Findings Of Fact On February 6, 2015, Respondent published a notice of proposed rulemaking in the Florida Administrative Register. The notice set forth the text of six proposed rules to implement the Compassionate Medical Cannabis Act of 2014 (the Act), chapter 2014-157, Laws of Florida, codified as section 381.986, Florida Statutes.2/ The Petition is directed to only one of the proposed rules: proposed Florida Administrative Code Rule 64-4.002, entitled "Initial Application Requirements for Dispensing Organizations." As part of the challenge to proposed rule 64-4.002, the Petition also "questions" the composition of a negotiated rulemaking committee used by Respondent to develop the proposed rules and the adequacy of Respondent's Revised Statement of Regulatory Costs (Revised SERC). Facts related to Petitioner are contained in two paragraphs, which set forth both factual allegations and conclusions offered to support Petitioner's standing. In their entirety, the two paragraphs related to Petitioner provide: Petitioner is a 4[-]year[-]old child living in the State of Florida who has been diagnosed with an inoperable brain tumor who is currently using medical cannabis extracts to treat her condition. For purposes of this proceeding, Petitioner can be contacted through her undersigned counsel. Petitioner is eligible under the Act and plans to register with the Office of Compassionate Use Registry to become a "qualified patient" for the medical use of low THC cannabis and thus is "substantially affected" and has standing to challenge the proposed rule. Florida Statutes § 120.56(2)(a). Petition, ¶¶ 4, 5. The Petition does not contain factual allegations describing any injuries that Petitioner would suffer by application of the challenged proposed rule if it were adopted. The Petition contains some general allegations of harm without an adopted rule because of a "desperate need for access to low THC cannabis." The Petition alleges that the Act requires expedited promulgation of rules, which is imperative because the "selected applicants will be responsible for ensuring access to ordered medication, with greater risk of public injury if there is no access to medicine." (Petition, ¶ 14). In seeming contradiction, though, the Petition also alleges that "numerous corporations can now lawfully ship laboratory tested low-THC cannabis based food product and cosmetics to all 50 States without a prescription[.]" (Petition, ¶ 21, footnote omitted). Most favorably construed to Petitioner, these allegations suggest some general harm caused by the delay in getting a rule in place, but do not suggest harm that would be suffered by Petitioner ("who is currently using medical cannabis extracts") nor harm caused by application of the proposed rule. The Petition also includes allegations of harm to potential applicants eligible to become dispensing organizations caused by an "overly burdensome" application, scoring, and selection process in the proposed rule. Petitioner alleges that the burdensome process to select dispensing organizations has "no reasonable justification given the safety profile of low-THC cannabis as one of the safest substances known to man and the urgent need for this medicine for thousands of critically ill patients." (Petition, ¶ 16). The Petition complains about "an unauthorized arbitrary selection committee to choose among eligible applicants based on a complex and overly burdensome scoring system[,]" from which the Petition concludes: "Overall, the proposed rule fails to provide any objective methods to determine whether an eligible applicant is superior at growing low-THC cannabis or filling out a lengthy application." (Petition, ¶ 19). Finally, the Petition characterizes the proposed rule as an "attempt to eliminate applicants' rights to challenge the selection by comparative administrative review." (Petition, ¶ 21). But the Petition does not allege that Petitioner is an eligible applicant whose rights allegedly would be burdened or harmed in these ways. Finally, the Petition raises a general concern about the proposed rule's failure to consider or address the economic impact to patients of having to pay for purchases of low-THC cannabis from dispensing organizations. (Petition, ¶ 22). Here, too, the concern is expressed generally and is not attributed to Petitioner. Although not entirely clear, it appears that this allegation is intended as a criticism of the Revised SERC by suggesting a "cost" that should have been considered.
