Findings Of Fact Vernon St. Charles is a radio teletype operator I with the Florida Highway Patrol and is a career service employee with appeal rights with the Career Service Commission. On or about November 1, 1977, St. Charles was the radio teletype operator on duty at the Florida Highway Patrol Tampa District Office. While he was on duty, an accident occurred involving a young child. St. Charles dispatched a Florida Highway Patrol trooper to the scene of the accident who reported that the child was very seriously injured. The trooper requested a homicide investigator be dispatched which St. Charles did. G. Ronald Stroud is a sergeant with the Hillsborough County Sheriff's Department assigned the duty of investigating accidents involving school-age children as a part of the Department's safety program. Sergeant Stroud received notification from the radio dispatcher of the sheriff's department that an accident had occurred near a school involving a child which Florida Highway Patrol Units were investigating. Sergeant Stroud called the Florida Highway Patrol District Office and spoke with St. Charles. Sergeant Stroud identified himself and asked about the accident and how old the child was to determine whether he should follow up the accident for the Hillsborough County Sheriff's Department. St. Charles had received calls from the medical examiner's office, the U.S. Post Office, whose vehicle was involved in the accident, and Sergeant Stroud from the Hillsborough County Sheriff's Department. At the hearing, St. Charles was uncertain which call had been Stroud's; however, St. Charles explained that he had tried to contact troopers at the scene to get additional information and that they were away from their vehicles. St. Charles did not have the information requested by Sergeant Stroud and therefore referred him to the hospital where they had taken the child. Sergeant Stroud identified Exhibit 2, a complaint letter he had written to Lieutenant Lowman of the Florida Highway Patrol. Stroud stated in the letter that an unknown male dispatcher, later determined to be St. Charles, had told Stroud that "He wasn't really concerned how old the child was and that if I (Stroud) wanted to know I could call the Brandon Hospital." At the hearing, Sergeant Stroud reconfirmed his recollection of St. Charles' comments to him. Without regard to the exact language used by St. Charles, it is clear that St. Charles did not provide Sergeant Stroud with the information which he sought and did not explain the existing situation which prevented him from giving Stroud the information. The position of radio teletype operator is an important one because the operator is responsible to transmit calls to and from the troopers by radio, perform certain law enforcement checks for the troopers by telephone or teletype, and respond to telephone calls from the public and other law enforcement agencies. The radio teletype operator's duties contribute to the overall enforcement effort of the Florida Highway Patrol and to the relationship of the Florida Highway Patrol with the public and other law enforcement agencies. This requires that the radio teletype operator perform his duty in a professional manner, using good personal judgment and diplomacy. St. Charles had been counseled previously about the manner in which he conducted his duties which at times bordered upon rudeness. St. Charles explained that he spoke loudly and in short sentences because his mother had been deaf and that in the pressure situations which sometimes developed, his manner of speech and abruptness might appear to be discourteous and rude to those with whom he was speaking.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that the agency took the disciplinary action for good cause and therefore should be sustained. DONE and ORDERED this 13th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1978. COPIES FURNISHED: Vernon L. St. Charles 1401 North Forbes Road Plant City, Florida 33566 Mrs. Dorothy Roberts Appeals Coordinator, CSC 530 Carlton Building Tallahassee, Florida 32304 Edwin Strickland, Esquire John Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida Mr. Maurice Helms Personnel Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida
