Recommendation It is RECOMMENDED that Petitioner pay to Linda Long the salary to which she was entitled from February 13, 1992 until June 5, 1992, and these proceedings be closed. DONE and ENTERED this 7th day of April, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 7th day of April, 1993. COPIES FURNISHED: Keith Martin, Esquire Asst. School Board Attorney Pinellas County Schools Post Office Box 2942 Largo, Florida 34649 2942 Linda Long 4065 45th Avenue North St. Petersburg, Florida 33714 J. Howard Hinesley, Ed.D. Superintendent of Schools Pinellas County Schools Post Office Box 2942 Largo, Florida 34649 2942 Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 0001
The Issue The issues to be determined in this case are whether Respondent should pay the administrative penalty, investigative costs, and attorney's fees, and undertake the corrective actions that are demanded by the Florida Department of Environmental Protection ("Department") in its Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (“NOV”).
Findings Of Fact The Department is the administrative agency of the state of Florida with the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Title 62. Joshua Putnam is a natural person who is currently incarcerated in the Columbia County Correctional Institution. Mr. Putnam has been incarcerated since February 16, 2012, for the theft of diesel fuel. On or about January 20, 2012, Mr. Putnam discharged 25 to 50 gallons of diesel fuel onto the ground in the backyard of a residence located at 433 Lena Street, St. Augustine, Florida (“the property”). The discharge resulted in “contamination,” as defined in rule 62-780.200(9). Mr. Putnam has not initiated a site assessment or remediated the contamination. The property is owned by Tammy Putnam. She and the Department entered into a Consent Order. The Consent Order was not filed with DOAH, but it is reasonable to assume that the Consent Order addresses assessment and remediation of the contamination on her property. The Department states that it provided Mr. Putnam an opportunity to demonstrate that he is financially unable to assess and remediate the contamination, but the Department did not receive all the documentation it requested from Mr. Putnam. Mr. Putnam has not been employed for six or seven years and is currently unable to pay to clean up the contamination or to pay the administrative penalties. Mr. Putnam admitted liability and expressed his intent to remedy the situation as soon as he is released from prison. His current release date is May 5, 2015. While investigating this matter, the Department incurred $1,000 in costs.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. 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 20th day of April, 1992.
The Issue Whether Petitioner is subject to the sales tax imposed on controlled substances by s. 212.0505, Florida Statutes, and if so, what is the appropriate tax.
Findings Of Fact On September 12, 1989, a search and destroy team assembled in Sebring, Florida, to survey Highlands County for evidence of the growing or possession of illegal drugs. The survey team consisted of a helicopter, pilot and crew chief from the Florida National Guard; and the ground crew of representatives from the Highlands County Sheriff's Office, State Highway Patrol, Fish and Game Commission, Florida Law Enforcement Officers and federal agents. The search commenced in the southwest quadrant of Highlands County with the helicopter and trained spotters flying a search pattern so as to view from the air any illegal substances being grown. On one, if not the first, leg of the search pattern, the helicopter, flying at an altitude of 500 feet, passed over the property on which Petitioner lives; and one of the observers spotted what he identified as marijuana growing near one of the outbuildings on this property. The marijuana patch was circled for both spotters as well as the pilot and crew to better see the growing marijuana. The ground party was alerted by radio of the find. They proceeded to the location and entered onto the property. There they met Petitioner, proceeded to the area where the marijuana was growing, and cut down the marijuana plants. Some 171 cut plants were counted, wrapped in bundles of approximately 10 plants each, and loaded into the back of a pickup truck. The deputies asked Petitioner if he would unlock the building next to where the marijuana plants were growing and he, knowing they could get a search warrant if necessary, unlocked the door. Inside they found some lights obtained for the purpose of growing marijuana indoors and other material listed on Exhibit 3A, all of which were confiscated. Petitioner was placed under arrest and the marijuana and other property seized was taken to the sheriff's office. The vehicle carrying the marijuana was weighed before the marijuana was unloaded and again immediately following the unloading. The difference in the weight of the vehicle with and without the marijuana was 450 pounds. Subsequent thereto, someone from either the sheriff's office or the Florida