Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK 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 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
Findings Of Fact During the month of September 1988, petitioner, David J. Caplan, agreed with, unbeknownst to him, a special agent with the Drug Enforcement Administration to secure and deliver to the agent 12 kilograms of cocaine for $16,500 per kilogram (kilo). On September 27, 1988, petitioner picked up one kilo of cocaine from his supplier and transported it in his vehicle to his residence. Within his residence, petitioner met with the agent and a confidential informant (CI), and delivered the one kilo of cocaine to the agent in exchange for $16,500. On September 28, 1988, following negotiations regarding the purchase of the balance of the cocaine, petitioner picked up two kilos of cocaine from his supplier, transported it by truck to his residence, and hid it in a garbage can adjacent to his garage. Upon the arrival of the agent and CI, petitioner removed the cocaine from the garbage can, and displayed it to the agent inside his residence. After examining the cocaine, the agent and CI left the residence under the announced intention of going to get the money for the purchase of the two kilos, and once away from the residence the agent gave the signal to other agents for petitioner's arrest. Upon arrest, petitioner cooperated with the agents, and directed them to the two kilos of cocaine, which he had hidden in the rafters of his garage. 1/ Subsequently, petitioner was charged and pled guilty to trafficking in cocaine. On February 21, 1990, respondent, Department of Revenue (Department), issued a Notice of Assessment and Jeopardy Findings which assessed a tax of $9,900, a penalty of $2,475, an additional penalty of $4,950, and interest of $1,589.25, together with interest thereon at the rate of $3.25 per day after February 21, 1990, against petitioner, pursuant to Section 212.0505, Florida Statutes. At petitioner's request, the Department reconsidered such assessment, and on May 7, 1991, issued a revised assessment against petitioner, assessing a tax of $9,900, a penalty of $2,475, and interest of $1,589.25, together with interest at the rate of $3.25 per day after February 21, 1990. The factual basis for the assessment was the petitioner's involvement in the cocaine transactions described in the foregoing findings of fact. Petitioner filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that the cocaine in question was not his, that he merely acted as a go-between for the agent and his supplier, and that he was therefore not involved in any sale, use or distribution of the subject cocaine. Moreover, with regard to the second transaction, which involved the two kilos of cocaine, petitioner contended that no liability for any tax could attach because the sale was not consummated, i.e.: petitioner had not yet actually exchanged the cocaine with the agent for the agreed purchase price. Petitioner's contentions regarding the limited nature of his involvement is contrary to the credible proof, and petitioner's contentions regarding the implications of that participation are contrary to the law, discussed infra. Succinctly, petitioner actively participated in the transportation, storage, distribution and sale of the cocaine, and he is subject to the implications of such activity under the provisions of Section 212.0505, Florida Statutes. Notwithstanding his active participation in the sale of the cocaine, petitioner averred at hearing that such participation was not voluntary. Rather, petitioner contended that his participation resulted from pressure asserted by a friend of long standing (Lupo) who, unbeknown to him, had become a confidential informant. 2/ According to petitioner, Lupo pressured him into locating a supplier of cocaine for the agent and CI involved in the subject transactions, as a consequence of hounding him for an old $1,600 debt petitioner had incurred for purchasing cocaine at a time he was addicted to the drug, and by an oblique remark the confidential informant made that "he knew my kid played outside," which petitioner averred he interpreted to be a threat to do something to his son. Petitioner's contention that his participation in the subject transactions was not voluntary or, stated differently, that he was entrapped, is rejected as contrary to the more credible proof. Here, the proof demonstrates that petitioner's motivation was financial and that he had a familiar relationship of long standing with Lupo and his ultimate supplier (Greenburg) which, coupled with the lack of sincerity and precision to his testimony, make his protestations of duress ring hollow. Regarding his financial motivation, the proof demonstrates that when approached by Lupo, petitioner was financially strapped, and stood to make $500 for each kilo he could deliver. Had the entire transaction been consummated for the agreed 12 kilos, petitioner stood to make a quick $6,000. Regarding the relationships that existed, the proof demonstrates that petitioner had been friends with Lupo and Greenberg for over twenty years, had actually lived with Greenberg for ten years, and that there was no apparent change in that relationship when he was approached by Lupo and introduced to the agent in this case. Considering the length of their relationship, and the lack of conviction in petitioner's testimony, it is concluded that petitioner's participation in this transaction was not compelled by any threat from Lupo, but by his own financial needs. In sum, the proof supports the conclusion that petitioner did engage in the unlawful sale, use, distribution, transportation or storage of cocaine as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of tax, penalty and interest set forth in its revised assessment was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order concluding that petitioner, David J. Caplan, is liable for taxes, penalties and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $13,964.25, plus interest at the rate of $3.25 per day from February 22, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March 1992. WILLIAM J. KENDRICK 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 30th day of March 1992.
The Issue The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The petitioner, Albert Charles Harris, is also known as Bert or Albert Harris. During the month of July, 1986, Petitioner was employed to copilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing 460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States. Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes. Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The "mission" of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida. Petitioner did not own the substance transported. Petitioner's employers did not own the substance transported. Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida. Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986. The street value of cocaine in the Miami area in July, 1986 was $35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the tax warrant and jeopardy assessment filed against Albert Charles Harris be affirmed. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988. COPIES FURNISHED: Douglas Stratton 505 Lincoln Road Miami Beach, Florida 33139 William Watson and Jeffrey Dikman Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Sam D. Alexander Executive Director 102 Carlton Building Tallahassee, Florida 32399-0100 William D. Townsend General Counsel 104 Carlton Building Tallahassee, Florida 32399-0100 =================================================================
The Issue The issues joined in this litigation concern an administrative complaint brought by the State of Florida, Department of Professional Regulation (Petitioner) against David D. Turner, M.D. (Respondent), charging him with the violation of Section 458.331(1)(c), Florida Statutes, related to an alleged conviction in the United States District Court for the Northern District of Georgia, for the offense of conspiracy (adulterated and misbranded drugs) in violation of Title 21, U.S. Code, Sections 331(b) and 333(a), all in violation of Title 18, U.S. Code, Section 371.
