The Issue Whether Respondent committed the violations alleged in the Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Parties The Department is the state agency responsible for regulating the practice of medicine in Florida, pursuant to chapters 456 and 458, Florida Statutes. The Department also oversees Florida’s medical marijuana program via the Office of Medical Marijuana Use, formerly known as the Office of Compassionate Use. Art. X, § 29, Fla. Const.; § 381.986, Fla. Stat. Section 381.986 provides that a “qualified patient” can receive medical marijuana from a medical marijuana treatment center.2 A qualified patient must have at least one of the statutorily-designated qualifying medical conditions and obtain a certification from a qualified physician. § 381.986(2) and (4), Fla. Stat. Section 381.986(2)(f) identifies “post-traumatic stress disorder” (“PTSD”) as a qualifying medical condition. A qualified physician must hold an active, unrestricted license as an allopathic physician under chapter 458 or as an osteopathic physician under 2 A marijuana treatment center holds a license issued by the Department to cultivate, process, transport, and dispense low-THC cannabis, medical cannabis, and cannabis delivery devices. § 381.986(8)(a), Fla. Stat. chapter 459, Florida Statutes. § 381.986(1)(m), Fla. Stat. A qualified physician must also “successfully complete a 2-hour course and subsequent examination offered by the Florida Medical Association or the Florida Osteopathic Medical Association, which encompasses the requirements of [section 381.986] and any rules adopted hereunder.” A qualified physician may not have a “direct or indirect economic interest” in a medical marijuana treatment center. § 381.986(3)(b), Fla. Stat. Dr. Davis is a qualified physician and a board-certified family practitioner who has been licensed to practice medicine in Florida since 2003. His practice focuses on holistic medicine and alternative treatments including medical marijuana. Dr. Davis is based in Gainesville, Florida, and practices via a corporation he founded in 2016 called “Florida Marijuana Doctors, Inc.” or “FMD Green.” Dr. Davis has treated hundreds of patients with PTSD and has prescribed medical marijuana to treat PTSD. The Ties Between Dr. Davis and Trulieve Trulieve is a medical marijuana treatment center that operates 43 of the 213 medical marijuana dispensaries in Florida. As measured by sales, Trulieve holds 50 percent of the medical marijuana market in Florida. In 2017, Trulieve’s Florida market share was approximately 80 percent. Trulieve opened a medical marijuana dispensary (“the Lady Lake dispensary”) in the Ocala/Lady Lake area in 2017 by leasing 2,243 square feet for $40,374 a year in a building located in the Oakland Hills Professional Center at 13940 Highway 441 in The Villages. In 2017, there were not enough qualified physicians to handle the number of Florida residents seeking medical marijuana prescriptions.3 In an 3 Benjamin Atkins was involved with ensuring Trulieve’s dispensaries were compliant with state law, and he was involved with opening the Lady Lake dispensary. He described the shortage of qualified physicians as “disastrous.” When Trulieve opened the Lady Lake dispensary, he was unaware of there being any qualified physicians practicing in that area. Mr. Atkins further testified that “[t]here’s approximately 45,000 licensed physicians in Florida, and when [the medical marijuana program] first started there were maybe five effort to alleviate that problem, Trulieve contacted qualified physicians and reached agreements for them to work one day a week or one day a month inside buildings with Trulieve dispensaries where there was a shortage of qualified physicians.4 Trulieve subleased office space to Dr. Davis and at least three other qualified physicians at the Lady Lake dispensary for $100 a month.5 Upon entering the Lady Lake dispensary one would immediately be in a lobby or waiting room with a Trulieve sign identifying the dispensary on one side and office space behind a door on the opposite side.6 physicians that were qualified and willing to see patients So I would call it a crisis. If you [had] that situation with something like pediatrics, the news would have been talking about what a crisis it is.” 4 With regard to how Trulieve contacted Dr. Davis about working in the Ocala/Lady Lake region, Mr. Atkins offered the following testimony: A: And then we would reach out to physicians we were aware of in other parts, and to be honest with you, some were very cold and uncaring and just focused on getting patients to make money, but then there were people like Dr. Davis who were compassionate and caring. And I remember at one time he drove all the way to Miami to see a child who nobody would see. There was just a lot of demand like that. So we would say to somebody like Dr. Davis, “Hey, you know, would you be able to work in the area of The Villages to see people,” and the compassionate physician would agree to one day a month or one day a week, go to different areas of the state that were underserved even though it wasn’t easy. Q: Did you seek out Dr. Davis to have him come to The Villages area then? A: I don’t remember exactly who sought who. What I can tell you is he was always regarded as somebody that was compassionate and, you know, passionate about helping people and was willing to in special circumstances travel around and see people and do stuff like that. I honestly don’t remember who said first, “Hey, would you come to The Villages,” or if he said, “I’m willing to come to The Villages,” or what. 5 Similar arrangements existed at other Trulieve dispensaries. 6 Trulieve did not solicit nonqualified physicians or other businesses to sublease space. However, if a nonqualified physician had inquired about subleasing space in the facility, Lester Perling, a compliance attorney with Broad and Cassell, wrote the sublease, and Trulieve utilized the same sublease for all of the qualified physicians at the Lady Lake dispensary. Mr. Perling did not advise Trulieve what to charge for the subleases, but he did advise Trulieve that it had to be at or above the market price. Benjamin Atkins was responsible for the subleases between Trulieve and any qualifying physicians working at the Lady Lake dispensary. Mr. Atkins testified convincingly that $500 a month was the fair market price for such space. His testimony was substantiated by that of Department witness Thomas Oldenborg as discussed below. Trulieve’s leasing plan was to enter subleases with up to five qualified physicians, and charge each $100 a month to use the space one day a week, thus earning Trulieve $500 a month in rental income, i.e., the fair market value for the space. Dr. Davis’s one-fifth share of the $500 monthly fair market value rental rate for his one fifth share of the monthly occupancy was commercially reasonable. The evidence firmly established that the leasing arrangement was not a trick or scheme related to the practice of medicine. Furthermore, the evidence firmly established that Dr. Davis’s rental of office space at a commercially reasonable rate from Trulieve did not create a direct or indirect economic interest between Dr. Davis and Trulieve.7 Mr. Atkins testified that “we would probably lease to a variety of people so long as they were willing to abide by the lease and it was safe.” 7 Mr. Atkins’s calculations about how much revenue Trulieve realized from the sublease appear to be erroneous in that he believed Trulieve was receiving $100 per week from each sublease rather than $100 a month. Nonetheless, his testimony clearly established the underlying fact that “if somebody came and said I’ll give you $500 a month or something for that space, that was probably well within market.” The subsequent inflation of that figure based on a miscalculation of the lease term does not lessen the weight of his testimony that the total market value was $500 a month, and constitutes competent, substantial evidence that Trulieve was not offering the leases for a below market price. When questioned again about Trulieve’s methodology, Mr. Atkins reiterated his earlier testimony: While the sublease that Trulieve utilized for Dr. Davis and the other qualified physicians had provisions pertaining to late fees, common area maintenance, and a security deposit, the spaces for the associated amounts were left blank. As a result, Trulieve did not: (a) charge Dr. Davis for making late rental payments; (b) pass along the costs of common area maintenance; or (c) require a security deposit. Trulieve was not concerned with a late fee because it would have been an inconsequential amount. As for a common area maintenance charge, Trulieve deemed that to be immaterial given its belief that it was subleasing the physician suite for an amount far in excess of the fair market price.8 So we would take the space and say, okay, what would the space be leased out for in the fair market, and that space I recall was like $500 or something like that. So then to make sure you’re charging above market, say you have 30 days that you could lease in an average year – or in a year, 30 days per month, taking 355 and dividing it by 12, that you would essentially be charging different people to rent, and so charging $100 a month for the four days is like six times market. 8 When asked if Trulieve acted intentionally by omitting those incidental charges, Mr. Atkins testified as follows: A: I don’t want to say it was intentional or unintentional or misremember. I can just tell you from my state of mind sitting here today that when your rent from somebody is $100 a month, because you’re looking for 30 different people to pay that 100 or whatever, whatever the math is, you know, to charge a late fee of, you know, $8 or something would not have been something I would have been concerned with. *** Q: Mr. Atkins, in your experience dealing with the Trulieve dispensary subleases to qualified physicians, could you offer the Court what some typical or reasonable rates would be for late charges in any of those subleases? A: Yeah, my opinion is if it was $100 a month, a late charge would be like $5 or $6 or something. Q: Same question as to the past due on the common area maintenance, the CAM. From your experience with the As for other arrangements, qualified physicians were responsible for bringing their own equipment to the Lady Lake dispensary. Also, Trulieve had a policy prohibiting employees from directing patients to a particular physician. If a patient inquired about where he or she could locate a qualifying physician, a Trulieve employee was supposed to direct that patient to a state-run website or the “find-a-doctor” tool on Trulieve’s website. Qualifying physicians who subleased space from Trulieve did not receive preferential status on Trulieve’s website. Between January 1, 2016, and January 25, 2018, Dr. Davis prescribed 4,941,075 milligrams of medical marijuana. Trulieve filled 76.71% of that amount. Given Trulieve’s dominant position in the Florida market for medical marijuana, that number is not surprising. The Department’s Critique of the Sublease The Department presented the testimony of Thomas Oldenborg, a commercial real estate broker whose territory includes the Lady Lake area. Mr. Oldenborg deals with investment properties and lease analysis. Mr. Oldenborg noted that the main lease between Trulieve and the landlord of the Oakland Hills Professional Center does not allow for subletting. Mr. Oldenborg opined that $100 a month was not a reasonable rate for the sublease between Dr. Davis and Trulieve. He testified that it would be difficult to find parties interested in leasing a 500 square foot space for one day a week. Leases with such terms are not typically advertised to the Trulieve subleases to qualifying physicians, what would the CAM passthrough be? A: I mean, if you’re charging six times market rent, I wouldn’t charge the CAM. I would only charge a CAM if I was overcharging. general public. Instead, such leases are usually done privately between parties that have a preexisting relationship.9 9 Mr. Oldenborg’s full opinion was as follows: Q: Mr. Oldenborg, given your review of this lease and your knowledge of commercial real estate in the area, is the $100 per month rental rate a reasonable rate? A: No. Q: Why not? A: Because there would be, in my opinion, no possible way to facilitate the lease or the transaction as in there is no way to advertise that type of deal on a normal commercial real estate platform or any available commercial real estate platform. Q: Would you mind elaborating on that? A: Sure. Normally if somebody is to sublease a space it has to be pretty clear on what it is and put out to the general public. This, again in my opinion, seems that the two parties would almost have to have a personal relationship or something to come across this deal. Somebody would have to approach somebody in person and have this conversation. *** Q: Have you ever, in your time, seen a lease advertised on one of these lease platforms with restrictions on days of use? A: No, sir. Q: Have you ever seen time restrictions, as in specific hours? A: No, sir. Q: Are you aware of whether that can even be advertised on these platforms? A: I do not believe it can, which is the predication of my answer. I don’t know how they would list it. There’s really no availability to do so, in my knowledge. Q: If a client came in – if a client came in asking for a lease for one day per week for, say, three hours a day, would you be able to facilitate a search to find something of that sort? A: No. However, contrary to his initial opinion, when questioned about other parameters of the sublease between Dr. Davis and Trulieve, Mr. Oldenborg’s testimony indicated that the sublease was priced at fair market value: Q: In your experience and your knowledge of the area, what is the going rate for a single office or executive suite sublease of a comparable size, say 500 square feet in this region? A: You’re normally looking at – for an executive suite, you’re normally looking at a ten-by-ten office with access to a conference room and you’re looking at roughly $500 a month to a thousand dollars a month, [depending] on what area of The Villages you’re in, but you’re not getting very much square footage. *** Q: Could you estimate about how much square footage that $500 a month lease would purchase? A: It would come with a single office, which would be roughly a hundred square feet and then you would have access to a conference room, which is usually an appointment basis. *** Q: In your experience would you say that [the current lease space of Dr. Davis] is consistent with approximately 500 square feet of office