Findings Of Fact The Respondent, Thomas E. Gibbons, was certified by the Criminal Justice Standards and Training Commission on October 19, 1979, and was issued certificate number 99-2054. At the times pertinent hereto, Respondent was a certified law enforcement officer employed by the City of Fort Lauderdale Police Department. At the times pertinent hereto, Respondent, Officer Robert Grant, Officer William A. Drossman, and Officer Phillip Seguin were police officers employed by the City of Fort Lauderdale Police Department and were assigned to the canine unit (K-9 Unit). On December 23, 1988, several City of Fort Lauderdale police officers became involved in a vehicle chase of a burglary suspect. The sequence of events described below occurred during the early morning hours before daylight, and resulted in the arrest of Michael Jerome Jones. The Respondent, Officer Grant, Officer Drossman, Officer Seguin, and several other officers heard the call on the radio and responded to assist in apprehending the suspect. Law enforcement officers from other jurisdictions became involved in the chase of the suspect. After being involved in the chase for a short while, the suspect abandoned his vehicle and sought to escape on foot. Among those involved in the foot chase of the suspect were the Respondent, Officer Grant, Officer Drossman, and Officer Seguin. Each of these K-9 officers utilized his dog in the chase. The chase of the suspect occurred in the vicinity of Oswald Park and the subsequent apprehension occurred in a field adjacent to the park on the north. This area is out of the geographical jurisdiction of the Fort Lauderdale Police Department. Consequently, these K-9 officers had not worked in this area before. Between the park area and the area of the apprehension is a cyclone wire fence approximately five feet in height which was, at the time of the incident, covered with vines. Oswald Park is a lighted, fairly open area. The area of the apprehension is a field that was dark and overgrown with vegetation. Officer Grant exited his vehicle on Northwest 27th Street, Fort Lauderdale, in pursuit of the suspect. Officer Grant first considered releasing his dog so that the dog could make a running hit on the suspect. Because another officer came between Officer Grant's location and the direction the suspect was heading, Officer Grant could not release his dog. The officers involved in the chase surrounded the area in which the suspect had run. Officer Grant and his dog were stationed on the north side of the field. Several officers, including Officer Seguin, were in Oswald Park. Officer Grant believed Respondent to be west of the suspect. Officer Drossman's dog tracked the suspect into a fenced yard. Officer Drossman located the suspect hiding on top of a two-story barn and told the suspect he was under arrest. Instead of obeying, the suspect jumped off the south side of the roof and continued to run toward Officer Grant's position. Officer Drossman and another officer advised Officer Grant by radio that the suspect was heading in his direction. Officer Grant, who was on the northeast corner of the field, observed the suspect jump over the fence into the field. Officer Grant had his dog on a leash that was approximately fifteen feet in length. Officer Grant's dog tracked the suspect to the southeast corner of the field and located the suspect while he was lying face down on a sand hill. At no point after the point of apprehension did the suspect offer any resistance to any law enforcement officer. 1/ The conflicts in the evidence are resolved by finding that Petitioner established the following facts by clear and convincing evidence. Officer Grant's dog bit Mr. Jones at least once on the shoulder area of his outstretched right arm and held on to the shoulder, causing Mr. Jones to cry out in pain. Officer Grant placed Mr. Jones under arrest and handcuffed Mr. Jones using metal handcuffs with his hands in front. No other officer assisted Officer Grant in handcuffing Mr. Jones. Respondent was in Oswald Park when he heard Officer Grant's dog make contact with Mr. Jones. Respondent believed that only one officer was at the arrest scene and decided to assist that officer. After he tied his dog to the fence separating Oswald Park and the arrest site, Respondent leaped over the fence, which was approximately five feet in height, and proceeded to the arrest area. Respondent dropped his flashlight 2/ while crossing the fence and located the arrest scene from the noises being made by Mr. Jones, Officer Grant, and Officer Grant's dog. Respondent ran from the southern area of the field over to where Officer Grant was standing with Mr. Jones. After Mr. Jones was handcuffed, Officer Grant took his dog off and pulled Mr. Jones to his feet by pulling on the handcuffs. Officer Grant saw Officer Drossman and Officer Drossman's dog standing behind him while Officer Grant was lifting Mr. Jones off the ground. Respondent arrived on the scene of the arrest just as Officer Grant was pulling Mr. Jones to his feet. Respondent grabbed Mr. Jones and pulled him away from Officer