The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida, FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent Rachel J. Porter's License No. 37341-2 should he suspended or revoked, or whether Respondent should be placed on probation or otherwise disciplined.
Findings Of Fact An administrative complaint was filed against Respondent on or about November 2, 1978, seeking to place on probation, suspend, or revoke the license of Respondent and her right to practice as a registered nurse. Respondent requested an administrative hearing. From approximately May 14, 1978, through June 1, 1978, while serving as a registered nurse at Polk General Hospital in Bartow, Florida, Respondent on several occasions falsified hospital records for the purpose of concealing the conversion of narcotics by Respondent to her own use. During said period of time Respondent on several occasions signed out for narcotics for patients and failed to properly document the disposition of same. On or about May 28, 1978, Respondent signed out for Demerol (Meperidine), a controlled substance, for a patient by the name of Laura Williams for whom there were no physician's orders for said narcotic for that date and time. On or about June 1, 1978, while on duty, Respondent injected herself with a controlled narcotic, to wit Meperidine, for which she had signed out for a patient and had failed to administer the entire amount to said patient. On or about June 1, 1978, Respondent was arrested by an officer of the Polk County Sheriff's Department at Polk General Hospital and, after being advised of her rights, produced a partially filled 75 mg. tubex of Meperidine. Respondent admitted to having taken the Meperidine from hospital stock by signing it out for patients and, instead, injecting herself with it. On or about October 3, 1978, in the Circuit Court in and for the Tenth Judicial Circuit, Respondent entered a plea of "no contest" in Case No. CF78- 1558 to the charges of unlawful possession of a controlled substance and unlawful possession of a device and paraphernalia with the intent of unlawfully administering a controlled substance in violation of Florida Statute Section 893.13. Respondent was placed on five years probation on November 16, 1978, without adjudication of guilt. She was placed on five years' probation on each of two counts with the sentences to run concurrently. She was required as a condition of the probation to pay the court costs. The court restricted her probation prohibiting her access to certain scheduled narcotics and drugs, and prohibiting her handling of certain scheduled narcotics and drugs in the event she were again to be employed as a nurse. Respondent has not been employed since being placed on probation. Respondent has a history of numerous physical maladies, some physiological and some psychosomatic. She has suffered from several operations and has headaches. During the past several years she has received various pain- killing prescriptions from various physicians and has taken these to relieve her various pains. A witness called by Respondent, Annette C. Barnes, M. D., a psychiatrist, testified that Respondent had become addicted to drugs. It was Dr. Barnes' opinion that the Respondent has progressed to the point where she is no longer actively addicted, and that if Respondent maintains her periods of therapy she can function normally without the aid of any medication other than that prescribed by her attending psychiatrist. Dr. Barnes' opinion was that it would be to the benefit of the Respondent to enter again into employment in the field of her profession, but that she should be restricted from contact with controlled narcotics. Respondent submitted proposed findings of fact and memorandum of law. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of Respondent Rachel Porter be suspended for a period of time not less than one (1) year. If, upon investigation by the Petitioner Board performed no earlier than one (1) year from the date hereof, the Respondent appears to have cured herself of her addiction, it is recommended that Respondent's license be reinstated but that she be kept on probation until the end of the period for which she is on probation as a result of Case No. CF78-1558. DONE and ORDERED this 17th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. Florida State Board of Nursing 111 East Coastline Drive, Suite 504 Jacksonville, Florida 32202 Jack T. Edmund, Esquire Post Office Box 226 Bartow, Florida 33830
The Issue The issues presented were those advanced by an Administrative Complaint brought against the Respondent by the State of Florida, Department of Professional Regulation, in which Respondent is alleged to have violated Section 464.018(1)(j), Florida Statutes, by willfully or repeatedly violating a lawful order of the Board of Nursing previously entered in a disciplinary proceeding. In particular, it is alleged that Respondent violated the terms and conditions of an order of probation entered by the Board of Nursing on November 22, 1983, pertaining to the failure to seek counseling with a psychiatrist, psychologist or other recognized drug alcohol rehabilitation program specialist and to furnish reports to the Board of Nursing. It is further alleged that Respondent failed to submit to a random urine test which was designed to determine if he had consumed, injected or otherwise self-medicated himself with any unprescribed controlled substance.