space? A: Yes, sir. Mr. Oldenborg was then led through a series of calculations from which he ultimately agreed that the cost to Trulieve of the office space used by Dr. Davis was, based on all of the agreed upon assumptions, $107 per Q: So you would not be able to find a lease offered on the open market similar to this sublease? A: No, sir. month. He further testified that a payment by Dr. Davis to Trulieve of $100 a month is “[f]air market value, just not typical for that type of lease setup or sublease.” However, the qualification to his testimony that the lease was fair market value was reduced to near zero by the following: Q: And describe for me any experience that you’ve had with part-time leasing arrangements with physicians? A: Very little. Q: Okay. Can you recall any of those instances where you’ve done any kind of a part-time lease? A: No. Given that Dr. Davis only had access to the space in question for one day a week rather than five days a week, Mr. Oldenborg’s testimony established that Trulieve charged a fair price for the sublease. Findings as to Whether Dr. Davis Engaged in a Trick or Scheme Related to the Practice of Medicine or Had a Direct or Indirect Economic Interest in Trulieve Trulieve sought out qualified physicians to sublease unused space in Trulieve dispensaries. However, there is no evidence that the arrangement between Dr. Davis and Trulieve was an attempt to defraud Florida residents seeking medical marijuana or an attempt to “game the system” by circumventing any statutory requirements. There is no persuasive evidence indicating that Dr. Davis referred patients to Trulieve or that Trulieve referred prospective patients to Dr. Davis. As a result, the evidence does not clearly and convincingly demonstrate that Dr. Davis employed a trick or scheme related to the practice of medicine. Dr. Davis had no ownership stake in Trulieve. Thus, the evidence does not clearly and convincingly demonstrate that Dr. Davis had a direct or indirect economic interest in Trulieve. K.B.’s Appointment with Dr. Davis K.B. retired in 2015 after 35 years in law enforcement. After a year, she returned to the workforce and was employed as an investigator in the Department’s unlicensed activity section from August of 2017 through November of 2017. Her duties included undercover operations. K.B. used the alias of K.G. (“K.G.”) during her undercover operations. Her “K.G.” alias was a white female who had been in the military and had received treatment for PTSD. K.B. began an undercover investigation of Dr. Davis with the intent to get him to qualify her to receive medical marijuana for the treatment of PTSD. K.B. initially visited the Lady Lake dispensary on August 2, 2017, in order to gather information about the business. She walked through the front door of the Lady Lake dispensary and saw a Trulieve sign to her right. She saw no signs referring to Dr. Davis. K.B. met a security guard named Jason who wrote some information about Dr. Davis on a Post-It note and essentially referred to Dr. Davis as Trulieve’s “in-house doctor.” However, the security guard said that K.B. was not required to utilize Dr. Davis and mentioned other doctors in the area who could qualify her for medical marijuana. After her conversation with the security guard, K.B. returned to her office and ultimately went on-line in order to schedule an appointment with Dr. Davis for November 1, 2017. She used a prepaid card to pay the $300 appointment fee. She also faxed “K.G.’s” fictitious medical records to Dr. Davis’s office. Those fictitious medical records purported to memorialize treatment rendered to “K.G.” at Camp Pendleton in December of 2007, January 2008, and December 2008. Those records indicated that “K.G.” had witnessed a traumatic event while in the military and was experiencing difficulty sleeping and hallucinations. She also supposedly reported that she had become irritable, angry, and had withdrawn from friends and family. Dr. Davis received those records, reviewed them, and incorporated them into the medical records that he created for “K.G.” He also reviewed “K.G.’s” controlled substance history via E-Force, a database for controlled substances. K.B. arrived at the Lady Lake dispensary and waited in the lobby until Dr. Davis brought her back into his office. The appointment began with typical doctor-patient banter before turning to the reason for “K.G.’s” appointment, PTSD.10 Rather than relying on the fabricated medical records that K.B. had faxed to his office, Dr. Davis attempted to ensure that “K.G.” still suffered from PTSD. Accordingly, he had K.B. describe “K.G.’s” purported symptoms. In doing so, K.B. described experiencing nightmares and/or flashbacks for a long period of time and probably alluded to them being related to “K.G.’s” military service. K.B. also mentioned experiencing generalized anxiety and headaches.11 In addition to discussing PTSD and medical marijuana, Dr. Davis measured K.B.’s blood pressure, heart rate, temperature, respiration rate, height, weight, and body mass index. He noticed that her blood pressure was 10 The Department’s expert witness, Dr. Jeffrey Danziger, testified that PTSD “involves the development of certain characteristic symptoms following exposure to one or more extreme traumatic events. And the traumatic event must involve exposure to actual or threatened death, serious injury, or sexual violence. The person must directly experience the trauma, witness it occurring to others or learn that it occurred to a close family member or close friend. Or the exception is people exposed to – with repeated exposure to trauma such as first responders or police officers.” 11 Dr. Davis testified that K.B. “indicated a lot of symptoms. She had extreme nightmares, anxiety, insomnia, and social isolation, some depression, although she made it very clear to me that she wasn’t suicidal. I remember making it clear. She – and I said, ‘social isolation,’ she said she was gaining weight, she said she was having a lot of – she said flashbacks and having a lot of recurring thoughts about death or death of her friend. I think she may have said some other things but those were sort of the salient points and certainly were enough to corroborate her past medical history and her current symptoms.” moderately high and checked her lower extremities for edema. While her blood pressure was not high enough to cause him to prescribe a hypertension drug, Dr. Davis did recommend that she see a primary care physician about her elevated blood pressure. Dr. Davis also checked K.B.’s bodily strength and conducted a gait analysis. K.B. described her demeanor during the appointment as “somewhat brief and evasive” and acknowledged that she was intentionally attempting to give Dr. Davis as few details as possible about her purported symptoms. For example, K.B. deflected Dr. Davis’s questions about the nature of the nightmares and/or flashbacks by saying they were too painful to discuss.12 K.B. acknowledged during her testimony that there was no difference between the symptoms she described to him and the symptoms documented in “K.G.’s” fabricated medical records. Also, K.B. did not recall giving Dr. Davis any information that would suggest “K.G.” did not have PTSD. Dr. Davis and K.B. did not go into great detail about any PTSD treatment that “K.G.” had received between 2008 and the time of the appointment with Dr. Davis, and K.B. did not recall any discussion about taking any medications that might interact negatively with medical marijuana. However, K.B. did tell Dr. Davis that Xanax and Zoloft had not been helpful and were discontinued. She also told Dr. Davis that “K.G.” had previously used medical marijuana and that the treatment had been effective.13 12 While Dr. Davis estimated that the appointment lasted 24 to 30 minutes, K.B. estimated that it lasted 15 minutes. Nevertheless, K.B. testified that she did not feel rushed during the appointment and did not feel that Dr. Davis should have afforded her more time. “I can say this: From the discussion that we had and from the exam that he gave and the discussion we had about the product and he asked me if I had any additional questions, so – and I believe I said I did not at that time, so I think we were done having that discussion.” Also, in response to a question asking if the appointment would have taken longer if she had not been intentionally evasive, K.B. testified that, “I’ll say that Dr. Davis was willing to answer any questions I had if I had chosen to be longer-winded. So I don’t feel like I was rushed and I don’t feel like I was kept in there longer than I needed to be. I’d say it was fair.” 13 With regard to K.B.’s description of “K.G.’s” medical marijuana use, Dr. Davis testified that, “For her symptoms, she had used it previously and it was very effective for her in The fabricated medical records and what was relayed to him during the appointment convinced Dr. Davis that medical marijuana was appropriate for “K.G.”14 At that point, Dr. Davis discussed the risks and benefits associated with medical marijuana, the different types of medical marijuana, and the different delivery methods. Dr. Davis mentioned that one type of medical marijuana would be better to use at nighttime and another would be better for daytime use if she lacked energy. He instructed her to begin with very small doses and gave her a preprinted log to keep track of the amount she was taking. K.B. acknowledged during her testimony that Dr. Davis told her that she did not have to acquire medical marijuana at Trulieve and that she could acquire the product wherever she chose.15 K.B. also acknowledged that Dr. Davis never referred to himself as Trulieve’s “in-house doctor,” and that he never indicated that he had any relieving her symptoms. She also related to me that she had tried not only the – I think she had indicated not only the other medications that were specifically listed on here, but had tried multiple medications and treatments and had not had a lot of success or had had side effects, but that she had used marijuana in the past with excellent results.” 14 Dr. Davis remarked that, “This was a pretty classic textbook case of post traumatic stress, as it was designed to be. She was a very good agent.” 15 Dr. Davis testified that patients frequently ask him to recommend a dispensary. However he does not do so because “that’s not my job. I have no interest in any dispensary. I actually have very good relationships with all the dispensaries, and my business is to educate people about – make sure that they’re qualified and then educate them about the safe use of marijuana and what products might be appropriate for them, et cetera, it’s not which dispensary. And it’s also a very individualized thing. You know, people like different dispensaries for different reasons, they have different products, and the system is actually designed specifically to encourage people to be allowed to go to different dispensaries, and that’s very different than narcotics where it’s very frowned upon. If you go to – if you get an Adderall prescription and then you go to another pharmacy, it’s very frowned upon, whereas this system is specifically set up to be transparent and allow people to go to any dispensary that they wish, and I encourage that.” relationship with Trulieve. Also, Dr. Davis corrected K.B. when she referred to Trulieve as “your dispensary.”16 Findings Regarding the Sufficiency of Dr. Davis’s Assessment of “K.G.” Dr. Davis’s medical records for “K.G.” list her problems as PTSD stemming “from traumas she witnessed in the military,” anxiety, flashbacks, and extreme nightmares. His medical records note that “K.G.” “[s]ays that the worst for her has been nightmares. She is looking for something that can help her. She has tried numerous medications in the past and they have not worked and she hates the side effects.” Dr. Davis also noted that “K.G.” “has tried [medical marijuana] in the past and it worked very well for her.” Dr. Jeffrey Danziger has been a Florida-licensed psychiatrist since November of 1986, and he has treated patients suffering from PTSD. Dr. Danziger based his testimony about the diagnosis of PTSD on the Diagnostic and Statistical Manual, Fifth Edition, the DSM-5. In addition to suffering a severe trauma, Dr. Danziger explained that someone suffering from PTSD must have “at least four categories of symptoms:” The first category is the presence of intrusion symptoms associated with the traumatic event, which can incur – involve recurrent and intrusive distressing memories, recurrent distressing dreams in which the content or nature of the dream are related to the trauma, dissociative reactions and/or if one is exposed to stimuli that symbolize or resemble the traumatic event they develop intense or prolonged psychological distress or marked physical reactions. The second broad category is persistent avoidance of stimuli associated with the trauma, which can be efforts to avoid distressing memories, thoughts or feelings, or avoidance or efforts to avoid external 16 When asked if she had any reason to believe that Trulieve and Dr. Davis were referring patients to one another, K.B. testified that, “I’m just basically saying that in my presence, no one did any direct referral from one – from the doctor to the business or from the business to the doctor. While the – while the employee of Trulieve did say that Dr. Davis was the in- house doctor, he did not state [that] I had to get product if I saw Dr. Davis at Trulieve.” reminders, people, places, conversations, objects or situations that remind them of the trauma. The third category is that of negative alternations in cognition and mood associated with the trauma, which begins or worsens after the trauma occurred. And there’s several – there’s seven factors, somebody must have two or more of them. Persistent or exaggerated negative beliefs about oneself or the world; trouble remembering a key event to the trauma; inappropriate guilt; distorted cognitions that lead them to inappropriately blame themselves or others; a persistently negative emotional state such as fear, horror, anger or guilt; markedly diminished interest in activities; feelings of detachment or estrangement from others; or, the inability to experience positive emotions. You need to have at least two of those seven. The fourth broad category is marked alternations in arousal and reactivity associated with the trauma. And people suffering from PTSD need to have two of the following six. Irritability and angry outbursts, reckless or self-destructive behavior, hypervigilance, an exaggerated startle response, problems with concentration or sleep disturbance. And a few other qualifiers are that