Grant. Respondent was making comments about how he had hurt his hand and got dirty trying to find Mr. Jones and then started striking Mr. Jones while Mr. Jones was handcuffed and not resisting. Respondent struck Mr. Jones with his fists in the upper torso area, causing him to fall to the ground, and kicked him several times. Respondent helped Mr. Jones to his feet and subsequently struck him again, causing him to fall to the ground. Officer Seguin, who was stationed across the fence in Oswald Park, heard the suspect screaming and heard sounds like someone was being hit. Officer Seguin also testified that he saw the light from flashlights in the area of the arrest. Mr. Jones never slipped a cuff during this incident, nor did he ever try to fight Respondent. After Respondent stopped hitting Mr. Jones, Respondent walked south of the field with Mr. Jones to the fence. At the fence, Respondent prodded Mr. Jones to climb up on the fence by kicking him on the back of his legs. Once Mr. Jones was on the fence, Respondent pushed him so that Mr. Jones fell to the other side of the fence and into Oswald Park where Officer Seguin and Officer Salisbury were waiting. While the proof was sufficient to demonstrate that Respondent committed a battery upon Mr. Jones immediately following his arrest, it was insufficient to demonstrate that the manner in which Respondent caused Mr. Jones to cross the fence entailed the use of excessive force or that it constituted a battery on the person of Mr. Jones. Officers Salisbury and Seguin then took custody of Mr. Jones. 3/ Mr. Jones was handcuffed to the front at the time he came into the custody of Officer Seguin and Officer Salisbury. Officer Salisbury re-cuffed Mr. Jones with his hands behind his back and placed Mr. Jones in his police car. Officer Salisbury later returned Officer Grant's handcuffs to him. Mr. Jones was transported back where he had abandoned his vehicle and the foot chase began. Respondent and most of the other officers involved in the chase gathered at this location. Sgt. Runnerstrom, who was the supervisor for the K-9 unit officers, was also present. The officers present thereafter engaged in a bull session wherein Respondent bragged about having made Mr. Jones, whom he called an "ass-hole", a lesson for making him sweat, jump the fence, and get dirty. On January 12, 1989, some unknown party wrote a letter to Captain Thomas of the City of Fort Lauderdale Internal Affairs Department which in detail complained of Respondent's behavior on December 23, 1988. This letter was written from the perspective of someone who was at the scene of the arrest and charged Respondent with having used excessive force against Mr. Jones. The letter was delivered to an area of the police department that has restricted access. This letter was assigned to Internal Affairs Sgt. Richard Herbert for investigation. After Officer Grant, Officer Drossman, and Officer Seguin gave statements to Sgt. Herbert, each was separately approached by Respondent. Respondent first learned of the Internal Affairs investigation through another officer on March 9, 1989. Officer Grant testified that he could not remember exactly what Respondent had said to him, but that he construed the conversation as a request to modify the statement that Officer Grant had given to internal affairs by saying that it had been too dark for him to see whether Mr. Jones had slipped a cuff. Officer Grant also testified that Respondent never asked him to lie and that the conversation could have been interpreted differently. Officer Drossman testified that Respondent asked him to say that it was too dark for him to have seen what had happened. Officer Drossman also testified that Respondent did not ask him to lie. Officer Seguin testified that he had several conversations with Respondent about the matter, but that Respondent did not try to tell him what to say. Petitioner failed to establish by clear and convincing evidence that Petitioner asked Officer Grant or Officer Drossman to lie about the incident. While discussing the manner in which Mr. Jones came over the chain link fence, Respondent stated to Officer Seguin that Respondent would have to "out and out lie about how the guy came over the fence." On March 21, 1989, Respondent gave a sworn statement to Sergeant Herbert which was consistent with the version of the events of December 23, 1988, to which Respondent testified at formal hearing. This sworn statement did not accurately describe the events that occurred at the scene of the arrest on December 23, 1988. At the conclusion of the Internal Affairs investigation, Respondent's employment with the City of Fort Lauderdale Police Department was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent committed battery against the person of Michael Jerome Jones on December 23, 1988, and that he subsequently gave a false statement to internal affairs about the incident. It is further recommended that Respondent's certification as a law enforcement officer be suspended for a period of one year. DONE AND ORDERED this 2nd day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1992.