Findings Of Fact Disciplinary action had been taken against the Respondent by the Board of Nursing stemming from his abuse of the controlled substances percodan and tylenol. The license number in question was license No. 34401-1. On October 15, 1982, Respondent appeared before the Board of Nursing to seek reinstatement of this license. At that time, the Board decided to reinstate the license conditioned upon the service of a probationary term, including special conditions of probation. Among the special conditions of probation was a requirement that "the licensee shall obtain/continue counseling with a psychiatrist, psychologist, or other recognized drug/alcohol rehabilitation program, and shall cause progress reports to be furnished to the Board or probation supervisor every three (3) months during treatment as scheduled by the probation supervisor." The nature of the dialogue at the October 15, 1982, meeting was such that the Respondent was misled into believing that the above- referenced condition of probation would not be required. The Final Order related to the Respondent's reinstatement was issued on November 22, 1982, and it set forth the probation condition related to counseling. It also included a condition to the effect that the Respondent agreed to submit to random blood and/or urine tests to detect the presence of unprescribed controlled substances. Respondent had not been receiving counseling for a drug problem at the time of the October 15, 1982, meeting to consider his reinstatement or at the point in time of receipt of the Final Order relating to the subject of his reinstatement and service of a two-year probationary term. Having reviewed the terms related to attendance of such a program or continuation of the program and the necessity for reports as found in the November 22, 1982 Order, and believing that the remarks made in the course of the October 15, 1982 meeting to consider reinstatement had excluded the necessity to attend such sessions if he was not already in attendance in a rehabilitation program, he contacted Geraldine Johnson, an investigator with the Department of Professional Regulation, to inquire about what he perceived to be a discrepancy between the decision at the meeting in October and the Order entered in November. Ms. Johnson referred Respondent to Helen Keefe, Executive Director of the Board of Nursing, who told King that the Order's terms could not be changed. Additionally, she indicated that a Probation officer would get in contact with King about compliance with the terms and conditions of the Probation Order. John Coats was assigned as the Probation Officer for the Respondent. He first met with the Respondent as Probation Officer on March 10, 1983. At that time, King continued to express concern that the Probation Order and the decision of the Board at the October meeting were "at odds" as to the requirement of counseling. Coats indicated that he felt that the terms of the Probation Order related to counseling were required of King. He nonetheless indicated to King that he would "check into it." On the same date that the initial contact was made, King was requested to give a urine specimen to allow detection of any controlled substance that might be present. This request was made at King's place of employment and in response to King's concern that he not be required to give the sample at the place of employment in order to avoid embarrassment, King was not required to give a random sample at that time. At that point, Respondent was employed at an institution known as Pine Castle which assists mentally retarded adults. At the time of hearing, King was a vocational coordinator for Pine Castle's clients. A further meeting was held between Coats and the Respondent on March 30, 1983, at which time Coats indicated that it was necessary for counseling reports to be provided by the Respondent. King continued to insist that he did not need to attend counseling due to remarks at the Board meeting by Board member, Choulat. Choulat later told Coats that she had not made remarks to that effect. On April 6, 1983, King wrote to the Board of Nursing to ascertain if he indeed had to attend counseling and file reports. This inquiry was responded to by Ms. Keefe on May 3, 1983. In her letter of response, she made reference to the conditions in the Probation Order related to the obtaining or continuing counseling and the necessity for reports and alluded to the fact that in her mind, the first report was due on March 1, 1983, and a second report would be due on June 1, 1983. Further, she indicated that those reports would continue to be due until Respondent was discharged from counseling or a report was received from a counselor indicating that King would no longer need therapy. On May 11, 1983, based upon investigation by Coats, it was determined to pursue charges against Respondent for failing to offer the March 1, 1983, report related to counseling. A report was made by a Dr. Mullen of the Mental Health Clinic of Jacksonville, Inc., on June 22, 1983. This report was addressed to Ms. Keefe. Ms. Keefe was undecided whether this report indicated that the Respondent was released or should be released from any necessity to attend counseling. She did not pursue this matter by presenting it to the Board for their opinion, in view of the fact that the charges of May 11, 1983, had been instituted. From the point of view of Ms. Keefe as spokesperson for the Board of Nursing, it was not necessary to answer this question nor for Respondent to have to continue to offer quarterly reports beyond March 1, 1983, pending the outcome of