this constellation of symptoms in response to a sufficiently severe qualifying trauma must last at least one month. That the syndrome causes significant distress or impairment in functioning, either social, occupational or other important areas. And the disturbance is not due to the effects of a drug or other medical condition. So these are the basis criteria for PTSD as defined in our Diagnostic and Statistical Manual, Fifth Edition. Based solely on a review of the medical records that Dr. Davis maintained for “K.G.”, Dr. Danziger offered the following critique: We know that, looking at the military records, that Criterion A [was] probably met. Criterion A means exposure to actual or threatened death or serious injury. So, if those records from 2007, what they reflected, that would be a sufficient stressor. Now what the patient talked about was, there’s references on the problem list to anxiety, flashbacks and nightmares. Now flashbacks and nightmares are intrusion symptoms, which are B. But there [were] no questions asked as to how often, how frequent, how distressing, tell me about the flashbacks which involve a literal – involve a sense that the incident is literally recurring. So, but Criterion A was probably in the old notes and if she did talk about extreme nightmares and was reluctant to discuss them, all right. I’d give him Criterion B. But what we’re not seeing is, was there any investigation as to avoidance of stimuli, negative alternations in cognition and mood or marked alternations in arousal and activity. So there’s some information as to a qualifying stressor contained in the old records and some information, albeit brief, about nightmares. But other important facets of PTSD were not addressed. Further, there’s a reference there to she’s been tried on numerous medications. Well, what medications? It’d be reasonable to ask what medications were you tried on that failed. And then secondly, in treating PTSD, there are various specific psychotherapies [that are] very useful in the treatment of PTSD. And that would include cognitive processing therapy, cognitive exposure therapy and EMDR, the eye movement resonance treatment. So there was, in other words, there was no inquiry into what medicines have you been on that failed and then have you had any counseling or psychotherapy. Because PTSD spontaneously resolves for up to half of those suffering from it, Dr. Danziger was adamant that Dr. Davis could not base his diagnosis solely on “K.G.’s” old medical records: The records from a decade earlier reflect Criterion A, which refers to a sufficient stressor. That’s there. And Criterion B. She says she’s having nightmares, she didn’t want to talk about it further. Okay. I’ll give him Criterion B. I’ll give Dr. Davis that and if someone didn’t want to talk about it, you don’t want to force it. But there’s no reference to C, D, and E, which is the avoidance behavior, negative alterations and marked alterations in arousal and reactivity. And no documentation as to, well, what treatments were tried, what medicines were you on, did they do individual therapy, group therapy, how did you respond. That’s what’s missing. So what’s missing in terms of PTSD assessment is the full dimension of PTSD, is it still present and what treatment did you or did you not receive before making his decision on how to treat. Despite the supposed shortcomings in Dr. Davis’s diagnosis of “K.G.”, Dr. Danziger declined to say that Dr. Davis’s diagnosis was erroneous: I would answer that by saying she had possible PTSD, but the examination was not complete enough to definitively make the diagnosis and proceed with treatment. So, possible PTSD, but insufficient data to verify that was the right diagnosis. Dr. Danziger also qualified his testimony by stating he was not comfortable opining about the standard of care in different specialties and, as a psychiatrist, he is not a qualified physician under section 381.986: Q: Is there any difference in what you would anticipate for an initial patient visit or an encounter to make a determination of posttraumatic stress between a psychiatrist and a non-psychiatrist? A: There likely would be. My colleagues in primary care treat hypertension, diabetes, asthma, arthritis, heart failure, a host of medical conditions that I don’t treat. Some may – some of my colleagues in primary care and internal medicine are very comfortable treating psychiatric conditions and only referring those who are the most severe or refractory to treatment, and others refer just about everything. So it depends on the practitioner. I want to be careful opining what’s an appropriate standard on a different specialty than mine. Dr. Davis had “K.G.’s” fabricated medical records at his disposal, and those records indicated that she had been diagnosed and treated for PTSD. In addition, Dr. Davis’s own exam indicated that “K.G.” had several symptoms indicating she was still suffering from PTSD. Section 381.986(4)(a) requires a qualified physician to conduct “a full assessment of the medical history of the patient,” and Dr. Davis did not gather a significant amount of information about “K.G.’s” struggles with PTSD during the years between the last fictitious appointment in 2008 and her appointment with Dr. Davis in 2017. However, the Department has not adopted a rule elaborating on what a qualified physician must do in order to conduct a “full assessment.” Also, the Department has not adopted a rule requiring qualifying physicians to follow the DSM-5. The evidence does not clearly and convincingly demonstrate that Dr. Davis violated section 381.986(4)(a) by failing to conduct a full assessment of “K.G.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine issue a Final Order dismissing the Administrative Complaint against Justin C.K. Davis, M.D. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 14th day of April, 2020. COPIES FURNISHED: Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Mark S. Thomas, Esquire Thomas Health Law Group, P.A. 5200 Southwest 91st Terrace, Suite 101-B Gainesville, Florida 32608 (eServed) Major Ryan Thompson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health Board of Medicine 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed)
Findings Of Fact The Petitioner is an agency of the State of Florida charged under Chapter 943, Florida Statutes, and related rules, with regulating the licensure status, including determination of entitlement to licensure, of law enforcement and correctional officers in the State of Florida. The agency is also charged by the Legislature with regulating and enforcing the practice standards for certified law enforcement officers, including correctional officers, embodied in Chapter 943, Florida Statutes, and related rules. The Respondent was certified by the Criminal Justice Standards and Training Commission (Commission) on or about March 7, 1991. She was issued corrections certification number 45-90-502-11. From March of 1991 through July 31, 1992, the Respondent was employed as a corrections officer for the Taylor County Sheriff's Office. She has no criminal record and no record of administrative discipline of any sort. During the course of her training to be a corrections officer, the Respondent received classroom training in the identification of controlled substances, including cannabis (marijuana). This training included the viewing of actual cannabis in the classroom but did not include training in recognizing it as a growing plant in the field. Charles R. "Chuck" Morgan is an employee of the Perry Lumber Company. On or about July 29, 1992, and until sometime in February of 1995, he was employed by the Taylor County Sheriff's Office. Danny Williams is an investigator with the Taylor County Sheriff's Office and has been employed in that capacity since January of 1990. Investigator Williams has had training in the aerial detection, and other means of identification, of marijuana. He participates in four to eight flights per year in aircraft searching for marijuana plants, essentially in rural areas of Taylor County. On July 29, 1992, Investigator Williams was the passenger in a helicopter, provided to the Taylor County Sheriff's Office by an unknown agency, participating in an aerial search for marijuana plants. During this search, he noticed what appeared to be marijuana plants growing in or adjacent to the backyard of a residence which proved to be the Respondent's residence. Investigator Williams, upon being landed at the airport, entered his patrol vehicle and drove to the residence of the Respondent and her husband, James Byrd. On route to that location, Investigator Williams, presumably by radio communication, summoned other law enforcement officers of the Taylor County Sheriff's Office. He was, therefore, met at the front gate of the residence premises in question by Captain Worsham and Sheriff Deputy Chuck Morgan and others. The front gate was on the portion of the premises immediately adjacent to the public thoroughfare by which the premises are normally entered by vehicles. The residence premises contained a wood-frame house on a well- landscaped yard of a fairly-open character with few or no trees. The rearward portion of the premises, analogous to the "backyard", was that portion of the premises most distant from the public highway (toward which the house faces). It is observable by an observer looking in the opposite direction or away from the public highway upon which the premises fronts. In this rearward portion of the premises, in a rearward corner of the backyard, there was a dog pen, located approximately 75-100 feet from the northwest corner of the rear portion of the house. Investigator Williams and Deputy Morgan observed an individual, who proved to be James Byrd, the Respondent's husband, recognized by Investigator Williams, standing behind the dog pen. They observed him in that location attempting to cut down several plants which were growing there. Deputy Morgan stopped Mr. Byrd from cutting any other plants and removed him from the immediate area. He was ultimately taken into custody that day. The plants he was attempting to cut down proved to be cannabis plants. Investigator Williams and Deputy Morgan observed 13 cannabis plants growing in that location behind the dog pen. Most of the plants were approximately 10-12 feet tall. Investigator Williams took samples from the grown plants, and a laboratory analysis proved the plants to be cannabis and that the samples taken totaled 27.3 grams of cannabis. The cannabis plants were in plain view from the residence. They were tall enough to be observed over the top of the dog pen, which lay between the back wall and back door of the residence, the site where the plants were growing and immediately adjacent to it. Deputy Morgan described the area where the cannabis was located as being in a clear, open area with grass but no high weeds which would conceal the cannabis from the plain view from the rear portion of the residence. Investigator Williams has received some training in the growth rate of cannabis plants so that he could make a somewhat educated estimate of the age of the plants found behind the dog pen. He estimates that they could have grown to a height of 10-12 feet in approximately 60 days, depending upon climatic conditions, care and maintenance, and the amount of fertilization they received. The mature plants, as well as the small plants, discovered growing adjacent to the dog pen, would in Investigator Williams' experience, produce something in excess of 13 pounds of cannabis leaf. Investigator Williams and Deputy Morgan also observed a bucket and flowerpot in the backyard containing several smaller cannabis plants. These containers and plants were in plain sight from the rear portion of the residence. Deputy Morgan escorted Mr. Byrd to the residence and obtained his consent to search it for cannabis. Deputy Morgan, with Mr. Byrd's cooperation, discovered a partially-smoked cannabis cigarette in a desk drawer in the family room of the residence and also found rolling papers and marijuana-smoking paraphernalia in the desk, as well. Deputy Morgan then proceeded to the bedroom shared by Mr. Byrd and his wife, the Respondent. In the bedroom closet, he located approximately one-half pound of marijuana in a grocery bag on the floor in the middle of the closet. In the closet were both male and female clothing, with each spouse having a designated side of the closet for their personal clothing and other items. The middle of the closet contained a filing cabinet, which was for the Respondent's use. A laboratory analysis determined that the bag found on the closet floor contained approximately 118 grams of cannabis. Mr. Byrd admitted to Investigator Williams and Deputy Morgan that the cannabis found belonged to him and that smoking cannabis was a bad habit he acquired during his service in the Vietnam War. He stated to them that he grew the cannabis for personal consumption and was not engaged in the sale or distribution of it. He stated that he smoked cannabis but that his wife, the Respondent, did not. He never stated to law enforcement officers that the Respondent had knowledge of the cannabis in the residence and on the surrounding curtilage. The Respondent was not present at the residence that day when the officers seized the cannabis and arrested Mr. Byrd. She was at Moody Air Force Base in Valdosta, Georgia, at the time and only learned of her husband's arrest and the incident when she returned late that afternoon. She learned of it from her father or daughter, who also resided on the premises. There is a separate mobile-home residence on the same parcel of property as the house in which the Respondent and her husband reside. Although the officers, on the day in question, interviewed Mr. Moore, the Respondent's father, who resided in the mobile home, they never questioned the Respondent and charged no one other than James Byrd. The Respondent was terminated from her position with the sheriff's office on approximately July 31, 1992 because of the above-described incident. After her termination from her job with the sheriff's office, the charges against her husband, James Byrd, were "nol prossed". The Respondent and Mr. Byrd have been married for approximately 35 years. They have resided in Taylor County since November 1, 1979 and have resided in the same residence where the cannabis was found and shared the bedroom and closet where some of it was found since that time, including on and around the date in question. The Respondent was not a record title holder of the premises on which the cannabis was found but considered herself as having a practical ownership interest in the residence. Despite his