The Issue The issue is whether the certificate issued to Mr. Ramsey by the Criminal Justice Standards and Training Commission should be revoked for his failure to maintain good moral character through the use of cocaine.
Findings Of Fact Charles Ramsey was issued a certificate on October 2, 1981, by the Criminal Justice Standards and Training Commission, number 19-81-502-01, as a correctional officer. On April 12, 1988, Mr. Ramsey went to the Mount Sinai Medical Center for Industrial Medicine at 4300 Alton Road, Miami Beach, Florida 33140. The overall purpose of the visit was not clear, but as a part of his activities at the Center, Ramsey provided urine specimen for analysis. Before providing the specimen, Ramsey had disrobed, was wearing a hospital gown, and was escorted to a bathroom at the site, where he was given two marked specimen bottles. The first bottle was for the main sample, the second for any overflow if Mr. Ramsey's urine donation was greater than the size of the first bottle. Each bottle was a 60 ml. pharmaceutical round bottle. The specimen bottles had his name on them, a bar code identifying the bottles as bottles from an employee of the Metro-Dade Law Enforcement Department, and the unique specimen number of 117270. At that time, Mr. Ramsey initialed the information on the bottle acknowledging that it was correct. After he exited the bathroom and delivered the urine bottle it was sealed with evidence tape by the technician at Mount Sinai, Sonia Abreu, and was placed in a locked cabinet. The cabinet was opened with a key belonging to the courier for the Toxicology Testing Service of Miami, Florida. The urine was kept under lock and key until it was removed and brought to the screening room at Toxicology Testing Service. The technician there broke the seal and dispensed a sample into an automated clinical analyzer which performed an EMIT screen test on 3 ml. of urine. That test showed the presence of cocaine metabolites, i.e., substances left in the body after cocaine has been ingested and been processed by the metabolic action of the body. Based on this initial positive screening test result, another 3 ml. of the sample was used to perform the screening test again. When the screening test again was positive for cocaine metabolites, a more specific test for the presence of cocaine metabolites was performed by Dr. Terry Hall, who holds his doctorate in chemistry, and has specialized in forensic toxicology. The test was performed using a gas chromatograph and a mass spectrometer. The study showed the presence of methylecganine in the urine, which is a cocaine metabolite. The concentration of the methylecganire in the sample was such that it is likely that Mr. Ramsey used cocaine within the previous two weeks. Exposure to trace amounts of cocaine, such as from airborne cocaine which might be inhaled while measuring cocaine seized as part of a drug arrest, could not have yielded the high level of methylecganine found in Mr. Ramsey's urine. The level of metabolite is such that Mr. Ramsey would have had to ingest approximately 10 grams of cocaine.
Recommendation Based upon the foregoing, it is RECOMMENDED that the certificate held by Charles Ramsey be revoked for failure to maintain good moral character. DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 28th day of April, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Ramsey 1064 Northwest 61st Street Miami, Florida 33127 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission
Findings Of Fact At all times relevant hereto, respondent, Charles P. Williams, was a counselor at South Miami Heights Elementary School (SMHES) in Miami, Florida. He was under a continuing contract with petitioner, School Board of Dade County (Board). Respondent has been a teacher or counselor in the school system since 1967. On August 19, 1987 the Board voted to dismiss Williams without pay effective that date for "immorality and misconduct in office." The action stemmed from respondent being arrested in May, 1987 and charged with possession of cocaine, a felony. A Notice of Specific Charges was later issued on November 30, 1987 setting forth the charges in greater detail. On the evening of Friday, May 22, 1987 the City of Miami Police Department assigned a special task force unit known as the Street Narcotics Unit (SNU) to conduct a reverse sting operation in an area of the city where narcotics were being sold. In such an operation, the police officers became the sellers of drugs and then arrested their customers. On this day, SNU selected the area around 15th Avenue and 68th Street, a "known narcotic area" of the city. The officers took over the complete block and "moved out" all known sellers and lookouts. The officers wore baggy street clothes and were given cocaine rock, powder cocaine and marijuana to sell to buyers. They also carried weapons and a badge, both hidden. One officer was Sharon Troy who was assigned the job of "selling" drugs on the east side of 15th Avenue and 68th Street. Officer Troy is an experienced officer who has participated in some ten to fifteen sting operations and has made approximately 150 to 200 arrests. Around 10:58 p.m. that evening, Officer Troy was approached by respondent who happened to be in the neighborhood. Williams asked Troy where he could find some narcotics. She replied, "Well, what do you want?" Williams said "cocaine." When offered a choice between rock and powder cocaine, Williams chose "rock." Officer Troy then sold him two "rocks" for $20 cash. After the exchange of money and drugs took place, Officer Troy identified herself as a police officer and arrested Williams. She immediately placed the $20 cash and the two rocks in an empty pocket. Williams was escorted by Officer Troy and another officer to a nearby apartment complex that had been converted into a temporary holding area. At the holding area, Officer Troy elicited certain information from Williams and filled out an arrest affidavit received in evidence as petitioner's exhibit 4. The money and drugs were placed in an envelope, the envelope was sealed with tape, and Officer Troy placed her name, the contents and the arrestee's name on the outside of the envelope. The envelope was then placed in an evidence box which was carried to the property unit of the Police Department. Williams was transported from the holding area to the Metro-Dade jail where he was fingerprinted, photographed and placed in a small cell with approximately twenty to thirty other arrestees. He remained there until Monday morning. After the evidence was taken to the property unit, Officer Troy retrieved the envelope, broke the seal and placed the money and drugs into two separate envelopes. The envelopes were resealed with evidence tape and given to the property specialist who