Findings Of Fact Part A. Facts which are alleged in the Administrative Complaint, admitted by Respondent: Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0010840. Respondent's last known address is Post Office Box 267, Orange Park, Florida 32073. On September 27, 1985, Respondent was convicted in the United States District Court for the Northern District of Georgia in Atlanta, Georgia, of the offense of conspiracy (adulterated and misbranded drugs) in violation of Title 21, U.S. Code, Sections 331(b) and 333(a), all in violation of Title 18, U.S. Code, Section 371. Part B. Facts found based upon an examination of the record established at hearing: An explanation of his involvement in the federal case was given by the Respondent in the course of the present hearing, and it is found at pages 225 through 235 of the transcript which was provided at the conclusion of the administrative hearing. Dr. Turner concedes that he pled to the misdemeanor charges as alluded to in paragraph 3 of these fact findings and made a knowing plea. The pharmaceuticals that were being provided to the contact person, who had identified himself to the Respondent as Mark Taylor, actually Tom Hall, are not controlled substances. They were items provided to Respondent by pharmaceutical representatives, generally described as hypertensive, birth control pills and antihistamines. Respondent indicated, in the course of the hearing, that the person who identified himself as Taylor said he was representing a wholesale pharmaceutical distributor from Georgia which was controlled by a Dr. Wallace (mastermind in this fraudulent scheme), a licensed physician in the state of Georgia. Initial contact between Dr. Turner and Hall aka Taylor took place in late 1982 or early 1983. The arrangement that was arrived at had Respondent give sample pharmaceuticals to Taylor by allowing Taylor to pick up discarded drugs once or twice a month. Respondent received what is referred to as an "administrative charge," a cash remuneration of $100, for handing over the pharmaceuticals. Taylor/Hall stated that he had an interest in acquiring surplus pharmaceuticals from various physicians and hospitals for redistribution into the wholesale market. Taylor also represented that the primary distribution would occur to needy people. As indicated to Respondent, the distributor contemplated eventually having physicians buy stock in the distributorship and in the interest of goodwill, in the interim, Respondent and other physicians were expected to contribute generic pharmaceuticals. At Taylor/Hall's suggestion, Respondent contacted Dr. Wallace to confirm Taylor's explanation of the arrangement for providing Taylor the pharmaceuticals. Dr. Wallace confirmed Taylor's representations and gave the names of four or five other doctors in Florida whom the Respondent could contact about the enterprise. These pharmaceuticals were not items intended for resale. Respondent, as the federal prosecutor's memorandum for sentence indicated and as he testified to in the administrative hearing, did not realize that the pharmaceuticals were being resold on the market upon the false representation that they were drugs that could be disposed of in this fashion, as opposed to those not for resale. He believed that they were going to Dr. Wallace for purposes other than resale. The legal problem with Dr. Turner's arrangement with Mr. Taylor was that the sample drugs that comprised Dr. Turner's surplus are marked "not for resale." Although Dr. Turner was not aware of it, Mr. Taylor was taking the pharmaceuticals obtained from Dr. Turner back to Atlanta and repackaging them for distribution at a profit. Petitioner's Exhibit 9 admitted into evidence is the prosecution's sentencing memorandum which was made available to the court in the disposition of the criminal proceedings against the Respondent as previously described. This document sets forth the factual underpinnings for the receipt of the Respondent's plea of guilty in federal court and is accepted as fact in the administrative hearing in determining the basis for the conviction described in paragraph 3 of these factual findings. Of significance in the present case are the following remarks found within this sentencing memorandum related to the criminal defendants, among them the Respondent: * * * The defendants realize that such packaging and labeling would have had to be removed by someone before ultimate sale to consumers with prescriptions, since consumers normally would not pay for drugs marked as free samples. The defendants were not aware of what methods co-conspirators would employ to effect this removal. Nor were the defendants aware of how the now adulterated and misbranded drugs would be stored, handled, resold, and dispensed. * * * AGAIN, THESE DEFENDANTS HAD NO KNOWLEDGE OF THE METHODS EMPLOYED BY CO-CONSPIRATORS WHICH RESULTED IN ADULTERATION AND MISBRANDING. Further, these defendants received very little payment for their sample in comparison to the amount realized from their ultimate resale after the adulteration and misbranding. During the same time period that each doctor was involved in selling his samples, he also signed a number of letters requesting stock bottles of prescription medication free of charge for his personal use from many different drug manufacturers. Upon receipt, these stock bottles would be included with the sample drug picked up by Tom Hall or Robert Morrill and resold through the same parties. The stock bottles did not have to be removed from their original packaging and labeling since they bore no restrictive use markings. * * * All doctors except Cooper were confronted by the FBI in January 1985. They all gave false exculpatory statements, either denying the letter-writing scheme altogether or denying receipt of any proceeds from the stock bottles and sample drugs. * * * However, soon after retaining legal counsel all of the doctors involved in the sample and letter writing schemes contacted the government and offered their full cooperation. They returned to Atlanta at their own expense where they were fully debriefed. They told the complete truth and remain ready to testify before the Grand Jury and at subsequent trials when called upon to do so, including the case of Robert Morrill who is already under indictment for controlled substances and tax violations. * * * The current defendants have done everything in their power to make amends for their past illegal activities, many of which were undertaken without full knowledge or consideration of their ramifications. Without assistance from three defendants the government would not have been able to make such a national impact on drug "diversion" and the distribution of adulterated and misbranded drugs, both of which seriously jeopardize the health of the drug consuming public, as well as increase the cost of prescription medication. * * * David L. Turner - May 1983 through December 1984. Dr. Turner, unlike the other Florida doctors, dealt with Hall rather than Morrill. His sale of samples and stock bottles obtained for personal use continued longer than anyone, but McAlister and