statement to law enforcement authorities that he had had the habit of smoking cannabis since returning from the Vietnam War, the Respondent denied knowledge of her husband's cannabis habit. Although they had been married for 35 years and resided in the same residence, including at the times when the marijuana in question was placed in the residence and grown in the backyard of the residence, the Respondent maintains that she had no knowledge of its presence on the premises. She maintains that she had no knowledge of her husband's cultivation and use of marijuana. Neither the Respondent's husband nor any other witness testified in corroboration of the Respondent's denial of knowledge of the presence of cannabis on the subject premises. Although, as the Respondent stated, Mr. Byrd commonly cared for the dogs which are normally kept in the dog pen, and the Respondent seldom went to that vicinity of the backyard, the marijuana plants growing adjacent to the dog pen were in plain view from the rear portion of the house itself. The Respondent's testimony is the sole testimony that is exculpatory. She is an "interested witness" testifying on her own behalf, in a proceeding where she can potentially lose the valuable right to practice her livelihood. In consideration of the totality of the evidentiary circumstances and the demeanor of the witnesses, it is found that, indeed, she knew of the presence of the growing marijuana on the premises and the marijuana which was found inside the residence. It simply strains credulity beyond acceptance that she could live with her husband in the same residence, in the same bedroom and use the same closet for a substantial period of years and not know of the marijuana smoking habit he freely admitted to and his activities involved in growing marijuana in plain sight on their marital premises. In addition to the Respondent having no record of any criminal or administrative offense, the above-found misconduct was not facilitated by the Respondent's official authority nor did it occur while she was performing her duties. There was no damage or danger caused to others by her conduct. The Respondent gained no pecuniary benefit from the misconduct and its effects, through penalties, can obviously damage her livelihood, which is already the case. Finally, her employing agency has already imposed the discipline of termination approximately three and one-half years ago. Rule 11B-27.005(6)(a- v), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that her certification be suspended for one year, with one additional year of probation, as well as such career development training or re-training as the Commission shall deem appropriate. DONE AND ENTERED this 29th day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3844 Petitioner's Proposed Findings of Fact 1-20. Accepted. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert J. Schramm, Esquire Post Office Box 29 Perry, Florida 32347-0029 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement O. Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Respondent’s license should be disciplined; and if so, what penalty should be imposed.
Findings Of Fact The Respondent, Lashawn R. Williams, was certified by the Petitioner as a correctional officer on May 22, 2001, and was issued certificate number 197081. Eventually, the Respondent was employed as a full-time correctional officer by the Corrections Corporation of America. Sometime prior to June 20, 2004, the Respondent’s apartment received smoke damage from a fire that had occurred in the unit next to her. Because of the damage, she and her two children, ages seven and one, were required to temporarily move while repairs to her apartment were being made. She moved in with Typhrus McNeil and his father, Connie McNeil at 112 Cheri Lane, Parker, Florida. The McNeil residence is a small two-bedroom townhouse of approximately eight hundred square feet. The front door is located about twenty feet from the street. Typhrus McNeil was the Respondent’s boyfriend. At the time, they had been dating for approximately three years. Mr. McNeil was the father of the Respondent’s youngest child and occasionally took care of the Respondent’s children while the Respondent was at work. At the time, Typhrus McNeil was also under community control for a 2004 drug charge. The Respondent Knew Mr. McNeil had a past criminal history, but felt he had changed. On June 20, 2004, Officer Aaron Wilson of the Parker Police Department received a “Crime Stoppers” tip. The tip consisted of an allegation that a male and a female person living at 112 Cheri Lane in Parker were engaged in the sale of narcotics from the residence. The tip also included an allegation that the female subject was conducting hand-to-hand narcotics transactions with the occupants of vehicles that pulled up outside the residence. Over the next two weeks, Officer Wilson conducted approximately six surveillances and observed activities ongoing at the McNeil residence. During his surveillances, Officer Wilson observed the Respondent coming and going from the residence along with her two children. He observed them playing outside. Officer Wilson also observed Typhrus McNeil, whom he recognized from past arrests, and his father Connie McNeil, coming and going from the residence. He observed vehicles driving up to the residence for short stops and leaving. On occasion, he observed people from the residence talking for a short time with the occupants of the vehicles, sometimes going back into the residence and then returning a short time later to talk with the occupants of the vehicles again. The vehicle would then leave the area. Officer Wilson described such activity as indicating drug-related activity was going on at the residence. Officer Wilson only observed the Respondent talk to the occupants of a vehicle one time. During his observation, the Respondent spoke with the occupants for a short while, went into the residence and returned to speak with the occupants of the vehicle some more. The vehicle then left. Officer Wilson did not observe the exchange of any money or drugs. There was no evidence regarding who the occupants of the vehicle were or whether the Respondent knew the occupants of the vehicle. This one observation does not clearly and convincingly demonstrate that the Respondent was engaged in drug related activity. On July 1, 2004, Officer Wilson applied for and obtained a warrant from the Circuit Court in Bay County to search for controlled substances and other related items in the McNeil residence. The warrant also authorized searches of persons and vehicles present at the residence. On July 2, 2004, Officer Wilson, together with several other officers, served the search warrant at 112 Cheri Lane in Parker. Upon arrival at the residence, Officer Wilson knocked and announced his authority and purpose for being there. Present in the residence were Typhrus McNeil, Connie McNeil, the Respondent, her two children and two visitors. Officers located and seized several items in the bedroom shared by the Respondent and Typhrus McNeil. These items were in plain view lying on the headboard of the bed. These included Typhrus McNeil’s wallet, which contained $1704 in cash, another $1335 in loose cash and an open box of clear plastic sandwich bags with $13 in cash protruding from the top of the box. The cash appeared to be in denominations of $20 or less. The Respondent believed the loose cash was from Mr. McNeil’s paycheck, which he had recently cashed. Next to the bed, officers located and seized a closed shoebox on the floor. Inside the shoebox, officers found a set of electronic scales consistent with the type utilized for weighing quantities of illicit drugs for purposes of sale. Also, officers located and seized two plastic bags containing cannabis residue along with two partially burnt cannabis cigarettes in a closed dresser drawer located in the bedroom. The evidence did not demonstrate that the Respondent knew about the contents of the shoebox or the dresser drawer. None of her personal effects were in the dresser drawer. There was no evidence showing the length of time the cigarettes had been in the drawer. In the common living room of the residence, officers located and seized a cannabis cigarette lying on top of the television adjacent to a remote control. The cannabis cigarette appeared to be in plain view of the occupants of the residence. However, there was no evidence of the length of time the cannabis cigarette had been on top of the television or that the Respondent had observed the cigarette there. In fact, the Respondent denies knowing about the activity at the McNeil home or the Marijuana cigarettes in the house. During the course of the execution of the search warrant, officers also located and seized several items in the second bedroom, occupied by Connie McNeil. These items included a box found in Connie McNeil’s closet, which contained suspected cannabis seeds and two partially burnt cannabis cigarettes located inside a nightstand drawer. Officers also located and seized nineteen clear plastic bags, each containing approximately one-half ounce of cannabis. The plastic bags were under the bed in the bedroom of Connie McNeil. Together, such quantities and packaging demonstrate that Connie McNeil was engaged in illicit drug sales and not simply possession of illicit drugs. However, the evidence did not demonstrate that the Respondent was aware of the activities of Connie McNeil or the contents of his room. During the course of the execution of the search warrant, officers also located and seized five partially burnt cannabis cigarettes located inside a closed kitchen drawer. Again, the evidence did not demonstrate that the Respondent was aware of the cigarettes in the kitchen drawer, especially in light of the fact that she was only staying temporarily at the McNeil residence. The McNeils and the Respondent were arrested and charged with drug possession and sale. The Respondent was also charged with child neglect. Eventually, all the charges were dropped against the Respondent. The aggregate weight of the cannabis seized by the officers was in excess of 20 grams. However, in this case, the evidence only raises suspicions that the Respondent may have known about the possession of marijuana in the McNeil residence. At the time, the Respondent was a temporary occupant of the residence, waiting for repairs to be completed on her apartment. The evidence is neither clear nor convincing that the Respondent actually knew of such possession. Likewise, the evidence did not demonstrate that the Respondent was aware of or engaged in any drug sales during her stay at the McNeil residence. The most incriminating evidence was not found in the bedroom where the Respondent slept, but in Connie McNeil’s bedroom or in closed drawers and boxes. The one cannabis cigarette that was in a common area does not clearly or convincingly demonstrate that the Respondent knew it was there or that she knew of any drug activity at the McNeil house. Finally, the evidence did not demonstrate the Respondent criminally neglected her children when she was staying at the home of one of the children’s father. Vague testimony regarding the possibility that living in close proximity to illicit drug activity might cause danger to the occupants of the home is not clear or convincing evidence that the Respondent is guilty of criminal child neglect. Given this lack of clear evidence, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found not guilty of violations of Subsection 943.13(7), Florida Statutes, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 1st day of March, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of March, 2006. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lashawn R. Williams Michael Crews, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times here relevant, Respondent, Howard W. Adams, held Florida teaching certificate number 237388, Graduate, Rank III, and Randy D. Ward held Florida teaching certificate number 404713, Graduate, Rank III. On or about 1 April 1979 Respondents were arrested by the Fort Myers police and charged with possession of marijuana. Respondent Adams, who was on continuing contract, was suspended without pay from his position in the Lee County school system and Respondent Ward, who was on annual contract, was fired from her position in the Lee County school system. Considerable publicity was given to the arrests and school board actions resulting therefrom. The criminal charges against these Respondents were subsequently dropped by the State Attorney's office for lack of evidence. This too received publicity in the local press. Suffice it to say the arrest and subsequent release of Respondent Adams was well-known by both faculty and students at Cypress Lake Middle School, where Adams taught orchestra, and by the adult population of Fort Myers with children attending the Lee County public schools. Both of the witnesses called by Petitioner testified that Respondent Adams' effectiveness in the school system had been seriously reduced as a result of the marijuana incident. This loss of effectiveness was caused by the belief that Adams had, in fact, violated the law by having in his possession marijuana. Since Adams was suspended from his position on the faculty at Cypress Lake Middle School as soon as the newspapers published the circumstances surrounding his arrest, no specific incidents to show how Adams' effectiveness had been reduced was available, let alone presented, to support these conclusions. No evidence regarding the loss of effectiveness of Respondent Ward was submitted. Fort Myers and Lee County are populated predominantly by residents with a conservative outlook on morals and moral values. As a result, possession of marijuana is deemed a more serious offense in Lee County than in more cosmopolitan areas. Students found in possession of marijuana on school premises are routinely expelled. Possession of drugs of any sort is deemed immoral in this area, and marijuana is included in the definition of drugs.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that their teaching certificates numbered 237388 and 404713 be revoked. DONE and ENTERED this 27th day of August, 1980, in Tallahassee, Leon County, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1980. COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Dr., Ste. 224 Tallahassee, FL 32301 Philip Padavano, Esquire P. O. Box 527 Tallahassee, FL 32302