placed them in the vault. The sealed envelope with the drug was not broken until the contraband was hand- delivered to the Metro- Dade laboratory on September 9, 1987. There, a Metro-Dade criminalist tested the substance and determined the rocks contained 0.2 grams of cocaine, a controlled substance. The envelope was resealed and remained in that posture until final hearing. The seal on the money bag was not broken until the bag was opened in the undersigned's presence at final hearing. Therefore, it is found that the chain of custody was not broken between the time of the arrest and the submission into evidence of the money and drugs. A few days after respondent's arrest, a Metro-Dade social worker heard a radio news report on a Spanish radio station, WQBA, concerning the arrest of an unnamed SMHES counselor. At SMHES, a few secretaries made comments about respondent's arrest and most of the faculty asked the principal about the matter. There was no television or newspaper commentary on the arrest nor was there any indication that students, parents or other community members were aware of the same. According to Dr. D. Patrick Gray, who has been accepted as an expert in the area of ethics and professional standards for educators, respondent's effectiveness as a counselor and employee of the Board has been seriously impaired by virtue of his arrest for possession of cocaine. This opinion was echoed by the school principal. It was also Dr. Gray's opinion that respondent has violated the standards of ethical conduct of the teaching profession. More specifically, Dr. Gray opined that Williams failed to maintain the respect and confidence of his colleagues, students, parents and other community members. Both at hearing and at a conference for the record, respondent denied that he purchased the drugs. Instead, he maintained that he was in the neighborhood that evening searching for a funeral home to ascertain the time of a family friend's funeral to be held on Saturday, May 23. According to Williams, Officer Troy approached him and, after asking what he was doing, without any cause handcuffed and arrested him for purchasing cocaine. Although there are two funeral homes within a few blocks of where Williams was arrested, his story is not deemed to be credible and is accordingly discredited. Williams received a satisfactory evaluation at SMHES for school year 1986-87. He was the school's only full-time counselor and worked with troubled students. Ironically, he was in charge of the school's "say no to drugs" program and the youth crime watch" program. His principal described him as having done a good job at school and characterized his work as "very satisfactory." There is no evidence of any prior disciplinary action against the licensee. Williams stated he loves the teaching profession and desires to continue teaching. He has successfully completed a court imposed "Self-help Program" which required, among other things, that respondent submit himself to a weekly test for drugs. After completion of the program, the court withheld adjudication of guilt and authorized the expunction and sealing of respondent's criminal record. Williams has taught for some twenty years, and during his recent suspension, has taken additional college course work to sharpen his education skills.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be suspended from his position for two years, said suspension to be retroactive to August 19, 1987. The remaining charge should be dismissed. DONE AND ORDERED this 14th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1988.
The Issue Whether Petitioner's application for a Florida Educator's Certificate should be granted.
Findings Of Fact On July 5, 1990, Petitioner, Judith Madeline Feldman (Feldman), purchased a $10 rock of cocaine from an undercover police detective during a police operation to combat street level cocaine dealing. The police found a pipe used to smoke cocaine in the console of Feldman's car. The pipe field tested positive for cocaine. As a result of the purchase of the cocaine and the possession of the cocaine pipe, Feldman was arrested and charged with purchasing cocaine, possessing cocaine, and possessing drug paraphernalia. In December 1990, Feldman pled nolo contendere to one count of purchasing cocaine and one count of possession of drug paraphernalia. Adjudication was withheld, and Feldman was placed on probation for two years. By court order dated February 24, 1992, the records concerning the arrest on July 5, 1990, were sealed. In March 1996, Feldman filed an application with the Florida Department of Education for a Florida Educator's Certificate. The application form contains the following inquiry concerning the applicant's arrest record: Have you ever been convicted, found guilty, entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? Failure to answer this question accurately could cause denial of certification. A YES OR NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space. Any record that has NOT been SEALED or EXPUNGED must be reported in this section. Feldman checked the No box on the arrest record section of the application. The application contained a section inquiring about sealed or expunged records. The application contained the following: Have you been convicted or found guilty of a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation) and such record(s) was sealed or expunged? Failure to answer this question accurately could cause denial of certification. A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space. SEALED or EXPUNGED records MUST BE REPORTED pursuant ss. 943.0585 and 943.059, FS. However, the existence of such records WILL NOT BE DISCLOSED nor made part of your certification file which is public record. Feldman checked the No box on the sealed/expunged record section of the application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application should be granted with a one-year probation and appropriate conditions relating to drug screening and counseling during the probation period. DONE AND ENTERED this 16th day of September, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1998. COPIES FURNISHED: Kathleen Richards, Executive Director Education Practices Commission Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Jerry W. Whitmore, Program Director Professional Practices Services Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Judith M. Feldman 5030 26th Street Vero Beach, Florida 32966 Judith M. Feldman 1126 West Oglethorpe Highway Hinesville, Georgia 31313-5415
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 March, 1983.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, who holds a Florida teaching certificate, on the basis of allegations regarding the Respondent's purchase of crack cocaine.
