The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to these proceedings, Respondent is licensed in the fields of English (grades 6 through 12) and English to Speakers of Other Languages. His Florida Educator's Certificate Number is 416928. Respondent has been employed by the Gadsden County School District in educational positions since 1976. He has worked both as a teacher and an administrator. At the time of the events alleged in the Administrative Complaint, Respondent was the principal at Carter Parramore Academy (Carter Parramore) in the Gadsden County School District. Respondent has a disciplinary history. On November 15, 2000, a Final Order was entered by the Education Practices Commission incorporating a settlement agreement whereby Respondent neither admitted nor denied the allegations brought against him, and the Commission imposed a reprimand; suspended his license for the periods July 1-30, 1999, and July 1-30, 2000; and placed Respondent on probation for a period of one year. Carter Parramore is an alternative public school for students who are either one or two years behind academically or who cannot function in a traditional high school setting. Many of the students have a history of behavioral and discipline problems, and a significant number have been the subject of delinquency proceedings. Carter Parramore has been referred to as a "last chance" school. Carter Parramore not only has a school resource officer assigned to it, but has at least two security guards as well. Fights are not uncommon at the school, and on several occasions prior to February 2007, pepper spray was used by law enforcement or the school security guards to break up a fight. No witnesses indicted that any controversy had arisen as a result of the prior use of pepper spray. Gadsden County School District has a policy dealing with the use of reasonable force. Policy 5.31, adopted September 15, 2002, includes the following provisions: Maintaining a safe and orderly learning environment is an important responsibility for all educators. A variety of strategies are available to maintain discipline and encourage appropriate and responsible behavior. Staff response to problem student behavior shall always be proportional to the nature and extent of the disruption, conflict or problem. The use of reasonable force shall be permitted by staff to protect a student from the following conditions. Conditions harmful or injurious to the student, other students, a staff member or other school personnel. Conditions harmful to the student's physical health. Conditions harmful to the student's mental health. Conditions that create a harmful or unsafe condition. Conditions that create serious harm to learning or the learning environment. Physical force shall be used only when it appears that other alternatives are not feasible. A staff member's decision to use or not use physical force, shall be based upon the following factors. The level of force used shall also be determined by these factors: The seriousness or severity of the situation. The potential danger to the student, other students or self. Patterns of participants' behaviors and potential for volatility. The size and physical conditions of the participants. Availability of other intervention strategies. Other actions already attempted. The availability of assistance. The use of reasonable force shall not be excessive, cruel or unusual in nature. The use of pepper spray and other chemical agents shall be permitted only by trained law enforcement officers in critical situations. . . . (Emphasis added.) Although testimony was presented indicating that a notebook containing school board policies was provided for every school, no evidence was produced indicating that the policy had been provided to Respondent or to the office manager for Carter Parramore. No teacher, security officer or law enforcement officer was aware of the policy, and no training on the use of reasonable force had been provided to administrators or staff at the school. The Administrative Complaint concerns two incidents alleging that Respondent inappropriately used pepper spray at Carter Parramore. The first incident occurred on February 22, 2007, and involved a fight between two girls, B.M. and T.M. B.M. was described as being loud, aggressive, and a "pretty rough character." She had been suspended several times and brought weapons on campus both before and after the incident in question. T.M. was described as "mouthy," and could be a handful when with the wrong group of people. At the end of the school day February 22, 2007, the two girls had "words" over a perceived slight that occurred earlier in the day. The girls yelled at each other, exchanged threats and profanities, and B.M. challenged T.M. to leave campus to fight. T.M. refused. B.M. left campus only to return shortly thereafter. At this point, the girls began to yell at each other again and a crowd began to gather, urging the girls to fight. They began to throw punches at each other and pull each other's hair. As the girls fought, the crowd of students grew larger and louder. The estimates indicated a crowd of perhaps 40-60 students. When the fight began, School Resource Officer Barnes was sitting in his vehicle, about fifty yards away, talking to Reginald Young, the Safety and Security Officer for the School District, who was also in his vehicle in the parking lot. Neither man was close enough to the girls to be of realistic assistance. Dr. Green was in his office when the commotion started. When he left his office to see what was causing the disturbance, two security guards had separated the students. Respondent spoke to the girls, directed T.M. to follow him to the office and indicated that she would be suspended for fighting. One of the security guards was still holding B.M. The more credible evidence presented indicates that Respondent did not, as alleged, instruct the security guards to "let them go" and "let them fight." As Respondent headed to the office with T.M., B.M. broke free from the security guard and started fighting with T.M. again. As the altercation recommenced, Respondent found himself between the two girls fighting each other, and surrounded by a crowd of students egging them on. Respondent used his personal pepper spray on the girls, and they stopped fighting immediately. A teacher took T.M. into a restroom to wash off the pepper spray. Office Barnes arrived and took B.M. to an outside water faucet to do the same. There was no credible evidence that Dr. Green continued to spray T.M. as she ran from the scene. Dr. Green had a reasonable fear that B.M. might have a weapon, and had a reasonable fear that, given the growing crowd, the fight would spread beyond the two students B.M. and T.M. Following the fight, Respondent spoke to teachers and students to determine what caused the fight, and learned that B.M. had been the aggressor. As a result, Respondent decided to rescind his earlier decision to suspend T.M. T.M. sought medical attention after being sprayed with the pepper spray. Her mother picked her up from school and took her to an urgent care center where she was treated and given some ointment. The second incident occurred February 23, 2007. The student involved, K.D., was a 16-year-old male who was described as an often violent trouble-maker who was on criminal probation at the time of the incident. On February 23, 2007, a fight between K.D. and another male student broke out in Ms. Farmer's classroom at Carter Parramore. Ms. Farmer called for a security guard but neither a security guard nor Officer Barnes was in the vicinity. Ms. Farmer called the office and Dr. Green came to assist her. Upon his arrival at the classroom, Dr. Green directed the boys to stop fighting and they complied. Security Officer Johnson arrived, and Respondent directed him to take K.D. to the office. Johnson placed K.D. in handcuffs and took him to the office. During this time, K.D. continued to shout profanities and threatened to kill a female student, K.W., over whom the boys fought. He also threatened to kill teachers and other students. During the altercation, other students had entered the hallway to watch the commotion. Respondent directed the students to return to their classrooms, hoping to avoid an escalation of violence from the original fight. As order was being restored, K.D. came running back down the hallway, threatening again to kill K.W. and others. Another teacher, Mr. Bradley, attempted to speak with K.D. and calm him down. K.D. reacted by hitting Mr. Bradley and continuing down the hallway yelling his threats to kill K.W. By the time K.D. got to Respondent, he was totally out of control. He kicked Respondent and continued to threaten K.W. Respondent sprayed K.D. with pepper spray one time, at which time K.D. fell to the ground. Officer Johnson came and again handcuffed K.D., and turned him over to the custody of Officer Barnes. At the time that Respondent used the pepper spray on K.D., he had evaded the custody of a security officer who had handcuffed him previously, had hit a teacher and was continuing to threaten students and teachers at the school. There was no credible evidence presented to indicate that any law enforcement or security officers were in the vicinity to address K.D.'s behavior. Given his violent history and his active threats to the people around him, Respondent reasonably believed that use of the pepper spray was necessary to stop the immediate problem and prevent escalation of a dangerous situation. There was significant evidence devoted to whether the pepper spray used by Respondent was "law enforcement grade" or the type a person can buy over the counter for personal protection. While Petitioner contends that use of law enforcement grade pepper spray by someone who is not a member of law enforcement is prohibited by law, it did not provide, at hearing or in its proposed recommended order, any citation to a statute or regulation to support this assertion. Moreover, the grade of pepper spray is not a determinative factor in this case. The issue is whether the use of any type of pepper spray could be justified. The Gadsden County School District did not take disciplinary action against Respondent for either incident. Respondent continued to work as principal of Carter Parramore through the rest of the school year and then for the 2007-2008 year. For the 2007-2008 school year, his evaluation reflects that he was considered to be "very effective" in all categories. During Respondent's tenure at Carter Parramore, as many as twenty students graduated in a school year. At the time of this hearing, for the 2008-2009 school year, Carter Parramore had one student eligible to graduate.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of July, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of July, 2009.
The Issue Whether, in making a preliminary decision to award a contract for the subject services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner challenges the evaluation of the past performance section of the responses to the procurement document. Also at issue is whether Respondent violated the Sunshine Law in deciding to reject Petitioner’s bid protest.