The Issue Whether the proposed rules that comprise Florida Administrative Code Chapter 64-4 (Proposed Rules) constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: The Parties The Florida Department of Health is an executive branch agency of the State of Florida created pursuant to section 20.43, Florida Statutes.1/ The Department is primarily responsible for implementation of the Compassionate Medical Cannabis Act of 2014, as codified at section 381.986. Petitioner Costa Farms, LLC, is a limited liability company with its principal place of business at 21800 S.W. 162nd Avenue, Miami, Florida 33170. Costa Farms is a nursery that possesses a valid certificate of registration with the Department of Agriculture pursuant to section 581.131, Florida Statutes; has operated as a registered nursery for 30 years; and is operated by a nurseryman. Petitioner Plants of Ruskin, Inc., is a Florida corporation whose business address is 901 4th Street, N.W., Ruskin, Florida 33570. Plants of Ruskin is a nursery that possesses a valid certificate of registration with the Department of Agriculture pursuant to section 581.131; has operated as a registered nursery for 30 years; and is operated by a nurseryman. Petitioner/Intervenor, Florida Medical Cannabis Association, Inc., is a Florida corporation whose business address is 1299 Fairbanks Avenue, Suite A, Winter Park, Florida 32789. FMCA represents a substantial number of its members that will be regulated by and are substantially affected by proposed chapter 64-4. The subject matter of proposed chapter 64-4 is within the Association’s general scope of interest and activity. Petitioner/Intervenor Tornello Landscape Corp. a/k/a “3 Boys Farm Company,” is a Florida corporation doing business at 704 21st Avenue, S.E., Post Office Box 789, Ruskin, Florida 33570. Tornello Landscape is a nursery under section 581.131; has operated as a registered nursery for 30 years; and is operated by a nurseryman. Intervenor Tree King-Tree Farm, Inc., is a Florida corporation with a principal place of business located in Pasco County, Florida, at 4903 State Road 54, New Port Richey, Florida 34652. It also alleges to have been owned and operated by a nurseryman for 30 continuous years with greater than 400,000 plants in cultivation. The Compassionate Medical Cannabis Act of 2014 During the 2014 legislative session, the Florida Legislature passed Senate Bill 1030 entitled the “Compassionate Medical Cannabis Act of 2014,” chapter 2014-157, Laws of Florida (the “Act”). The Act represents an historic and momentous change for the State of Florida regarding the regulation and use of cannabis, previously a Schedule-1 drug in all forms. To provide relief for patients with debilitating diseases, the Act allows for the use of low-THC cannabis by qualified patients for medical use when ordered by a Florida physician. The Act authorizes licensed physicians to order low-THC cannabis beginning January 1, 2015, for qualified patients under specified conditions, primarily those suffering from cancer or severe and persistent seizures and muscle spasms. The Act charges the Department with the vast majority of responsibilities associated with implementation. The Department is required to establish a compassionate-use registry by January 1, 2015. The Department is also required to establish the Office of Compassionate Use within the agency and work with the state university system to bring FDA-approved investigational new drugs for the treatment of refractory epilepsy to Florida. The Act also appropriated $1 million to the Department’s Biomedical Research Council to further state university research related to cannibidiol and its effect on childhood epilepsy. Finally, the Act requires the Department to authorize, by January 1, 2015, the establishment of five dispensing organizations to grow, refine, and dispense low-THC cannabis to qualified Florida patients. The Department’s Rule Development Process Immediately after the 2014 legislative session, the Department started its work to establish a regulatory structure for approving five dispensing organizations. The Department researched statutes and rules in other states where cannabis had already been legalized in some form. None could be easily patterned because no other state had limited the number of dispensing organizations to five and restricted medical use to only low-THC cannabis derivative products. Through the Department’s research, it also recognized the necessity of establishing a robust regulatory structure because cannabis, in any form, remains illegal under federal law with no accepted medical use. Prior to July 1, 2014, Florida’s state and local law enforcement agencies worked in partnership with federal authorities to regulate cannabis through enforcement of identical narcotics laws. The passage of the Compassionate Medical Cannabis Act of 2014 fundamentally altered the long-standing narcotics enforcement partnership between the federal law enforcement agencies and state and local law enforcement agencies. The Department reviewed several memoranda and other guidance from the United States Department of Justice issued in response to laws in several other states legalizing the manufacture, distribution, dispensing, and possession of cannabis. Especially important to the Department were the eight federal enforcement priorities consistently identified by the Department of Justice in its memoranda: Preventing distribution of cannabis to minors; Preventing cannabis revenue from going to criminal enterprises such as gangs or cartels; Preventing the diversion of cannabis to other states; Preventing state-authorized cannabis activity from serving as a front for the trafficking of other illegal drugs; Preventing violence and the use of firearms in the cultivation and distribution of marijuana; Preventing drugged driving and other adverse public health consequences associated with cannabis use; Preventing the growing of cannabis on public lands; and Preventing cannabis possession or use on federal property. It was clear from the federal guidance that it was the responsibility of the state to ensure protection of the eight federal enforcement priorities through the enactment of a robust regulatory structure that maintains the enforcement partnership between state and local law enforcement agencies and federal authorities. A failure to do so would create a very real risk for challenge by the federal government to the regulatory structure established by the state. Thus, in developing its proposed rules, the Department was appropriately mindful of the illegality of low-THC cannabis under federal law and the necessity for a robust regulatory structure that protected the eight federal enforcement priorities. The Department estimated that the cost of setting up the “robust regulatory structure” was in the range of $750 thousand to $1.5 million. Another fundamental consideration for the Department was whether any rule promulgated as part of the new regulatory structure could impose regulatory costs that would trigger the legislative ratification requirement described in section 120.541, Florida Statutes. Because the Act required the authorization of five dispensing organizations by January 1, 2015, the Department believed it was precluded from promulgating any rule that imposed regulatory costs on the dispensing organization applicants that would trigger a legislative ratification requirement. Another overall consideration for the Department was the lack of a legislative appropriation to support the Department’s efforts. The Department was required to use existing resources to establish the regulatory structure and meet the other requirements of the Act. The necessity to use existing resources, the time limitation, and the unique statutory structure also limited the Department’s ability to hire “cannabis experts” to assist with the rulemaking process and development of merit selection standards to be used in evaluating applications. The Department issued draft proposed rules for selecting dispensing organizations and other aspects of the program on July 2, 2014. It conducted rule development workshops on July 7 and August 1, 2014. Each of the workshops was attended by over 200 people, with more than 100 persons offering verbal comments on the draft rules. On August 29, 2014, the Joint Administrative Procedures Committee (JAPC) issued a letter commenting at length on the proposed rules, to which the Department responded on September 10, 2014. The Department held a public hearing on the proposed rules on September 5, 2014. It subsequently issued a Notice of Change/Withdrawal reflecting some technical changes to the proposed rules on September 9, 2014. Department General Counsel Jennifer Tschetter had primary responsibility for preparing the proposed rules. Her career has been as a lawyer with experience in agency rulemaking; she does not claim any prior expertise in nursery operation, supply of medical cannabis, business plans, or finance. The Department had no such expertise when the bill passed in May 2014, and due to fiscal and other constraints, the Department did not hire a consultant to assist it in developing comparative review standards to be utilized in evaluating applications. On July 2, 2014, the Department appointed Linda McMullen to be the Director of its Office of Compassionate Use. Ms. McMullen was previously a Department staff lawyer under Ms. Tschetter; her career has been as a lawyer. She did not claim experience in program areas relating to supplying medical cannabis. Cultivation and Production of Low-THC Cannabis The low-THC cannabis product that the selected dispensing organizations will be responsible for growing, extracting, and delivering is targeted for a very vulnerable population, including children suffering from cancer and chronic and uncontrollable seizures. Since the low-THC cannabis derivatives will be given to persons with serious medical conditions, it is imperative that the product not contain any impurities that could trigger an adverse reaction in the patient. However, there is a dearth of information as to what pesticides, fungicides, fertilizers, or other inputs may safely be used in cultivating cannabis in Florida. Robert Tornello, an expert in nursery operations, credibly testified about this problem as follows: But what this refers to in cannabis, is it’s not that we are going into unknown waters as far as just the growing part of it. Where we are going is into an area, because of the amount of years that this particular plant has been labeled as a schedule 1 drug, including industrial hemp, which is grown all over the world, the problem we’ve got is that the Environmental Protection Agency, EPA, is the one who writes and approves guidelines for any of the inputs that you would use on a plant. For example, if you were growing apples, you could actually be able to cross reference apples with whatever visual problem that you see and you would come up with a list of -- potentially there are deficiencies that may occur and how to fix those with either synthetic or organic compounds, or there would be a list of different possible pathogens or issues that would show you all the different pesticides that could be used, as well as fungicides. And when we get back to cannabis, because of its being a schedule 1 drug for so many years, there are absolutely no, as in zero, chemical compounds that have been tested for rates as far as minimums or maximums, and as well as efficacy. And as well as -- now I am getting feedback (from his microphone). So, my point is that without any testing that has ever been done on cannabis, we have a unique situation. This is one that I brought up with both Jennifer and Linda at the hearings. And my concern is not just what growers are being told to do or suggested they can or cannot do. The most important precedent that we have to deal with is the law. And the law clearly states -- in Florida we have a statute, I believe it’s 487, that the division of or actually part of the Department of Agriculture, and in that statute it tells you all about the uses of pesticides and applications, things that can be done, that can’t be done, and the methods and applications. It’s a little bit long- winded, almost as I am right now. But the point is that it clearly states in several of the subchapters, as it does also with the environmental protection rules, is that if a pesticide or compound or fungicide or anything even organic compounds are not listed for that particular plant, they cannot be applied to that plant; because nobody knows, just without at least a hundred tests and those have been approved then by the departments, of what is minimums or maximums for applications and the efficacy and what amount of residual chemical may show up or is allowable, most importantly, a product. And where this is so critical on the Bill 1030, the Charlotte’s Web law, is that we are talking about the growing of a plant that most of us -- and in this particular case with regard to cannabis, I also truthfully do not grow, but it’s important to understand that with cannabis, you can’t apply anything to it without -- you can’t guess at it. Because if you do and you think that the application rate is safe or one that you’ve used on a plant that you would think is the same leaf structure or type, or genera, you could be very, very wrong and, as a result, the pesticides that are absorbed by the actual plant by contact, plus what’s on there as residual, would then translocate through the extraction process. And then when we get into extraction and you have an oil, as in the case with the Charlotte’s Web bill, then we are looking at -- which I was happy to see that they listed as a parts per billion test for pesticides, because any little bit of chemical that could be on any of these plants and that can be absorbed through by the caregiver to the patient, ultimately if you have an autoimmune disease or have a neurological disease, those either have metal compounds or those particular synthetics can be a trigger. (Transcript, pgs. 107-110). Many registered nurseries in Florida have experience only in growing ornamental plants. The evidence established that some of the nurseries that meet the 30-year registration requirement and the 400,000 plant threshold set forth in the Act have little or no experience growing food products or plants that can be used for medicinal purposes or human consumption. The significant chemical and safety issues inherent in growing medical cannabis require skills and expertise that are not typically required for growers of strictly ornamental (as opposed to ingestible) plants. As Mr. Tornello credibly testified: But knowing what we know about the nursery business in general and also enjoying those hearings which were also educational, is that quite a few of the nurserymen were very candid about speaking, and clearly stated that they are just a