Department of Law Enforcement advised the Department of Revenue Collections and Enforcement agent in Lakeland, Florida, and the Notice of Assessment was prepared and served on Petitioner. To establish the value of the marijuana seized, the agent preparing the assessment used information received from the FDLE that the average street price in the district in which the marijuana was seized was $600 per pound in 1989. The document containing this information was admitted into evidence as Exhibit 6 after testimony was presented that each year the FDLE directs its five regional offices to submit street prices for various illegal drugs sold on the streets during that year. Exhibit 6 shows the marijuana street price at $600 per pound in the Tampa district (which includes Highlands County) as of June 7, 1989. To obtain the estimated retail price of the marijuana seized, the agent multiplied $600 per pound by 450 pounds. This price is for marijuana which has been processed and is ready for use. No evidence was submitted showing what parts of the marijuana plant are used in preparing the marijuana rolled into "joints" or smoked in a pipe. Nor was evidence presented showing how many pounds of processed and ready-to-use marijuana can be obtained from a given number of pounds of growing marijuana plants. In his testimony, Petitioner readily admitted that he had planted and cultivated the marijuana seized on September 12, 1989. He also testified that this is the first and only time he has ever attempted to grow marijuana; that he obtained the marijuana seeds and a book on how to grow marijuana from an advertisement in a magazine; that he had never sold marijuana in the past; that he had made no effort to locate a purchaser; or that he had any inkling of how to find a buyer for the plants after they were harvested or how much such plants were worth for use by marijuana users. Petitioner also testified the marijuana was planted a long distance from the nearest traveled road and from the nearest boundary of Petitioner's property; and that there was a canopy provided by trees among which he had planted the marijuana plants, and he didn't think the plants would be readily visible from the air. Petitioner's testimony that the helicopter passed over his property at tree top level, which he estimated at less than 75 feet, is rejected as being in conflict with the altimeter height provided by the helicopter pilot. In the U. S. District Court, Southern District of Florida, Petitioner pleaded guilty to possession of more than 100 marijuana plants.
Recommendation It is recommended that the assessment against Joe "Little Joe" Hatch of $270,999.02 plus interest from September 12, 1989, be dismissed. ENTERED this 26th day of March, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX Respondent's proposed findings are generally accepted and included in the Hearing Officer's findings of fact, except the following which are rejected. 12-18. Accepted as street value of processed marijuana. 26. Last sentence rejected as contrary to the record that the charge was possession of over 100 marijuana plants. Petitioner failed to timely submit a proposed recommended order. COPIES FURNISHED: Raymond E. LaPorte, Esquire 410 Ware Boulevard, Suite 601 Tampa, FL 33619 Steve Kackley, Esquire 357 S. Orange Avenue Sebring, FL 33870 Lee R. Rohe, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, FL 32399-1050 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 =================================================================
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint and, if so, what is the appropriate penalty?
Findings Of Fact At all times material to this proceeding, Respondent was certified as a correctional officer, having been issued Correctional Certificate Number 276769. On or about July 3, 2008, Respondent was driving his vehicle on State Road 20 in Calhoun County. Trooper Philip Spaziante of the Florida Highway Patrol observed Respondent speeding and conducted a traffic stop of Respondent’s vehicle. After Respondent pulled to the side of the road and stopped, Trooper Spaziante explained to Respondent why he had stopped him. As he spoke to Respondent, he noticed that Respondent appeared to be exceptionally nervous. Respondent told Trooper Spaziante that he was on his way to Port St. Joe to spend the weekend at the beach. Trooper Spaziante then asked Respondent if he would consent to a search of his vehicle. Respondent consented to the search. Trooper Spaziante found a purple cloth “Crown Royal” bag in the driver’s side door of Respondent’s vehicle. Trooper Spaziante found a small quantity, less than 20 grams, of cannabis (marijuana) inside a Skoal (chewing tobacco) container which was inside the Crown Royal bag. Trooper Spaziante is trained in the recognition of the smell of burnt cannabis. During his nine years as a State Trooper, he has encountered cannabis many times, during traffic stops in particular. Based upon his experience, Trooper Spaziante was able to identify the substance in the Skoal can as cannabis. Trooper