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the notice to show cause and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times pertinent hereto, respondent, Arturo G. Muniz, held alcoholic beverage license number 16-06467, series 2-COP, for the premises known as Chiche on the Beach, (the "premises") located at 2805 East Hallandale Beach Boulevard, Hallandale, Broward County, Florida. On January 11, 1991, Detective James Carney, of the Davie Police Department, operating undercover, and a confidential informant (CI) entered the licensed premises as part of an ongoing narcotics investigation to purchase marijuana. At the premises, the detective and the CI approached respondent, and the CI inquired of respondent if he "had something" or if he could "get something today," referring to marijuana. Respondent replied that "it was not here now," advised that he was expecting a delivery soon, that it would be more expensive ($60 instead of $55 for a quarter ounce), and advised the undercover officer and CI that they should place their order now. The CI then informed respondent that they wanted "2-quarters." While awaiting the arrival of the marijuana, the undercover officer and CI walked toward the beach to dispel suspicion and to communicate with backup police regarding the possible sale. Returning to the premises, the officer and CI sat on a wall outside the premises until the respondent whistled or beckoned the CI to the premises. Shortly thereafter, the CI purchased a baggie containing approximately one quarter ounce of cannabis, commonly known as marijuana, from respondent for $60.00. On March 5, 1991, the undercover officer, accompanied by Hallandale Police Officer Michael Antinick, returned to the licensed premises to arrest respondent. The respondent was standing behind the service counter, and there was no one else near the service counter and certainly no one, other than respondent, within arm's length of an ashtray that contained a smoldering "roach" (marijuana cigarette) or the white paper plate that contained a small amount of marijuana and some rolling papers. Such paper plate is commonly used, as it apparently was in this case, to separate the desirable marijuana leaf particles from the undesirable marijuana seeds by placing the marijuana on the plate and shaking it until the leaf particles and seeds are separated. The rolling papers found on the paper plate are commonly used to roll the marijuana leaf particles into a cigarette, such as the marijuana cigarette that was found smoldering in the adjacent ashtray. On March 13, 1991, petitioner, through its special agent Carol Owsiany, conducted an inspection of the licensed premises. At such time, respondent was not present, but an employee named "Sheedie" (phonetic) was on duty. Agent Owsiany requested the records and invoices for the business from "Sheedie." What "Sheedie" did produce was "not much" in the opinion of Agent Owsiany, but from the records that were available it was disclosed that on March 2, 1991, and again on March 8, 1991, a total of eight six-packs of Heineken beer had been purchased from Valros Warehouse, which was not a licensed distributor under the Florida Beverage Laws, for resale on the premises. According to "Sheedie," such beer was purchased to "tide them over" until their regular distributor made its delivery. No further proof was offered regarding any further efforts by petitioner to secure the records of the business regarding alcoholic beverage purchases or the licenses, if any, held by Valros Warehouse. In cases involving possession, use, delivery, or sale of controlled substances on the licensed premises, if the violation is committed by the licensee, it is the petitioner's established policy to revoke the license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered revoking alcoholic beverage license 16-06467, series 2-COP, held by respondent, Arturo G. Muniz. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of March 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Adopted in paragraph 1. Subordinate. 3-8. Addressed in paragraphs 2 and 3, otherwise subordinate. 9-11. Addressed in paragraph 4, otherwise subordinate. 12 & 13. Addressed in paragraph 5. 14. Addressed in paragraph 6. COPIES FURNISHED: Monica Adkins-White Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue At issue herein is whether or not the Respondent, Lucille Marie Royce, is guilty of alleged illegal possession of Marijuana, Librium and Darvocet capsules as alleged by the Petitioner's Administrative Complaint dated May 14, 1979, charging that the Respondent, on or about October 20, 1978, was arrested at her home by officers of the Santa Rosa County Sheriff's Department and found to be in illegal possession of Marijuana and the above-mentioned controlled substances, in violation of Subsection 464.21(d), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. On October 20, 1978, officers of the Sheriff's Office of Santa Rosa County, Florida visited the Respondent's premises in Santa Rosa County and, pursuant to an authorization to search her (Respondent's) premises, found and seized approximately sixteen items as reflected on Petitioner's Exhibit 14, which is an inventory of items received from Respondent's residence on October 20, 1978. Among these items were Marijuana, three Darvocet 100 tablets and one Librium tablet. The Respondent was placed under arrest; however, the charges of possession of paraphernalia and possession of controlled substances wore nolle prossequi. 