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Pursuant to section 943.1395, Florida Statutes, Petitioner is charged with the responsibility of investigating complaints and taking disciplinary action against persons holding certificates as law enforcement officers. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, having been issued certificate number 248318 on April 28, 2005. Upon receiving his certification, Respondent accepted a position as a trooper with the Florida Highway Patrol. Events of April 18, 2008 At approximately 9:30 p.m. on April 18, 2008, Ms. Diana Agudelo was driving alone on Interstate 95 in Palm Beach County. Respondent, who was on solo patrol in his marked Florida Highway Patrol cruiser, initiated a traffic stop of Ms. Agudelo for exceeding the speed limit. Respondent exited his cruiser, approached the driver's window of Ms. Agudelo's vehicle, and began to engage her in conversation. While he did so, Respondent stared——with, in Ms. Agudelo's words, a "perverted" expression on his face——at her breasts and directed the beam of his flashlight at the same part of her anatomy. Eventually, Respondent requested, and received, Ms. Agudelo's driver's license, at which point he returned to his patrol cruiser while Ms. Agudelo waited in her vehicle. A short time later, Respondent walked back to Ms. Agudelo's vehicle and requested that she accompany him to his patrol cruiser. Ms. Agudelo complied with the request and followed Respondent to his vehicle. At that point, Respondent sat down in the driver's seat of his patrol car and asked Ms. Agudelo to get inside the vehicle with him. Ms. Agudelo declined the invitation. While Ms. Agudelo stood near the window of the patrol vehicle, Respondent continued to engage her in conversation. As he did, Respondent continued to stare at (and direct the beam of his flashlight on) Ms. Agudelo's breasts. A short time thereafter, Respondent decided to escort Ms. Agudelo back to her vehicle. While walking behind Ms. Agudelo, Respondent intentionally, and without justification, touched Ms. Agudelo's buttocks without her consent. Understandably intimidated, Ms. Agudelo made no comment in response to the unwanted contact. Once she reached her vehicle, Ms. Agudelo sat down in the driver's seat and closed the door. As Respondent leaned through the driver's window and continued to converse with Ms. Agudelo, he intentionally touched her breasts with his hand. Ms. Agudelo did not consent to the contact. Eventually, Respondent moved away from the window and advised Ms. Agudelo that she was free to leave. Respondent did not issue Ms. Agudelo a speeding ticket or a written warning. Correctly believing that Respondent's behavior constituted sexual harassment, Ms. Agudelo contacted law enforcement shortly after the incident. An investigation ensued, during which Ms. Agudelo identified Respondent from a photographic lineup.1 Events of July 28, 2006 During the evening of July 28, 2006, Erin Weigel, a 21-year-old female, was driving alone in her vehicle on Interstate 95 in Palm Beach County. After she missed her intended turn, Ms. Weigel decided to exit the interstate and ask for directions. While stopped at a red light near the interstate, Ms. Weigel noticed a marked Florida Highway Patrol vehicle——occupied solely by Respondent——at rest in an adjacent lane. After Ms. Weigel gained Respondent's attention, she advised him that she was lost and in need of assistance. Respondent instructed Ms. Weigel to follow his vehicle, at which point he led her to a poorly lit, deserted parking lot. Inconveniently, Respondent parked in such a manner that Ms. Weigel would have been unable to re-enter the roadway unless Respondent moved his patrol vehicle. Respondent exited his patrol car, approached the driver's side window of Ms. Weigel's vehicle, and began to engage her in conversation. Almost immediately, Respondent made an unsolicited inquiry regarding Ms. Weigel's relationship status. Specifically, Respondent asked, "Do you have a boyfriend," to which Ms. Weigel replied that she did. Upon being informed that she had a boyfriend, Respondent asked Ms. Weigel to produce her driver's license. Although Ms. Weigel was confused by the request, she decided to comply