Contreras. He also ordered a few extra pharmaceuticals at low purchase prices for clinic use which he resold to Hall. However, this activity was miniscule compared to the other "diversions" uncovered in this investigation. Dr. Turner was fully cooperative. His background and lack of other criminal activity is a positive factor in his favor. Petitioner's Exhibit 8 sets forth the adjudication of the subject case involving the federal prosecution against the Respondent, to include the correction of the court's order upon motion of counsel for the Respondent. The highlights of the disposition of the case included a ten-day jail term as a condition of probation, a period of probation of 36 months, the possibility of the service of imprisonment for a period of one year and the necessity of performing three days per week for a period of one year related to community service. Respondent also had to pay a fine of $1,000 and a special assessment of $25. Petitioner's Exhibit 10 admitted into evidence is a statement from the Respondent's probationary officer in the federal criminal prosecution in which the affiant Fred Fortenberry, federal probation officer, attests to the Respondent's carrying out of his obligation for community service dealing with the care and treatment of indigent persons in the Pureal Medical Center in Orange Park, Florida, where Respondent is employed. That obligation for community service had not been concluded, but has been faithfully executed up to the point of the affidavit which was given on September 29, 1986. The affiant Fortenberry also indicated that the Respondent was complying with other terms and conditions of probation.
The Issue Whether Respondent committed the violations described in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been since October 4, 1979, a licensed pharmacist in the State of Florida. He holds license number PS 0017661. In October of 1987, based upon Respondent's having the year before "pled guilty [in criminal court] to one count of grand theft and one count of possession of diazepam," the Board of Pharmacy suspended Respondent's license for a period of one year and placed him on probation for a period of three years, commencing upon the conclusion of his suspension. On February 4, 1991, February 11, 1991, February 19, 1991, March 6, 1991, and April 18, 1993, in exchange for cash, Respondent sold to Melvin Owens, who was serving as a confidential informant for the Drug Enforcement Administration, 3/ various quantities of drugs, to wit: quazepam, under the brand name of Doral (February 4, February 19, and March 6), triazolam, under the brand name of Halcion (February 4, February 11, February 19, March 6, and April 18), alprazolam, under the band name of Xanax (February 11, February 19, March 6, and April 18), and diethylpropion hydrochloride, under the brand name of Tenuate Dospan (March 6), without first being presented with a prescription for these drugs. All five transactions took place in Palm Beach County, Florida. Although Respondent was employed as a pharmacist at a Phar-Mor Discount Pharmacy (hereinafter referred to as "Phar-Mor") located in Palm Beach County at the time of these transactions, in selling these controlled substances to Owens, Respondent was not acting in the usual course of his professional practice as a Phar-Mor pharmacist. Respondent did not have a permit authorizing him to act as a drug wholesaler at the time of these transactions. On April 24, 1991, Respondent was indicted in federal court on five counts of unlawful distribution of controlled substances for his role in the above-described transactions. Subsequently, the Department issued a three-count Administrative Complaint charging Respondent with wrongdoing in connection with these transactions. Respondent pled guilty to the federal criminal charges pursuant to a plea agreement. Thereafter, Respondent was adjudicated guilty and sentenced to 60 days confinement, followed by two years of supervised release, on each count of the federal indictment, with the sentences to run concurrently.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and disciplining him for having committed these violations by revoking his license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1993. STUART M. LERNER 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 12th day of October, 1993.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 11, 1990, and issued certificate number 4-90-502-02. On May 31, 1990, Dawn Rees was working in concert with the Police Department of Williston, Florida, and the Florida Department of Law Enforcement as a confidential informant regarding illegal drug activity in the Williston area. In the course of her work, Rees would meet with various individuals and attempt to buy illegal drugs. As a prelude to each of these meetings, Rees would be searched by law enforcement officials to determine that she had no illegal drugs on her person. Then, she would be "wired" or fitted with sonic monitoring equipment and sent to negotiate the illegal drug purchase. Upon her return from the drug rendezvous, Rees would turn over any contraband purchased by her and submit again to a personal search. Rees' conversations with the persons from whom she sought to buy drugs was monitored and recorded by authorities via the broadcast of those communications to them through the "wire" worn by Rees. On the evening of May 31, 1994, Rees went to the residence where Respondent lived and spoke with William Lynch, a friend of Respondent who also resided in the house, concerning the purchase of an ounce of marijuana. The conversation between Lynch and Rees took place on the front porch of the residence. Lynch told Rees that he could get the marijuana for her. Later that evening, Rees, equipped with the hidden listening device described above, returned and entered the residence to get the promised marijuana. Sometime later, Rees left the residence and met with law enforcement authorities. As stipulated by the parties at the final hearing, a field test of the substance obtained from Lynch in the residence by Rees, and provided to authorities that night, identified the drug as marijuana. As established by Rees' testimony at the final hearing, she was involved in several other investigations as a confidential informant during the same general time span that she was also involved in the drug purchase at Respondent's residence. Rees testified from the basis of her recollection of events that had occurred several years prior to final hearing. Respondent was present and operating a "Nintendo" game when Rees entered the house. Respondent engaged in conversation with Rees, but did not observe the later exchange of money for marijuana between her and Lynch. The exchange, as established by Lynch's candid and credible testimony, took place in a back bedroom of the house, out of the presence of Respondent. Respondent testified that he had no knowledge of the transaction or the presence of illegal drugs in the house. Accordingly, Rees' testimony, absent further corroboration by other direct admissible evidence, that Respondent knew illicit drugs were on