Spaziante then placed Respondent under arrest for possession of a controlled substance. After finding the marijuana, Trooper Spaziante contacted Deputy William Dalton of the Calhoun County Sheriff’s Office and requested that he come to the scene and assist. After Deputy Dalton arrived, the two officers continued the search of Respondent’s vehicle. Deputy Dalton is a police canine handler. Deputy Dalton is also trained in recognition of cannabis and cannabis paraphernalia. He is the handler for Gina, a K-9 dog certified in narcotics investigation by the American Canine Police Association. Deputy Dalton deployed Gina to conduct an exterior “sniff” of Respondent’s vehicle. Gina "alerted" as a result of her sniff of Respondent’s vehicle, indicating that narcotics were in the vehicle. Deputy Dalton then continued to search Respondent’s vehicle. The officers found a marijuana “blunt,” which is a cigar with some of the tobacco removed and replaced with marijuana. Trooper Spaziante observed some loose tobacco that appeared to have been removed from the cigar. The officers found a duffle bag in the back seat of the vehicle. The Respondent told the officers that the bag was his and that it contained clothing and personal items for his trip to Port St. Joe. Deputy Dalton took the duffle bag out of the vehicle where Gina “alerted” as a result of her sniff of Respondent’s duffle bag. Deputy Dalton then searched the duffle bag. Inside the duffle bag was a small smoking pipe commonly used to smoke marijuana. Deputy Dalton also observed marijuana residue in the bowl of the pipe. Respondent stated that he had forgotten that the pipe was in the duffle, and that it had been in there a long time. Respondent was arrested and charged with possession of less than 20 grams of marijuana and possession of drug paraphernalia.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Criminal Justice Standards Commission enter a final order revoking the corrections certificate of Respondent, Ben C. Cramer. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ben C. Cramer Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent committed the offense alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the exhibits received into evidence and the testimony of the witness at the hearing, the following findings are made: Respondent was certified by Petitioner as a correctional officer on June 8, 2004, and issued Certificate No. 241081. At all times relevant to this proceeding, Officer Cooper was a traffic homicide patrol officer with the Cocoa Beach Police Department, Cocoa Beach, Florida. On the evening of June 24, 2005, while on duty, Officer Cooper observed a vehicle that was speeding and driving without headlights. Officer Cooper then had the driver of the vehicle to pull over to the side of the road. Once the vehicle pulled over and stopped, Officer Cooper approached and made contact with the driver of the vehicle and Respondent. Respondent was in the right front passenger seat of the vehicle. Officer Cooper smelled a strong, very distinct odor of burnt cannabis (marijuana) coming from inside the vehicle when he made contact with the driver. The driver of the vehicle admitted to smoking marijuana inside the vehicle. Officer Cooper approached the passenger side of the vehicle and asked Respondent to step out of the vehicle. When Respondent stepped out of the vehicle, Officer Cooper observed a clear plastic bag containing marijuana on the ground next to the passenger side of the vehicle. The outside of the plastic bag was dry, even though it had just rained. Officer Cooper arrested Respondent and charged her with constructive possession of a controlled substance, a violation of Subsection 893.13(6)(b), Florida Statutes. Respondent never denied possession of the marijuana. In fact, she told Officer Cooper that she "made a big mistake, a very big mistake." Subsequent to Respondent's arrest, Officer Cooper asked Respondent if that was the last bit of "weed" that she had, and Respondent replied, "Yes sir, it was." Officer Cooper videotaped the traffic stop.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Criminal Justice Standards and Training Commission, enter a final order revoking the law enforcement certificate of Respondent, Michelle A. Liquori. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 15th day of July, 2008.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502- 09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact) 1. - 14. Accepted. COPIES FURNISHED: Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey S. Richter 3881 Highway 273 Graceville, FL 32440 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue This cause concerns the issue of whether the Petitioner should impose disciplinary sanctions against the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. Specifically the issues concern whether the Respondent has failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, requiring maintenance of good moral character by a certified law enforcement officer and, if he has not, what discipline is warranted.