Findings Of Fact Stipulated Facts Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. On September 21, 2009, the Department issued the subject RFP. The RFP sets forth the purpose of the procurement (on Page 1 of the RFP) as follows: Request for Proposals (RFP): A 36-slot Facility-Based Day Treatment Program as described in the Services to be Provided (Attachment I) in a Provider owner/leased facility in Circuit 11, Miami-Dade County. The provider shall provide the day treatment program for youth placed on probation, and youth transitioning back into the community who are referred for conditional release or post-commitment probation services. The provider shall design, develop, implement and operate an evidence-based, facility- based day treatment program with the capability to provide an after- school/evening component. Petitioner submitted a timely response to the RFP. On December 18, 2009, Respondent posted its Notice of Agency Action which indicated its intent to award the contract to PSF. On December 28, 2009, Petitioner filed a Formal Written Protest and Petition for Administrative Hearing (Petition) pursuant to Section 120.57(3), Florida Statutes (2009), and Florida Administrative Code Rule 28-110.004. Pursuant to the provisions of Section 120.57(3)(d), Florida Statutes (2009), representatives from Petitioner and Respondent met in an attempt to settle or to resolve the formal bid protest filed by Petitioner. Respondent's representatives at the January 13, 2010, meeting included Tonja W. Matthews, Amy Johnson, Paul Hatcher, and Shahin Iranpour. Petitioner's representatives at the January 13, 2010, meeting were Thomas Petersen and Jennifer Fiorenza. No public notice was given ahead of, and no minutes were taken at, the meeting between Petitioner's representatives and Respondent's representatives on January 13, 2010. Respondent's representatives briefly met separately after hearing from Petitioner to determine whether or not any further questions or information was needed from Petitioner.1 After January 13, 2010, and before January 21, 2010, Respondent's representatives Amy Johnson, Rex Uberman, and Paul Hatcher individually or collectively discussed Petitioner's Bid Award Protest with some or all of the Respondent's personnel present at the January 13, 2010, meeting with Mr. Petersen and Ms. Fiorenza. They ultimately decided to uphold Respondent's Notice of Agency Action (issued December 18, 2009) as to the subject RFP. No public notice was given of the proposed agency action, i.e., Respondent's intended decision to uphold its Notice of Agency Action as to the subject RFP, nor were minutes taken which recorded this intended action. In a letter dated January 21, 2010, Respondent notified Petitioner of its decision to uphold its decision to award to PSF and inquired as to whether Petitioner wished to proceed with a formal hearing before DOAH. Petitioner responded in the affirmative, Respondent forwarded the Petition to DOAH, and this proceeding followed. Past Performance Section XIX of Attachment B sets forth "General Instructions for Preparation of the Proposal." Subparagraph F of Section XIX (found at page 17 of 73 of Joint Exhibit 1) provides, in part, as follows: F. Past Performance - (Volume 3) The purpose of this section is for the prospective Provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on Attachment C, part I, II, and/or III. Each prospective Provider shall limit the Past Performance section to no more than 15 pages. These pages shall include the information requested on Attachment C, Parts I, II, and/or III and all required supporting documentation. . . . Attachment C, Part 1, is a form styled "Data Sheet: Past Performance of Non-Residential Programs" (page 21 of 73 of Joint Exhibit 1). That form has column headings for the vendor to insert the required information as follows: "Program Name," "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2006-2007," "2006-2007 Recidivism Rate," QA Deemed Status." Each column heading has a footnote that clarifies the type information required. For example, a footnote explains that QA is a reference to Quality Assurance. The column headed "Program Type" contains a footnote (footnote 3) which sets forth the non-residential programs that qualify for evaluation under the category "Past Performance of Non-Residential Programs" as follows: 3. During the past year from the date of the RFP issuance, the program type (Supervision, Day Treatment, Conditional Release, Respite, Independent Living, Diversion, Juvenile Assessment Centers) for the majority of the time the Vendor operated the program. Footnote 3 explicitly sets forth Diversion Programs and Juvenile Assessment Centers (JAC) as programs that will qualify for evaluation under the category "Past Performance of Non-Residential Programs." Petitioner did not file a challenge to the specifications of the procurement document within 72 hours of its posting as required by Section 120.57(3)(b), Florida Statutes. The scoring criteria and methodology for Past Performance are set forth in the RFP. Petitioner and PSF only operate programs in Florida. The scoring at issue in this proceeding is that of "Part I - Evaluation for Past Performance in Florida". Under that category, a vendor could receive a maximum of 420 points. Paul Hatcher is Respondent's employee who evaluated the responses to the Past Performance section of the RFP. Petitioner is the current provider of the services being solicited by the subject RFP. In its response to Attachment C, Petitioner listed that program in the appropriate columns of Attachment C. The program operated by Petitioner was appropriately listed because it is categorized by Respondent as being a non-residential program. There is no contention that Mr. Hatcher failed to appropriately evaluate Petitioner's Past Performance. Petitioner was awarded a total of 268 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. In its response to Attachment C, PSF listed one diversion program and two juvenile assessment centers (JAC) as non-residential programs it operated in the State of Florida. One JAC did not qualify for evaluation because it had not been in operation for a sufficient period of time. Mr. Hatcher evaluated PSF's Past Performance on the basis of the diversion program and one of the two JACs. PSF was awarded a total of 312 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. Mr. Hatcher appropriately included the diversion program and the JAC program in his evaluation of PSF's Past Performance for Non-Residential Programs because Footnote 3 explicitly includes those programs as programs non-residential programs that qualify for evaluation.2 There is no contention that Mr. Hatcher failed to score PSF's Past Performance in accordance with the scoring criteria and methodology set forth in the RFP. The RFP provides that vendors who operate DJJ contracted non-residential programs in Florida can be awarded a maximum of 1905 points. Respondent awarded PSF the higher overall score of 1422.27 points. Respondent awarded Petitioner a score of 1327.34 points. Petitioner failed to establish that Respondent incorrectly scored the two responses to the RFP, and it failed to establish that Respondent incorrectly determined to award the procurement to PSF. Sunshine Law Section 120.57(3)(d)1., Florida Statutes, provides the following after a bid protest is filed: (d)1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest. The purpose of the meeting on January 13, 2010, between the employees of Respondent and the representatives of Petitioner identified above, was to provide Petitioner an opportunity to argue why PSF should not be awarded the procurement. The group of employees represented Respondent's legal counsel and representatives from Respondent's Probation Programs (headed by Mr. Uberman) and its Bureau of Contracts (headed by Ms. Johnson). The purpose of the meeting was to determine the factual and legal basis for Petitioner's bid protest. The group of Respondent's employees who met with Petitioner's representatives on January 13, 2010, did not vote either during the meeting or after the meeting's conclusion. A day or two before she wrote her letter of January 21, 2010, Ms. Matthews contacted by telephone Ms. Johnson to determine whether the Bureau of Contracts thought some action other than the award of the procurement to PSF should be taken. Ms. Matthews also contacted by telephone Mr. Hatcher, who represented the Probation Programs, with the same inquiry. Ms. Johnson made the decision that the position of the Contract division was to uphold the award to PSF. Mr. Hatcher, after consulting with Mr. Uberman, made the decision that the position of the Probation Programs was to uphold the award to PSF. In separate telephone calls the Contract division and the Probation division advised Ms. Matthews that the award to PSF should be upheld. Ms. Matthews thereafter prepared and sent the letter that advised the vendors of the DJJ's decision.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that denies Petitioner's bid protest and upholds the award of the procurement to PSF. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 1st day of December, 2010.