the premises and observed the drug transaction, cannot be credited. A transcript, presented at the final hearing and purportedly derived from the tape of conversations had between Rees and persons in the residence garnered via the "wire" worn by Rees, offers no proof in support of a contention that Respondent was aware of the presence or sale of illegal drugs on the premises. As established by the credible testimony of Respondent, and corroborated by Lynch, Respondent was unaware of the presence of illicit drugs in the residence or the sale of such drugs in the residence at any time, contrary to allegations of the Administrative Complaint. Later, Lynch moved out of the residence. Respondent was arrested several months later in connection with the incident. By stipulation of the parties, it is established that those charges were subsequently nolle prossed by the Office of the State Attorney, 8th Judicial Circuit of Florida. The evidence presented by Petitioner of Respondent's knowledge and possible participation in the possession and sale of an illicit drug, marijuana, as charged in the Administrative Complaint, is met by Respondent's credible denial of any knowledge as to the alleged events. Further, Respondent's assertion of innocence is corroborated by the testimony of William Lynch. It is concluded that there is insufficient evidence to establish that Respondent knew that drugs were in the house on the night in question or that Respondent knew of the drug sale to Dawn Rees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the charges contained in the Administrative Complaint. DONE and ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1994. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1-2 Accepted. 3-4 Rejected, the transcript reference shows that Respondent was arrested on February 5, 1991, following the May, 1990 incident. 5-6 Accepted. 7-8 Subordinate to HO's findings on these points. Specifically, Ms. Rees is found to have been mistaken about the content of her conversations with Respondent and without a basis to draw the conclusion that Respondent was a willing and knowledgeable participant in illegal activity. Subordinate to HO findings. Respondent had the transcript admitted to show its lack of probative value. At no time does Respondent adopt the transcript in order to prove the case against himself. Rejected, relevance. Accepted. Rejected, relevance. Accepted. Rejected, weight of the evidence. Respondent's Proposed Findings None submitted. COPIES FURNISHED: Pauline Ingreham-Drayton Attorney at Law Florida Department of Law Enforcement 711 B Liberty Street Jacksonville, Florida 32202 Richard Bova, Jr. 624 S.W. 70th Terrace Gainesville, Florida 32608 Leon Lowry, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Hilda T. Clark, Respondent, is a registered nurse who holds license no. 21750-2. Evidence adduced during the course of the hearing reveals that during 1961, while Respondent was employed as a private duty nurse at Mount Sinai Hospital in Miami, she withdrew a narcotic drug, to wit: Dilaudid, for her patient, Mrs. Fanny Goldblum on approximately thirty occasions, which she administered to herself instead of the patient. Based on an Information for violation of the Florida Uniform Narcotic Drug Act (Chapter 398.19, F.S.) which was filed on March 15, 1961, the Respondent pled guilty and was placed on probation for a term of seven years on March 31, 1961. Thereafter, on January 12, 1977, the Respondent, while employed as a private duty registered nurse at the University of Miami Hospital and Clinic, converted to her own use a narcotic drug, to wit: Demerol. When confronted with this fact, the Respondent admitted to the Head Nurse, M. Francis, R.N., that she had injected herself with the Demerol and that she was addicted to narcotics for many years. The Respondent does not contest the above allegations and in fact admits that she engaged in the conduct that is alleged in the administrative complaint filed herein. However, she urges that the suspension of her license is unwarranted in these circumstances inasmuch as she was undergoing tremendous pressure based on her mother and spouse's poor health. Additionally, she related an incident wherein she was undergoing tremendous pain and was placed on the medication, Demerol for the relief of pain due to severe herpes zoster infection. Evidence and testimony introduced during the course of the hearing reveal that herpes zoster infection causes severe pain and that to control such pain, her physician, Edward E. Goldman, M.D., prescribed oral Tolwen, Demerol and Dilaudid suppositories. There also was evidence introduced during the course of the hearing which indicated that the Respondent is not now suffering from any drug related problems or addiction and that her professional abilities are beyond question. Respecting the most recent incident which occurred on January 12, 1977, evidence reveals that the Respondent was indeed laboring under a great deal of stress and mental pressures which, in her words, forced her to resort to the unlawful withdrawal and injection of the narcotic drug, Demerol. There was no evidence introduced that the Respondent engaged in any unlawful act during the period between the incident which occurred in 1961 and the January, 1977 incident. Nor was there any further evidence of any drug addiction problem by Respondent subsequent to the January, 1977 incident. The unlawful use of and procurement of drugs by nursing professionals is a serious act which should not be condoned without sanction by the Board of Nursing. It goes without saying that such acts and/or conduct constitutes a departure from the minimal standards of acceptable and prevailing nursing practice and in fact constitutes unprofessional conduct. See Chapter 464.21(b), Florida Statutes. Based on evidence received during the course of the hearing, there is substantial and competent evidence from which a finding can be made that the Respondent engaged in conduct violative of the above chapter i.e., Subsection 464.21(b), Florida Statutes. However, there was no evidence introduced on which a finding can be made that the Respondent is guilty of conduct violative of Chapter 464.21(c) and (d), as alleged. Although two instances of unlawful useage of narcotic drugs was alleged which the Respondent admits, in view of the length of time between the two occurrences, the undersigned concludes that the record fails to establish that the Respondent is habitually addicted to the use of controlled substances as provided in Chapter 464.21(c), Florida Statutes. I shall therefore recommend that the remaining two allegations be dismissed. Respecting the finding that the Respondent engaged in unprofessional conduct within the meaning of Chapter 464.21(b), Florida Statutes, I shall bear in mind and give consideration to the lengthy and creditable service that she has given to the nursing profession, a profession in which she desires to continue to practice. Based thereon and the favorable testimonials received into evidence, I shall recommend that the Respondent be placed on probation for a period of two years.