charges related to the failure to file a report of March 1, 1983. During the course of the exchanges related to the necessity to receive counseling and provide counseling reports on a quarterly basis, Coats continued to seek random urine samples from the Respondent to detect the presence of controlled substances. One of those samples was obtained on April 28, 1983, following contact with the Respondent, allowing him a couple of hours before making the appearance to give that sample. The results of that sample were negative. A similar contact was made with the Respondent on June 29, 1983. The Respondent was telephoned by Coats around two or three o'clock in the afternoon and an arrangement made for Respondent to come by Coats' office around 5:00 p.m. to offer the urine sample. King made his appearance but did not give the sample, indicating that he was unable to void. He requested to be allowed to return the following morning to offer the urine specimen. This arrangement was not pursued by Coats. No further explanation was given to Coats about the inability of Respondent to provide the urine sample and at hearing, Respondent repeated his statement that he was simply unable to perform that task on June 29, 1983. This failure to provide a sample led to a second set of charges dating from July 28, 1983. This charge and the March 1, 1983, failure to file a counseling report formed the basis of the Administrative Complaint of September 6, 1983, filed by the State of Florida, Department of Professional Regulation against Respondent. Respondent requested a formal Section 120.57(1), Florida Statutes, hearing which was held on January 25, 1984.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the Respondent guilty of violating the Probation Order of the Board of Nursing by failing to submit to a urine test on June 29, 1983, and dismisses the charge of failure to submit a quarterly counseling report for March 1, 1983. By way of penalty, the Final Order should impose a suspension of six months, with the last four months of that terms being set aside if, within the initial two months, Respondent seeks a psychological evaluation from a qualified psychiatrist, psychologist or other qualified mental health care counselor who, by report to the Board, addresses the Respondent's capability of continuing in the nursing profession without posing a threat to the safety of patients based upon abuse of drugs or related matters and the need to continue counseling and conditioned upon Respondent's submitting to random blood or urine samples to detect unprescribed controlled substances during the six months suspension period. The final order should also state that Respondent's failure to provide the counseling report and continue needed counseling or to submit to detection of unprescribed controlled substances through blood or urine sample shall promote the imposition of the remaining four months of the suspension term. DONE AND ENTERED this 20th day of March 1984 in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jeffery B. Morris, Esquire 437 East Monroe Street Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, a certified correctional officer, failed to maintain good moral character by pleading guilty to the felony charge of child neglect pursuant to Subsection 827.03(3), Florida Statutes (2002), as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Veronica A. Smith, is a certified correctional officer in the State of Florida. She was issued Correctional Officer Certificate No. 135464 on December 11, 1992. Respondent was employed by the Lee County Sheriff's Office as a correctional officer during the period September 21, 1992, through June 24, 2002. On or about June 12, 2002, Respondent was charged by Information with two counts of felony child neglect in violation of Subsection 827.03(3), Florida Statutes (2002), by the state attorney for the Twentieth Circuit Court, Lee County, Florida. On or about May 27, 2003, Respondent, while represented by counsel and in open court, withdrew her previous plea of "not guilty" to the Information and entered a plea of guilty to one count of felony child neglect before the circuit court for Lee County, Florida, State of Florida v. Veronica Smith, Case No. 02-1878CF. Said plea was accepted and the court entered an Order Withholding Adjudication dated May 27, 2003, which withheld adjudication of guilt but placed Respondent on probation for a period of two years under the supervision of the Department of Corrections. Following notification of her arrest, the Lee County Sheriff's Office opened an internal affairs investigation relating to the underling charges which resulted in her termination on June 24, 2002, from her position as Bailiff Corporal with the Lee County Sheriff's Department. By pleading guilty to felony child neglect, Respondent has failed to uphold her qualifications to be a correctional officer by failing to maintain her good moral character. Although Respondent's employment record does not show any prior disciplinary violations, she has failed to produce any evidence in explanation or mitigation of the conduct which resulted in her arrest and plea before the circuit court or in her termination of her employment with the Lee County Sheriff's Office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes (2002). Respondent's certification as a correctional officer be revoked. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Veronica A. Smith Post Office Box 6812 Fort Myers, Florida 33911 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Should Petitioner be granted an exemption from disqualification?
