase illegal drugs from Mr. Hilliard. After returning from their transactions with Mr. Hilliard, Mr. Oleveros and Mr. Williams would give Mr. Combs an Oxycodone pill free of charge. Operation Checkered Flag was a joint task force led by the Bradford County Sheriff’s Office, and its purpose was to arrest individuals involved with the distribution and use of illegal drugs. The authorities arrested Mr. Hilliard after he engaged in an illegal drug transaction with an undercover agent from the Florida Department of Law Enforcement. A subsequent search of Mr. Hilliard’s cell phone revealed text messages between Mr. Hilliard and several other DOC employees, including Mr. Combs. Mr. Hilliard referred to Mr. Combs as “Chicken-Hawk” or “Hawk” in those text messages, and the two of them used car part terminology as a code for different milligram sizes of Oxycodone. Operation Checkered Flag ultimately resulted in the arrest of 10 DOC employees. The authorities arrested Mr. Combs on July 1, 2015, based on allegations that he had committed six felonies relating to the alleged unlawful and illegal purchase and distribution of Oxycodone. DOC fired Mr. Combs on approximately July 1, 2015. Mr. Combs initially denied all of the allegations. However, after spending nearly 56 days in jail, Mr. Combs reached an agreement with the State Attorney’s Office in Bradford County that called for his criminal charges to be reduced in exchange for his cooperation with Operation Checkered Flag. During an interview on August 20, 2015, with members of Operation Checkered Flag, Mr. Combs admitted that he had purchased Oxycodone from Mr. Hilliard. In addition, Mr. Combs admitted that on six or seven occasions he allowed Mr. Oleveros and Mr. Williams to leave the prison grounds so that they could purchase Oxycodone from Mr. Hilliard. The State Attorney’s Office in Bradford County chose to dismiss most of the charges against Mr. Combs. The Information ultimately filed against Mr. Combs set forth two counts alleging that he violated section 893.13(2)(a)1., by illegally purchasing Oxycodone on March 23, 2015, and March 31, 2015. Those purchases occurred approximately 10 miles from Florida State Prison at Mr. Hilliard’s residence in Lawtey, Florida. Neither Mr. Combs nor Mr. Hilliard was on duty during those transactions. On August 25, 2015, Mr. Combs pled nolo contendere. The Bradford County Circuit Court entered judgment against Mr. Combs based on the two violations of section 893.13(2)(a)1., but withheld adjudication. All of the conduct underlying Mr. Combs’ nolo contendere plea occurred while he was employed by DOC. The SBA Determines that Mr. Combs Forfeited his FRS Benefits At all times relevant to the instant case, Mr. Combs was a member of the FRS. The FRS is the legislatively-created general retirement system established by chapter 121, Florida Statutes. See § 121.021(3), Fla. Stat. The SBA is the governmental entity that administers the FRS Investment Plan, a defined retirement benefits contribution plan. § 121.4501(1), Fla. Stat. Via a letter dated August 3, 2015, the SBA notified Mr. Combs that a hold had been placed on his FRS account due to the criminal charges. As a result, no distribution of employer contributions from Mr. Combs’ account would be permitted until the SBA had evaluated the final disposition of those criminal charges. Via a letter dated September 3, 2015, the SBA notified Mr. Combs that he had forfeited his FRS benefits as a result of his nolo contendere plea. In support thereof, the SBA cited section 112.3173, Florida Statutes, which provides for the forfeiture of a public employee’s FRS retirement benefits upon the entry of a nolo contendere plea to certain types of offenses. The SBA’s letter closed by notifying Mr. Combs of his right to challenge the SBA’s proposed action through an administrative hearing. Mr. Combs requested a formal administrative hearing and asserted that the crimes for which he was convicted did not fall within the scope of section 112.3173(2)(e). In other words, Mr. Combs argued that his convictions were not associated with his employment at DOC and thus did not amount to a violation of the public trust. Testimony Adduced at the Final Hearing Mr. Combs testified that he was responsible for the work camp and the supervision of the correctional officers assigned there. He also testified that he would occasionally supervise correctional officers who normally worked in the main prison. Mr. Combs testified that Mr. Hilliard was his primary source