Findings Of Fact The Petitioner is an agency of the state of Florida charged with licensing (certification) of law enforcement officers and with enforcing the practice standards embodied in Chapter 943 Florida Statutes and pendent rules. It regulates the practice of law enforcement officers through the enactment of regulatory standards and enforcement of such standards by rulemaking, as well as by implementation of policy decisions. The Respondent was certified as a law enforcement officer on June 17, 1982. He was issued certificate number 02- 331-00. The Respondent was employed as a police officer by the City of Gainesville Police Department at all times pertinent to this proceeding. Early on the morning of January 2, 1988, the Respondent returned from a trip to Atlanta, Georgia, of several days duration. He returned directly to his residence at the Gardenia Apartments, an apartment complex in Gainesville, Florida. On that morning, Sergeant Louis Aceveda of the Gainesville Police Department responded to a call to investigate a complaint of loitering and a possible illicit drug transaction at the apartment complex. Sergeant Aceveda is a narcotics investigator for that police department. Shortly after his arrival at the Gardenia Apartments complex, Sergeant Aceveda coincidentally encountered the Respondent, a fellow police officer, when the Respondent was driving into the parking lot of the complex. They engaged in a brief conversation about Sergeant Aceveda's purpose at the site and the Sergeant asked the Respondent if he could use the restroom in the Respondent's apartment. The Respondent readily agreed. Upon entering the Respondent's apartment the Sergeant smelled an aroma of burnt marijuana. No one else was present in the apartment at that time other than Sergeant Aceveda and the Respondent. The Sergeant made his way to the only restroom in the apartment and closed the door. Once he was in the restroom he observed a partially-burned marijuana cigarette in an ashtray lying in plain view on the top of the toilet tank. He confiscated that cigarette remnant, placed it in his pocket, and left the Respondent's apartment without revealing his discovery to the Respondent. After leaving the apartment he reported the incident to his supervisors and fellow investigators. Later that same day, Detective Drayton McDaniel of the Gainesville Police Department Narcotics and Organized Crime Section executed a probable cause affidavit in support of a search warrant application in order to attempt a search of the Respondent's apartment. The affidavit was based on Sergeant Aceveda's observations made earlier that day. It was presented to a county judge who found probable cause and issued a search warrant for the Respondent's apartment. At approximately 7:50 p.m. on January 2, 1988 Detective McDaniel and several other officers met the Respondent outside his apartment. Detective McDaniel knew the Respondent as a fellow police officer. He read the search warrant to the Respondent and the Respondent exhibited no specific reaction, asked no questions and made no comments concerning the search. Detective McDaniel and the officers assisting him then entered the apartment and began the search. Detective McDaniel collected, packaged and placed identification on certain seized items found during the search. Sergeant A. W. Smith, the Respondent's former supervisor, assisted with the search. He found a metal can top which contained approximately one tenth of a gram of marijuana (cannabis) as well as "rolling papers" commonly used to roll marijuana cigarettes. This material was in plain view on top of the Respondent's dresser in his bedroom. The Respondent's police badge and identification had been placed almost in contact with the metal can top on top of the dresser also. Investigator Richard Brooks of the Alachua County Sheriff's office also assisted in the search. He found an ashtray in the Respondent's bedroom which contained three marijuana cigarettes. Inside a drawer in the dresser Detective McDaniel found a black ceramic smoking pipe containing the residue of cannabis in the bowl. Sergeant Smith found a closed, purple handbag in the same bedroom on top of a chest at the foot of the bed. Inside the handbag was the Respondent's service revolver, issued to him by the Gainesville Police Department, as well as a small bag containing 1.5 grams of cannabis. Detective McDaniel found two cannabis cigarettes in the Respondent's automobile after he had obtained the Respondent's consent to search it. Sergeant Smith found four partially smoked marijuana cigarettes weighing approximately a tenth of a gram which were in a metal tray on the top of a dresser in the Respondent's bedroom. These were in plain view. Sergeant Smith also found a round tray under the dresser in the Respondent's bedroom which contained .1 gram of cannabis. During this lengthy search the Respondent was present. Despite this he made no statements nor asked any questions of his fellow police officers, who were known to him, while they were searching his home and his vehicle. However when Detective McDaniel discovered a small bag of suspected cocaine in his vehicle the Respondent indicated to him that his fingerprints would not be found on the bag. Other than this he was heard to make no comment during the entire search. After the search was concluded Detective McDaniel told him that he would be arrested. Again he made no statement. On January 4, 1988 Investigator Raymond Griffin of the Gainesville Police Department Internal Affairs Unit conducted an administrative interview of the Respondent. The Respondent was asked to submit to a urinalysis to determine if he had used narcotics but refused to do so. On January 5, 1988 the Respondent resigned his position with the Gainesville Police Department after having worked in that capacity for five and one- half years. On May 31, 1988 he entered a plea of nolo contendere on the charge of possession of cannabis before the County Court, In And For Alachua County. The Respondent