2/ Rosa Lee Wier, a Deputy Sheriff of Santa Rosa County, testified that she received a call on or about October 20, 1978, to the effect that there were Marijuana plants growing on the outside of Respondent's residence. Deputy Weir visited Respondent's neighborhood and observed what appeared to be Marijuana plants growing in the front and side of Respondent's residence. Deputy Weir returned to the Sheriff's Office and received assistance from two other deputies who returned to the scene and inquired of Respondent the reason the "flowers" were growing in her front yard. Respondent credibly testified that she did not know what kind of "flowers" there were growing in her front yard but that she suspected that they were Marijuana plants which had been planted by Navy student pilots who were living in the apartment building next door. Following the deputies' discovery that the plants were in fact Marijuana plants, they requested, and obtained, a voluntary search release from Respondent to search her premises for other controlled drugs. Based on the ensuing search, several packets of Marijuana, three Darvocet 100 tablets and one Librium tablet were found. The Respondent is a Registered Nurse and has been since 1977. She has been a Licensed Practical Nurse since 1966. Prior to the subject incident, she has not been involved in any disciplinary actions by the Petitioner. Respondent, since 1977, was employed as a Charge Nurse in the Emergency Room at Santa Rosa Hospital. Respondent's supervisor on the three to eleven shift, Leilanim Fobtanilla, testified that Respondent was a good nurse who renders good health care. In this regard, character letters are introduced reflecting the fact that the Respondent is a person of unquestionable character. (Respondent's Exhibits 1 and 2.) Respondent's supervisor testified that it was not unusual for nurses to withdraw medications intended for patients and and up taking such medications home when patients refuse to take it. According to Ms. Fobtanilla, this situation usually occur when patients refuse to take prescribed medication and the nurse, being busy, forgets to return the medication to the medication drawer. (TR 40-42.) In this regard, Respondent testified that this exact situation occurred to her on October 19, 1978, when she withdrew three Darvocet 100 tablets and one Librium capsule which had been prescribed for a patient who refused to take the medication. Respondent testified that she put the medication in her uniform because she would never leave medication lying around in the Emergency Room due to the large number of patients milling around therein. Respondent took the medication home and while changing clothes, noted that she bad taken the medication home. She put the medication in her purse to return it to the hospital the following day. In this regard, Respondent's testimony was credible and was not attached by Petitioner's counsel. Respondent testified that she inherited the residence at which she is now living from a former patient for whom she had served as a private duty nurse, Elton E. Nichols. Respondent testified that Mr. Nichols and she became lovers while she was caring for him as a private duty nurse. Mr. Nichols died of cancer on September 12, 1978, and willed the property to Respondent based on their relationship. Respondent testified credibly that she underwent a period of grief following Mr. Nichols' demise and that it was months before she could pull herself together to try to rid herself of his personal effects. It was noted that the subject incident occurred on October 20, 1978, which, of course, is approximately five weeks subsequent to Mr. Nichols' death. Additionally, Respondent credibly testified that she has a metabolic disease which prevents her from taking drugs, even for a cold. She testified that she has no use for drugs and per instructions from her physicians, cannot take any narcotics. Respondent testified that she has never used drugs nor has she sold them. In these circumstances, it is the undersigned's considered opinion that the above facts do not warrant disciplinary action as contemplated by Subsection 464.21(1)(d), Florida Statutes, and I shall, therefore, recommend that the Administrative