nurseryman and they know understand plants and, given enough time and enough money, they would develop enough experience to eventually become proficient in growing this. And to me, in my heart, I felt bad for some of these guys because, you know, this is not -- growing at these levels is not easy. It requires on average three hours of paperwork a day. It’s just agonizing, the paperwork. The audits, we have 13 books that are this thick of books that are forensically gone through by the food safety people, as well as refrigeration and harvest groups and things of this nature. So when I saw all this happening, I knew that the lottery became strictly a chance-based scenario and it wasn’t merit-based or experience-based. And to me, I had to object to it. (Transcript, pgs. 121, 122). Cannabis is a product that is not native to Florida, and the ability to grow the product safely and effectively depends on a number of complex factors which are not addressed in the proposed rules. Michael Rimland, accepted as an expert in nursery operations and in the development of new non-native plant varieties for production in Florida, described the risks in growing low-THC cannabis in Florida for a nursery that does not have experience in introducing and cultivating non-native varieties: First would be failure, actually crop loss, not be able to actually produce the plant. And the plant would die from cultural conditions not being adapted properly, physiological conditions not being adapted properly, or some other type of issue that they just have not learned how to produce it. Or it could be crop timing; the crop is a very sensitive crop when it comes to timing. Basically it’s eight weeks. Eight weeks in one vegetative form, eight to ten weeks in flowering form. Could also be in the quality of the product that’s produced, without understanding again the protocols that are required to produce it perfectly and timing is a huge factor in producing it perfectly. (Transcript, p. 64). Mr. Rimland also testified that not all nurseries with 30 years’ experience in Florida will have the same likelihood of success in efficiently producing low-THC cannabis for medical use. Because cannabis is not native to Florida, an important factor in predicting success is the nursery’s demonstrated ability to successfully produce a large number and variety of non-native genera and species. It is not sufficient simply to hire someone who has produced medical cannabis in another state, because growing conditions in Florida such as humidity, temperature, light conditions, and insect and disease thresholds are very different from those found elsewhere. Mr. Rimland testified that there are at least 20 different varieties of low- THC cannabis, all of which have different production requirements, so the dispensing organization will have to address these issues in introducing different varieties to meet patient needs. A lack of specialized knowledge regarding introduction of non-native genera and species in Florida risks inability to produce the plant at all; delays in production; reduced crop quality; and increased price for the product, all of which may affect patient access. Additionally, the infrastructure required to safely and successfully cultivate cannabis is significantly different than what is required to grow ornamental plants. As explained by Mr. Tornello: The things that are different are primarily going to be the first initial set up. The greenhouses, as I said earlier, need to be pretty much hermetically sealed to avoid any pests or any kinds of problems; and you have to have vestibules again with alcohol mats so people don’t track in anything from the ground, because there’s a lot of different soil-borne pathogens that can come into a humid or a growing situation that could become virile. (Transcript, p. 130). Pedro Freyre, Costa Farms’ Vice President of its Foliage Division, also credibly testified concerning factors that predict whether a nursery will be able to dependably produce medical cannabis. According to Mr. Freyre, nurseries with established operations and experience in introducing new varieties of plants are better prospects for success in producing medical cannabis. Mr. Freyre agreed that there are numerous challenges to growing medical cannabis in Florida, such as climate control, pest control, contamination controls, establishing correct and adequate patient protocols, security structure, source materials, risk of loss of key personnel, and financial perils. A nursery with substantial financial resources, according to Mr. Freyre, is better able to weather initial growing pains, comply with regulations, and produce consistent high-quality products. Such nurseries may be better equipped and staffed to provide reliable inventory control. The nursery’s location, transportation system, and costs would all affect patients’ access to the product. Selection of Medical Cannabis Dispensing Organizations Section 381.986(5) directs, in pertinent part, that “by January 1, 2015, the Department shall” do the following: Authorize the establishment of five dispensing organizations to ensure reasonable statewide accessibility and availability as necessary for patients registered in the compassionate use registry and who are ordered low-THC cannabis under this section, one in each of the following regions: northwest Florida, northeast Florida, central Florida, southeast Florida, and southwest Florida. The department shall develop an application form and impose an initial application and biennial renewal fee that is sufficient to cover the costs of administering this section. An applicant for approval as a dispensing organization must be able to demonstrate: The technical and technological ability to cultivate and produce low-THC cannabis. The applicant must possess a valid certificate of registration issued by the Department of Agriculture and Consumer Services pursuant to s. 581.131 that is issued for the cultivation of more than 400,000 plants, be operated by a nurseryman as defined in s. 581.011, and have been operated as a registered nursery in this state for at least 30 continuous years. The ability to secure the premises, resources, and personnel necessary to operate as a dispensing organization. The ability to maintain accountability of all raw materials, finished products, and any byproducts to prevent diversion or unlawful access to or possession of these substances. An infrastructure reasonably located to dispense low-THC cannabis to registered patients statewide or regionally as determined by the department. The financial ability to maintain operations for the duration of the 2-year approval cycle, including the provision of certified financials to the department. Upon approval, the applicant must post a $5 million performance bond. That all owners and managers have been fingerprinted and have successfully passed a level 2 background screening pursuant to s. 435.04. The employment of a medical director who is a physician licensed under chapter 458 or chapter 459 to supervise the activities of the dispensing organization. * * * (d) Adopt rules necessary to implement this section. There are approximately 75 nurseries that possess a valid certificate of registration for the cultivation of more than 400,000 plants, are operated by a nurseryman as defined in section 581.011, and have been operated as a registered nursery in Florida for at least 30 continuous years. These 75 nurseries represent the potential pool of applicants seeking to become one of the five dispensing organizations authorized under the Act. Proposed rule 64-4.002(4)(a) provides that “[i]f more than one applicant for a dispensing region is qualified and its application is timely received, the department will provide a computer program method for a double random lottery-type selection by public drawing to designate the approved applicant and the order of the other applications within each dispensing region.” Pursuant to proposed rule 64-4.002(1), the Department will require applicants to submit a one-page application form which identifies the applicant and key personnel, with attached exhibits prescribed by the proposed rules as follows: Plan for cultivating, processing, and dispensing low-THC cannabis, including a business plan showing the applicant’s expected production, rule 64- 4.002(2)(b); Security and safety plan with at least certain listed features, rule 64- 4.002(2)(c); Quality assurance plan, rule 64- 4.002(2)(d); Documentation of the applicant’s ability to obtain and maintain the premises, facilities, resources, and personnel necessary to operate a dispensing organization, with, at a minimum, specific disclosures regarding facilities and employees, rule 64- 4.002(2)(e); Inventory control plan documenting the applicant’s ability to maintain accountability of all raw materials, finished products, and any byproducts, rule 64-4.002(2)(f); Documentation that the applicant possesses infrastructure reasonably located to dispense products to registered patients, and a transportation plan, if applicable, 64- 4.002(2)(g); Documentation that the applicant has equipment, training, ability, and personnel necessary to safely produce low-THC cannabis derivative products, rule 64-4.002(2)(h); Documentation of the applicant’s financial ability to maintain operations for the two year approval cycle, rule 64-4.002(2)(i); Documentation of the applicant’s ability to post a $5 million performance bond, the sole condition of which is to cover any cost incurred in disposing of inventory should the applicant fail to perform and need to be replaced, rule 64-4.002(2)(j). The above-listed nine categories of documentation are the only guidance to applicants on what information they must submit in order to be found qualified to be randomly selected by lottery as a dispensing organization under the rule. Likewise, this is the only guidance to Department evaluators on what they should consider in order to pass or fail applications for random selection approval. Ms. McMullen could not elaborate on what would specifically qualify an applicant for the lottery under the rule. Ms. Tschetter explained that evaluators will not be using any guidelines other than these rules to determine which applications qualify for random selection. JAPC asked the Department how it intended to apply these general standards to evaluate applications: 64-4.002(4)(a): This rule paragraph indicates that the department will substantively review and evaluate all timely received applications to determine if the applicant is qualified To substantively evaluate the applications and exhibits, it appears that there must be stated standards and criteria in the rule text. See § 120.52(8)(d), Fla. Stat. (emphasis added). Ms. Tschetter’s response to JAPC’s inquiry did not identify any specific standards or criteria, but rather stated: 7. 64-4.002(2), 64-4.003 -- Evaluation Criteria Each of the documentation requirements identified in proposed rule 64-4.002(2), as changed, will be evaluated on a pass/fail basis. The documentation will either be present; or it will not. Each of the Department’s decisions about whether the documentation is sufficient will be subject to review at the Division of Administrative Hearings pursuant to section 120.57, Florida Statutes. Similarly, the evaluation of biennial renewal applications will be on a pass/fail basis and subject to review at DOAH. There is no need for additional criteria. The rules give no specific direction as to what financial information is required of an applicant, or for what period of time. There is no minimum requirement for applicants’ financial ability. The financial information can be either historical or projected. There is no requirement that the financial statements be audited to assure the information is accurate. The Department intends to evaluate each application independently, not comparatively, to determine if the applicant has the ability to provide the low-THC product for two years under its specific business plan. The Department anticipates that financial requirements will vary from applicant to applicant, and should be determined independently for each business plan. Thus, requirements will be ad hoc and non- uniform, floating with the unique features of each proposed business plan. Ms. McMullen explained that each applicant will be judged on its own proposal. Prior to an applicant being selected as a dispensing organization, evaluators will not visit the nursery site to verify the applicants’ capabilities. And although applicants must theoretically demonstrate the ability to perform in their application, the Department does not require that an operation be up and running prior to approval. The applicant must have a licensed M.D. or D.O. as its medical director, but there is no specific required medical experience, duties, or work hours. When asked about the Department’s “qualitative analysis” of applications, Ms. McMullen testified that the screening panel will only check the applications for minimum qualifications or requirements: Q: So the qualitative analysis that you’re speaking of here is simply are they minimally qualified under our interpretation of the statute, which have they met the statutory criteria sufficient to be an applicant? A: Correct. (Costa Farms Ex. I: McMullen Dep. p. 86) * * * Q: Would you agree that the absence of any fee requirement would encourage someone who has minimal qualifications to apply when there’s really nothing to lose, you don’t have an application fee to lose? A: All this – if they meet the minimum requirements of the statute and the rule, then their application will be accepted. (Costa Farms Subst. Exh. II, McMullen Dep. p. 63) Ms. Tschetter did not interpret the statute to require the Department to pick the best or most dependable applicant. Rather, she felt that the screening process will ensure that applicants that are passed to the lottery pool will be “good enough” and that whether one applicant is better than another is just a matter of opinion. At the public hearing held on September 5, 2014, the Department made a PowerPoint presentation. Included in the presentation was a description of the “Qualification Process – 64-4.002” with bullet points stating “At least 3 Department evaluators,” “Public meeting” and “Will comply with requirements of section 120.60(1), Florida Statutes.” If the Department finds an application is defective, incomplete, or insufficient to qualify, it intends to allow the applicant 15 days to correct, supplement, or remedy the application, under authority of section 120.60(1). The proposed rules do not contain any guidance on procedures to be used in this evaluation – for example, who appoints the panel members, who the