of Oxycodone and that Mr. Hilliard occasionally worked at the work camp. Mr. Combs was aware that two Florida State Prison employees who worked directly under him (Sergeant Jesse Oleveros and Sergeant Evan Williams) were purchasing Oxycodone from Mr. Hilliard. Mr. Combs testified that he allowed Mr. Oleveros and Mr. Williams to leave Florida State Prison grounds six or seven times in order to purchase Oxycodone from Mr. Hilliard. Mr. Combs testified that Mr. Oleveros and Mr. Williams would give him an Oxycodone pill after returning from their transactions with Mr. Hilliard. Mr. Combs acknowledged during his testimony that DOC policy prohibits correctional officers from leaving prison grounds during their shift. Mr. Combs acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs also acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to be on prison grounds with illegal narcotics. Finally, Mr. Combs acknowledged that as a sworn officer with the Department of Corrections, he had an obligation to report any criminal activity committed by a correctional officer working at Florida State Prison, regardless of whether that correctional officer reported to him. Findings of Ultimate Fact An examination of the circumstances associated with Mr. Combs’ Oxycodone purchases from Mr. Hilliard demonstrates that there is a nexus between Mr. Combs’ employment as a correctional officer with DOC and his commission of the crimes to which he pled nolo contendere. For instance, Mr. Combs came to know his primary source of Oxycodone (Mr. Hilliard) through their mutual employment with DOC. Indeed, Mr. Combs supervised Mr. Hilliard when the latter was assigned to the work camp at Florida State Prison. Also, Mr. Combs knew that these transactions were illegal. As noted above, he and Mr. Hilliard used a code based on car part references to disguise the actual subject of their communications. Contrary to DOC policy and Florida Law, Mr. Combs allowed two of his subordinates (Mr. Oleveros and Mr. Williams) to leave Florida State Prison during their duty shifts in order to purchase illegal drugs from Mr. Hilliard. Mr. Combs would then receive a free pill from Mr. Oleveros and Mr. Williams. Mr. Hilliard sold Oxycodone to Mr. Combs at a reduced price. It is reasonable to infer that Mr. Combs received this discount due to his high-ranking position at Mr. Hilliard’s place of employment and because Mr. Combs facilitated Mr. Oleveros and Mr. Williams’ purchases of Oxycodone from Mr. Hilliard. Mr. Combs willfully violated DOC policy and Florida law by allowing correctional officers to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs knowingly violated his obligation as a sworn correctional officer by not reporting the criminal activity committed by Mr. Hilliard. Mr. Combs defrauded the public from receiving the faithful performance of his duties as a correctional officer. The public had a right to expect that one of its employees would not purchase drugs from someone he supervised. The public also had a right to expect that Mr. Combs would not use his authority at Florida State Prison to facilitate Mr. Hilliard’s illegal drug sales to other DOC employees. In addition, the public had a right to expect that Mr. Combs would not engage in illegal transactions on the grounds of Florida State Prison. Mr. Combs realized a profit, gain, or advantage through the power or duties associated with his position as a Major at DOC. Specifically, Mr. Combs satisfied his Oxycodone habit through purchases made from a DOC employee who he supervised. Also, Mr. Combs used his position to facilitate other sales by Mr. Hilliard, and Mr. Combs’ assistance led to him receiving free Oxycodone and a discounted price on his Oxycodone purchases. The findings set forth above in paragraphs 49 through 57 are the only ones needed to establish a nexus between Mr. Combs’ public employment and the two counts to which he pled nolo contendere. That nexus is evident from Mr. Combs’ testimony, Mr. Combs’ Responses to the SBA’s Requests for Admissions, and the Stipulated Facts. It was not necessary to consider the exhibits to which Mr. Combs raised objections, i.e., the arrest warrant, the warrant affidavit, and the audio recordings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of specified offenses that were committed prior to retirement, and that pursuant to section 112.3173 he has forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 10th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 10th day of May, 2016.