Complaint filed herein be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. RECOMMENDED this 31st day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact General Findings Respondent was certified by the Criminal Justice Standards and Training Commission on April 20, 1988, and issued Certificate Number 16-88-002-01. R at 9,10. Respondent was employed as a law enforcement officer with the Tallahassee Police Department from January 22, 1988, through May 21, 1990. R at 9. Findings of Fact as to Count 1 of Petitioner's Administrative Complaint On or about April 9, 1990, a letter, return receipt requested, was delivered as addressed to the Tallahassee Police Department, Internal Affairs. Lieutenant Al Brown in internal affairs ultimately received the letter. The letter was signed by a "Lisa" with no surname and had a return address of 1012 Basin Street, #207-C, a nonexistent address. R at 97-99. The letter alleged Respondent bought and smoked marijuana on a daily basis and suggested he be drug tested. R. at 99. Lieutenant Brown checked the address of the anonymous "Lisa" once, and never inquired into the fate of the green card. R at 101, 139. After role call on April 10, 1990, Respondent and his supervisor, Sergeant John Kirby, were met by Lt. Brown. Lt. Brown informed Respondent an anonymous call from a black female had come in which accused him of drug abuse, and requested he take a voluntary test. R at 61, 101-102. Respondent was not ordered to take the test or threatened with discipline if he refused. R at 35, 66-67, 103-104. However, at no time was Respondent clearly informed no adverse action would be taken if he refused the test. R at 140. Respondent, although unable to secure any information about this alleged call, readily agreed to a test. R at 35, 66. At the time, the Respondent was unaware how long after use marijuana could be detected in urine. R at 283. At approximately 5:00 p.m. on April 10, 1990, Lt. Brown drove the Respondent to Physician's Care Center on North Monroe where a urine sample was taken. R at 105. The Respondent filled out paper work, disrobed, put on a hospital gown, and was instructed by the nurse how to provide the sample. R at 106. Lt. Brown requested two samples be taken so that Respondent could submit one for independent testing. R at 106. However, no one advised the Respondent how to get the second sample tested because Brown and the other supervisors did not know how to initiate such a cross test. Respondent was given a sample cup by the nurse in the lieutenant's presence, and required to urinate in the cup in front of the nurse and the lieutenant. The Respondent produced 85 cc's urine in the cup and gave the cup to the nurse. The nurse poured the sample into two smaller SmithKline collection cups which she sealed with evidence tape which was initialed by the Respondent along with the various forms. The sample was assigned a unique identification number, 278485T, which was placed upon the sample to be tested for the police department. Each of the cups was placed into a blue SmithKline toxicology bag and sealed with red evidence tape and initialed. The Respondent signed the forms and the bar code number. R at 109, 178, 191. The department's sample was retained by Physician's Care and delivered to a SmithKline courier, who checked the seals and maintained the chain of custody while delivering it to SmithKline's Tallahassee facility. The chain of custody was maintained as the sample was shipped by air to the SmithKline facility in Tampa, Florida. The other sample was given to the Respondent. The department's sample was checked upon arrival at SmithKline's lab and all the seals were intact. Maintaining the chain of custody, the sample was tested on April 11, 1990. R at 184-186. First, a screening test was performed which proved positive for THC, a metabolite created in the body when it metabolizes marijuana. R at 189. Thereafter, a confirmatory analysis of the department's sample of the Respondent's urine was performed using gas chromatography mass spectrometry (GCMS). R at 189. GCMS provides a scientifically reliable test for the presence of marijuana metabolites in urine, which indicates with scientific certainty that the person testing positive smoked marijuana. R at 173-176,192,204-206. The Respondent's urine contained 53 nanograms of THC per milliliter of urine. A second test was then performed which reconfirmed the results of the first test. It showed 58 nanograms of THC per milliliter of urine. The variation in metabolite between the tests is within testing limits, and the amount of metabolite shows marijuana use by the Respondent in the opinion of an expert in such testing based upon these tests. The amount of metabolite is inconsistent with "passive inhalation," although the Respondent did not testify to being present when any individuals were smoking