The Issue The issue in DOAH Case No. 02-3648RE is whether Emergency Rules 20ER02-01, 20ER02-02, and 20ER02-03 constitute an invalid exercise of delegated legislative authority. The issue in DOAH Case No. 02-4607RP is whether Proposed Rules 20-15.001, 20- 15.002, and 20-15.003, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the stipulated facts, and the entire record in this proceeding, the following findings of fact are made: The Florida Citrus Commission was established in 1935 to organize and promote the growing and sale of various citrus products, fresh and processed, in the State of Florida. The purpose of the Citrus Commission is today reflected in Section 601.02, Florida Statutes. The powers of the Florida Citrus Commission ("the Commission") and the Department, are set forth in full in Section 601.10, Florida Statutes. The powers of the Department include the power to tax and raise other revenue to achieve the purposes of the Department. In particular, Section 601.10(1) and (2), Florida Statutes, state: The Department of Citrus shall have and shall exercise such general and specific powers as are delegated to it by this chapter and other statutes of the state, which powers shall include, but shall not be confined to, the following: To adopt and, from time to time, alter, rescind, modify, or amend all proper and necessary rules, regulations, and orders for the exercise of its powers and the performance of its duties under this chapter and other statutes of the state, which rules and regulations shall have the force and effect of law when not inconsistent therewith. To act as the general supervisory authority over the administration and enforcement of this chapter and to exercise such other powers and perform such other duties as may be imposed upon it by other laws of the state. The Department is authorized to set standards by Section 601.11, Florida Statutes, as follows: The Department of Citrus shall have full and plenary power to, and may, establish state grades and minimum maturity and quality standards not inconsistent with existing laws for citrus fruits and food products thereof containing 20 percent or more citrus or citrus juice, whether canned or concentrated, or otherwise processed, including standards for frozen concentrate for manufacturing purposes, and for containers therefor, and shall prescribe rules or regulations governing the marking, branding, labeling, tagging, or stamping of citrus fruit, or products thereof whether canned or concentrated, or otherwise processed, and upon containers therefor for the purpose of showing the name and address of the person marketing such citrus fruit or products thereof whether canned or concentrated or otherwise processed; the grade, quality, variety, type, or size of citrus fruit, the grade, quality, variety, type, and amount of the products thereof whether canned or concentrated or otherwise processed, and the quality, type, size, dimensions, and shape of containers therefor, and to regulate or prohibit the use of containers which have been previously used for the sale, transportation, or shipment of citrus fruit or the products thereof whether canned or concentrated or otherwise processed, or any other commodity; provided, however, that the use of secondhand containers for sale and delivery of citrus fruit for retail consumption within the state shall not be prohibited; provided, however, that no standard, regulation, rule, or order under this section which is repugnant to any requirement made mandatory under federal law or regulations shall apply to citrus fruit, or the products thereof, whether canned or concentrated or otherwise processed, or to containers therefor, which are being shipped from this state in interstate commerce. All citrus fruit and the products thereof whether canned or concentrated or otherwise processed sold, or offered for sale, or offered for shipment within or without the state shall be graded and marked as required by this section and the regulations, rules, and orders adopted and made under authority of this section, which regulations, rules, and orders shall, when not inconsistent with state or federal law, have the force and effect of law. The Department is authorized to conduct citrus research by Section 601.13, Florida Statutes. To help pay for these duties of the Department, the Legislature first enacted the "box tax" in 1949. The box tax is now codified as Section 601.15(3), Florida Statutes. Section 601.15(3)(a), Florida Statutes, provides in relevant part: There is hereby levied and imposed upon each standard-packed box of citrus fruit grown and placed into the primary channel of trade in this state an excise tax at annual rates for each citrus season as determined from the tables in this paragraph and based upon the previous season's actual statewide production as reported in the United States Department of Agriculture Citrus Crop Production Forecast as of June 1. Section 601.15(3)(a), Florida Statutes, goes on to set forth specific rates for fresh grapefruit, processed grapefruit, fresh oranges, processed oranges, and fresh or processed tangerines and citrus hybrids. Section 601.15(1), Florida Statutes, sets forth the Department's authority to administer the box tax, as follows: The administration of this section shall be vested in the Department of Citrus, which shall prescribe suitable and reasonable rules and regulations for the enforcement hereof, and the Department of Citrus shall administer the taxes levied and imposed hereby. All funds collected under this section and the interest accrued on such funds are consideration for a social contract between the state and the citrus growers of the state whereby the state must hold such funds in trust and inviolate and use them only for the purposes prescribed in this chapter. The Department of Citrus shall have power to cause its duly authorized agent or representative to enter upon the premises of any handler of citrus fruits and to examine or cause to be examined any books, papers, records, or memoranda bearing on the amount of taxes payable and to secure other information directly or indirectly concerned in the enforcement hereof. Any person who is required to pay the taxes levied and imposed and who by any practice or evasion makes it difficult to enforce the provisions hereof by inspection, or any person who, after demand by the Department of Citrus or any agent or representative designated by it for that purpose, refuses to allow full inspection of the premises or any part thereof or any books, records, documents, or other instruments in any manner relating to the liability of the taxpayer for the tax imposed or hinders or in anywise delays or prevents such inspection, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. The box tax was challenged in 1936 and the Florida Supreme Court issued an opinion in 1937 upholding the validity of the box tax. C.V. Floyd Fruit Company v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248 (1937). In 1970, the Legislature enacted the "equalization tax," codified as Section 601.155, Florida Statutes. The statute mirrored Section 601.15, Florida Statutes, but added certain processors who were mixing foreign citrus products with Florida products. The purpose of the equalization tax was to have all Florida processors of citrus products help pay for the costs of the Department, rather than have the burden fall entirely on the Florida growers subject to the box tax. Section 601.155, Florida Statutes, provides, in relevant part: The first person who exercises in this state the privilege of processing, reprocessing, blending, or mixing processed orange products or processed grapefruit products or the privilege of packaging or repackaging processed orange products or processed grapefruit products into retail or institutional size containers or, except as provided in subsection (9) or except if a tax is levied and collected on the exercise of one of the foregoing privileges, the first person having title to or possession of any processed orange product or any processed grapefruit product who exercises the privilege in this state of storing such product or removing any portion of such product from the original container in which it arrived in this state for purposes other than official inspection or direct consumption by the consumer and not for resale shall be assessed and shall pay an excise tax upon the exercise of such privilege at the rate described in subsection (2). Upon the exercise of any privilege described in subsection (1), the excise tax levied by this section shall be at the same rate per box of oranges or grapefruit utilized in the initial production of the processed citrus products so handled as that imposed, at the time of exercise of the taxable privilege, by s. 601.15 per box of oranges. In order to administer the tax, the Legislature provided the following relevant provisions in Section 601.155, Florida Statutes: Every person liable for the excise tax imposed by this section shall keep a complete and accurate record of the receipt, storage, handling, exercise of any taxable privilege under this section, and shipment of all products subject to the tax imposed by this section. Such record shall be preserved for a period of 1 year and shall be offered for inspection upon oral or written request by the Department of Citrus or its duly authorized agent. Every person liable for the excise tax imposed by this section shall, at such times and in such manner as the Department of Citrus may by rule require, file with the Department of Citrus a return, certified as true and correct, on forms to be prescribed and furnished by the Department of Citrus, stating, in addition to other information reasonably required by the Department of Citrus, the number of units of processed orange or grapefruit products subject to this section upon which any taxable privilege under this section was exercised during the period of time covered by the return. Full payment of excise taxes due for the period reported shall accompany each return. All taxes levied and imposed by this section shall be due and payable within 61 days after the first of the taxable privileges is exercised in this state. Periodic payment of the excise taxes imposed by this section by the person first exercising the taxable privileges and liable for such payment shall be permitted only in accordance with Department of Citrus rules, and the payment thereof shall be guaranteed by the posting of an appropriate certificate of deposit, approved surety bond, or cash deposit in an amount and manner as prescribed by the Department of Citrus. * * * (11) This section shall be liberally construed to effectuate the purposes set forth and as additional and supplemental powers vested in the Department of Citrus under the police power of this state. In March 2000, certain citrus businesses challenged Section 601.155(5), Florida Statutes, as being unconstitutional. At the time of the suit, Section 601.155(5), Florida Statutes, read as follows: All products subject to the taxable privileges under this section, which products are produced in whole or in part from citrus fruit grown within the United States, are exempt from the tax imposed by this section to the extent that the products are derived from oranges or grapefruit grown within the United States. In the case of products made in part from citrus fruit grown within the United States, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. The citrus businesses claimed the exemption in Section 601.155(5) rendered the tax unconstitutionally discriminatory, in that processors who imported juice from foreign countries to be blended with Florida juice were subject to the equalization tax, whereas processors who imported juice from places such as California, Arizona and Texas enjoyed an exemption from the tax. The case, Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated), was brought in the Tenth Judicial Circuit Court, in and for Polk County. Judge Dennis P. Maloney of that court continues to preside over that