and reached for her purse, which was located on the passenger's seat. As she did so, Respondent aimed the beam of his flashlight down Ms. Weigel's shirt (she was wearing a v-neck tank top) and remarked, "You know what I want to see." Ms. Weigel responded by stating, "Excuse me," at which point Respondent announced, "I want to see your breasts." In response to the inappropriate and unwelcome demand, Ms. Weigel informed Respondent that she wanted to leave. At that point or shortly thereafter, Respondent informed Ms. Weigel that he thought she was pretty, he wanted to take her on a date, and that he would let her leave once she gave him her cell phone number. Although Ms. Weigel did not want to give Respondent her phone number and had no wish to date him, she relented in the hope that Respondent would keep his word and allow her to drive away. After he received Ms. Weigel's phone number, Respondent did not immediately allow her to leave. Instead, Respondent told Ms. Weigel that she seemed "a little intoxicated," notwithstanding the fact that she was not impaired and had consumed no alcoholic beverages that evening. Although Respondent asked Ms. Weigel to exit her vehicle, she held her ground and refused to comply. Eventually, Respondent ended the encounter and allowed Ms. Weigel to drive away. Ms. Weigel subsequently reported the incident to the Florida Highway Patrol. During the investigation that ensued,2 Ms. Weigel identified Respondent in a photographic lineup as the trooper involved in the July 28, 2006, incident.3 Other Allegations As a licensed law enforcement officer with the Florida Highway Patrol, Respondent was granted access to Driver and Vehicle Information Database ("DAVID"), which is maintained by the Florida Department of Highway Safety and Motor Vehicles. DAVID is a secure database that contains confidential information regarding motorists, which includes addresses, photographs, driving records, and vehicle descriptions. Each time an authorized person accesses DAVID, the user is required to acknowledge that the system is being utilized for legitimate law enforcement or criminal justice purposes. Pursuant to the Prehearing Stipulation in this matter, it is undisputed that Respondent accessed DAVID on multiple occasions for "personal reasons" and without a legitimate law enforcement purpose.4 However, neither the Prehearing Stipulation nor the evidence presented during the final hearing established what particular benefit Respondent derived——if any—— from his unauthorized use of DAVID. Ultimate Findings The undersigned determines, as a matter of ultimate fact, that Respondent committed a battery upon Ms. Agudelo by touching her breasts and buttocks, and therefore failed to maintain good moral character. The undersigned also finds, as a matter of ultimate fact, that Respondent's behavior toward Ms. Argudelo and Ms. Weigel constitutes misuse of his position as a law enforcement officer, and thus Respondent failed to maintain good moral character. The undersigned further determines, as a matter of ultimate fact, that the evidence failed to establish that Respondent's accessing of the DAVID system for personal reasons constituted misuse of his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character, in violation of section 943.13, Florida Statutes, and revoking his certification as a law enforcement officer. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 11th day of May, 2011.
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer 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 March 14, 1988, as a law enforcement officer, Certification Number 55408, and at all times relevant, the certification was active. Between November of 1993 and March of 1994, the Respondent was employed as a police officer with the Orlando Police Department. During this time, the Respondent was assigned to the Southeast Patrol Division during the midnight shift. In August of 1993, Yvette Jolene Bevivino (Bevivino) became acquainted with the Respondent. At the time Bevivino was employed at Shoney's Restaurant on the 1700 block of South Semoran in the City of Orlando as a Dining Room Supervisor. The Respondent would stop by at the restaurant and talk to Bevivino after she got off at work. The Respondent would usually stop by sometime between midnight to 2:00 a.m. to see her. Usually when the Respondent came to visit he was in uniform. There were, however, times when Respondent told her that he was working undercover. There were other instances that while Respondent was talking to her, he received a radio dispatch, and he would have to leave. Between November of 1993 and March of 1994, Bevivino and the Respondent would