marijuana. R 176-178,193. At the time the drug test was administered to Respondent, no mechanisms for certification of samples and no formal training for collectors of samples was in place, and no evidence was presented on the certification of the technician who took Respondent's sample. R at 198-200. On April 17, 1990, after learning of the Respondent's test results, Lt. Brown, Captain Walter NcNeil, and Lt. Newlin went to Respondent's home, informed him of the positive test results and suspended him from TPD. R at 114. The sample identified as Respondent's showed positive at a level more than three times the cut off level. R at 203. Upon learning of the positive test, the Respondent began to seek a way to have his sample tested. He did not find a facility willing to deal with it until April 25, 1990 when he went to the office of Dr. Esias Lee. Respondent submitted a new urine sample at Dr. Lee's office, and also delivered to the technician the original sample he had given on April 10, 1990. The Respondent also provided a blood sample for testing at his own expense. R. at 227-228. The conditions under which the Respondent gave the sample were not as controlled as they had been at Physician's Care Center, and the technician did not oversee taking of the sample by being present when the Respondent produced the sample. The technician taking the samples indicated she would attempt to submit all samples for testing. R at 227. When Respondent was questioned by Lt. Brown on May 4, 1990, regarding the testing done through Dr. Lee's office, the Respondent thought both the second portion of his April 10, 1990, sample and a new sample taken April 25, 1990, were submitted for testing. R. at 119, 121-122. The second portion of the April 10, 1990, sample had been destroyed because it was old and because the laboratory used by Dr. Lee's office would not accept it. The sample Respondent submitted on April 25, 1990, was sent off for analysis and tested negative. R at 239. The Respondent could have produced a positive test for marijuana use on April 10, 1990, and a negative test for marijuana use on April 25, 1990, if Respondent was only a light user of the drug and had not used marijuana between April 10, 1990, and April 25, 1990. R at 194.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The certification of the Respondent be placed upon probation for two years with the requirement for periodic unannounced drug screening at the Respondent's expense not more than three times per year; and The Respondent be required to advise any employing agency of these proceedings and provide the agency with a copy of the Commission's final order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August 1992. STEPHEN F. DEAN, 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 13th day of August 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1. - 2. Adopted. 3. -13. All relate to the Respondent's job performance which was not at issue except as it might indicate drug use. This evidence was inconsistent with the Respondent's personnel evaluations, with the inference in the drug test that drug use was occasional or light, and was a self-serving retrospective. 14.-18. Adopted. 19. Adopted in part rejected in part as irrelevant. 20.-22. Adopted. 23. Rejected. See paragraph 9 of Recommended Order. 24.-35. Adopted. 36. Rejected. 37.-52. Adopted. 53.-55. Rejected as contrary to more credible interpretation of facts. 56.-57. Adopted. 58. Rejected contrary to more credible credence. 59.-61. Adopted. Respondent's Findings of Facts 1.-11 Adopted. 12. Irrelevant. 13.-16. Adopted. COPIES FURNISHED: Gina Cassidy, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Elise M. Matthes, Esquire 412 Larson Building Tallahassee, Florida 32399-0300 James T. Moore, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent David A. Avant, III, was arrested on October 16, 1989, and charged with one count of cultivation of marijuana (a third degree felony), and one count of possession of marijuana (a misdemeanor). The charges concerned one marijuana plant which was found on Avant's property by a game warden. Avant was arrested when he picked up the plant to throw it over his fence. The marijuana plant did not belong to Avant and it was not on his property with his permission. A search of Avant's truck by game wardens did not reveal any tools, buckets, etc., indicating that he was, in fact, cultivating and/or caring for the marijuana plant. Avant accepted a plea agreement offered by the State Attorney to save the money and expenses that would be required for a trial. Avant accepted the state attorney's plea agreement for reasons of economics and convenience. Avant entered a plea of nolo contedere to one felony count of cultivation of marijuana and one misdemeanor count of possession of marijuana. 1/
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.