case. In a partial final declaratory judgment effective March 15, 2002, Judge Maloney found Section 601.155, Florida Statutes, unconstitutional because it violated the Commerce Clause of the United States Constitution due to its discriminatory effect in favor of non-Florida United States juice. In an order dated April 15, 2002, Judge Maloney severed the exemption in Section 601.155(5), Florida Statutes, from the remainder of the statute. The court's decision necessitated the formulation of a remedy for the injured plaintiffs. While the parties were briefing the issue before the court, the Florida Legislature met and passed Chapter 2002-26, Laws of Florida, which amended Section 601.155, Florida Statutes, to read as follows: Products made in whole or in part from citrus fruit on which an equivalent tax is levied pursuant to s. 601.15 are exempt from the tax imposed by this section. In the case of products made in part from citrus fruit exempt from the tax imposed by this section, it shall be the burden of the persons liable for the excise tax to show the Department of Citrus, through competent evidence, proof of that part which is not subject to a taxable privilege. Chapter 2002-26, Laws of Florida, was given an effective date of July 1, 2002. By order dated August 8, 2002, Judge Maloney set forth his decision as to the remedy for the plaintiffs injured by the discriminatory effect of Section 601.155(5), Florida Statutes. Judge Maloney expressly relied on the rationale set forth in Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 574 So. 2d 114 (Fla. 1991)("McKesson II"). In its initial McKesson decision, Division of Alcoholic Beverages and Tobacco v. McKesson Corporation, 524 So. 2d 1000 (Fla. 1988), the Florida Supreme Court affirmed a summary judgment ruling that Florida's alcoholic beverage tax scheme, which gave tax preferences and exemptions to certain alcoholic beverages made from Florida crops, unconstitutionally discriminated against interstate commerce. The Florida Supreme Court also affirmed that portion of the summary judgment giving the ruling prospective effect, thus denying the plaintiff a refund of taxes paid pursuant to the unconstitutional scheme. The decision was appealed to the United States Supreme Court. In McKesson Corporation v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), the United States Supreme Court reversed the Florida Supreme Court's decision as to the prospective effect of its decision. The United States Supreme Court held that: The question before us is whether prospective relief, by itself, exhausts the requirements of federal law. The answer is no: If a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax's legality, the Due Process Clause of the Fourteenth Amendment obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation. 496 U.S. at 31 (footnotes omitted). The United States Supreme Court set forth the following options by which the state could meet its obligation to provide "meaningful backward-looking relief:" [T]he State may cure the invalidity of the Liquor Tax by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received. . . . Alternatively, to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme. . . . Finally, a combination of a partial refund to petitioner and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested tax period reflects a scheme that does not discriminate against interstate commerce, would render petitioner's resultant deprivation lawful and therefore satisfy the Due Process Clause's requirement of a fully adequate postdeprivation procedure. 496 U.S. at 40-41 (citations and footnotes omitted). The United States Supreme Court expressly provided that the state has the option of choosing the form of relief it will grant. In keeping with the United States Supreme Court opinion, the Florida Supreme Court granted the Division of Alcoholic Beverages and Tobacco (the "Division") leave to advise the Court as to the form of relief the state wished to provide. The Division proposed to retroactively assess and collect taxes from those of McKesson's competitors who had benefited from the discriminatory tax scheme. McKesson contended that a refund of the taxes it had paid was the only clear and certain remedy, because retroactive taxation of its competitors would violate their due process rights. McKesson II, 574 So. 2d at 115. The Florida Supreme Court remanded the case to the trial court for further proceedings on McKesson's refund claim, with the following instructions: While McKesson may not necessarily be entitled to a refund, it is entitled to a "clear and certain remedy," as outlined in the Supreme Court's opinion. Because nonparties, such as amici, will be directly affected by the retroactive tax scheme proposed by the state, all affected by the proposed emergency rule must be given notice and an opportunity to intervene in this action. Therefore, on remand, the trial court not only must determine whether the state's proposal meets "the minimum federal requirements" outlined in the Supreme Court's opinion, it also must determine whether the proposal comports with federal and state protections afforded those against whom the proposed tax will be assessed. We emphasize that the state has the option of choosing the manner in which it will reformulate the alcoholic beverage tax during the contested period so that the resultant tax actually assessed during that period reflects a scheme which does not discriminate against interstate commerce. Therefore, if the trial court should rule that the state's proposal to retroactively assess and collect taxes from McKesson's competitors does not meet constitutional muster and such ruling is upheld on appeal, the state may offer an alternative remedy for the trial court's review. However, any such proposal likewise must satisfy the standards set forth by the Supreme Court as well as be consistent with other constitutional restrictions. 574 So. 2d at 116. In the instant case, Judge Maloney assessed the options prescribed by the series of McKesson cases and concluded that the only fair remedy was to assess and collect back assessments from those who benefited from the unconstitutional equalization tax exemption. His August 8, 2002 order directed the Department to "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." On September 18, 2002, the Department promulgated the Emergency Rules at issue in DOAH Case No. 02-3648RE. The Emergency Rules were filed with the Department of State on September 24, 2002, and took effect on that date. They were published in the October 4, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 40, pp. 4271-4272). The full text of the Emergency Rules is: EQUALIZATION TAX ON NON-FLORIDA UNITED STATES JUICE 20ER02-1 Intent. The Court in Tampa Juice Service, et al v. Florida Department of Citrus in Consolidated Case Number GCG-003718 (Circuit Court in and for Polk County, Florida) severed the exemption contained in Section 601.155(5), Florida Statutes, that provided an exemption for persons who exercised one of the enumerated Equalization Tax privileges on non-Florida, United States juice. The Court had previously determined that the stricken provisions operated in a manner that violated the Commerce Clause of the United States Constitution. On August 8, 2002, the Court ordered that the Florida Department of Citrus "take appropriate steps, consistent with existing law, to assess and collect the Equalization tax from those entities which [benefited] from the unconstitutional exemption." It is the Florida Department of Citrus' intent by promulgating the following remedial Rule 20ER02-01 and Chapter 20-15, F.A.C., to implement a non-discriminatory tax scheme, which does not impose a significant tax burden that is so harsh and oppressive as to transgress constitutional limitations. These rules shall be applicable to those previously favored persons who received favorable tax treatment under the statutory sections cited above. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. 20ER02-2 Definitions. "Previously favored persons" shall be defined as any person who exercised an enumerated Equalization Tax privilege as defined by Section 601.155, Florida Statutes, but who was exempt from payment of the Equalization Tax due to the exemption for non-Florida, United States juice set forth in the statutory provision, which was ultimately determined to be unconstitutional and severed from Section 601.155(5), Florida Statutes. The "tax period" during which the severed provisions of Section 601.155(5), Florida Statutes, were in effect shall be defined as commencing on October 6, 1997, and ending on March 14, 2002. "Tax liability" shall be defined as the total amount of taxes due to the Florida Department of Citrus during the "tax period," at the following rates per box for each respective fiscal year: Fiscal Year Processed Rate Orange Grapefruit 1997-1998 .175 .30 1998-1999 .17 .30 1999-2000 .18 .325 2000-2001 .175 .30 2001-2002 .165 .18 Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. 20ER02-3 Collection. The Florida Department of Citrus shall calculate the tax liability for each person or entity that exercised an enumerated Equalization Tax privilege outlined in section 601.155, Florida Statutes, upon non-Florida, United States juice based upon inspection records maintained by Florida Department of Agriculture and Consumer Services and the United States Department of Agriculture. Additionally, the Florida Department of Citrus will provide notice of the calculation to the previously favored persons by certified mail. The notice of the calculation shall contain a statement including the following categories: (a) Tax liability; (b) Gallons; Brix; Type of product; (e) Total solids; (f) Conversion rate; (g) Total boxes; (h) Delineation of non-Florida, United States juice. (2)(a) Contained within the notice will be the various legal options available to those who previously enjoyed the exemption, set forth in proposed Rule 20- 15.003(2), F.A.C. (b) Persons who previously enjoyed the exemption may petition to intervene in the case of Tampa Juice Service, Inc., et al, Consolidated Case No. GCG-003718, presently pending before the Circuit Court of the Tenth Judicial Circuit in and for Polk County. A hearing to consider arguments made by any intervenor, the Plaintiffs and the Florida Department of Citrus is currently scheduled to be heard by the Honorable Dennis Maloney on November 12, 2002, in Bartow, Florida. (3) The Florida Department of Citrus will not oppose the timely intervention of persons who previously enjoyed the subject exemption that wish to present a claim to the Court in the Tampa Juice Service, Inc., et al v. Florida Department of Citrus. However, the Florida Department of Citrus does not waive any argument regarding the validity of the calculation of the tax liability or that imposition of this tax is constitutional. Specific Authority 601.02, 601.10, 601.15, 601.155 FS. Law Implemented 601.02, 601.10, 601.15, 601.155 FS. History-- New 9-24-02. The Department's "Specific Reasons for Finding an Immediate Danger to the Public Health, Safety or Welfare" were set forth as follows: On March 18, 2002, the Court in the Tenth Judicial Circuit, State of Florida, in and for Polk County, entered a Partial Final Declaratory Judgment in the case of Tampa Juice Service, Inc., et al v. Florida Department of Citrus, Consolidated Case Number GCG-003718. In this order the Court ruled that the exemption in Section 601.155, F.S., for non-Florida, United States juice was unconstitutional. On or about April 15, 2002, the Court severed the exemption for non-Florida, United States juice from section 601.155(5), F.S. On August 8, 2002, the Court held that the Florida Department of Citrus was required to cure the invalidity of the equalization taxing scheme. To cure this invalidity, the Florida Department of Citrus promulgates Rule 20ER02-1, F.A.C., which will serve to implement the Court's order for a nondiscriminatory tax scheme and provide due process protections for the previously favored