leave the restaurant area, go to a secluded location, and engage in sexual conduct. Bevivino and the Respondent engaged in sexual intercourse on two or three occasions. Bevivino performed oral copulation on the Respondent on one occasion, and she observed the Respondent masturbate on one occasion. Usually the liaisons were initiated by the Respondent stopping by the restaurant when she was getting off work. Bevivino would then follow the Respondent to a wooded area behind Denny's on State Road 436 by the airport. The Respondent was dressed in his uniform on each occasion and was driving an Orlando Police Department vehicle. At least some, if not all, of the sexual encounters were interrupted by the Respondent receiving a radio dispatch. If that occurred, the Respondent and Bevivino would complete the act and the Respondent would leave. The sexual encounters with Bevivino would last from 15 minutes to one hour and 15 minutes. On or about July 25, 1994, Sgt. Paul Rooney was employed by the Orlando Police Department and assigned to the Internal Affairs Division. The Respondent stated to Sgt. Rooney on July 25, 1994, and again on August 8, 1994, that he had been having sexual relations with a female while he was on duty and in uniform. On August 8, 1994, Sgt. Rooney formally interviewed the Respondent, and the Respondent was placed under oath prior to his interview. It was the policy of the Orlando Police Department that officers are available at all times they are on duty, even for meal breaks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993), and that Respondent's certification be REVOKED. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: 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 10th day of September, 1997. Paul D. Johnston, General Counsel Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Andrew J. Sanderson 946 Malden Court Longwood, Florida 32750 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether a nolo contendere plea by Petitioner, Daniel Banks, to possession of a controlled substance (phenobarbital) in the State of Kansas in 2004 is a disqualifying offense under section 435.04, Florida Statutes. (Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2015 version.)
Findings Of Fact Banks is a 30-year old resident of Northglenn, Colorado. He is currently employed as the coordinator of integrated pest management for MJardin Management Company. Banks is also designated as the research and development director of San Felasco Nurseries, Inc. (“San Felasco”), an applicant to become designated as a low-THC cannabis dispensing organization by the State of Florida. See §§ 381.986, et seq, Fla. Stat. San Felasco filed an application identifying Banks and other owners or managers, all of whom were required to undergo a Level 2 background screening pursuant to section 435.04, Florida Statutes. After Banks’ background information was submitted to the Florida Department of Law Enforcement as part of San Felasco’s application, a Level 2 background screening was undertaken by that agency. By letter dated August 7, 2015, OCU notified Banks that they needed more information concerning his arrest on June 3, 2004, and subsequent plea of nolo contendere to the charge of possession of phenobarbital. In response, Banks had the Clerk of Court for Geary County, Kansas provide a document entitled “Journal Entry” in Case No. 04 CR 294. The Journal Entry is equivalent to a Final Judgment in a Florida criminal court. OCU then notified Banks, via letter dated November 23, 2015, that he had failed to pass his Level 2 background screening. San Felasco was also notified of Banks’ failure to pass, inasmuch as that failure would impact San Felasco’s pending application to be designated as a dispensing organization. Banks’ failure to pass the screening was due to the fact that his nolo contendere plea in Kansas was to a crime OCU deemed similar to a crime enumerated in section 435.04 as a disqualifying offense. The construction of the Kansas and Florida statutes are, indeed, similar. Kansas Statutes Annotated (K.S.A.) 65-4162(a)(1) states in pertinent part: Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to possess or have under such person’s control: Any depressant designated in subsection (e) of K.S.A. 6504105, subsection (e) of K.S.A. 65-4109 or subsection (b) of K.S.A. 65-4111, and amendments thereto. 