Findings Of Fact The Respondent, Wayne Thurston, holds Florida teaching certificate number 479646, covering the area of physical education, which is valid through June 30, 1995. During the period from April 1991 to July 1991, the Respondent was employed as a teacher at James H. Bright Elementary School, in the Dade County School District. On April 5, 1991, Detective Laurick Ingram was working as an undercover police officer with the Metro-Dade Police Department, assigned to a tactical narcotics team detail. As part of his assignment, Detective Ingram was posing as a seller of cocaine in what is termed a "reverse sting" operation. It was an operation in which several undercover police officers posed as sellers of crack cocaine at premises which were previously know by the police to be the location of frequent drug sales. The reverse sting operation in question took place in the front yard of a house located at 2520 N.W. 159th Street, Miami, Florida. At approximately 8:00p.m. on the evening of April 5, 1991, the Respondent approached Detective Ingram at the location described above and asked the Detective for $20.00 worth of cocaine. Detective Ingram gave the Respondent two rocks of crack cocaine and in exchange the Respondent gave Detective Ingram $20.00. Detective Ingram did not conduct any tests on the substance sold to the Respondent to verify that it was, in fact, cocaine. However, it is the regular and consistent practice of the Metro-Dade Police Department, in conjunction with reverse sting operations, to use genuine cocaine. Detective Ingram then gave a signal to one of the other police officers and one of the other police officers then arrested the Respondent. The Respondent was processed and was subsequently charged by information in the Circuit Court for Dade County with one count of purchasing cocaine and one count of possession of cocaine. On or about July 11, 1991, the Respondent was accepted into the Dade County Drug Treatment Pretrial Release Program. During the period from February 27, 1992, to May 7, 1992, the Respondent was subjected to urinalysis examinations on eighteen occasions and on each occasion the results were negative for use of drugs. Ms. Joanne Goberna Molina has been the principal of James H. Bright Elementary School since January 23, 1992. During the year that she has been the principal at that school, the Respondent's performance as a teacher has been acceptable. During that period the Respondent has not been tardy. The fact that the Respondent was arrested has received very little notoriety among the faculty, staff, students, or parents of the school where he works.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the Respondent is guilty of the violation alleged in the Administrative Complaint and imposing a penalty consisting of a three year period of probation, which probation shall include the requirements that the Respondent: Shall make arrangements for his immediate supervisor to provide the EPC with quarterly reports of his performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent; Shall make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance; Shall satisfactorily perform his assigned duties in a competent professional manner; Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006; and Participate fully and to its completion in a substance abuse program and submit to random drug testing as directed by his employer or the Education Practices Commission. DONE AND ENTERED this 27th day of July, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 27th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7063 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in whole or in substance. Paragraphs 8 and 9: Rejected as constituting primarily argument about conflicting testimony, rather than specific proposed findings of fact. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraph 11: First sentence rejected as unnecessary procedural details. Second sentence rejected as subordinate and unnecessary details. Paragraph 12: Rejected as based on speculation or conjecture, rather than on reliable evidence. Paragraph 13: Accepted in substance with some unnecessary details omitted. Findings submitted by Respondent: Paragraph 1: This paragraph is rejected because as stated it is nothing more than an unnecessary summary of the allegations of the Administrative Complaint. (It should be noted, nevertheless, that findings have been made to the effect that the acts alleged in the Administrative Complaint have been proved.) Paragraphs 2 and 3: These paragraphs are rejected as constituting summaries of testimony, rather than statements of specific proposed findings of fact. (It should be noted, nevertheless, that findings have been made consistent with the testimony summarized in these two paragraphs.) Paragraph 4: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 5: Rejected as constituting a summary of testimony, rather than a statement of a specific proposed fact. Also rejected for the reason that the exculpatory explanation offered by the Respondent has not been credited. Paragraph 6: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 7: The first line is rejected as not supported by persuasive, credible evidence. The remainder is rejected as subordinate and unnecessary details. Paragraphs 8, 9, 10, 11, and 12: Accepted in whole or in substance. COPIES FURNISHED: William T. Jackson, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding is whether the Board's disciplinary policy on violation of its drug-free workplace policy is an invalid unpromulgated rule.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct. Such behavior in this instance, the Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Escambia County Civil Service Board and the collective bargaining agreement for Escambia County. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
The Issue The issue in this cause is whether Respondent's certification as a law enforcement officer should be revoked, or otherwise disciplined, for failure to maintain qualifications.
Findings Of Fact Respondent was employed by the Dade County public schools and worked as a guard in the school system's administration building for several years. As a public school employee, he was subjected to random drug testing. None of those tests indicated the presence of drugs in Respondent's system. Over time, persons employed as police officers by the school system's Special Investigative Unit became impressed with Respondent's character and job performance and approached him regarding becoming certified as a police officer and working with the Special Investigative Unit of the Dade County public schools. Since Respondent had always wanted to be a police officer, he attended the police academy under the sponsorship of the Dade County school system. After graduation from the police academy, Respondent was certified by Petitioner on January 4, 1988, and was issued Certificate Number 03-87-002-04. Thereafter, he was employed as a police officer with the Dade County public schools' Special Investigative Unit. In mid-April, 1988, Respondent and his then-fiancee went down to the Florida Keys with, and at the invitation of, another