maintained in his testimony that he had been to Atlanta on a vacation trip for several days, during which time his brother and some of his friends had used his apartment, apparently as a place for temporary residence and to "party". The Respondent indicated that he felt that his brother or other persons occupying the premises temporarily, during his brother's possession of them, had left the marijuana cigarettes and remnants of them on the premises. The Respondent maintained that he was gathering these items to begin investigating their origin and who might be responsible for them and that this was why he had the marijuana in the purple handbag and on top of his dresser. He had no explanation for the marijuana cigarette remnants from the bathroom or under the dresser or from his vehicle, however. The same is true of the discovery of the cocaine in his vehicle. The Respondent maintained that he was unable to locate his brother to secure his testimony for this proceeding because at some point after the Respondent's arrest and resignation from the Gainesville Police Department, and before this hearing, the Respondent's brother was convicted of a felony, and sentenced and incarcerated in the state prison system. The Respondent professed not to know his whereabouts at the time of the hearing. The Respondent's version of events concerning his gathering the marijuana in his bedroom as evidence, for purposes of conducting an investigation concerning its origin is not accepted. It is not credible to believe that a police officer of five and one-half years experience would gather marijuana and place it on his dresser in a convenient location, in the belief that persons not normally using his apartment had left those items there, without conducting a thorough search of his apartment so that he would have discovered the other marijuana remnants and also gathered them into a central location for preservation as evidence. If he had really intended gathering the marijuana in his bedroom as evidence, he would certainly have discovered that which was found in the bathroom, under the dresser and the marijuana smoking pipe from the dresser drawer. The fact that these other items were discovered not gathered and preserved in one location for transmittal to the police department, and the origination of an investigation, belies the Respondent's story in this regard. In fact, it appears that the Respondent was simply in possession of an illegal substance, marijuana, in his apartment and the search was conducted and the discoveries made before he could dispose of it. His story is further belied by the fact that cocaine and marijuana cigarettes were found in his automobile, which does not fit his description of events concerning his gathering of evidence to investigate who might have left the marijuana lying around the apartment. He was in possession of his automobile during the Atlanta trip. Further, his possession of the marijuana in question in the apartment was shown by the fact that he was present at home in the residence when the search warrant was served and the marijuana was lying around, or most of it was, in plain view. It is, thus, difficult to believe that he was unaware of its presence and did not have dominion and control over it. The fact that the marijuana in his apartment was under his dominion and control and, therefore, his possession, is corroborated by the fact that marijuana was found, along with cocaine, in his vehicle, which points to the fact that all the illegal substances found were possessed by the Respondent with his knowledge. There was certainly no evidence that Respondent's brother or other unknown persons had used his vehicle and left marijuana and cocaine therein unbeknownst to the Respondent. In summary, the marijuana being in plain view in the apartment at several different locations indicates that it was in the Respondent's actual possession, that he knew of it, and that he simply was surprised before he could discard it or otherwise dispose of it.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement revoking the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings Of Fact: 1-28. Accepted. Respondent's Proposed Findings Of Fact: Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, and not entirely supported by the clear and convincing evidence of record. Accepted. Accepted. 5-13. Accepted. 14. Accepted, but not itself materially dispositive of the issues presented for adjudication. Copies furnished to: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Horace N. Moore, Sr. Attorney at Law Post Office Box 2146 Gainesville, FL 32602 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue Whether Respondent committed the violations alleged in Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the parties' stipulations of fact, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since May 16, 1986, certified by the Commission as a correctional officer. He holds certificate number 12-86-502-02. Respondent was employed as a correctional officer with the St. Lucie County Sheriff's Department (hereinafter referred to as the "County") from October 9, 1985, until April 26, 1991, when he was terminated by the County. He was disciplined by the County on various occasions during the first several years of his employment. Thereafter, for a period of approximately two years, until the spring of 1991, he had an unblemished disciplinary record. On March 20, 1991, at approximately 5:00 p.m., Respondent was working in the intake and booking area of the St. Lucie County Jail when he was involved in an altercation with Mark Hornick, an inmate at the facility, as Hornick was being escorted, in handcuffs, through the area by another correctional officer, Deputy John Fischer. Hornick was complaining about not having been fed. Respondent approached Hornick and asked him if he wanted to file a grievance. Moments later he grabbed the much smaller Hornick from behind and then pushed him into a wall in an adjacent hallway. Hornick struck his head