Recommendation Based on the foregoing findings of fact and conclusions of law I hereby recommend that the Respondent be placed on probation for a term of two years. In all other respects, I hereby recommend that the complaint allegations be dismissed. RECOMMENDED this 12th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 George A. Kokus, Esquire Cohen and Kokus 500 Roberts Building 28 West Flagler Street Miami, Florida 33130 =================================================================
The Issue The issue is whether Petitioner may terminate Respondent's employment as a teacher.
Findings Of Fact Respondent has been a teacher since 1993. She is a 34- year-old divorced mother of a four-year-old son. Respondent has suffered from a chemical dependency since she was 18 years old. At that time, she completed a 28- day detoxification program at Mt. Sinai Medical Center in Miami. Six or seven years later, Respondent underwent additional inpatient treatment for her addiction to drugs. She submitted to a third detoxification, lasting five to seven days, in 1993 or 1994. Respondent underwent a fourth detoxification ten months later and, in 1996, a fifth detoxification. Respondent admits that she has undergone detoxification several more times since 1996. These detoxifications and Respondent's intermittent participation in Narcotics Anonymous were parts of treatment programs attempting to relieve Respondent from her addiction to cocaine and heroin. Respondent's addiction has spanned her college years through her entire teaching career. The effects of Respondent's illness have, at times, precluded her from reaching her full potential as a classroom teacher. After a brief period of employment by Petitioner as a permanent substitute teacher, Respondent began fulltime employment with Petitioner in August 1994 as a teacher at Oak Grove Elementary School. While at Oak Grove, Respondent was a satisfactory teacher, although her attendance was less than satisfactory. Also, on at least six occasions, evidently starting in her second year, Respondent fell asleep while conducting a reading tutorial session in which the students spent 20 minutes in separate cubicles. Respondent's principal at Oak Grove documented by a memorandum dated December 4, 1995, eleven full-day absences and two half-day absences during the 1995-96 school year and two instances of sleeping while charged with the instruction of a student--both on the same day and both discovered by the principal. Due to these incidents and an earlier incident of sleeping while on duty, the principal administratively referred Respondent to Petitioner's Employee Assistance Program (EAP). The December 4 memorandum documented the actions taken at a conference held the same date involving, among others, Respondent and the principal. Respondent then missed work on December 6 and 7--calling in at 10:06 a.m. on December 7 saying that she had overslept and asking if it was too late to report to work. Respondent missed a considerable amount of work during the 1996-97 school year. Some of the absences, especially from early December through early February, were due to Respondent's chemical dependency. However, some absences, especially during the latter part of the school year, may be attributed to the birth of Respondent's child on July 9, 1997, following a high- risk pregnancy. The record does not disclose much about the 1997-98 school year. However, Respondent missed ten days of work due to sick or personal leave and eleven days of work due to unpaid, but authorized, leave. The absence of additional administrative action against Respondent suggests that she may have improved her attendance and eliminated her sleeping while on duty. For the 1998-99 school year, Respondent transferred to a new school, Linda Lentin Elementary School. Again, Respondent was a satisfactory teacher, except for absenteeism. However, during a nine-day absence from May 20 through June 2, 1999, the principal received a telephone call from someone claiming that Respondent had had a breakdown and was in a "drug rehabilitation hospital." Accordingly, the principal requested that Petitioner's Office of Professional Standards (OPS) monitor Respondent's return to work. On June 8, 1999, Respondent, the principal, Petitioner's OPS Director, and others participated in a Conference for the Record (CFR). Respondent attributed her 21 absences in the 1997-98 school year, as well as 20.5 absences in the 1998-99 school year, to six miscarriages and depression. Petitioner's OPS Director explained the procedures for reasonable-suspicion drug testing. The CFR memorandum concludes by emphasizing that Respondent must report to work when scheduled and on time, obtain medical excuses for all absences, provide lesson plans for substitute teachers, and obtain approval for scheduled leave. At the same time, Petitioner's OPS Director referred Respondent to Petitioner's EAP. Subject to these actions, Petitioner approved Respondent's return to the classroom. However, Respondent's attendance did not improve the following school year, and her behavior became somewhat eccentric early in the school year. At noon on September 27, 1999, Respondent told the principal that she was ill and needed to go home for the remainder of the day and the following day. Respondent went home, but, despite requesting leave and a substitute for the following day, returned to work the following day without calling first. Near the end of the school day, while her students were in a special-area class, Respondent signed out of school and walked down the street, despite the fact that it was raining. The next day, Respondent left the school grounds without permission and, the following day, failed to attend a mandatory teachers' meeting. The situation deteriorated in mid-October 1999. From October 11-14, Respondent telephoned the school each day and reported that she was sick and in the hospital. The following Monday, October 18, Respondent reported to work. However, on October 19, Respondent failed to report to work or call, leaving her class sitting in the hallway. Respondent telephoned the school at mid-day and stated that she had been in a five-car accident. This accident did not take place. On October 20, while driving to school, Respondent was involved in a two-car accident, which resulted in her striking a fire hydrant not far from the school. The accident took place at about 8:45 a.m., which was about 15 minutes after Respondent assumed direct supervision of her students. Respondent arrived at school late, crying and disconcerted. An acquaintance transported Respondent home. The next morning, prior to the start of school, Respondent called the school and stated that she would not be at work. On the following morning, October 22, Respondent reported to work, and her principal ordered her to submit to a reasonable-suspicion drug test. Respondent complied, and the drug test revealed the presence of cocaine and morphine. The drug test accurately detected the presence of these substances because Respondent had used crack cocaine and heroin within the period for which the drug test is sensitive. By memorandum dated October 29, 1999, Respondent's principal asked Petitioner's OPS to monitor Respondent's