taxpayers. These rules are being promulgated on an emergency basis to meet time constraints associated with litigation and to establish guidelines which protect the public's and state's interest for the orderly and efficient collection and payment of the tax liability. Without these guidelines, the welfare of the citizens and the state would be adversely affected because of the immediate and widespread impact of the failure of previously favored persons to properly remit the tax. The Department's "Reason for Concluding that the Procedure is Fair Under the Circumstances" was set forth as follows: Promulgation of these guidelines using the emergency rule procedures is the only available mechanism which adequately protects the public interests under the circumstances which require collection and payment of the tax liability. This procedure is fair to the public and to the previously favored persons. It permits promulgation of the necessary guidelines within a time frame which allows the industry to be adequately informed of their duties, responsibilities and rights with respect to the tax liability. In the November 15, 2002 issue of the Florida Administrative Weekly (vol. 28, no. 46, pp. 4996-4998), the Department published the Proposed Rules at issue in DOAH Case No. 02-4607RP. The text of Proposed Rule 20-15.001, Florida Administrative Code, is identical to that of Emergency Rule 20ER02-1, set forth above. The text of Proposed Rule 20-15.002, Florida Administrative Code, is identical to that of Emergency Rule 20ER02-2, set forth above. The text of Proposed Rule 20- 15.003(1)&(3), Florida Administrative Code, is identical to that of Emergency Rule 20ER02-3(1)&(3), set forth above. The text of Proposed Rule 15.003(2), Florida Administrative Code, varies from the text of Emergency Rule 20ER02-3(2), and reads as follows: 20-15.003 Collection. Subsequent to adoption of this rule, the Florida Department of Citrus will provide to the previously favored persons by certified mail a Notice of Tax Liability which shall contain a demand for payment consistent with the above-referenced itemized statement. The Department will deem late payment of Equalization Taxes owed by previously favored persons to constitute good cause, and shall waive the 5 percent penalty authorized by Section 601.155(10), F.S., as compliance with either of the following is established by Department [sic]: Lump sum payment of the tax liability remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection 20-15.002(3), F.A.C., within 61 days of receiving Notice of Tax Liability; or Equal installment payments remitted with the filing of Department of Citrus Form 4R (incorporated by reference in Rule 20-100.004, F.A.C.) for the relevant years and then-applicable tax rate(s) per subsection subsection [sic] 20-15.002(3), F.A.C., over a 60-month period, the first payment being due within 61 days of receiving Notice of Tax Liability pursuant to subsection 20-15.003(2), F.A.C.; or The Good Cause provisions of 601.155(10), F.S., shall not apply to persons who do not comply with paragraph 20- 15.003(2)(a), F.A.C., or paragraph 20- 15.003(2)(b), F.A.C. Failure to pay the taxes or penalties due under 601.155, F.S. and Chapter 20-15, F.A.C., shall constitute grounds for revocation or suspension of a previously favored person's citrus fruit dealer's license pursuant to 601.56(4), F.S., 601.64(6), F.S., 601.64(7), F.S., and/or 601.67(1), F.S. Peace River is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Peace River is subject to the rules of the Department. Peace River buys, sells, and manufactures bulk citrus juices. By correspondence dated October 2, 2002, Peace River was notified by the Department that Peace River would be liable for payment of $86,242.41 in Equalization taxes for the tax period of October 6, 1997 through March 14, 2002 (the "tax period"), pursuant to the terms of the Emergency Rules. Fresh Juice is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Fresh Juice is subject to the rules of the Department. Fresh Juice buys, sells, and manufactures citrus juices. By correspondence dated October 2, 2002, Fresh Juice was notified by the Department that Fresh Juice would be liable for payment of $45,052.19 in Equalization taxes for the tax period, pursuant to the terms of the Emergency Rules. Sun Orchard is a Florida corporation and licensed citrus fruit dealer regulated by Chapter 601, Florida Statutes. As such, Sun Orchard is subject to the rules of the Department. Sun Orchard buys, sells, and manufactures citrus juices. By correspondence dated October 2, 2002, Sun Orchard was notified by the Department that Sun Orchard would be liable for payment of $45,052.19 in Equalization taxes for the tax period, pursuant to the terms of the Emergency Rules. During the tax period, Peace River, Fresh Juice, and Sun Orchard imported, stored and blended non-Florida, United States citrus juices. Neither Peace River, Fresh Juice, nor Sun Orchard is a party to the lawsuit styled Tampa Juice Service, Inc., et al. v. Department of Citrus, Case No. GCG-00-3718 (Consolidated). Peace River, Fresh Juice, and Sun Orchard contend that they relied on the tax exemption in making business decisions and had no notice that their activities regarding non-Florida, United States juice would be taxable upon the court's striking of the exemption in Section 601.155(5), Florida Statutes. Accordingly, Peace River, Fresh Juice, and Sun Orchard contend that, during the tax period, they had no opportunity to conform their conduct to avoid the tax or position themselves to claim a refund allowed by Section 601.155, Florida Statutes. Peace River, Fresh Juice, and Sun Orchard contend that they have not been obligated by Chapter 601, Florida Statutes, to keep specific records on their use of non-Florida United States citrus juices for the tax period, but admit they keep business records required by law, which may include some business records related to non-Florida United States juice during the tax period. Peace River, Fresh Juice, and Sun Orchard shipped products made with non-Florida, United States juice during the tax period without payment of the Equalization Tax.
Findings Of Fact Petitioner is a department of state government headed by the Florida Citrus Commission. Petitioner collects various excise taxes on boxes of citrus fruit. When taxes are collected, they are deposited in a bank account in Lakeland, Florida. The next day the funds are transferred to the state general revenue account in Jacksonville, Florida. This account is administered by Respondent. Such transactions are accomplished daily. The funds deposited in the state account accrue interest for the State's general revenue, but not for Petitioner's specific use. When Petitioner does not have an immediate need for money that it has deposited in the state account, it advises the Respondent to transfer the funds to accounts administered by the State Board of Administration for investment in bonds. Interest derived from these investments accrues for the benefit of the Petitioner, except that the Board of Administration imposes a charge for its services. When Petitioner needs money, it advises the Board of Administration to transfer funds back to the state account. Respondent imposes a two percent fee upon money deposited by Petitioner in the state account. After investments by the State Board of Administration were first authorized in 1965, the Respondent developed a policy of imposing its fee on interest income generated by the State Board of Administration's investments. Thus, when Petitioner's money was transferred back from the State Board of Administration to the general state account, Respondent would impose a two percent deduction on the interest income. On November 19, 1979, the Office of the Attorney General issued a formal opinion that the interest generated by investments of the State Board of Administration were not subject to the Respondent's fees. Respondent thereafter refunded fees that had been collected on that basis to Petitioner. Respondent filed its Rule 3A-40.101, Florida Administrative Code, with the Office of the Secretary of State on March 2, 1981. The rule reestablishes Respondent's former policy of imposing a deduction on interest income earned and reported on investments by the State Board of Administration. Respondent has implemented the rule and imposed its two percent fee upon Petitioner's interest income. Petitioner has initiated the instant rule challenge proceeding contending that Respondent lacks authority to impose the deduction on the interest income, and that the rule therefore constitutes an invalid exercise of delegated legislative authority.
The Issue Whether Respondent Southeast Grove Management, Inc., is indebted to Petitioners in the amount of $999.40 for limes grown by Petitioners and picked and sold by Respondent southeast?
Findings Of Fact Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox Groves are growers of limes in Homestead, Florida. Respondent Southeast Grove Management, Inc., (hereinafter "southeast") goes to individual groves and picks the limes, then brings them to the packing house where they are graded, sized, and shipped to be sold at prices according to size. When the recipient of the limes pays Southeast after receipt of the limes, southeast ascertains what prices were paid for the limes and then calculates its costs and pays the grower the difference. Between the weeks ending March 25 and August 5, 1988, Southeast picked 337.2 bushels of limes grown by Petitioners. There is no dispute as to the number of bushels of Petitioners' limes picked by Southeast. Petitioners dispute Southeast's calculations as to the price which Southeast received for the limes, the percentage of the limes picked by Southeast which "graded out' for sale, and the amount of picking and inspection fees charged by Southeast. No competent, substantial evidence was offered in support of the prices Petitioners claim Southeast received (or should have received) for the limes as to six of the seven separate pickings in question in this cause. In four instances, Southeast paid Petitioners a higher price per bushel than they claim. Petitioners claim that 100% of each picking was saleable citrus. Southeast's records reflect that Petitioners were given credit for 100% of their limes on one of the seven pickings. For the remainder of the pickings, however, Southeast gave them credit for as little as 33.1% of the bushels picked and as high as 89.4% of the bushels picked. No competent, substantial evidence was offered to justify Petitioners' selection of 100% for all seven pickings. The 100% figure selected by Petitioners allows for no differences in the amount of marketable limes from each picking, and there is no evidence to support the proposition that no matter when during the season the limes are picked exactly 100% of them will be marketable. Petitioners agree that Southeast is entitled to charge them picking and inspection fees to be deducted by Southeast from the sale price of the limes before crediting petitioners with the balance of the sale price. Petitioners further agree that the picking and inspection fees for the pickings involved in this cause should be deducted from the monies they claim Southeast still owes them. No competent, substantial evidence was offered by Petitioners as to the amount of picking and inspection fees Petitioners claim to be correct. The picking and inspection fees charged to Petitioners by Southeast are, therefore, the correct amounts as to six of the seven pickings. As to lime pool #829 for the week ending July 18, 1988, Petitioners claim a sales price of $2.16 for each of the 86.6 bushels picked by Southeast that week. They also claim that 100% of those limes were marketable. Southeast agrees it picked 86.6 bushels of Petitioners' limes that week. However, Southeast has no records regarding the price for which it sold those limes, the percentage of those limes which were marketable, and the amount of picking and inspection fees paid by Southeast