on the wall and sustained a cut just over his eye. After Hornick made contact with the wall, he turned around and faced Respondent. Respondent thereupon grabbed Hornick again and this time picked him off the ground. He held Hornick in the air for a brief period of time before releasing him. The force Respondent used against Hornick was not, nor should it have appeared to Respondent to be, reasonably necessary to defend himself or anyone else against the imminent use of force, to overcome Hornick's resistance to any command that he had been given, or to accomplish any other legitimate objective. As a result of this March 20, 1991, altercation with Hornick, Respondent was given a ten-day suspension by the County, which determined following an investigation of the matter that Respondent, in his dealings with Hornick, had engaged in the excessive use of force. During his suspension, Respondent knowingly and voluntarily used marijuana. Upon Respondent's return to duty on April 15, 1991, he was ordered by his supervisor to report to a doctor's office to undergo urinalysis testing. Respondent went to the doctor's office on April 18, 1991, and provided a urine sample. The sample was given a unique identifying number and promptly sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. The sample was properly protected and transported to a forensic laboratory, where it was received in good condition without any evidence of tampering. At the laboratory, the sample was kept in a secure manner throughout the testing process. Adequate procedures were employed to ensure that the sample was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the sample. An initial immunoassay screening of Respondent's urine sample indicated the presumptive presence of 9-carboxy, a unique metabolite of tetrahydrocannabinol (THC), the biologically active compound found in marijuana. Additional laboratory testing of the sample was then performed to verify the results of the immunoassay screen previously performed. Gas chromotography-mass spectrometry, the most reliable and accurate confirmatory testing method, was utilized. The gas chromotography-mass spectrometry analysis of Respondent's urine sample was positive for the presence of 9-carboxy in a concentration of 41 nanograms per milliliter. The nanogram per milliliter results of the testing are consistent with, and indicative of, Respondent's knowing and voluntary ingestion of marijuana within a time frame of approximately one hour to one week prior to the collection of the urine sample. Passive inhalation of another's secondhand marijuana smoke would produce much lower results. After these results were made known, Respondent's employment with the County was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a correctional officer as punishment therefor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th 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 11th day of October, 1993.
The Issue The issue is whether the Petitioner, Harvey Donley, is liable for the jeopardy assessment as set forth in the Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990.
Findings Of Fact On June 9, 1989, Petitioner sold a quantity of cocaine to a confidential informant at Albertson's Food Store on Apalachee Parkway, Tallahassee, Florida. On June 9, 1989, Petitioner drove to Albertson's Food Store, parked his car, and got into the confidential informant's vehicle. Shortly after Petitioner had entered the confidential informant's vehicle and conducted a transaction of cocaine, he was arrested. At the time of Petitioner's arrest, one plastic bag containing cocaine was recovered from the seat next to where Petitioner had been seated. A second bag of cocaine was recovered from Petitioner's shirt. After Petitioner's arrest, Petitioner told Sgt. McKissack that he got the cocaine from one Paul Dorlag. Petitioner further told Sgt. McKissack that the bag of cocaine in his shirt pocket was his "cut" of the cocaine. After Petitioner's arrest, police officers executed a search warrant at Petitioner's residence. During the search, under the search warrant, a small quantity of paraphernalia and drug residue were seized in Petitioner's home. This paraphernalia consisted of a plastic cocaine straw. Other evidence seized during the search of Petitioner's residence consisted of a cedar box containing cannabis residue and one bottle of Insitol. After his arrest, Petitioner was charged with trafficking in cocaine. Twenty-five and one-half (25.5) grams of cocaine were recovered from Petitioner's person when he was arrested. The estimated retail price of the cocaine seized from Petitioner was $100 per gram. The estimated retail value of the total amount of cocaine seized from Petitioner amounted to $2,550. The Revised Notice of Assessment and Jeopardy Findings dated August 6, 1990, is legally valid and mathematically correct. The 50% tax according to the revised assessment is $1,275. The 25% surcharge according to the revised assessment is $637.50. The penalty of 5% per month according to the revised assessment is $95.63. Interest accrued through August 2, 1990, amounts to $238.14. The total amount of the legal assessment against Petitioner is $2,246.27. The additional interest for the period from August 2, 1990, to the date of the hearing, January 31, 1991, amounts to $114.66. Interest continues to accrue until the assessment is paid. The total assessment due through January 31, 1991, is $2,360.93.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a Final Order upholding the revised assessment in the amount of $2,360.93, plus additional interest as shall become due after the date of the hearing. RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2734 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Revenue 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20(1-20) and 21(16). COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Harvey Donley 4918-B Crawfordville Road Tallahassee, Florida 32304 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