couple to spend the weekend in a time-share condominium, from Friday through Sunday. After lunch on Saturday, Respondent and the other couple began drinking beer. They drank beer until the time that the four vacationers went to dinner. At dinner Respondent consumed several mixed drinks. After dinner they returned to the condominium where Respondent consumed more beer. By this time Respondent was drunk. He fell asleep on the couch while his fiancee and the other couple continued talking and listening to music. At some point Respondent began waking up. Respondent's male "friend" reached into his own wallet, took out what appeared to be a cigarette, lit it, and placed it in Respondent's hand. When Respondent, who smokes cigarettes, began smoking the item placed in his hand, he began choking. When Respondent's fiancee demanded to know what was occurring, the "friend" replied that he was only playing a joke on Respondent and took the "cigarette" back from the Respondent. Respondent lay back down on the couch and again fell asleep. Due to the amount of alcohol he had consumed on Saturday, Respondent remembers going back to the time-share condominium after dinner but has no recollection of anything that happened thereafter. On the following day, the vacationers returned to Miami. No one told Respondent about the joke his "friend" had played on him. On Monday Respondent was advised that his annual employment physical, including drug screening, would take place on Tuesday. Respondent made no attempt to avoid that physical examination, but rather appeared for his physical as scheduled. On Tuesday, April 19, 1988, Respondent underwent his annual employment physical at Mt. Sinai Hospital. He was administered a drug test as part of that routine annual physical mandated by his employer. The employer had no reasonable suspension to drug test the Respondent. The subsequent gas chromatography, mass spectrometry analysis performed on Respondent's urine sample produced a reading of 27 nanograms of THC metabolites, i.e., his urine test was positive for the metabolite associated with the drug marijuana or cannabinoids. When Respondent was advised by his supervisor that his test was positive for marijuana, Respondent was shocked. He denied ever having smoked marijuana and also denied being around anyone who was smoking marijuana. Respondent took the position that his sample must have been contaminated. When advised by his supervisors that he could have the sample re- tested, Respondent declined believing that if the sample was contaminated, the results of any re-testing would be the same. Respondent's supervisors were also shocked that Respondent's test proved positive. They held him in the highest regard and testified at the final hearing that Respondent is an excellent police officer, that he is conscientious and reliable, and that he possesses honesty and integrity. One of his supervisors testified that he would let Respondent "watch my back" without hesitation in any situation -- the highest tribute a police officer can give to another police officer. In spite of his supervisors' high opinion of Respondent, Respondent was fired from his employment with the school system's police unit as a result of the positive urine test results because that was that department's policy. Respondent consistently maintained that he had never used marijuana. Believing his urine sample to have been contaminated, he hired an attorney to represent him in proving that the test results were erroneous. Respondent consistently maintained that he did not use drugs. He maintained that he could not understand why his test was positive. At some point in an informal discussion with one of his supervisors, Respondent maintained that he did not use drugs and told that supervisor the only thing unusual that had happened prior to the drug test was that he had spent the weekend in the Keys and perhaps he had been some how exposed to marijuana there. Some time after Respondent's termination from the school system, Petitioner filed formal charges to revoke his certification as a police officer. Some where around that time, his then-fiancee finally told Respondent what had happened in the Keys the night that Respondent was drunk. She told him she had been afraid to tell him about it since she had not told him earlier. She thought that if she had told him before he was fired, then he might have been able to avoid being fired. Since she had not told him then, she had not told him subsequently since she thought he would consider it her fault that he had been fired and would refuse to marry her. She finally told him because of the pain he was suffering not knowing and because of the need for honesty in their relationship. Although Respondent had no recollection of the incident described to him by her, he believed her when she told him that it had happened. Respondent then accepted responsibility for having smoked marijuana on that one occasion when he was drunk. Respondent did not knowingly and voluntarily possess marijuana and did not knowingly and voluntarily introduce that substance into his body during that weekend in the Keys. Respondent's consumption of marijuana in the Keys on that weekend was an isolated incident, and Respondent has not possessed or consumed marijuana prior to or subsequent to that incident. Although Respondent exhibited poor judgment in becoming so intoxicated that evening in the Keys, Respondent does possess good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against Respondent in this cause. DONE and ENTERED this 18th day of July, 1990, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6484 Petitioner's proposed findings of fact numbered 1-6, 8-10, and 12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 7, 11, and 15 have been rejected as being unnecessary to the issues involved in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not being supported by the weight of the credible evidence in this cause. The first through fourth, fifth, eighth, ninth, and fourteenth unnumbered paragraphs in the findings of fact section of Respondent's proposed recommended order have been adopted either verbatim or in substance in this Recommended Order. The sixth, seventh, and tenth through thirteenth unnumbered paragraphs in the findings of fact section of Respondent's proposed recommended order have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Copies furnished: Mark Richard, Esquire 304 Palermo Avenue Coral Gables, Florida 33134 Elsa Lopez Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Petitioner is an agency of the State of Florida which has as its responsibility the licensure and regulation of beverage license holders in the State. The Respondent, 27th Avenue Corporation, doing business as Climax Lounge, holds Division of Alcoholic Beverages and Tobacco License No. 23-0358, Series 4-COP. At all times pertinent hereto John Ekberg and Daniel A. Wick were the sole corporate officers and shareholders of 27th Avenue Corporation. The Climax Lounge, the premises which are the subject of this proceeding, is located at 12001 N. W. 27th Avenue, Miami, Florida. In the early morning hours of January 17, 1981, undercover Beverage Officer