Findings Of Fact At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida. Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger. On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct. On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper. Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana. Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana. It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana. Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance. When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar. Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it. Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made. After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana. When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed. On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes. When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them. His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons. None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made. With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents. With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope. There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood. Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes. Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause. Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling. He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there. These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment. Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there. Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes. Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms. Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers their names nor does he ask them the stories of their lives. His credibility is not significant. Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of June 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Angus W. Harriett, Esquire 314 St. Johns Avenue Palatka, Florida 32077 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Should discipline be imposed against Respondent's license as a limited surety agent for violation of Section 648.45(2)(a) (e), and (k), Florida Statutes (2006)?
Findings Of Fact On January 6, 2003, DFS issued Respondent a series 2-34 limited surety agent (bail bond) license. That license remains valid. On May 3, 2006, in State of Florida vs. Vincent Lamone Addison, in the Circuit Court, 14th Judicial Circuit of the State of Florida, in and for Gulf County, Case No. 06-0107CF, Respondent was charged by information with: Count I, Possession with intent to sell/deliver within 1000 feet of place of worship or convenience business; Count II, Possession of marijuana in excess of 20 grams, offenses contrary to Section 893.13, Florida Statutes (2005), third degree felonies. In the same information, in Count III, it was charged that he did obstruct (an) officer without violence, a violation of Section 843.02, Florida Statutes (2005), a first degree misdemeanor. On December 18, 2006, the assistant state attorney in Circuit Court Case No. 06-107CF, filed a Motion to Consolidate, asking that the Court enter an order consolidating the count for possession of a controlled substance with intent to deliver, with the count related to possession of more than 20 grams of marijuana. On December 19, 2006, in Circuit Court Case No. 06- 107CF, a Plea, Waiver and Consent was signed by Respondent as defendant in that case, attested by his counsel and the assistant state attorney, and found by the Circuit Court Judge to be a plea freely and voluntarily made and sworn to and subscribed before the court and approved and accepted by the court related to possession of marijuana, a third degree felony with a statutory maximum imprisonment of five years. The plea was made upon the agreement that the adjudication be withheld, with service of three-years' probation, to terminate after 18 months if all conditions were complete and no violations of the probation had occurred. In addition, by order of the Circuit Court Judge, certain charges/costs/fees were imposed in Circuit Court Case No. 06-107CF. When Respondent executed his Plea, Waiver and Consent in Circuit Court Case No. 06-107CF, it reflected that the charge of "Obstruct officer without violence" had been stricken by line and initials provided, by what appears to be the defense counsel and the assistant state attorney in the case. In Circuit Court Case No. 06-107CF, as reflected in an order by the Circuit Court Judge referring to those proceedings, entered December 19, 2006, upon his appearance before the Court with representation, it indicates a plea of nolo contendere was entered. It pertained to Count I. On the form order, it refers to "Sales/Del/Poss/cannis-w/in-100Ft. Church 893.13(1)(a) 3F." Under that reference is found "Poss. Marijuana in Excess 20 grs. 893.13(6)(a) 3F". The numbers refer to Section 893.13(1)(a) and (6)(a), Florida Statutes (2005), and "3F" refers to third degree felony. In this order it was reflected that the adjudication of guilt was withheld, and that the defendant received