The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 7, 2006. He holds certificate number 255361. On June 24, 2006, a Department of Corrections contraband interdiction team arrived at Gadsden Correctional Institution to conduct an operation that included the use of dogs to detect narcotics in vehicles parked in the Institution's parking lot. The Respondent was on duty at the Institution that day. After one of the dogs alerted on a car owned by the Respondent, the Respondent was summoned. He unlocked the car and consented to have his vehicle searched. The officer searching Respondent's car removed all the papers and other items from the glove compartment on the passenger side of the vehicle. He observed trash in the bottom of the glove compartment: sand, pebbles, hair, and the other normal debris that builds up over time in a glove compartment. Also on the bottom of the glove compartment was an unidentified sticky substance. The officer used his gloved hand to scrape up everything from the bottom of the glove box and placed it on a plain, white paper. Within the scrapings were a green leafy substance and a brown leafy substance. He separated these substances from the other debris on the white paper and placed them on his gloved hand. The quantity of substances he recovered was, according to his description, less than one gram, the size of a couple pinches of salt, a minute amount the size of a dime or smaller. He then took the substances on his hand to the interdiction team leader, who performed a reagent field test and determined that they were cannabis. It was the officer's opinion based upon his expertise in the identification of cannabis that the substances had been in the glove compartment for a long time. The officer then entered the back of Respondent's vehicle and removed the back seat. The area under the back seat had not been cleaned in a "very, very long time," and he discovered pebbles, gravel, sand, moldy French fries, and other debris. He also observed what looked to him like the residue of cannabis but did not bother to remove or test it. Doing so would have required hand-picking through the dirt and debris with a tweezers. Respondent was relieved of duty and has not worked as a correctional officer since that time. At the time, Respondent denied that the cannabis was his, denied any knowledge of it, and offered to take a urinalysis. However, he was not tested, and there is no evidence that any criminal charges were ever filed. At the time, Respondent owned two cars. His primary vehicle, which he drove to work and which he would not loan to others to drive, was a 2004 Chevrolet Impala. His secondary vehicle, which he did not drive to work and which he loaned to others to drive, was a 1999 Buick which he had purchased in March 2005. The vehicle searched by the interdiction team that day was the Buick, which had just been returned to him after being out on loan for approximately a month, and which he decided to drive to work that day. Among the persons who drove the Buick were Monica Phillips, Rontez Phillips, and Rontarius Phillips. The first two persons testified at the final hearing. Rontarius Phillips did not testify since he is incarcerated. The criminal conduct causing his incarceration was not revealed at the final hearing. Monica Phillips is Respondent's girlfriend. They have been together for seven years and have 3 children. Rontez Phillips and Rontarius Phillips are cousins of Monica, but Respondent sometimes refers to them as his cousins since he and Monica have been together for so long.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint in this cause. DONE AND ENTERED this 14th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 14th day of May, 2007. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Damari V. Wade
The Issue The issue in this case is whether the Respondent's corrections officer license should be disciplined.
Findings Of Fact The Respondent was certified as a corrections officer by the Commission in Corrections on July 1, 1981. She was issued certificate number 61024. On February 22 and 23, 1996, Bart Knowles, Mark Islar, and Kelly Mims were law enforcement officers assigned to the Special Investigations Unit (SIU) under the Eighth Circuit State Attorney's Office. The SIU was a narcotics enforcement unit consisting of members of the six counties within the Eighth Circuit, under the supervision of the State Attorney. The SIU collectively enforced narcotics violations under state statutes. The SIU received a call from the Inspector General's office of the Department of Corrections. The SIU was asked to investigate allegations of an individual selling narcotics to an inmate. The allegations were that narcotics were being sold from a residence located at 240 Redwood Drive. The residence is located on the prison grounds of the Union Correctional Institution. The individuals residing at the residence were identified as Respondent and Robert Stoutamire, Respondent's boyfriend. On February 22, 1996, Agents Knowles, Islar, and Mims met with Inspector Hayes of the Department of Corrections Inspector General's Office. Inspector Hayes indicated to the agents that an inmate had admitted that when he was cleaning the grounds of the institution, he would go to the Respondent's residence for the purpose of purchasing cannabis from Mr. Stoutamire. The agents provided the inmate with a wire transmitting device, searched the individual, and allowed the inmate to approach the Respondent's residence, contact Mr. Stoutamire, and attempt to purchase cannabis. The inmate owed Mr. Stoutamire $80 from a previous