return to work. By memorandum dated November 1, 1999, Petitioner's OPS informed Respondent that she would require a clearance from OPS before returning to work. On November 8, 1999, Respondent requested a leave of absence without pay to extend from October 22, 1999, through June 16, 2000. Petitioner granted this request. Shortly after starting her leave from work, Respondent was first seen by Dr. John Eustace. Dr. Eustace is Board-certified in internal medicine and is also certified in the treatment of addictions. He is the medical director of the Addiction Treatment Program at Mt. Sinai Medical Center. He is also an assistant professor of psychiatry at the University of Miami medical school. In the last ten years, Dr. Eustace has performed 2000 evaluations of professionals to assess whether they can return to practice with the requisite skill and safety. During his career, Dr. Eustace has diagnosed and treated over 10,000 patients for addictions. Dr. Eustace admitted Respondent as an in-patient at Mt. Sinai for, among other things, a four- or five-day detoxification program. He found that Respondent was in the late middle stage of addiction to heroin and cocaine and that her illness was active. When releasing Respondent from the detoxification program, Dr. Eustace recommended that Respondent enter a twelve- step program to better prepare Respondent for the difficult recovery process, which requires, among other things, gaining insight into the consequences of the addiction. Following the detoxification process, Dr. Eustace opined that Respondent had an even chance of avoiding another relapse. However, this prognosis improves with time. After the first five years without relapse, the relapse rate is only ten percent. Also, after a second treatment, the recovery rate is over 90 percent. Of the 2000 professionals whom Dr. Eustace has treated, over 90 percent have recovered. Unfortunately, Respondent relapsed after her 1999 detoxification and treatment by Dr. Eustace. Despite her return to active use of illegal drugs, Respondent chose to restart the process by which she could return to the classroom. Petitioner's OPS informed Respondent that she would need OPS clearance before returning to work. Reacting to Respondent's request for a clearance, OPS scheduled a CFR with Respondent and others to take place on July 28, 2000. At the July 28 CFR, Respondent signed an Employee Acknowledgement Form concerning Petitioner's drug-free workplace policy. The form states: "Before returning to duty, I must undergo a return-to-duty . . . controlled substances test with verified negative results." At the CFR, Respondent admitted that she had had a chemical dependency, but represented that she was now clean and sober. Apparently, Respondent did not anticipate that she would be required to take a drug test at the July 28 CFR. However, with the new school year imminent, it is difficult to understand exactly when Respondent thought she would be required to take the drug test. If she were going to teach the next school year, her principal needed more than a few days' notice. In any event, Respondent took the test on July 28, and the test revealed the presence of morphine, although not cocaine. By memorandum dated September 6, 2000, from Petitioner's OPS Director to Respondent, Petitioner advised Respondent that it was reviewing its options after receiving the results of the July 28 drug test. By letter dated October 6, 2000, to Respondent, Petitioner's Superintendent advised Respondent that Petitioner was suspending her and initiating dismissal proceedings due to just cause, including incompetency, misconduct in office, gross insubordination, excessive absences, and violation of Petitioner's Rules 6Gx13-4-105 (drug-free workplace) and 6Gx13-4A-1.21 (responsibilities and duties). By letter dated October 12, 2000, and revised October 17, 2000, Petitioner's board took the action recommended by the Superintendent. The contract between Petitioner and the United Teachers of Dade (Contract) provides in Article XXI, Section 1.B.1.a, that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Article XXI, Section 2.G, sets forth the Drug-Free Workplace General Policy Statement. Section 2.G.b provides the policy statement on illegal drugs, Section 2.G.c provides the policy statement on alcohol and prescription drugs, and Section 2.G.d provides the policy statement on employee drug screening. Under employee drug screening, Section 2.G.d.5 states: [Petitioner] recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of [Petitioner], where possible, to seek rehabilitation of employees with a self- admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to Board Policy, applicable Florida Statutes, State Board Rules, and applicable provisions of collective bargaining agreements. Petitioner has invoked two of its rules in this case. Rule 6Gx13-4A-1.21, which is a statement of "Responsibilities and Duties," requires, at Section 1, all employees "to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system." It is unnecessary to determine whether the Contract incorporates this rule, or whether Petitioner may otherwise rely on this rule to dismiss an instructional employee during the school year. Rule 6Gx13-4-1.05 (Rule), which is the "Drug-Free Workplace General Policy Statement," is a restatement of the Drug-Free Workplace General Policy Statement contained in the Contract. The prominent role of the Drug-Free Workplace General Policy Statement in the Contract, as well as its provision for the dismissal of employees, justifies Petitioner’s reliance upon a violation of the Rule as a basis for dismissing an instructional employee during the school year, notwithstanding the provision of the Contract otherwise requiring that all such dismissals be based on violations of Florida Statutes. In most respects, the Drug-Free Workplace General Policy Statement is the same in the Rule and the Contract. The Rule provides for "disciplinary sanctions" against employees who have violated the "standards of conduct" set forth within the Rule. Like the Contract, the Rule contains three "policy statements," which supply most of the operative provisions of the Rule. For illegal drugs, the policy statement, as set forth in the Rule, provides: "Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will not manufacture, distribute, dispense, possess or use illegal drugs, nor will they be under the influence of such drugs. Employees on or off duty will not influence students to use illegal or abuse legal drugs. An employee convicted, adjudicated guilty, or who has entered a plea of guilty for an criminal drug statute violation occurring in the workplace shall notify [Petitioner] within 48 hours after final judgment. Paragraphs A and C are limited to acts and conditions that take place while an employee is on Petitioner's property or on duty. Paragraph B is limited to acts of the employee directed toward students. The evidence does not suggest that Respondent violated any of these provisions of the Rule. Petitioner failed to serve that the incidents involving Respondent sleeping while in charge of students appear not to have been due to her cocaine or heroin intoxication; it is at least as likely that the sleeping