for Petitioners' limes in lime pool #829. Accordingly, Petitioners are entitled to receive additional payment from Southeast in the amount of $187.06, which represents a sale price of $2.16 for each of the 86.6 bushels of limes picked and then sold by Southeast. No deductions for inferior quality limes and no deductions for picking and inspection fees are proper since Southeast cannot prove its entitlement to make any deductions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Southeast Grove Management, Inc., is indebted to Petitioners Donald R. Fox, Jr., and Delores W. Fox d/b/a Don Fox Groves in the amount of $187.06 and that such monies should be paid to them within fifteen days from the entry of the Final Order. DONE AND ENTERED in Tallahassee, Leon County, Florida: this 31 day of January, 1990. LINDA M. RIGOT 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 31 day of January, 1990. COPIES FURNISHED: Cliff Willis Florida Farm Bureau Mutual Insurance Company 1850 Old Dixie Highway Homestead, Florida 33033 Don Reynolds c/o Aaron Thomas, Inc. 11010 North Kendall Drive, Suite 200 Miami, Florida 33176 Donald R. Fox Delores W. Fox 26101 Southwest 207th Avenue Homestead, Florida 33031 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building -Tallahassee, Florida 32399-0800 Benjamin S. Schwartz, Esquire 1 CenTrust Financial Center 36th Floor 100 Southeast 2nd Street Miami, Florida 33131 Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32399-0810 Mallory Horne, General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Since November 9, 2004, Respondent has been licensed and regulated by the Division as a permanent food service establishment in Parrish, Florida. Respondent's license number is 5105120. Before initial licensure, Respondent submitted plans for the restaurant to the Division with the required plan review application and plan review fee of $150.00. The 2004 plans submitted for Division review and approval were not offered into evidence. The Division periodically inspects licensed food service establishments, such as Respondent, to ensure compliance with applicable laws and regulations. For example, on October 7, 2009, the Division conducted a routine inspection of Respondent and determined that Respondent "met inspection standards during this visit." Two days later, on October 9, 2009, the Division conducted another inspection of Respondent. The Division's witness, Ms. Bagley, who conducted the inspection, gave no explanation for conducting another inspection so close in time to the October 7, 2009, inspection in which inspection standards were found to be met. Ms. Bagley's October 9, 2009, inspection report indicates several violations, and as a result, Ms. Bagley conducted a call-back inspection the next morning. Some of the items identified in the October 9, 2009, report were addressed to Ms. Bagley's satisfaction by the next morning. Ms. Bagley determined that additional time, through December 10, 2009, should be given to address two remaining items. One of those items, designated as a "non-critical" violation, was described as follows in both the October 9, 2009, inspection report and the October 10, 2009, call-back inspection report: 51-16-1: No plan review submitted to and approved by division of hotels and restaurants and renovations in progress. Added routissary [sic] smoker unit unto outside patio area. Area is\also not propely [sic] screened. Must comply. Ms. Bagley conducted a call-back inspection on December 11, 2009. She found that one of the two items scheduled for call-back inspection was in compliance. She recommended issuance of an Administrative Complaint with regard to the other item described, as follows: Violation: 51-16-1 No plan review submitted to and approved by division of hotels and restaurants and renovations in progress. Added routissary [sic] smoker unit unto outside patio area, area is\also not propely [sic] screened. Must comply. On January 22, 2010, Petitioner issued an Administrative Complaint against Respondent, as recommended by Ms. Bagley. The Administrative Complaint quoted the rule allegedly violated, as follows: 1. 51-16-1 61C-1.002(6)(C)(1) FAC: The operator of each public food service establishment to be newly constructed, remodeled, converted, or reopened shall submit properly prepared facility plans and specifications to the Division for review and approval in accordance with the provisions of Chapter 509 and Rule Chapters 61C-1 and 61C-4, FAC. Such plans must be approved by the Division prior to construction, remodeling, conversion, scheduling of an opening inspection and licensing. The allegations of fact relied on to establish the claimed rule violation were as follows: No plan review submitted to and approved by Division of Hotels and Restaurants and renovations in progress, added rotisserie smoker unit at outside patio area; area is also not propely [sic] screened. Ms. Bagley testified that she prepared the three inspection reports on October 9, 10, and December 11, 2009, using a hand-held computer while she was on site. Ms. Bagley did not describe what she observed at any of the three inspections or elaborate on the description of the charged violation as set forth and repeated in each of the three inspection reports. Ms. Bagley did not identify any changes of any nature at Respondent's establishment besides the placement of a new rotisserie smoker unit in an area she described as the outside patio area. Mr. Rhodes acknowledged that a new rotisserie smoker unit was acquired as replacement equipment to replace another smoker that wore out. Mr. Rhodes did not construct, remodel, or renovate space to house the new rotisserie. Instead, the new unit was placed in the same general area as the replaced unit, two feet from where the previous unit stood. The new unit could not sit in the identical spot as the prior unit, because it was an upright grill instead of a flat one. Though it was not identical equipment, it was "like" equipment. Mr. Rhodes' testimony was credible and unrebutted. Respondent submitted pictures into evidence to show the cooking area where the new rotisserie grill stands, adjacent to a larger smoker that sits next to another large smoker. These pictures were taken approximately three weeks after Ms. Bagley's last inspection. Ms. Bagley did not identify anything new or different in the scenes shown in the pictures from what she observed at the December 11, 2009, inspection. These pictures confirm Mr. Rhodes' testimony that the new rotisserie unit was placed in the same general area that was, and still is, used for cooking. Ms. Bagley's three inspection reports use the phrase "renovations in progress." However, Ms. Bagley was unable to define what she meant by that phrase: Mr. Rhodes: I would like to get [Ms. Bagley's] definition of "renovation in progress." Ms. Bagley: Well, actually I wouldn't have a definition of renovation in progress. I would end up referring you to the plan review person, as well as the website. I believe that the definition in Florida Administrative Code 61(c) lists multiple possibilities, and then the Division has guidelines and policies that help explain those further. Ms. Bagley's reference to the list of "multiple possibilities" is to Florida Administrative Code Rule 61C-1.002(5)(c)1., which states that the "operator of a public food service establishment to be newly constructed, remodeled, converted, or reopened" must submit plans to the Division for review and approval. This rule does not use the term "renovation," but it does use the term "remodeled." The sentence after the excerpt of Florida Administrative Rule 61C-1.002(5)(c)1., quoted in the Administrative Complaint, provides as follows: "For remodeling, plan review submittal shall not be required if the division can otherwise determine that the intended remodeling will not have an impact on the Florida Clean Indoor Air Act, fire safety, bathroom requirements, or any other sanitation and safety requirements provided in law or rule." When Ms. Bagley was asked about this provision and, in particular, how the Division defined the term "remodeling" used in its rule, her response was as follows: Well, I could say that just adding the smoker onto the patio area would be a change in use of that patio area. It turned it into a cooking, a food prep area that was originally, the plan was not approved for. As previously noted, however, no evidence was presented of the original plans or the extent to which areas were separately designated for specific uses. The pictures in evidence do not support Ms. Bagley's apparent view that the so-called "patio area" with the new rotisserie grill is physically separated from the so-called "cooking area" with the large smokers. The two areas are adjacent. A large smoker in the so-called "cooking area" is immediately adjacent to the new rotisserie smoker in the so-called "patio area" with nothing separating them besides a foot or two of space. Both areas appear to have ceilings, partial walls, and screening. The only apparent differences in the two areas are cosmetic, such as different flooring and different finishes to the walls. Although Ms. Bagley was unable to define "renovation" or "remodeling," she referred to the Division's "guidelines and policies that help explain [the terms listed in the rule] further." The Division maintains a website page that sets forth "Restaurant Plan Review FAQ [frequently asked questions]." Respondent consulted this website page, which includes the following: Q: When am I required to submit plans for review? A: Plans are required for any of the following situations: Construction of a new food service establishment. Remodeling of an existing establishment if the proposed changes affect the sanitation, safety, or restroom requirements or the Florida Clean Indoor Air Act. Reopening an establishment that has been closed over one (1) year. Conversion of an existing structure for use as a food establishment. Q: What changes do not require a plan review? A: Changes that are only cosmetic in nature do not require a plan review. Such changes involve painting, replacing dining room carpeting, or replacing like equipment (e.g., replacing an old refrigerator with new). If you are in doubt, call the Customer Contact Center at 850.487.1395 for further clarification. Ms. Bagley did not specifically address this guidance or explain why Respondent would not have reasonably relied on the authorization for "replacing like equipment" without plan review. Leaving aside the threshold question of whether there was any "remodeling," no evidence was presented that the placement of the replacement rotisserie grill two feet away from where the prior grill was located is a change that implicates any new or different safety or sanitation requirements. Although Ms. Bagley testified that placing the new rotisserie grill two feet from the site of the old grill changed the use of the new location, she did not identify any specific sanitation or safety requirements impacted by the changed location. Presumably, if any such regulatory requirements had been impacted by the placement of the new rotisserie grill, Ms. Bagley would have cited them in her inspection reports. Finally, although the inspection reports and Administrative Complaint allege that the area where the new rotisserie grill is located is improperly screened, no evidence was presented to prove this allegation. Ms. Bagley did not explain what she meant by improper screening, where or how there was improper screening, or what the requirements are for proper screening. Respondent's pictures show screening in the entire cooking area that houses the new rotisserie grill and the other two larger smokers, but no evidence was presented regarding whether the screening was in any way improper.3
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, dismissing the Administrative Complaint against Respondent, C and K Smoke House BBQ. DONE AND ENTERED this 22nd day of November, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 22nd day of November, 2010.