65-4111(b)(44) lists phenobarbital as one of the depressants designated as a controlled substance. By comparison, Section 893.13(6)(a), Florida Statutes, states in relevant part: A person may not be in actual or constructive possession of a controlled substance unless such person’s controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription. . . . The two statutes are different, however, in the penalties which will inure from violation of the statutes. Section 893.13(6)(a) states that: person who violates this provision commits a felony of the third degree . . . . K.S.A. 65-4162(b) contains the following penalty language: Except as otherwise provided, any person who violates this subsection shall be guilty of a class A nonperson misdemeanor. If any person has a prior conviction under this section, a conviction of a substantially similar offense from another jurisdiction . . . then such person shall be guilty of a drug severity level 4 felony. Thus, the crime in Florida is a felony; in Kansas it is a misdemeanor. Banks came to be in possession of phenobarbital while working at an animal hospital. He was a senior in high school at the time, just two months after reaching the age of 18 years. He stole the phenobarbital from the animal hospital and took it home for his own use. His father found the drugs, confronted Banks with them, and made Banks self-report his theft to the police department. The police notified the doctor at the animal hospital, but she refused to press charges against Banks. Nonetheless, on June 3, 2004, Banks was eventually charged with the crimes of theft of and possession of a controlled substance, to wit: phenobarbital. Both crimes in Kansas at that time were misdemeanors. Pursuant to advice from his attorney, Banks pled nolo contendere to the possession charge in exchange for dismissal of the charge for theft. He was given a suspended sentence, placed on 12 months’ probation and ordered to pay $115.00 in court costs. The theft charge would not have been a disqualifying offense in Florida. A fact taken into consideration by Banks before agreeing to the plea bargain was that the crime was only a misdemeanor. When he was arrested, and when he pled to the charge, Banks did not advise the police that he had previously been arrested and charged with possession of cannabis, a crime enumerated under the same statute (K.S.A. 65-4162) to which he was charged for possessing the phenobarbital. His prior arrest occurred in Riley County, Kansas, on May 7, 2004. He was charged with possession of a small amount of marijuana, possession of drug paraphernalia, and the purchase and consumption of alcohol by a minor. He received a suspended sentence, 12 months’ unsupervised probation, and paid a $250.00 fine in the Riley County matter. The crime was later expunged from Banks’ record. Under K.S.A. 65-4162, the existence of the prior charge just weeks before the Geary County possession of phenobarbital charge could have resulted in the Geary County crime being upgraded to a felony. However, for whatever reason, Banks’ Geary County violation was handled as a first offense and Banks was only found guilty of a misdemeanor.2/ The illegal possession of a controlled substance, in this case phenobarbital, is the similarity tying the Kansas and Florida statutes. In that respect, they are similar. However, the degree of penalty differs greatly between the two states’ laws, at least for a first offense. Following his arrest and nolo contendere plea in Geary County, Banks attempted to rehabilitate his life.3/ He entered college, attending the University of Northern Colorado in 2004 and 2005. He attended Kansas State University in 2005 and 2006. He then took time off from his formal studies to work in various jobs for a few years. He returned to college in 2009, attending and ultimately graduating magna cum laude from Colorado State University in 2012. He has since worked for various organizations in the fields of horticulture and agriculture. That experience led to his current position with San Felasco. There is no doubt Banks’ life following his arrest in 2004 has been successful and devoid of any further criminal activity. He has engaged in activities indicative of a stellar member of society. However, this proceeding is not an “exemption from disqualification” case. If it was, there is little doubt Banks would receive such an exemption based upon his obvious and documented rehabilitation from the 2004 crime. The issue in this case, however, is simply whether the arrest and conviction in Kansas was for a crime similar to a disqualifying offense in Florida and, if so, whether the crime constitutes a disqualifying offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Health, Office of Compassionate Use, finding that Petitioner, Daniel Banks, does not have a disqualifying event in his Level 2 background screening.4/ DONE AND ENTERED this 26th day of February, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of February, 2016.