Aurelius Thompson visited the Climax Lounge in the course of an investigation of suspected "drug violations" allegedly occurring on the premises. Officer Thompson approached a barmaid by the name of O. Z. Porter and engaged her in conversation, ultimately asking if she knew where he could obtain cocaine and she indicated she had none. At this time Officer Thompson observed a group of patrons "snorting a white powder" at the end of the bar where he was sitting. He spoke with an individual named "Larry" who indicated he had one gram of cocaine for sale for $75.00. Officer Thompson left the bar to get the required purchase price, and upon returning, Larry's brother Michael sold him approximately one gram of a white powdery substance which later proved to be cocaine. The parties in this proceeding have stipulated into evidence the lab reports and agreed that the substances obtained or purchased by the two investigating officers, Officer Thompson and Officer Alford, were cocaine and marijuana. The above described exchange of cocaine occurred inside the licensed premises at the bar. The exchange was made with the barmaid O. Z. Porter standing across the bar in close proximity to the transaction. Officer Thompson offered Ms. Porter some cocaine at the time of the exchange, but she refused, although she accepted some in a wadded up dollar bill for later use. In the early morning hours of January 23, 1981 this same officer returned to the Climax lounge. He went into the men's restroom and encountered an individual by the name of "Leech." "Leech" had a cellophane bag of capsules containing a white powder which he offered for sale for $10.00 each. He also had a bag with a larger amount of white powder selling for $25.00 per packet. Officer Thompson, during this encounter, purchased a foil package containing the white powder from Leech for $25.00. The contents of the packet proved to be cocaine. After concluding his transaction with the individual called "Leech" In the restroom, Officer Thompson then returned to the common area of the lounge and took a seat at the bar. He encountered and engaged in a conversation with the same individual named "Larry" whom he had met on his visit to the bar on January 17, 1981 in connection with the first purchase of cocaine on the premises. As a result of the second encounter, Larry ultimately sold Officer Thompson a packet of cocaine for $70.00. This transaction was conducted and concluded in approximately the center portion of the bar in plain view and was observed by "Norma", a barmaid employed by the Respondent. Beverage Officer Alford was also present on the premises the night of January 23, 1981 assisting in this investigation. While on the Respondent's premises he also purchased a quantity of cocaine from the individual known as Leech. The cocaine was contained in a capsule for which he paid $10.00, which transaction also occurred in the men's restroom of the Respondent's facility. Officer Thompson described his training in identification of cocaine and marijuana and established that on both visits of January 17 and January 23, 1981 he observed patrons in various areas of the lounge "snorting" what he believed to be cocaine and smoking or rolling marijuana cigarettes. Officer Thompson returned to the Climax Lounge on January 25, 1981. He approached a barmaid by the name of "Johnnie Mae" and inquired of her whether she knew who could sell him some marijuana. Johnnie Mae directed Officer Thompson to an individual called "Richard". The barmaid introduced Thompson to Richard and informed Richard that Thompson wanted to purchase some marijuana. Richard led Officer Thompson into the men's restroom where Thompson viewed "Leech" at the sink with a small quantity of marijuana in view. Thompson then purchased from Leech a small quantity of marijuana for $10.00. Upon leaving the restroom, Officer Thompson was summoned to the bar area by the previously identified individual, Larry, who informed Thompson that he had a gram of cocaine which he wished to sell him for $70.00. Thompson agreed and purchased the cocaine for that amount with the transaction taking place at the bar in front of the barmaid "Norma." Thompson thereupon asked Norma if she desired any cocaine, which she refused. On this evening, while he was in the restroom purchasing marijuana from Leech, Thompson observed approximately five individuals smoking marijuana. Pursuant to the investigation conducted by these officers, at this point, an Emergency Order of Suspension was entered against the license of the Respondent on January 29, 1981. On February 14, 1981 Officer Thompson accompanied by Officer Alford again entered the lounge on an additional visit. On this occasion Officer Thompson was approached by the same individual "Larry" from whom he had made the previous purchase and ultimately bought from Larry a quantity of cocaine for $65.00 on this occasion. Officer Thompson's observations on each occasion were approximately one to three hours in duration and he observed the use of cocaine and marijuana on each occasion, as did Officer Alford. Both officers indicated that they saw security guards on duty and circulating through the licensed premises, but were apparently unaware of the extent and vigor of enforcement procedures by the security guards. Officer Thompson did describe a plain clothed individual, whom the Respondent established was its security guard Larry McFadden, who forced he and other patrons to leave the men's restroom of the facility on the occasion of the February 14, 1981 visit. Other than this incident, the two officers testifying did not observe security guards attempting to curb the use or sale of drugs on the premises other than the management attempting to keep out of the restrooms people who had been there an inordinate period of time. The Respondent presented testimony from its corporate owners and several employees regarding their policy and efforts designed to curb the use of drugs on the premises. The manager, Ira Maxwell, verbally informed his employees of the licensee's prohibition of the presence or use of drugs on the premises and promulgated a set of written rules against certain activities, including the use of drugs or condonation by employees of the presence of drugs on the premises. The employees were required to sign acknowledgments that they had read and were informed of these rules. Employees Norma Jean Riley and O. Z. Porter signed these acknowledgments. The Manager' testimony established that the licensee's policy regarding controlled drug presence and drug transactions was to ask the possessors of drugs to leave the premises and, if their behavior was repetitive, to permanently bar them from the premises. Both the licensee's manager and its owner, Mr. Ekberg, established that warning signs prohibiting the use of drugs, or transactions involving drugs, were posted at several points in the common areas of the club at all times pertinent herein. Officer Thompson stated that he had simply not noticed the signs while he was on the premises. The club's manager, Ira Maxwell, testified that although he made personal observations of the public areas of the premises, most of his time was spent