panel members will be, whether the panel members will have any expertise, whether panel members’ evaluations are independent or joint, whether panel decisions to disqualify an applicant must be unanimous or majority vote, whether panel decisions will be subject to further administrative review and by what process, and when decisions may be challenged. Ms. McMullen confirmed that the Department intends to appoint a three-person panel to screen applications to determine if they meet basic requirements to be eligible for the lottery pool. She expects to participate in the screening process, but did not know how this screening process will work or what her role will be. The Department did not propose rules, nor does it plan to adopt rules to elucidate its panel-review procedure to determine if applicants are qualified for the lottery. Under proposed rule 64-4.002(4)(a), all applicants that are deemed to pass general minimum requirements will qualify to be placed in the lottery pool, and the winner then selected at random: If more than one applicant for a dispensing region is qualified and its application is timely received, the department will provide a computer program method for a double blind random lottery-type selection by public drawing to designate the approved applicant and the order of the other applications within each dispensing region. (emphasis added). Each applicant in the lottery pool will have an equal chance to be selected. Applicants not selected by the lottery will not be approved as a dispensing organization. Applicants are not required to pay any application fee to have their applications reviewed and placed into the lottery pool. Only the lottery winner is required to pay an “application fee,” in the amount of $150,000 before it is authorized to be the exclusive dispensing organization for its region. If the winner fails to pay the application fee, the applicant picked second in the lottery is selected; if a default occurs later, a new lottery is conducted for that region. Although the license is granted for two years, pursuant to proposed rule 64-4.003, an approved dispensing organization will have perpetual renewal rights, unless it commits a serious violation or is unwilling or unable to continue. Costa Farms’ Pedro Freyre has a background in finance and the business side of operating nurseries. Mr. Freyre testified it was not clear to him what the proposed rule requires applicants to provide as a “business plan,” a “quality assurance plan,” “reasonably located infrastructure” or “financial statements” in connection with the application. Mr. Freyre also testified that in order to attract established Florida nurseries to become dispensing organizations for lawful cannabis products, the Department should allow a winning applicant to assign its operating rights to a related single-purpose entity owned by the same owners, so the existing nursery can maintain its banking relationships. Ms. Tschetter agreed that a qualified nursery selected as a dispensing organization will be allowed to transfer operating rights to an affiliated single-purpose entity, under the Department’s form to request to alter a dispensing organization. David Cooper, Ph.D., professor of economics at Florida State University, credibly summarized the likely economic effects of the lottery system as reducing competition between providers and raising prices to consumers, which could potentially impair access to the medication: [U]se of a random selection process (i.e. a lottery) to select an oligopolistic and permanent regional franchise under a general qualifications standard . . . will encourage inefficient (i.e. high cost) providers to enter the lottery. The likely outcome is a reduction in the disciplining effect of competition and, as a direct result, higher prices in all regions of the state. Consumers who would benefit from access to this medication will either be forced to pay higher prices or, even worse, be unable to afford the product. Poor choice of a mechanism to choose providers means that access will be denied to some patients who would receive medication under a better system. * * * Unfortunately it is extremely unlikely that the low cost providers are chosen under the lottery system . . . . Even if we get lucky, the outcome is still likely to be worse with the lottery . . . because of a lack of effective competition . . . . The lottery system leads to even worse outcomes when potential providers are uncertain about their costs, testing standards and potential demand. Because the costs of entry are low due to the structure of the bond and the low filing fees, this becomes much like the old lottery ad where “all you need is a dollar and a dream.” The lottery is likely to be flooded with inefficient producers. The best case scenario is that these providers become weak competitors who do little to discipline pricing. The worst case scenario is that they have underestimated their costs and rapidly go bankrupt, leaving a void in their territory and reducing competition across the state. (CF Ex. VI -20 pp. 1-2). According to Dr. Cooper, the proposed rules also promote collusion among providers, which can artificially restrict competition and consumer access to the product: The preceding assumes that the five providers are acting independently and competing prices down. Matters become far worse if the 25% rule is in place, [proposed rule 64.001(1)][2/] as this makes it relatively easy for providers to collude. The worst case scenario is that 75% of each provider is held by an outside entity. At this point, providers have little incentive to undercut the prices of other competitors as they are essentially robbing profits from themselves . . . . This once again reduces their incentives to compete (Id. p.2) And the proposed rules discourage competition in product quality: The adherence to a quality threshold to qualify for the lottery is potentially harmful as well. With no incentive to provide anything other than minimum acceptable quality, there is little reason for providers to research methods of improving quality or to invest in equipment to improve their quality . . . . It is safe to assume that efficient providers not only have lower costs for minimal quality, but also have better capability to provide high quality at a reasonable cost. By randomly tossing these providers out of the market, it becomes less likely that high quality will be provided even if consumers might be willing to pay more for access to a higher quality product. (Id. p.2) Dr. Cooper concluded that the proposed lottery rule, alone and in combination with other proposed rules, will not promote consumers’ access to the medication: [I]f potential providers with efficient operations (i.e. low costs, ability to provide high quality) are given no advantage in entering the market, the likely outcome is lack of competition and low access to a needed medication. (Id. p.2) Using standard economic analysis, Dr. Cooper testified that the Department should want five efficient low-cost providers that are financially stable, willing and able to compete statewide on price and quality; but that the proposed lottery rule and related rules enlarging the lottery pool (such as no application fee and limited performance bond) will encourage inefficient nurseries to apply, and encourage more efficient nurseries to offer less competitive proposals than they would if selection were based on competitive review of the merits. He explained the dangers arising from rules relating to applicants’ ownership or financial control structure that permit and encourage providers to have common ownership and to collude as to price, which can reduce consumers’ access to the product, or to collude by territorial allocation if providers decline to compete in one another’s regions. The price that patients must pay for the low-THC cannabis is a factor in accessibility, particularly as insurance does not cover this medication. The uncertainty over whether the five chosen suppliers will be able to meet demand for the product magnifies concerns over access and price. Ms. McMullen was uncertain that the five dispensing organizations will be able to supply enough product to meet the need of eligible patients, noting there is a waiting list for this product in Colorado. She assumed that dispensing organizations will expand to meet whatever demand arises. Even so, a dispensing organization may fail to produce an adequate or timely supply, and shortages can occur without warning if a product batch fails testing. Moreover, the proposed rules require destruction of all inventory if a license is revoked or a dispensing organization does not stay in business. None of the proposed rules require applicants to show ability to cover any particular number of patients or any increase in number, or to cover patients in other regions in the event one or more other regional dispensing organizations cannot meet all needs in that region or cannot perform at all. Ms. McMullen confirmed that nothing in the rules prevents collusive applications in which one nursery or one out- of-state investor owns 75% of all applicants. For its part, the Department believes lottery selection is appropriate because applicants may propose different approaches to producing medical cannabis, and it is difficult for the Department to adopt uniform standards to evaluate all approaches. Ms. Tschetter and Ms. McMullen both expressed an opinion that all applicants who pass general standards in the proposed rules are equally qualified, using variations on the phrase, “different but not better” and “they are all great . . . just different”. The undersigned rejects as non-credible the proposition that all applicants who meet the minimum initial application requirements set forth in rule 64-4.002 are equally qualified to cultivate, process, and dispense low-THC cannabis. Rather, many of the general statutory criteria – e.g., the applicant’s security and safety plan, inventory control plan, location and transportation plan, and financial ability – can be compared on the merits using ordinary business judgment without special knowledge of technical methods of production or preference for any one technical approach. While the Department’s present inexperience in technical program areas may make comparison more difficult, it can avail itself of expert assistance to determine which applicants have superior programs and the best chance of success. Without the lottery system for choosing dispensing organizations, one of the Department’s concerns is that the selection process would be drawn out into an extended review period followed by legal challenges to the ultimate selection. Thus, the Department’s objective is to establish a regulatory structure that neither invites litigation nor prolongs the process. The Department concluded that the lottery system would provide the fairest way to choose among qualified applicants, and would provide the best mechanism to get the medicine to patients as quickly as possible. The Initial Application Fee Proposed rule 64-4.002(4)(b) requires only the five chosen applicants to pay the $150,000.00 application fee; all other applicants who are not selected are not to be charged anything. JAPC asked the Department to explain why, when the statute requires an initial application fee, the proposed rule imposes an application fee only after applicants are selected? Ms. Tschetter responded that she believed it was reasonable to impose the initial application fee as a post-approval condition since the Legislature made the performance bond a post-approval condition. Ms. Tschetter’s rationale in this regard is rejected inasmuch as the initial application fee to cover the Department’s regulatory costs has no logical connection to the $5 million performance bond. The Performance Bond Section 381.986(5)(b)5. requires each dispensing organization to post a $5 million performance bond, with no limiting condition. Yet proposed rule 64-4.002(2)(j) limits the condition of the performance bond to the expense of destroying low-THC cannabis inventory if the dispensing organization fails to perform or fails to destroy its inventory when required. The performance bond will not guarantee performance or cover costs of default or increased cost to patients. Ms. Tschetter candidly acknowledged that she was uncertain as to why the Legislature chose to require a $5 million performance bond, particularly in light of other states’ bond requirements which are as low as $10,000.00. The Department’s reason for proposing a rule to limit this bond is that it did not want to force anyone to deliver these services, and that it seemed “illogical” and “unnecessary” to do so because, if one dispensary defaults, the Department can appoint a successor, or consumers can just look to one of the other regional dispensing organizations to fill their prescriptions. The Department’s reasoning ignores the potential that there will be significant delays in appointing a new dispensing organization and having it become operational. In the meantime, other regional dispensing organizations may elect not to serve that territory, or do so only at an increased price.