resulted from fatigue following the use of one or both of these drugs the preceding night. The distinction between intoxicating levels of these drugs and nonintoxicating trace amounts is explicitly dismissed by the Rule's treatment of alcohol, as to which employees must be "free of measurable . . . concentrations." After the policy statements on illegal drugs and alcohol and prescription drugs, the Rule sets forth the policy statement on employee drug screening. Although this part of the Rule fails to provide explicitly that a positive drug screen is a violation of the Rule, the introductory paragraph of the Rule acknowledges that Petitioner and the United Teachers of Dade are jointly committed "to create and maintain a drug-free work environment." Paragraph D within the drug-screening policy statement restates this purpose. Also, the disciplinary sanctions provided by the Rule clearly state that a refusal to submit to a drug test or a second violation of the Rule constitutes an inability to be assisted by rehabilitation; if a refusal to submit to a drug test is a violation, a failed drug test must also be a violation. These statements are therefore sufficient to provide that the presence in employees of even nonintoxicating amounts of illegal drugs, while on duty, constitute a violation of the Rule. In two respects, the Drug-Free Workplace General Policy Statement, as described in the Rule, is materially different from the Drug-Free Workplace General Policy Statement, as described in the Contract. First, the Rule adds another objective: To communicate that persons who violate the standards of conduct cited in this rule and who refuse or cannot be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. Second, the Rule provides disciplinary sanctions for any violation--not just for violations of the drug-screening policy statement, as provided by the Contract--of the Drug-Free Workplace General Policy Statement. The Rule also adds two presumptive conditions for determining when an employee is unable to be assisted by rehabilitation. The Rule states: Employees who violate the standards of conduct cited it this rule and who the Board determines will not be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. A refusal to submit to a drug test or a second violation of the Drug-Free Workplace Policy shall constitute an inability to be assisted by rehabilitation. . . . This case turns on whether Petitioner has proved that Respondent would not be assisted by rehabilitation because Petitioner has produced little detailed evidence of any negative impact upon Respondent's students. The record lacks detail of Respondent's specific teaching duties, the specific impact of her sleeping incidents or absences, and the academic achievements of her students during the periods in which these shortcomings took place. Notwithstanding the marked shortcomings in Respondent's performance as a teacher, Petitioner did not dismiss her until first giving her a chance to rehabilitate herself. The most likely inference is that Petitioner's administrative employees found that the situation did not satisfy the first criterion for dismissal--negatively impacting students. The basic issue, then, is whether Petitioner could reasonably have determined, from July to October 2000, that Respondent would not be assisted by rehabilitation. Petitioner could choose to show rehabilitation would be futile by relying on one of the two presumptions contained in the Rule. However, Respondent never refused to submit to a drug test, and difficult questions of her employment status in July 2000 obscure the determination as to whether her failure of the July 2000 drug test constitutes a second violation of the Rule. In this case, though, Petitioner may satisfy its standard of proof without regard to either of the presumptions in the Rule. After a display of considerable patience and good faith by Petitioner, Respondent, in July 2000, misrepresented to Petitioner that she was clean and sober and prematurely requested permission to return to teaching duties despite her knowledge that she was still abusing drugs and not ready to return to the classroom. These facts support the finding that, as of July or October 2000, Respondent would not be assisted by rehabilitation. This finding of the futility of rehabilitation, as of July or October 2000, is difficult due to the fact that subsequent events suggest that Respondent may finally be rehabilitating herself. After Petitioner dismissed her, Respondent underwent detoxification and then began treatment at St. Luke's Addiction Recovery Center, which is sponsored by Catholic Charities of the Archdiocese of Miami, Inc. She was in intensive residential treatment from November 6, 2000, through January 24, 2001. She later underwent nine urinalyses, through June 1, 2001--a day after the end of the hearing in this case-- and all of them were negative. Respondent is successfully participating in the St. Luke's aftercare program, where she takes weekly drug tests. She is proud of the fact that she has turned her life over to God and has achieved the longest period of sobriety that she has experienced in many years. After regaining sobriety, Respondent substituted for awhile and then found a job teaching a third-grade class at a private school in the Miami area. At the time of the hearing, Respondent had been so employed for six weeks, she had not been late or missed a day of school, and the school had invited her to teach again for the 2001-02 school year. Dr. Eustace opines that Respondent's prognosis is much improved from the prognosis of September 2000.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 5th day of November, 2001. COPIES FURNISHED: Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 N. E. Second Avenue Room 912 Miami, Florida 33132-1308 Luis M. Garcia Attorney's Office School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Richard Baron Baron and Cliff 11077 Biscayne Boulevard, Suite 307 Miami, Florida 33161 Honorable Charlie Crist Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old. Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed. Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared. Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams' money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash. After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient. In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style. In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances. Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused. During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex. In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams. Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs. On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced. Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances. On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection. Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license. On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed the violations charged in the Administrative Complaint, involving possessing and introducing onto the grounds of a state correctional institution, certain controlled substances and, if so, what if any penalty is warranted.