Findings Of Fact Thomas J. Smith, principal at Citrus Grove Junior High School was Carter's supervisor during school years 1974 and part of 1975. It is a mandatory requirement at this school that all teachers sign in and out each school day. As alleged in charges (2) through (4) Carter did not sign in or out on November 27, December 11 and December 12, 1974; as alleged in charge (5) on December 18, 1974, Carter did not sign in until 12:30 P.M. and missed his first class which started at 11:37 A.M.; as alleged in charge (6) Garter on December 18, 1974, left school at 3:00 P.M. without permission; as alleged in charge (7), on December 19, 1974, Carter left school at 1:00 P.M. without permission; as alleged in charge (8), on December 20, 1974, Carter was absent from school without authority; as alleged in charge (9) on January 8, 1975, Carter appeared at school at 12:15 P.M. to sign in, but wrote that he arrived at 11:00 A.M.; and as alleged in charge (10) Carter signed in at 10:00 A.M., stated he had to take his son to the doctor, would return at 11:37 A.M., but remained absent without authority for the balance of the day. No statement from a physician indicating Carter was unable to work on the days he was charged with unauthorized absence was received. Principal Smith held numerous conferences with Carter to discuss his absence problems with the last conference occurring on January 6, 1975. At this conference he advised Carter he could not recommend him for employment next year. Carter did not return to Curtis Grove Junior High School subsequent to January 10, 1975. Richard Artmeier is assistant principal at Ponce de Leon High School, was so serving in October and November 1974, and was Carter's supervisor at his assigned school bus unloading duties. He maintained records of attendances at or absences from the assigned school bus duties. As alleged in charge (11), Carter failed to show up for these duties on October 11,14,15,24,25,30, and 31, and on November 4,5,6,7,8 and 12, 1974. He was due to report for this school bus duty at 8:15 A.M. and remain there until 8:40 A.M. Mr. Artmeier talked to Carter about Carter's absences from this assigned duty, and advised Carter that he (Artmeier) had been assigned to check on those assigned school bus unloading duties. Carter offered no legitimate excuse for his absences. Exhibit 1 is a copy of the original records maintained by Mr. Artmeier insofar as it reflects the absences of Carter. Its admission into evidence was objected to by Carter's Attorney on the grounds that the original showed absences of a Mr. Dixon which had been blanked out on the copy offered and it was, therefore, inconsistent with Mr. Artmeier's testimony. James B. Randolph has been principal at West View Junior High School since July, 1973, and maintains attendance records on assigned teachers. As alleged in Charge 12, as amended at the hearing, Carter was absent without authority on Aug. 28 and 31, 1973; September 10, 18, 21 and 24, 1973; October 1, 2, 3, 5, 8 and 9, 1973; November 7, 8, 9, and 29, 1973; December 5, 10, 14 and 17, 1973; January 2, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 25 and 1/2 day June 28, 1974; February 6, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26 and 27, 1974; March 1, 7, 8, 11, 14, 18, 19, 20 and 21, 1974; April 24 and 29, 1974; and May 3, 10, 13, 14, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 and 30, 1974. Principal Randolph held numerous conferences with Carter relative to his absences. In August, 1973, he held a conference with Carter regarding Carter missing the first day of school. Carter's only excuse was he forgot school opened that day. He acknowledged a problem existed but did not reveal it to Mr. Randolph. At the expiration of the school year Principal Randolph submitted an evaluation of Carter as C, or 3.0, which is deemed unsatisfactory. Despite this evaluation Carter remained an employee of the school board during the school year commencing in the Fall of 1974. Carter's attorney was allowed to proffer that if Carter had been present he would testify that he had serious personal problems which started with a divorce in 1972. In 1973, he started having stomach troubles, was advised that he might be developing an uncer and was advised to take Malox.
Findings Of Fact Petitioner Donald Jones caused peppers he had grown "on high ground" to be delivered to respondent's packing house in Center Hill, Florida, on May 16, May 27 (in the rain) and June 4, 1991. As was customary, respondent undertook to grade, size, pack and load the vegetables, to arrange transportation to market, to get the best price possible, and to account for the proceeds, all for an unspecified "reasonable fee." The parties had no written agreement. Petitioner, who had dealt with respondent in eight preceding seasons, does not take issue with any of the "packing charges" respondent imposed for its services (on average $3.56 per box on May 27, 1991 and $2.36 per box on June 4, 1991), or raise any question regarding the physical handling of the peppers. He makes no claim of any kind regarding the peppers he delivered on May 16, 1991. It affirmatively appears from his verified complaint that respondent gave a timely accounting, and the evidence left no doubt as to the accuracy of the accounting, with one trivial exception. On May 27, 1991, petitioner delivered to respondent enough large green peppers to fill 903 boxes, enough medium green peppers to fill 1195 boxes, enough small (also called select) green peppers to fill 461 boxes, and enough red peppers to fill 278 boxes. Respondent's Exhibits Nos. 12 and 16. Respondent authorized Gator Produce, Inc. to sell petitioner's produce for a commission of seven percent, which is within the industry norm. Mr. Odom had known Bob Rutledge, the principal in Gator Produce, Inc. with whom he dealt, for some 25 years. At Mr. Rutledge's direction, Mr. Odom shipped the peppers to their various destinations "free on board, inspection after arrival," in keeping with industry practice. Respondent loaded 150 boxes of large green peppers and 50 boxes of small green peppers on a truck bound for Columbia, South Carolina, on May 27, 1991. Senn Brothers received the produce that night and eventually paid $16.50 a box for the large and $7.20 a box for the small peppers. Respondent's Exhibit No. 3. By a second refrigerated truck, respondent shipped another 150 boxes of large green peppers on the night of May 27, 1991, to Mushroom Growers in Chicago, Illinois, and a like number of boxes each of red, small green and medium green peppers to the same buyer. Respondent's Exhibit No. 4. When the peppers reached Chicago, Bob Rutledge of Gator Produce reported to Mr. Odom, "We've got a problem [with decay]." Instructed by Mr. Odom to "work it out," Mr. Rutledge sold the peppers at prices below those that fresh peppers without decay brought. Respondent received $6.27 a box for large peppers, $7.11 a box for medium peppers, $7.39 a box for small peppers, and $7.57 a box for red peppers. Respondent's Exhibit No. 18. On May 28, 1991, at about two o'clock in the morning, respondent shipped 128 boxes of red peppers, 153 boxes of large peppers and 229 boxes of small peppers to Ag Fresh in Oklahoma City. Respondent received $7.44 a box for the large peppers, $3.72 a box for the small peppers and $4.19 a box for the red peppers. The $9.30 a box for 125 boxes of medium peppers respondent shipped an hour earlier and the $9.06 a box for the 919 boxes of medium peppers respondent shipped to Memphis later the same day represent market price for peppers free from decay. The $6.51 a box to respondent for 450 boxes of large peppers respondent shipped to New York on May 28, 1991, like the price on the large peppers respondent shipped for petitioner to Chicago and Oklahoma City included an adjustment for decay. Although the New York buyer was billed for 32 boxes of red peppers, it actually received 32 boxes of small or select peppers, for which respondent was eventually paid $4.18 a box. On June 4, 1991, petitioner delivered to respondent enough large green peppers to fill 205 boxes, enough medium peppers to fill 330 boxes, enough small or select peppers to fill 220 boxes and enough red peppers to fill 120 boxes. On June 6, 1991, respondent shipped all of the large green peppers and all of the red peppers along with 200 boxes of medium peppers he had received from petitioner on June 4, 1991, to Philadelphia. On account of sales in Philadelphia, respondent realized $6.05 a box for large peppers, $4.65 a box for medium peppers, and $3.72 a box for red peppers. The same day respondent shipped all the small green peppers and 120 boxes of medium green peppers to Lexington Produce in Baltimore, Maryland, the only buyer of petitioner's peppers with whom it had not dealt extensively before. When Lexington Produce reported that petitioner's peppers had decay, respondent or its agent ordered and paid for a "federal inspection" which confirmed the report. After authorizing its agent to work it out, respondent received $2.79 per box for the small peppers and $5.58 per box for the medium peppers. In the 1991 pepper season, "everybody's" peppers had decay. Peppers rot from the inside out. Whether rot begins around the stem, as usually happens, or shows up suddenly as sidewall rot, it often escapes detection in its early stages. Even an experienced eye may see no sign of rot one day, while the morrow makes decay unmistakable. Several buyers reported that petitioner's peppers had decayed by the time they reached them. In consultation with Mr. Rutledge, Mr. Odom decided against incurring the expense of government inspections, when spoliage reports came from dealers on whom they had come to rely over many years. As far as the evidence shows, petitioner received fair market value, taking the peppers' condition into account, for each shipment, less commission and packing charges. Respondent fully accounted to petitioner for every penny that came into its hands, and disbursed some moneys to petitioner before it had itself received the sale proceeds. When asked, respondent made all of its invoices and other records available to petitioner. There is, however, one box of medium peppers petitioner delivered on May 27, 1991, which has not been accounted for. On average, those boxes of medium peppers yielded respondent $8.84 from which a $3.56 packing charge should be deducted to determine the value of the missing box to petitioner: $5.28.