in the office. The principle stockholder and owner, Mr. Ekberg, is on the premises daily, but generally leaves around 10:00 p.m. each night. The lounge's open hours are from 9:00 p.m. to 5:00 a.m. Three security officers patrol the club at all times it is open with instructions to eject drug traffickers, users or possessors from the premises. Employees are instructed to advise management when a patron is observed using or possessing controlled drugs. The principle security officer, Larry McFadden, Jr. corroborated the fact that the drug warning signs were posted at the club during all times pertinent hereto. Be is constantly on watch for drug use and orders such people to leave the premises if he suspects their use or involvement with drugs. McFadden established that at certain times, although he maintains a constant vigil, it is difficult to observe everything that transpires. Sometimes he must make rapid judgments in deciding whether situations involving violence or use of weapons are more critical at a given moment than apprehension of patrons who have brought drugs onto the premises. Neither McFadden nor the club's manager, Ira Maxwell, had ever summoned police in an effort to curb the possession or use of controlled drugs on the Premises. Mr. Ekberg, the Respondent's president, inquires daily of McFadden regarding problems occurring the previous evening and primarily relies on his manager, Ira Maxwell, to maintain order. His inquiries are generally directed to instances of property damage and fights. He too emphasized that the Respondent's policy towards drug use is to eject those possessing drugs and permanently bar those suspected of dealing in drugs from entry on the premises. His primary duties when present at the club involve ordering supplies, preparing the payroll and other administrative duties. He has in the past had difficulty obtaining police assistance and controlling drug use at his club. On one occasion Mr. Ekberg suggested to the police that they place undercover officers at the club for curbing drug usage and he has inquired of his employees on occasion regarding individuals suspected of being drug users, but has not made a practice of seeking law enforcement assistance nor have his management and employees ever summoned police in an effort to eliminate illegal drug activity. Mr. Ekberg believes that only hiring an undercover, unknown security staff would permit him to obtain any better results in eliminating the presence of drugs on his licensed premises. He has been in the liquor business for approximately 20 years with no previous violations. No testimony was offered however which could establish that any member of management or any employee of the Respondent attempted to learn the identities of patrons alleged to have been using or trafficking in drugs on the licensed premises or to aid in apprehending them, even after being served with the subject emergency suspension orders. On April 22, 1981 the second Notice to Show Cause (Case No. 81-1218) was served on the Respondent with the identical charges relating to the observations by the Petitioner's officers occurring on February 13 and 14, 1981 at the licensed premises referred to above which observations occurred after the initial suspension order entered in Case No. 81-1090 was served on the Respondent.
Findings Of Fact At all times pertinent to the issues herein, Respondent held Florida Alcoholic Beverage License 2-COP No. 54-00184 at Stew's Bar located at Third Avenue, Maloney Subdivision, Stock Island, Monroe County, Florida. The parties stipulated that Robert Stanley Gardner, Respondent's husband, has a financial interest in the leased premises. Based on Respondent's testimony, it is clear that she did not understand the nature of her stipulation regarding Robert Stanley Gardner's interest in the licensed premises, and he in fact has no interest therein. Stew's Bar has had a reputation with the Monroe County Sheriff's Department as a trouble spot for a considerable period of time prior to the events which took place here. However, upon questioning, Major Somberg, who had a computer printout of all calls received by his office relating to this establishment, was unable to cite even one previous call relating to narcotics. Nonetheless, based on the records of law enforcement agencies in the area, an undercover operation was instituted against Respondent's establishment in late April and early May 1984. On April 25, 1984, at approximately 3:50 p.m., Gale Sampson, an investigator with the Miami office of the Division of Alcoholic Beverages and Tobacco, entered Respondent's bar in an undercover capacity. She spent a period of time observing patrons and employees and noticed a Latin male who had a towel rolled up under his arm. She observed this individual take a packet from the towel, wave it in the air, and say "Haircut." The bartender at the time, Geraldine Hook, laughed, as did several patrons, but made no effort to stop this individual. This packet, a plastic bag containing a white powdery substance, was consistent with the way cocaine is packaged. This package was not, however, confiscated, nor were the contents identified. The following day, at 5:45 p.m., Sampson again went into the bar. She saw Hook again working behind the bar and asked Hook if she knew where she, Sampson, could get some cocaine. Hook turned and asked a female by the name of Alvarez, who said "Yes." Alvarez and Sampson agreed upon a price of $45 for a half gram, and Sampson gave Alvarez $50. Somewhat later, Alvarez returned to the bar and gave Sampson a half gram package and $5 in change. The contents of this package were subsequently tested in the laboratory of the Monroe County Sheriff's Office and were determined to be cocaine. Hook categorically denies arranging this sale. She admits to knowing Alvarez, but denies knowing even if there was any deal between Alvarez and Sampson. She also contends that when Sampson approached her to buy cocaine, she refused to get Sampson any and told Sampson that if she wanted any, she would have to get it herself. This last admission serves to defeat the credibility of Hook's denial. Somewhat prior to this transaction between Sampson and Alvarez, Beverage Investigator Clark A. Raby, assigned to the Live Oak, Florida, office, but in Key West on the same undercover operation, entered Respondent's bar at 4:50 p.m. as a backup for Sampson. He sat at the bar and ordered a beer from Hook. During the course of the evening, he had a conversation with the bartender and various patrons. He saw one Latin and two white males light and pass around what appeared to him to be a marijuana cigarette right at the door. He later went into the men's room and found a Latin male and a white female in the men's room rolling a cigarette. When he excused himself, she said it was all right--she was in there all the time. Sampson went back into the bar at 11:35 a.m. on April 27 and went right to the bar. She was approached there by a Latin male subsequently identified as Vernesto Seguseo, who asked her to sit in a booth with him. She did, and during the conversation asked him if he was an employee of the establishment. He replied that he was a