Findings Of Fact The Respondent, Erlene Stewart, has been employed as a correctional officer at Union Correctional Institution (UCI). She was so employed on February 1, 1999, and had been employed there for almost five years at that time. The Respondent was working on Saturday, January 30, 1999. On that day, officers at UCI examined employees coming to work by conducting an "Ion Scan" of employees to attempt to detect any drug or drug residues on or about their persons when they entered the institution to go on duty. The Respondent was subjected to such an Ion Scan and successfully passed it. Thus, she was aware that a drug detection effort was being conducted on Saturday, January 30, 1999, at UCI. February 1, 1999, was the Monday after that Saturday. The Respondent was working that day in tower number five of UCI. She had driven to work that day in the black Pontiac Grand Am in question, which is registered in her name. She was working on the 8:00 a.m. to 4:00 p.m., shift on that Monday. It was very unusual for a drug detection operation to be conducted on that Monday, immediately succeeding the Ion Scan drug detection operation which had been conducted on Saturday, two days before. Such a drug detection operation was conducted in the parking lot of UCI on Monday, February 1, 1999, however, using a drug detection dog. It was very unusual for a drug detection dog to be used so soon after an Ion Scan drug detection operation and also unusual for the dog to be used at 12:30 in the afternoon. The Respondent was surprised to find that a drug detection dog was being used in the parking lot of UCI on February 1, 1999. When the Respondent came to work on that day she locked her car leaving the windows slightly cracked and went inside to go on duty. Later that day, at approximately 12:30 p.m., a drug detection dog, handled by Sergeant Box of UCI, was examining vehicles in the parking lot and "alerted" to the presence or odor of narcotics inside or on the Respondent's vehicle. The dog had been trained and certified to be capable of passively alerting to the odors of four narcotics: marijuana, powdered cocaine, crack cocaine and heroin. After the dog alerted to the presence of contraband drugs in or on the Respondent's vehicle, the Respondent, who was then working in tower number five, was relieved of duty and summoned to her vehicle in the parking lot on the grounds of UCI. When she arrived in the vicinity of her vehicle, she was informed that a drug detection dog had alerted to her vehicle. She provided a written consent, to the officers present, to a search of her vehicle. The Respondent had to unlock her vehicle in order for the drug detection officers to begin their search of its interior. Upon gaining access to the interior of the Respondent's vehicle, Sergeant Mobley of Hamilton Correctional Institution, discovered an aluminum foil package containing a white powder suspected to be cocaine, on the passenger's side of her vehicle. Sergeant Mobley turned that package over to the custody of Inspector Bailey. Sergeant Dugger found what appeared to be marijuana on the driver's side of the Respondent's vehicle. Prior to his entry into the vehicle, Sergeant Dugger and Inspector Bailey had observed through the window what appeared to be marijuana and marijuana seeds on and about the driver's seat. The Respondent is familiar with the appearance of marijuana and cocaine. Moreover, she is aware that cocaine is commonly wrapped in aluminum foil. Her former husband had been known to use cocaine according to the Respondent's testimony. Inspector Bailey took custody of the suspected cocaine and marijuana and conducted two tests on both substances. The results of his field test and Ion Scan test were positive for marijuana and cocaine. The evidence was then turned over to Inspector Yaw who conducted another Ion Scan test on the white powder confirming it as cocaine. Sergeant Dale Pfalzgraf of the Union County Sheriff's Office, was summoned to UCI on that day, after the suspected drugs were located in the Respondent's vehicle. Inspector Yaw turned over to him a sealed plastic bag containing what appeared to be marijuana and a tin-foil package of what appeared to be cocaine. Deputy Pfalzgraf placed the Respondent under arrest and transported her and the evidence to the Sheriff's office. He placed the evidence into a secure locker with the evidence custodian, pending its transportation to the Florida Department of Law Enforcement (FDLE) laboratory. Deputy Tomlinson of the Union County Sheriff's Office was given the evidence that was seized from the Respondent's vehicle by the evidence custodian and transported it to the FDLE laboratory in Jacksonville, Florida, for testing. At the FDLE laboratory, Allison Harms received the evidence from Deputy Tomlinson. The evidence bag remained sealed until testing was performed by Ms. Somera, the FDLE chemistry analyst. Ms. Somera tested the substances contained within the bag and positively identified them as cannibis and cocaine. The Respondent maintains in her testimony that her former husband had access to her vehicle and had used it in the last several days with some of his friends. She contends that he is a known illicit drug user (cocaine). She also states that she left the windows to her car slightly cracked for ventilation when she parked it in the parking lot on the day in question to go to work. She states, in essence, that either the illicit drug materials found in her car were placed there without her knowledge by her former husband or his friends or, alternatively, that the correctional officers involved in the investigation planted the drug materials in her car in order to remove her from employment and/or licensure as retaliation for past employment-related friction she states she had with prison authorities. She also contends that another prison employee told her in private that she was being "framed" but that that person refused to testify on her behalf because of fear of potential loss of his job. In any event, her self-serving testimony is not corroborated by any other witness or exhibit and is not credited.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent be found guilty of failure to maintain good moral character as defined by the above-cited legal authority and that her certification be suspended for a period of two years. DONE AND ENTERED this 2nd day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Erlene Stewart Route 1, Box 52 Sanderson, Florida 32087 A. Leon Lowry, II 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