Findings Of Fact Petitioner, Corey Jay Bryden, applied for the position of counselor with ResCare, which is a counseling center for troubled youth. Petitioner was screened for this position as required by Chapter 435, Florida Statutes. As a result of this screening, it was reported that he had been convicted of aggravated assault in 1991. Aggravated assault is one of the disqualifying offenses designated by Chapter 435, Florida Statutes. Petitioner was notified that the records revealed that he had a disqualifying offense, and that he would have to apply for an exemption. Petitioner requested an exemption, and this was denied after an initial hearing. At that hearing inquiry was made into his work history and other criminal history. Petitioner candidly admitted to the committee and at formal hearing that he had become medically addicted to a prescription medication and gone through successful treatment. He also revealed at both proceedings that he had been arrested in an incident with his girlfriend while he was intoxicated. Petitioner testified regarding his diagnosis as being bipolar and having poor impulse control. He was treated in hospital for this problem and released, and he successfully controls this problem with medication. Regarding the offense for which he was disqualified, he was arrested for assault in 1991 and was in pre-trial incarcerated from 1991 until 1992 when he pled nolo contendere to aggravated assault. He was placed in house arrest from 1992 until 1994. Petitioner has been employed when not in jail, on house arrest, or hospitalized. He has been at different times between 1994 and the present a "house husband," a self-employed air- conditioning mechanic, a counselor, and a self-employed artist. In December, 1995, Petitioner admitted himself to the hospital for treatment of a medically-induced addiction to Ativan. He was hospitalized for three weeks and has had no further problems with this drug. From his release until 1996, Petitioner took no medication, and in 1996 he was arrested for an incident involving his girlfriend. The charges were dropped, but as a result he was re-assessed medically and placed on medication to control his bipolar condition. He is now prescribed Lithium and Depakote. This evidence was credible and unrefuted. In 1999, he went to work in Orange County as a counselor in a facility similar to the one at which he applied in Marion County that gave rise to this proceeding. He was determined to be “Qualified” in Orange County and employed. His work history in Orange County was favorable, and he received several promotions. It was on the basis of this employment that he was considered for the job in Marion County. Troy McDermott, who served on the committee that considered Petitioner’s exemption, testified. Mr. McDermott was concerned about Petitioner's “addiction” and about his arrest while intoxicated. Mr. McDermott was of the opinion that one who has been addicted must be in a twelve-step program to have recovered. While participation in such a program may be helpful to recovery, it is certainly not required for recovery. For the committee to establish participation in a twelve-step program as a condition for an exemption is not authorized by rule or statute. There was no evidence presented by Respondent that Petitioner abuses controlled substances. The committee also was concerned about Petitioner’s bipolar condition. Petitioner testified that he had been treated for his bipolar disorder. If one is bipolar there is no cure; a person's treatment is successful as long as he or she takes medication. Petitioner is taking his medication, and Respondent presented no contrary evidence. This testimony was credible, and unrefuted. The committee totally discounted Petitioner’s work in a facility like the one in which he was seeking employment. This evidence showed Petitioner performed duties similar to those he would be performing without problems. Performance of duties in a similar setting is an accurate prognosticator of Petitioner’s ability to work in a facility without problems after his treatment for addiction and bipolar disorder. At formal hearing, Respondent was not prepared to prove Petitioner’s disqualification; however, Petitioner admitted the offense and testified about the circumstances surrounding the original offense. This offense occurred when Petitioner was just old enough to be tried as an adult, at the conclusion of what Petitioner admits was a troubled youth impacted by his bipolar condition. Petitioner became involved in a fight between two former friends. When Petitioner's friend received the worst of the fight, Petitioner intervened by showing a knife to the other person to stop the fight. He did not injure anyone, and he and his friend left the scene when his friend was released by the other combatant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order granting Petitioner's exemption from disqualification. DONE AND ENTERED this 8th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2002. COPIES FURNISHED: Corey Jay Bryden 19151 Southwest 49th place Dunnellon, Florida 34432 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent may be disciplined for failure to maintain the qualifications established by Section 943.13(7), Florida Statutes, which require that a Correctional Officer and Correctional Probation Officer have good moral character. Respondent is charged with violating Section 893.13(1) and/or 893.13(6), or any lesser included offenses. See Section 943.1395(6) and/or (7), Florida Statutes, and Rule 11B-27.0011(4)(a), Florida Administrative Code.