Recommendation It is, therefore, RECOMMENDED: That DACS order respondent Jeff Odom, Inc. to pay petitioner five dollars and twenty-eight cents ($5.28) within fifteen (15) days of the final order. That, in the event Jeff M. Odom, Inc. fails to pay petitioner five dollars and twenty-eight cents ($5.28) within (15) days of the final order, DACS order Lawyers Surety Corporation to pay five dollars and twenty-eight cents ($5.28) or such lesser sum as satisfies the requirements of Section 604.21(8), Florida Statutes (1991), for disbursal to petitioner. DONE and ENTERED this 10th day of May, 1993, at Tallahassee, Florida. ROBERT T. BENTON, II 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 10th day of May, 1993. APPENDIX Petitioner filed no proposed findings of fact. Respondent's proposed findings of fact Nos. 1 and 2 are properly proposed conclusions of law. Respondent's proposed findings of fact Nos. 3-8, 10, 11, 13-19 and 21-27 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 9, the destinations included Oklahoma City, Memphis and New York, but not Philadelphia and Baltimore. With respect to respondent's proposed finding of fact No. 12, respondent apparently absorbs inspection fees. Respondent's proposed finding of fact No. 20 is adopted, except that the payments to petitioner were $5.28 short. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agricultural and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 John Coniglio, Esquire Post Office Box 1119 Wildwood, Florida 34785 W. Scott Wynn, Esquire Post Office Box 447 Groveland, Florida 34736
The Issue The parties' prehearing statement filed on November 6, 1989, appropriately identifies the controversy as follows: Whether the evidence to be presented by petitioner establishes that respondent was in actual and/or constructive possession of more than twenty (20) grams of cannabis (marijuana), which is a felony violation of Section 893.13, F.S., and drug paraphernalia, which is a misdemeanor violation of Section 893.147, F.S., on November 19, 1988. If proven, do these acts constitute immorality and misconduct in office under Section 231.36(4), F.S.; and Are these acts of such a serious nature that respondent should be discharged from employment and his continuing contract as a teacher with petitioner be terminated.
Findings Of Fact The Respondent, Robert W. Stafford, is 51 years old. At the time of his suspension in 1989, he had been employed as an elementary school teacher with the Brevard County School District approximately 30 years, and was under a continuing contract. For the last 20 years Robert Stafford has owned and lived in his residence located at 5645 Crane Road, Melbourne Village, Florida. He is divorced and, at the time in question, shared the home with his son, Christopher Stafford, and three other young adult males: Martin Lenz, Paul Daniel Butler, and Larry Peace. Each of these individuals had lived in the home for several months or several years prior to November 1988. Each had his own bedroom and due to varying work schedules, only occasionally interacted. In lieu of paying rent, the occupants contributed toward food and utilities and the upkeep and maintenance of the house and its 3/4 acre grounds. Robert Stafford rarely had occasion to enter the bedrooms of the young men. They did their own cleaning. From time to time he would close a window, or put clean laundry in Christopher's room, but generally, the bedrooms, including Robert Stafford's, were considered the private domain of the occupant. On Friday night, November 18, 1988, Robert Stafford left the house around 8:00 or 9:00 p.m. to go to the movies. Larry Peace was at home entertaining his girlfriend. After the elder Stafford left, Peace and the girl smoked marijuana in his room and in the living room. They used a bong (type of water pipe) that he ordinarily kept in his room under his bed. They also burned incense throughout the house. To Peace's knowledge, no one else was home except Martin Lenz, who always kept to himself in his own room, upstairs above the main area of the residence. At some point the couple retired to Robert Stafford's room, leaving the bong in the living room. Although they did not have permission to use the room, the bed was bigger. Christopher Stafford works as custodian in a 2:00 p.m. to 10:00 p.m. shift at Roy Allen Elementary School. He returned home after 10:00 p.m. on the night of November 18, 1988. His father was still out and the others were apparently asleep. He rolled a marijuana cigarette in his room and smoked it outside. When he returned to the house he lit various kinds of incense in the living room and throughout the house. He ate dinner and settled in watching television. Shortly after midnight he heard the dogs barking. When he went out to the backyard, two police officers jumped him and served a search warrant. The Stafford residence had been under surveillance by the Melbourne Village Police Department for several months. Prior to the surveillance, on April 20, 1987, Chief Donald Lock, who was then an officer with the Melbourne Village Police Department, searched the room of Larry Peace, the suspect in a crime which had occurred earlier. The search was pursuant to Peace's written consent and Robert Stafford's verbal consent. The officer was looking for certain clothing, and found, in addition to the clothing, a shotgun, a tray with some marijuana seeds and a waterpipe or bong. After the search was completed, Robert Stafford signed the property receipt for the items. The surveillance was conducted by Officer Norman Rudd with the Melbourne Village Police Department, who at the time of hearing, in November 1989, was 22 years old and had been with the department for two and a half years. Periodically, from February 1988 until November 1988, Officer Rudd viewed the backyard of the Stafford residence from a vantage point in a highly vegetated area behind the property line. He claimed, at various times, to have observed a garden patch of 1-inch marijuana seedlings outside the property line but on a beaten path leading to the property, four males inside the house smoking a bong, a large party in progress with some people smoking marijuana in the backyard, and black plastic pots with larger marijuana plants in the wooded area behind the Stafford property line. Seven or eight police officers converged on the Stafford house the early morning of November 19, 1988. This included the entire 3-man Melbourne Village Police Department and assistance from neighboring Palm Bay and West Melbourne Police Departments. This was the first search warrant executed by Melbourne Village, in the experience of Chief Lock. The search took approximately 5 1/2 hours, and was videotaped (approximately 50 minutes) by an officer from the Palm Bay department. Robert Stafford returned home around 1:00 a.m. and was detained in the living room with the other residents as the search continued. The search revealed Larry Peace's black bong in the northeast corner of the living room. Other paraphernalia and contraband were found in the various bedrooms, including a marijuana pipe with residue and a marijuana cigarette butt and rolling papers on or near Paul Butler's dresser; numerous pieces of drug paraphernalia, hashish oil, cocaine residue, and marijuana, primarily in the form of stems, seeds and parts of discarded cigarettes, in Christopher Stafford's room; a bong and pieces of a bong, marijuana seeds, leaves and butts, a pipe and miscellaneous paraphernalia in Larry Peace's room; and baggies with marijuana residue, a brass pipe with residue, a marijuana butt and tongs in Martin Lenz' room. One item of interest in the search was found in Robert Stafford's room: approximately 27.2 grams of marijuana in two plastic baggies rolled into another baggie and stashed behind a picture on the wall. No other residue, paraphernalia or devices were found in that room. In contrast to Robert Stafford's room, which was neat and uncluttered, the rooms of the young men were messy and filled with books, clothes, posters, papers and debris. Two of the rooms contained wire animal cages, for snakes, rabbits or other small animals. The rooms were small, except for Christopher's, and appeared to be partially make-shift renovation. Most of the items confiscated in the search were either completely hidden in closets or drawers, or were behind beer bottles, books or other clutter. Other items were found (the discarded stems, seeds, and butts) with other refuse in trash cans. The visual effect portrayed in the video tape was such disarray that it would be difficult to focus on a single item of contraband without specifically looking for that item. The officers described the pervasive odor in the house as marijuana, and one officer became ill during the search and had to leave. Other evidence established the odor as incense, including Christopher's blend of strawberry, musk and sandalwood, and of animals. Robert Stafford denies knowledge of the presence of the contraband in his home or the plants growing beyond the property line. He denies that he would have recognized the paraphernalia or the marijuana, except in the form of a plant, which he would recognize from pictures. Sometime prior to the November 1988 incident, Stafford was shown a marijuana plant by the custodian at Turner Elementary School on a morning when he was hurrying to class. When he signed the property receipt at the time of the search of Peace's bedroom, the marijuana seeds and pipe were not presented to him. The marijuana stashed in Robert Stafford's room belonged to Christopher, who had secreted it there for safe- keeping when he suspected someone was messing with the things in his room. The youths never used drugs in front of the elder Stafford and burned incense in their rooms and elsewhere to cover the odor. There is no evidence suggesting that Robert Stafford uses or used drugs or marijuana and he emphatically denies such. When Robert Stafford failed to report the presence of marijuana at school when it was shown to him by the custodian, he was given a written reprimand. This is the only blemish on his 30-year teaching career. His performance evaluations have been satisfactory or outstanding. He has been commended for setting up a model computer center and for work with difficult children. He has been a regular volunteer in child enrichment activities such as Little League. In April 1989, the Staffords and other residents were charged with criminal violations arising from the November 1988 search. Robert Stafford's charges were disposed of, nolle prosequi. The Department of Education found no probable cause to pursue discipline of his teaching certificate. The evidence in this proceeding failed to establish that Robert Stafford was in actual or constructive possession of cannabis (marijuana) or drug paraphernalia.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the Petition for Discharge of Robert W. Stafford be dismissed. DONE AND RECOMMENDED this 22nd day of February, 1990, 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 22nd day of February, 1990.