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the charges herein, respondent Strickland was an Industrial Arts teacher at Everitt Junior High School in Panama City, Florida. The Personnel Record filed at Everitt contains spaces on the back for "teaching experience and record." Written in pencil for the years 1965 through 1969 is "Macon Co. Bd. of Ed., Tuskeegee, Ala., Ass. Supt., Dir. of Psy." (Exhibit 1) Respondent denies that this was his handwriting. Mr. John T. May, the Principal of Everitt, called the Superintendent at Tuskeegee, a Mr. Byas, to verify this. He was told by Byas that respondent had been a counselor for the Title 1 program there, and had not been an assistant superintendent. A letter from Joe C. Wilson, who is listed as respondent's supervisor for those years on respondent's application for employment with the Bay County Public Schools, states that respondent was employed as a school psychologist. The letter further states: "His specific assignments were to coordinate the statewide testing program, to test students referred to E. M. R. classes, and handle psychological services in the Head Start Program. On occasions Mr. Strickland was assigned other duties, such as repre- senting the school in lieu of the Superin- tendent and the handling of some admini- strative details." (Exhibit H) Respondent submitted to Principal May five "temporary leave" forms requesting sick leave for the following dates: October 30, 1974; January 20, 1975; January 24, 1975; February 28, 1975; and April 11, 1975. Each of the leave forms were submitted from one to three days after the leave was taken. On two of these forms, respondent stated in the space provided for "explanation of request" that he was sick. (Exhibit 2) In reality, respondent was attending personal business in Mobile, Alabama on those dates. (Exhibit 3) In the manual for instructional personnel of Bay County Schools, "sick leave" is defined as "personal illness or disability of the teacher or illness or death of a member of the immediate family." Said manual also provides for personal leave without pay for absences for personal reason, the leave to be requested and approved prior to the absence. Also, it is provided that two days of sick leave may be used with pay for personal business. In such event, the teacher is to notify the principal at least five days in advance, except in cases of emergency. Respondent testified that he told Mr. May that he had personal business to attend to in Mobile, Alabama, and that May instructed him to arrange for a substitute and take sick leave. During a class period, respondent walked by the home economics room when the class was preparing food. The male students in the class were required to wear aprons and hairnets. Respondent was near the window and made remarks to Bobby Golding to the effect that he looked sweet and would make a nice housewife. This disrupted the class and embarrassed Mr. Golding. The home economics teacher, Ms. Collins, testified that other male students in her class had complained that respondent had teased them about wearing hairnets and/or aprons. At a time when a group of students were present, respondent confronted Ms. Collins in the school hallway. She did not wish to talk to him at that time and walked away from him. Respondent pursued her and continued to call her name in a demanding tone. Ms. Shipbaugh, a guidance counselor, also testified that respondent embarrassed her on several occasions in front of other faculty members by either degrading her qualifications as a counselor or by yelling at her. A teacher's aide at Everitt testified that she and respondent, along with about 25 other persons, were standing in line at a post office on a Saturday in January of 1976. According to her, respondent began making remarks about Mr. May being intoxicated at a school Christmas party. While others overheard his remarks, she did not recognize any students, parents or faculty members among those present. Respondent denied this incident at the post office. After several verbal and written announcements had been made to the faculty at Everitt, a faculty meeting was held on the morning of February 3, 1976. The Vice-Principal, Ms. McGill, testified that respondent was not present at this meeting, and she wrote a letter to him reprimanding him for this. (Exhibit L) A speaker at that meeting remembered seeing respondent in the hall after the meeting, but could not recall whether respondent was present during the meeting. No roll call was taken during the meeting. Respondent testified that he did attend this faculty meeting. Principal Mays received several complaints from students regarding remarks made to the students by respondent in his classroom. Two students testified that respondent had put his hand on their chest or his arm around their neck during class. Bobby Golding testified that respondent had made a remark to him in shop class concerning the hair on Golding's head being similar to the hair in respondent's pants. Golding said he knew that at least one other student heard this remark because they discussed it immediately thereafter. Four students who attended Everitt Junior High School testified that they had seen respondent smoke marijuana. Three of these four students took industrial arts from respondent. Kenneth Lynch saw respondent smoke marijuana at the Parker ball park and at the home of Vito Knowles. Bobby Golding was present and saw the same two incidents. Gary Guidas saw respondent smoke marijuana at the home of Vito Knowles and behind Guidas' house. The ball park and the Knowles' resident incidents occurred in the presence of other students, who were also smoking marijuana at the same time. During the gathering at the Knowles residence, "mushroom tea," an hallucinogenic substance, was also being consumed by the students. It is not clear from the testimony whether or not respondent was partaking of the "tea." One student testified that respondent supplied him with a marijuana cigarette on one occasion. None of the smoking was done on the school grounds, according to the students. Respondent denied having ever smoked marijuana as related by these students. It was his testimony that he never went to the Parker ball park or to Vito Knowles' home.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness and number of the offenses of which respondent has been found guilty, it is recommended that respondent's Florida teaching certificate be revoked for a period of four (4) years, said period commencing on the date that the final order is rendered by the State Board of Education. Respectfully submitted and entered this 20th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire Barrett, Boyd and Holder Post Office Box 1501 Tallahassee, Florida 32302 Fred Turner, Esquire Post Office Box 1120 Lynn Haven, Florida 32444 Ms. Angela Peterson Professional Practices Council 319 West Madison Street- Room 1 Tallahassee, Florida 32304 Mr. Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32304
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to terminate Respondent for misconduct in office as alleged in the Administrative Complaint (“Complaint”) dated December 10, 2019.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At all times relevant hereto, Respondent was employed as a Student Services Manager at Belleview High School in Marion County, pursuant to a professional services contract with the Board. On November 5, 2019, following an incident in which Respondent intervened in a physical altercation between students, Respondent complained to administration that he may have been injured. Respondent was referred to a doctor who provides treatment to Board employees who are injured on the job. As part of his evaluation for a possible workers’ compensation covered injury, Respondent was administered a routine urine drug screen. The results of the drug screen were positive for THC and marijuana metabolites. Respondent does not dispute either the test administration or results. Respondent is approved by the State of Florida through the medical marijuana use registry to obtain medical marijuana for his personal medical treatment. Respondent obtained his medical marijuana card in October 2018, and uses medical marijuana to treat pain associated with injuries he received while serving in the U.S. Marines in Desert Storm in 1991. The Board maintains Alcohol and Drug-Free Workplace Policy 6.33. Section II.B. of that policy provides that “it is a condition of employment for [a Board] employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Section IV.B. includes marijuana within a list of substances use of which is considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R., §§ 1300.11 through 1300.15. However, this section notes that “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” At no time prior to his positive drug screen did Respondent notify his supervisor that he was using medical marijuana. Respondent has been employed by the Board since 2010. He began as a physical education coach at Horizon Academy, where he was subsequently promoted to a dean’s position. After the dean’s position at Horizon Academy was eliminated, Respondent transferred to Emerald Shores Elementary where he served as a dean. The record does not establish the date on which Respondent transferred to Belleview, but Respondent served as a dean of students at Belleview until he was placed on unpaid administrative leave on January 13, 2020. Respondent was placed on paid administrative leave on January 29, 2020, where he remains pending the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding the charges against Respondent Michael Hickman, and terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056.2 1 Respondent additionally argues that the Board’s position is unfair because it penalizes him for use of medical marijuana to treat chronic pain, but would allow him to continue teaching under the influence of opioid pain medications, which he took for years prior to the availability of medical marijuana. 2 The undersigned notes that the remedy of suspension is also available under the applicable rule. Further, the parties made no argument that the Board’s discretion to impose a different penalty is foreclosed, or that the Board may not consider mitigating circumstances. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of September, 2020. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether the application for Alcoholic Beverage License No. 23-6847 received by the Department on June 21, 1985, should be disapproved: because the application discloses a person with a direct interest in the premises to be licensed (Mr. Farquharson) is ineligible for licensure pursuant to Section 561.15(2) and 561.17(1), Florida Statutes (1985), due to conviction for the sale of marijuana within the last five years, and for violation of Section 559.791, Florida Statutes (1985) for a material misstatement on the application by not disclosing these convictions?
Findings Of Fact An application for an alcoholic beverage license to permit consumption of beer and wine on a restaurant premises was filed by Pauline B. Farquharson which was received by the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco on June 21, 1985. "Exhibit 1). The application discloses that Barranett Farquharson born 7/1/52, has a direct interest in the premises to be licensed [Exhibit 1, page 18, Section I(6)(C)]. A personal questionnaire, Department of Business Regulation form DBR 71 OL for Barranett Farquharson was included in the application, which contained the following question and answer: "Have you ever been in this state, any other state, by the United States or by any foreign country: Arrested, charged or convicted of any violation of the law excluding minor traffic violations? Answer: Yes. On or about (1980-81). Arrested, possession of a weapon. Found not guilty." (Exhibit 2) The application also disclosed that the funds for the operation of the business, $60,000, had been obtained from personal funds in the amount of $4,934.09, and $56,065.91 from loans and mortgages. (Exhibit 1, page 11). A mortgage in the amount of $23,446.91 had been received from Standard Federal Loan Association of Gaithersburg, Maryland. A settlement statement included with the application, showed the borrowers as Barranett Farquharson and Pauline Farquharson. (Exhibit 1, pages 12-13). As part of the application, Mr. Barranett Farquharson was fingerprinted and the fingerprints were sent for examination to the Federal Bureau of Investigation. The Federal Bureau of Investigation responded with a report showing that the police department of New York City, New York had recorded the following arrest history, charges and charge disposition for Barranett Farquharson: 11/3/80 - Charged with possession of marijuana. Disposition: conditional discharge. 8/14/81 - Charged with sale of marijuana, possession of marijuana. Disposition: time served on criminal possession of marijuana. l0/14/82 - Charged with criminal possession of marijuana 4th, Criminal sale of marijuana 4th. Disposition: conditional discharge on criminal sale marijuana 4th. 11/3/82 - Charged with criminal sale marijuana 4th, unlawful possession marijuana. Disposition: sentenced to $50/30 days, fine paid on criminal sale of marijuana 4th. (Exhibit 4) A certified copy of the records of the Criminal Court of the City of New York was also entered into evidence as Exhibit 3. It disclosed that Barranett Farquharson, born 7/1/52, had been arrested and arraigned on charges of violating Section 221.15 of the penal law of the State of New York for the unlawful possession of marijuana and was adjudicated guilty of that charge on February 19, 1982. Mr. Farquharson was again arraigned on December 17, 1982 for violation of Section 221.40 of the penal law of the State of New York, criminal sale of marijuana in the 4th degree, and he received a conditional discharge. He was again arrested on November 3, 1982, arraigned on charges of violation of Sections 221.05 and 221.40 of the penal law of the State of New York on November 4, 1982, and he was found guilty of criminal sale of marijuana in the 4th degree and sentenced to pay a $250.00 fine. Section 221.05 of the penal law of the State of New York reads as follows: "Unlawful possession of marihuana. (VIOLATION)I A person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana. Unlawful possession of marihuana is a violation punishable only by a fine of not more than one hundred dollars. However, where the defendant has previously been convicted of an offense defined in this article or article 220 of this chapter committed within the three years immediately preceeding such violation, it shall be punishable (a) only by a fine of not more than two hundred dollars, if the defendant was previously convicted of one such offense committed during such period, and (b) by a fine of not more than two hundred fifty dollars or a term of imprisonment not in excess of fifteen days or both, if the defendant was previously convicted of two such offenses committed during such period." (Exhibit 6) Section 221.15 of the penal law of the State of New York provides: "Criminal possession of marihuana in the fourth degree. A person is guilty of criminal possession of marihuana in the fourth degree when he knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances of an aggregate weight of more than two ounces containing marihuana." Section 221.40 of the penal law of the State of New York provides: "Criminal sale of marihuana in the fourth degree. A/MISD.) A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided on Section 221.35 of this article." (Exhibit 6)
Recommendation It is RECOMMENDED that the application for an Alcoholic Beverage License submitted by Mrs. Pauline Farquharson d/b/a Pauline's West Indian Restaurant be DENIED. DONE and ORDERED this 1st day of August, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, 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 1st day of August, 1986. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Mrs. Pauline B. Farquharson 104 N. E. 205th Terrace Miami, Florida 33179 James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco 725 S. Bronough Street Tallahassee, Florida 32301-1927