Findings Of Fact Respondent is a certified Correctional and Correctional Probation Officer in the State of Florida. She has been employed in her field for fourteen and a half years, and lost her job as a result of the following events. On October 19, 2000, a search warrant was served at 1530 Northeast 3rd Avenue, Gainesville, Florida, a residence Respondent shared with her husband and two minor children. Upon search of Respondent's residence, law enforcement personnel discovered a marijuana "indoor grow operation," comprised of approximately 52 plants. Some plants were as much as five feet tall. Processed marijuana and marijuana being processed were also present. Law enforcement officers estimated the total street value of the marijuana confiscated to be approximately $53,000.00. This indoor-grow operation involved special apparatuses for lights, heat lamps, air conditioning, watering, fertilizing, and drying the marijuana in a utility room off the carport and special air conditioning and drying apparatuses in the back yard. Magazines on growing marijuana were located elsewhere in the house. The smell of processed marijuana permeated other parts of the house besides the utility room, which had limited access. The heat lamps in the grow room raised the temperature in the house. As a result of the search of Respondent's residence, Respondent was arrested for violating Section 893.13, Florida Statutes' prohibition against the cultivation of cannabis, the technical name for marijuana. Carol Ann Starling had worked with Respondent for approximately two and one-half years as a team member of a drug interdiction team with the Department of Corrections. Among Ms. Starling's and Respondent's responsibilities were entering correctional facilities unannounced, searching (including vacuuming the clothing of) inmates and placing suspected drugs in an assay machine. The team members then read the assay machine printouts to determine what type of drug had been discovered. Respondent and Ms. Starling specifically tested materials to locate or verify the existence of marijuana at the Dade Correctional Institution. Under these circumstances, Respondent's denial of knowledge of the marijuana grow operation in her residence is not deemed credible. Respondent was criminally charged with (1) manufacturing cannabis and (2) possession of more than 20 grams of cannabis. Each of these offenses constitutes a felony, pursuant to Section 893.13, Florida Statutes.1 Both charges were dismissed by a nolle/no information, due to "appropriate administrative action deemed sufficient in lieu of prosecution."
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact On June 21, 1991, Aaron Foreman (Petitioner) was convicted of one count of "possession of THC with intent to deliver" in the Circuit Court of Walworth County, State of Wisconsin, Case Number 90CR00080. At the time of the arrest, the Petitioner was a student at the University of Wisconsin in Whitewater. He resided with several other students in the upstairs apartment portion of a residence. On or about February 1, 1990, local Whitewater law enforcement officials, apparently investigating one of the roommates for burglary, executed a search warrant and entered into the apartment where the Petitioner was living. During the search of the apartment, law enforcement officers discovered a quantity of marijuana in the apartment and bedrooms of the residents. The Petitioner had a refrigerator in his bedroom, within which law enforcement officers discovered a large plastic bag containing 26 smaller plastic bags, each containing a quantity of marijuana. The total weight of the plastic bags of marijuana within the Petitioner's refrigerator was identified in the charging document as approximately 126 grams. In Count One of the charge, the Petitioner and three other persons (apparently the roommates) were jointly charged with possession with intent to deliver more than 500 grams of THC, an element of marijuana. In Count Four of the charge, the Petitioner was individually charged with possession with intent to deliver 91 grams of THC. The record of the hearing does not establish the reason for the difference between the weight of the marijuana allegedly discovered and the THC quantities with which the defendants were charged. According to the Petitioner's testimony at hearing, the Petitioner participated in marijuana use, and bought and sold marijuana within a "small circle of friends" and his roommates. On June 21, 1991, the Petitioner entered a plea of "no contest" to Count Four as part of an agreement to resolve the drug possession charges, and as stated previously, was convicted of felony under Wisconsin law. According to the Judgement of Conviction, Count One of the charge was dismissed. As a result of the plea agreement, the Petitioner was sentenced to nine months in jail, two years of probation, and a fine of approximately $2,700. The Petitioner served the jail sentence in a work release program, continued to attend college and obtained an undergraduate degree in sociology from the University of Wisconsin. The Petitioner paid the fine imposed by the sentence and successfully completed the probationary period as of September 19, 1993. Subsequent to completion of the sentence, the Petitioner became employed as a licensed social worker in Wisconsin. From 