bouncer, but not on duty. She asked him if he could tell her where she could buy cocaine. He said he had it right there, and she asked him how much one-half gram would cost. He replied "$40," whereupon she paid him as requested. In response, he took a small plastic packet out of his pocket and gave it to her. The contents of this packet were subsequently chemically analyzed by the Monroe County Sheriff's Office and determined to be cocaine. Though this individual never specifically stated he was an employee of this establishment, and evidence indicates from Respondent's witnesses that he was employed as a bouncer at another bar in the area, he was nonetheless seen in this establishment previously in areas reserved for employees of the bar. The testimony of Ms. Otona, the bar manager, and at least one barmaid indicates that this individual was not employed by Respondent's establishment until May 15, 1984, and, at the time of this sale, was not a bar employee. Raby also entered the bar at 4:50 p.m. on April 27, 1984. He went to the bar, where he ordered a beer from Hook. Shortly afterward, a black male offered to sell him a "Columbian joint" for $1.50. Raby paid him $2 and got the cigarette. Hook was there all the time and did not try to stop the transaction. However, there is some doubt as to whether she saw it. Raby testified that when the transfer of the cigarette was made to him, the cigarette was passed at the level of, or even below the level of, the bar, and it is very possible that Hook did not see the transaction occur. Hook indicates that at that time she was wearing dark glasses to cover the effects of a beating she had received from her boyfriend and did not see anything like what Raby described. Consequently, it is most likely that she did not. This cigarette was subsequently analyzed by the laboratory of the Monroe County Sheriff's Office and determined to be marijuana. This same black male individual, subsequently identified by the initials "J. J.," told Raby at the time that there was good cocaine available for $40 from "Latin brothers." On that same afternoon, Raby overheard Geraldine Hook agree to smoke and saw her smoke what appeared to be and smelled like marijuana right outside the back door of the establishment. There is no evidence, however, whether or not the substance was in fact marijuana. On April 28, 1984, Raby went into the Respondent's bar at approximately 5:30 in the afternoon and ordered a beer from the bartender, Joyce. J. J. came up and asked how he liked the cigarette he had purchased the day before, then asked if he wanted to buy some cocaine for $40 a half gram. Raby indicated that he did, whereupon J. J. walked off for awhile and came back. When J. J. came back to the bar, Raby put two $20 bills out which J. J. took. He again went away and came back a moment later with a packet which he passed to Raby beside the bar. He did nothing to hide it, and Joyce was there and did nothing to stop it. Raby is not sure if Joyce saw this or not, however, as he was not looking at her at the time. The substance was subsequently identified by the laboratory as cocaine. Sampson was also at the bar early in the morning of April 28, sitting with Vernesto Seguseo. The barmaid, Joyce, said she was taking $15 from the register and someone would replace it later. Seguseo agreed. Beverage Investigator Beverly Jenkins, who had received word from a confidential informant that an employee of the bar, a maintenance man described as a short black male with a beer belly and no teeth, was selling cocaine. When she first went into the bar on May 14, she saw this man there behind the bar filling the orders and taking orders from Geraldine Hook, the barmaid. When Jenkins talked with him, he admitted he worked there all the time, but did not want to engage in any long discussions at the time. He asked Jenkins to come back without her partner. On May 15, at approximately 5:55 p.m., she went back alone. This individual previously mentioned, who was subsequently identified as "Peter," immediately approached her and offered to introduce her around and "do her right." Jenkins asked him for cocaine. Peter went to another employee, came back, and said he could not provide it. Later, however, he offered to use cocaine with Jenkins if she would go with him. She refused and said she was going to leave, at which point he asked her to wait for him to finish work. Jenkins agreed to this and later left the bar and went out to her car. Shortly thereafter, Peter came out and got in Jenkins' car, at which point he offered to sell her a half gram of cocaine for $40. He offered to reduce the price if she would buy more than one packet. Jenkins agreed to buy three one-half gram packets for $35 each. She paid Peter $105 and received from him a substance which was subsequently identified as cocaine after being analyzed by the Monroe County Sheriff's Office laboratory. At 6:20 p.m. on the following day, May 16, when Jenkins went back in the bar, Peter was not there, but Vernesto, a former employee, was. Within a few minutes, Peter came in and approached Jenkins, asking her if she wanted more cocaine. When she said she did, he asked her to come outside. She resisted at this time because she was playing pool. When she finished the game, Jenkins went over to Peter, who took her outside and sold her a half-gram of a white powdery substance for $30 on the condition that she always buy from him and not from someone else. The substance Jenkins purchased on this evening was subsequently analyzed and determined to be cocaine. While Jenkins was in the bar this evening, she noticed there was a lot of traffic going to and from the rest rooms. She saw Peter go into the rest room with a patron, and she noticed that as he entered the rest room he was taking from his pocket a plastic bag similar to those which he had sold her previously. Jenkins did not see this transaction go down, however, but later saw the patron leave the rest room. The following day, Jenkins noticed that Gerry (Geraldine Hook) was back behind the bar and looked tired. Jenkins noticed that a female patron followed Gerry and her boyfriend into the back, where she saw Gerry breathe in through her nose a white powder. Jenkins asked to join the party at the time, but was refused. The female patron was identified as Donna, a clinic employee, who said at the time they were all a friendly group. This same patron, Donna, went into the restroom later with a Latin male and shortly after came out, rubbing her nose in a fashion consistent with cocaine use. Geraldine Hook, on the other hand, denies under oath that she was ingesting cocaine. Hook contends that she was explaining to her boyfriend why she could not get off work early and that the other lady was translating her comments to her boyfriend, who does not speak English. Hook contends that she does not ever snort or ingest cocaine because she is allergic to all drugs that are in the cocaine family and in support of that statement submitted a medical record from the Florida Keys Memorial Hospital emergency room showing that on April 23, 1984, when who was treated in the hospital because of being beaten by her boyfriend, she listed