three-years' probation, to terminate after 18 months upon satisfaction of conditions of probation. The court order refers to fees required by the court to satisfy its terms for accepting the plea. On December 21, 2006, in Circuit Court Case No. 06- 107CF, the Circuit Court Judge entered an Order Withholding Adjudication of Guilt and Placing Defendant on probation. In this order it reflects entry of a plea of nolo contendere to the offense of "Possession of more than 20 grams, 3rd-Degree Felony," for which the Respondent received three years of probation. Other conditions of the probation were reflected in this order, to include the costs and fees imposed by the Court. On January 12, 2007, precisely the same order was entered by the Circuit Court Judge. In addition to the nolo contendere plea in Circuit Court Case No. 06-107CF, Respondent in his testimony at hearing in the present case, acknowledged that the drug offense took place in Port St. Joe, Florida. He was arrested on April 21, 2006. Respondent did not contest the charges because marijuana was found on the console of his car and some was in his front pocket. Respondent's understanding of his nolo contendere plea was that it was to possession of marijuana exceeding 20 grams. The amount was somewhere in the range of 118 to 120 grams. In the present case, Respondent through his testimony, explained that he had been diagnosed with lupus and that he smoked marijuana to help his body function while confronting his disease. Respondent is aware that possession of marijuana in Florida is illegal, even if intended for the purpose he had in mind to provide him relief from the pain of lupus. Respondent is not acting in the capacity of a bail bond agent at this time. That loss of income has had significant impact on his earning capacity. Mr. Tynalin Smiley, who resides in Port St. Joe where the Respondent lives, has known the Respondent from the time Respondent was born. They are good friends. Mr. Smiley belongs to the same church as Respondent. He visits in Respondent's home at times. He believes that Respondent is a respectable person in the community. Mr. Robert Humphrey, who resides in Dothan, Alabama, met Respondent in 1996 when Respondent did an internship from Troy State University. Mr. Humphrey and Respondent worked in the area of juvenile justice, going into schools and providing counseling to students. Over the years Mr. Humphrey has kept in contact with Respondent. Occasionally Mr. Humphrey and Respondent are together socially. They go out to dinner. Respondent has attended Mr. Humphrey's church. Mr. Humphrey looks upon himself as being a big brother to Respondent. Mr. Humphrey has observed that Respondent remains active in the Respondent's community. Mr. Humphrey believes that Respondent regrets his choice that led to the action against him, that involving the marijuana possession that has been discussed.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered Respondent in violation of Section 648.45(2)(a), (e) and (k), Florida Statutes (2006) and revoking Respondent's limited surety agent (bail bond) license. DONE AND ENTERED this 27th day of July, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of July, 2007. COPIES FURNISHED: William Gautier Kitchen, Esquire Gregg Marr, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Vincent Lamone Addition Post Office Box 483 Port St. Joe, Florida 32457 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The capitol, Level 11 Tallahassee, Florida 32399-0307
The Issue Whether or not the Department of Revenue has accurately and appropriately assessed Petitioner tax, penalty, and interest for unlawful production of marijuana.
Findings Of Fact During 1988, Petitioner cultivated a patch of marijuana located in abandoned phosphate pits in Loncala, northwest Marion County. On or about September 16, 1988 Investigator Glenn Hurst of the Ocala Police Department discovered and seized the marijuana referred to above. The marijuana seized by Officer Hurst ranged in height from approximately twelve to fourteen feet. The marijuana seized covered a tract of four acres within the above- described land. The seized marijuana when weighed by Officer Hurst weighed 2,910 pounds. The marijuana, when seized, was cut off at the base of each plant with a machete so that the roots were not seized with the plants themselves. The property where the marijuana was seized was under lease to one Sammy Long of Sumter County. At the time of seizure of the subject marijuana, the property under lease to Sammy Long was owned by one Stanley Cowherd of Planters Boulevard, Boca Raton. The property under lease to Sammy Long was being utilized by him for the grazing of cattle. Fred Brown, a longtime friend of Petitioner and of Sammy Long, assisted Petitioner in the cultivation of the subject marijuana. Kim Nixon, or Kim Mixon, was also involved in the cultivation of the subject marijuana with Petitioner and Fred Brown. In early August of 1988, Fred Brown moved a small trailer onto the Cowherd/Long property and lived in it during August and during the fall. The trailer was located approximately a mile from