1993 to 1999, the Petitioner was employed by "Southeastern Youth and Family Services," as a social worker. The Petitioner's employment evaluations range from "very good" to "outstanding." In July 1999, the Petitioner underwent a background screening prompted by his application for employment by Eckerd Youth Alternatives, Inc., a program that, in part, provides services to young persons involved in the juvenile justice system and funded through contract with the Florida Department of Juvenile Justice (Department). Based on the conviction, the Department notified Eckerd Youth Alternatives, Inc., that the Petitioner was disqualified from employment. The Petitioner requested that the Department review the disqualification. The Department responded by letter dated June 19, 1999, advising that the desk review would be granted and identifying the information that the Petitioner was required to submit to facilitate the review. The Petitioner responded to the June 19 letter by supplying the requested information to the Department. The matter was apparently reviewed by a "Priscilla A. Zachary, BSU Supervisor" for the Department, who forwarded the file along with a cover memo to Perry Turner, the Department's Inspector General. As Inspector General, Mr. Turner is the person authorized by the Department to make decisions on disqualification exemption applications. Ms. Zachary's cover memo incorrectly identifies the crime for which the Petitioner was convicted and states that the Petitioner's June 21, 1991, conviction was for "Possession with Intent to Deliver" more than 500 grams of THC. According to the Judgement of Conviction, Count One of the charge, wherein the Petitioner and other persons were jointly charged with possession with intent to deliver more than 500 grams of THC, was dismissed. On August 5, 1999, Mr. Turner determined that the Petitioner's application for exemption should be denied. Mr. Turner based his decision on his belief that the Petitioner's felony conviction was for an amount of marijuana beyond that which Mr. Turner believes could be reasonably identified as being for "personal use" and which was intended for distribution. By letter dated August 5, 1999, the Petitioner was notified of the Department's decision by letter and advised of his right to challenge the denial in an administrative hearing. During the hearing, the Petitioner testified as to the events leading to his conviction and identified his efforts at rehabilitation. At the hearing, the Petitioner testified that his initial experience with marijuana occurred in approximately 1988, when he entered the University of Wisconsin at Whitewater. The Petitioner testified that at the time of the 1990 arrest, he was an "immature" college student who recreationally used marijuana within his circle of friends and with whom he sold or exchanged marijuana. Other than the Petitioner's admission, there is no evidence that the Petitioner actually sold marijuana. There is no evidence that the Petitioner was arrested or charged with the sale of marijuana. There is no evidence that the Petitioner was a part of any continuing marijuana distribution organization. There is no evidence that, other than the arrest at issue in this proceeding, the Petitioner has ever been arrested for any other reason. Review of the charging documents suggests that the charge of "intent to deliver" was based on the quantity of the marijuana found in the apartment and the apparent candor with which the residents dealt with the law enforcement officials who executed the search warrant and investigated the situation. The Petitioner's arrest occurred approximately eleven years ago. The Petitioner's conviction was approximately ten years ago. The Petitioner completed the probationary portion of his sentence more than seven years ago. There is no evidence that there was any physical injury or harm done to any individual as a result of the Petitioner's conviction. There is no evidence that granting the Petitioner's request for exemption presents a danger to the Petitioner or to any other person. The Petitioner has continued with his education and in December 2000 received his master's degree in Criminal Justice from the University of Wisconsin in Milwaukee. The Petitioner has also sought to obtain a pardon from the Governor of Wisconsin. By letter dated August 28, 2000, the Governor's Pardon Advisory Board notified the Petitioner that it was recommending to the Governor that a pardon be granted. Although the vote by the Board was not unanimous, the majority of the members believed that the pardon should be granted "based on positive adjustment, lack of subsequent criminal justice system contacts, non-violent nature of the crime, and valid job concerns." As of the date of the hearing, the Governor of Wisconsin had not acted on the Board's recommendation to grant the Petitioner's pardon request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice grant the request of Aaron Foreman for exemption from employment disqualification. DONE AND ENTERED this 26th day of February, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2001. COPIES FURNISHED: Aaron Foreman 10500 West Fountain Avenue Apartment No. 411 Milwaukee, Wisconsin 53224 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, 2737 Centerview Drive Tallahassee, Florida 32399-3100