as allergies novacaine and tetracycline, tetramycin, morphine, and drugs of a similar nature. Hook also contends that she has asthma and could not use cocaine without it closing off her breathing passages. Emergency room records reflect that she has been previously diagnosed as an asthma sufferer. Later on May 17, Jenkins went back into the bar and went to the ladies' room with Peter. Peter offered to sell her two bags of cocaine for $60. After they entered the rest room, Peter closed the door halfway prior to making the transaction; however, the substance which he passed to Jenkins on that occasion and for which he charged $60 was subsequently identified as cocaine. Later that evening, Jenkins again went into the bar and saw Peter working. They played pool for a while, and she asked him for more cocaine. They went to the ladies' room again, where she paid him $60 for one gram of a substance which was subsequently identified as cocaine. During this entire transaction, the door was not closed. That same evening, Jenkins also saw Peter go into the men's room with three Latin males who, shortly after entering with him, came out rubbing and wiping their noses. This practice of patrons going into the restrooms and coming out rubbing their noses was also observed by Beverage Agent Jose Iturralde, who entered the bar undercover on both the 14th and the 15th of May, but who was unable to make a buy from Peter or anyone else because, he believes, he and the other agents had already been identified as agents. A raid in conjunction with the Monroe County Sheriff's Office and other law enforcement agencies was conducted on the premises on May 18, 1984, pursuant to a search warrant properly issued. Arrested at that time were Seguseo, Geraldine Hook, and several other Latin named patrons. Pursuant to the search carried out, the following items were found: one and one-half grams of cocaine behind the jukebox; 26 clear baggies, each containing a half-grain of cocaine, behind the bar counter on the floor; a partially smoked marijuana cigarette on top of the cash register; 14 baggies, each containing cocaine, on the bar counter; a partially smoked cigarette below and behind the bar on the southeast corner of the bar on the floor; 22 baggies of cocaine on the floor behind the bar near the entrance (these 22 baggies were contained in a white envelope) 9 syringes in a small storage room off the main bar; and a Marlborough cigarette pack containing a clear plastic bag of cocaine on one of the booth seats. Geraldine Hook does not recall seeing any patron waving a plastic bag on April 25, as testified to by Agent Sampson; however, she contends that, because of the fact that the police frequently come into the bar looking for narcotics, it is a habit of some of the patrons, as a joke, to wave around clear plastic bags which do not contain cocaine. These instances generally result in the type of laughter described by Sampson. When Hook was hired by the manager, Ms. Otona, she was told, and she recalls that other girls who had been hired there are told, that they, as employees, cannot have or use drugs on the premises or allow anyone in who uses drugs; that if they see anyone they think is using drugs, they are to put that person out. Any violation of these rules results in discharge of the employee. Hook admits having seen mixed couples going into the rest rooms from time to time, but considers this to be acceptable behavior, since there are no locks on the doors. The rules for employees, which are made known to the employee when hired, were confirmed by another barmaid, Brenda L. Gillespie. She added to the no-drug policy such things as no drinking to excess and no kissing during work, and she herself recalled having barred numerous people and having seen others barred over the past few months because of the new management (that of Mrs. Gardner, Respondent, and Ms. Otona, manager) and their attempts to do away with the previously bad reputation the bar had for drugs. Because of this, the waitresses have taken substantial abuse. Ms. Gillespie confirmed Ms. Hook's comments regarding the joke made of the waving of plastic bags, contending that the patrons are trying to test the barmaids to see how far they can go. Gillespie also contends that she is the one who pried the locks off the restrooms to prevent patrons from locking themselves in the rooms to use drugs and has many times told patrons to keep the drugs out, going so far as to call the police. Notwithstanding the testimony of all of the beverage agents that they had never seen the Respondent or the manager on the premises, Gillespie opined that either one or both are there all the time or are immediately on call, since they live in the immediate vicinity of the bar. Further, she contends that the agents were there on irregular hours or were so busy pretending to be drunk that it was impossible for them to see anyone. She recognized the undercover agents as agents, but she did not let on because she wanted their help. Louise Otona, currently the manager of Stew's Bar for Katherine Gardner, the owner, indicated that she and Respondent realized about one and a half or two months ago that there was a problem at the bar because of Respondent's husband, Stanley Gardner. Mr. Gardner is a cocaine addict, but has no interest in the premises or in the license. Because of his problem, however, Ms. Otona keeps all the money from the sales, and none is left at the bar. Respondent and Ms. Otona have barred anyone they knew who had any connection with Mr. Gardner and his drug habit. Ms. Otona has also fired anyone she knows who has anything to do with drugs and has taken over from the barmaids throwing people out. Ms. Otona admits that drugs may have been sold in the bar, but not with her knowledge or with the knowledge of her employees, because both she and Respondent have tried to do their utmost to keep drugs out. The waitresses in Stew's Bar are hardworking girls who would not knowingly jeopardize their livelihood by selling or permitting drugs to be sold in the bar. Ms. Otona and Respondent have worked hard to make Stew's Bar clean again and have made progress. Ms. Otona has received many compliments from the police on these efforts. With regard to Peter, the Latin male who sold to Jenkins on several occasions, Ms. Otona contends that Peter was fired by her personally on May 15, 1984, and could not then have been an employee of the bar at the time the sales were made. However, many of the barmaids' boyfriends help behind the bar, as do some patrons. Consequently, it may appear that individuals are employees who are working behind the bar when, in fact, they are not. Respondent testified similarly to Ms. Otona. Respondent does not use drugs herself, nor does she drink. Her husband, Stanley, is a drug addict, and she has started work to have him committed because of his addiction. He has nothing to do with the bar, however, and he is not the landlord. As far as J. J.'s coming into the bar is concerned, J. J. was barred from this establishment prior to the incidents in question, but keeps coming back. Respondent has called the police to have him thrown out, but nothing seems to help.