the marijuana patch. There were two electric meters on the property. One of the electric meters served a well pump used to pump water into a cattle trough. The meter and pole were located within several feet of Brown's trailer. The meter was already active when Brown brought in his trailer. The other electric meter and pole were located close to the marijuana patch. The meter served a pump for watering the marijuana patch. The electric meter near the patch had been inactive until March 30, 1988 when Petitioner applied for an electric meter from the Sumter Electric Cooperative (SEC). Petitioner did not have any cattle grazing on the subject property either before or after he applied for the meter. Fred Brown did not have any cattle grazing on the subject property either before or after Petitioner applied for the electric meter. When Officer Hurst arrived at the marijuana patch on September 16, 1988, he found that the meter Petitioner activated served a pump which was connected to an underground sprinkler system. The underground sprinkler system was located within the subject marijuana patch. On the same date, Officer Hurst found an old water trough near the meter activated by Petitioner, but the trough water was stagnant. Thus, Petitioner had not used the meter to fill the trough near the marijuana patch. Petitioner's fingerprints were found on the original of the electric meter application. The fingerprints of Fred Brown were also found on the original of the same application. On April 26, 1986, Petitioner was arrested for cocaine possession. Fred Brown was arrested on August 15, 1985 for possession of marijuana over 20 grams. Petitioner had hunted doves during the 1980's on the Cowherd/Long property and was familiar with the property prior to the September 1988 seizure of the subject marijuana. Fred Brown had also hunted and been familiar with the same property prior to the September 1988 seizure. Petitioner was responsible for cultivating the subject marijuana seized on September 16, 1988 by Officer Hurst. Pursuant to Section 212.0505 F.S., the estimated retail value of the subject marijuana is $244,300.00 as stated on the Revised Assessment dated March 27, 1990, which was introduced as the Department of Revenue's sole exhibit. The Revised Assessment was sent to Petitioner's former attorney, Ed Scott, on March 27, 1990 and received by him on March 30, 1990. The retail price estimated by the Respondent was based upon 12% of the total marijuana weight of 2,910 pounds. The factor of 12% represented that portion of the marijuana plants which is considered, by the Department, as usable for consumption after processing of the plants. The Revised Assessment is mathematically correct. The Revised Assessment is legally valid. Per the Revised Assessment, the 20% tax was imposed upon the estimated retail value to arrive at a base tax of $48,860.00. Per the testimony of Kevin Jackson, the total amount of tax owed by Petitioner to the Department of Revenue amounts to $94,450.42, including penalties and interest, as of March 27, 1990. No surcharge was applicable in this case. Interest on the above amount continues to accrue at a rate of $16.06 per day, making the total as of the date of formal hearing $100,215.96. (TR-12- 13) The Revised Assessment is prima facie correct in these proceedings. It is noted that all of Petitioner's "admissions," upon which many of the foregoing findings of fact were based, were couched in terms of "marijuana," which is not named in any applicable statute. (The genus "cannabis" is defined at Section 893.02 F.S. "Cannabis" is the material to be taxed under Section 212.0505(1) F.S., which statute incorporates Section 893.02 F.S. by reference.) No evidence was presented to establish that "marijuana" and "cannabis" are the same substance and the Department of Revenue made no request to officially recognize that they are one and the same. However, because of Petitioner's admissions to the prima facie correctness of the Revised Assessment, its mathematical correctness, and its legal validity against him, no further findings with regard to the nature of marijuana are necessary.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order upholding the Revised Assessment, assessing the Petitioner $100,215.96 as of the date of formal hearing plus statutory interest continuing to accrue from date of formal hearing. RECOMMENDED this 14th day of May, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1589 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner submitted no PFOF. Respondent's PFOF: 1-37 Accepted as modified to more closely reflect the greater weight of the evidence as a whole. Those matters not supported by the record have been rejected as contrary to the record. COPIES FURNISHED: Lee R. Rohe Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Robert Maynard Harris 13980 S.E. 80th Avenue Summerfield, Florida 32691 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Vicki Weber, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
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 During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