purchase, so the agents gave the inmate $100 for the prior debt, plus $20 to purchase more cannabis. The inmate contacted Mr. Stoutamire at the residence, who stated that he would have the additional cannabis for the inmate on the following day. On February 23, 1996, Agents Knowles, Islar, and Mims re-initiated the investigation at Respondent's residence. The agents, along with Inspector Hayes, re-briefed the inmate about how they wanted him to proceed at the residence. The agents searched the inmate to ensure that he wasn't hiding any narcotics, placed an audio-transmitting device on his person, and then dropped him off near the Respondent's residence. The inmate was given a verbal signal to indicate to the agents that the transaction was complete. The inmate proceeded to the residence, and tapped on the window of the back door. Mr. Stoutamire met with the inmate at the rear of the residence and gave the inmate a small plastic baggy containing cannabis. When the inmate gave the verbal signal indicating that he had the narcotics in hand, the agents, who were positioned near the rear of the residence, approached the individuals. Agent Knowles ordered both the inmate and Mr. Stoutamire to lie on the ground. The agents retrieved a green leafy substance that appeared to be cannabis lying on the ground next to Mr. Stoutamire. One of the Inspectors from the Department of Corrections left to pick up the Respondent, who was in a class at the prison firing range. The agents wished to search for more evidence of narcotics in the residence and in Respondent's vehicle. When the Respondent arrived at the residence, Agent Islar explained to her that Mr. Stoutamire had been arrested, and that the agents had reason to believe that there were narcotics inside her residence and vehicle. Agent Islar requested the Respondent's consent to search her residence and her vehicle. Agent Islar presented the Respondent with a Consent to Search form, and fully explained the form to her. Respondent voluntarily consented to a search of her residence and vehicle. Respondent told the agents that her car was at the prison firing range. She gave them her car keys. Respondent testified that Mr. Stoutamire had dropped the car off at the firing range earlier that morning because he had had Respondent's vehicle for the last three days prior to this incident. She testified that Mr. Stoutamire and his friends had been driving her car around for the last three days, smoking marijuana in it and partying in it. Respondent also testified that she had not seen her car or purse during that three-day time. However, the evidence shows that Mr. Stoutamire was not driving around in her vehicle smoking cannabis, but was at home when the inmate went by her residence twice during that three-day time frame. Respondent’s testimony on this point is not credible. Agent Knowles proceeded to the firing range where he found the Respondent's vehicle. Inspector Hayes unlocked the vehicle with the Respondent's keys. Agent Knowles found the Respondent's purse in the vehicle. Agent Knowles verified that it was the Respondent's purse by locating her driver's license, other forms of identification of the Respondent, and papers with the Respondent's name on them in the purse. The purse contained a silky lining that was torn inside towards the top of the purse. At the hearing, Respondent acknowledged the purse in the car was her purse. Agent Knowles pulled back the lining, and discovered what he immediately identified as cannabis in the purse. Agent Knowles also discovered rolling papers in the compartment next to the cannabis. Agent Knowles has seen cannabis over two hundred times prior to this day. The substance found in the purse looked and smelled the same as the cannabis he had seen previously. Agent Knowles found several cannabis roaches located in the front passenger-side ashtray of the vehicle. Throughout the front floorboard of the vehicle, Agent Knowles discovered cannabis residue. Agent Knowles described the residue as very small leafy, green pieces of cannabis. Agent Knowles received 40 hours of training from the Institute for Police Training (IPTM) in narcotics investigation and identification, which included instruction in the use of the Valtox narcotics testing kit. Agent Knowles also attended an 80- hour course from the Drug Enforcement Agency, which also included instruction of the use of the Valtox narcotics testing kit. Agent Knowles has used the Valtox testing kit over 200 times, and has never had a positive test refuted by later chemical analysis. Agent Knowles field tested the cannabis found in the Respondent's purse, which tested positive. Inspector Hayes and Agent Knowles secured the vehicle, and returned to the residence. Agent Mims took part in the search of the Respondent's residence. The agents found several small baggies commonly used for narcotics. Some of the baggies contained residue of controlled substances, and some did not. The agents also found an ashtray containing residue of controlled substances in it. The baggies and ashtray were found in the bedroom that the Respondent and Mr. Stoutamire shared. The baggies and ashtray were found on top of and inside of a dresser in the bedroom. Baggies were found in at least two dresser drawers. One drawer contained female clothing. However, there were at least three dressers in Respondent's bedroom one of which contained here daughter's clothing. The evidence was not clear as to which dresser the cannabis was found in. The agents also found narcotics paraphernalia in the living room area, which included a plastic tube with suspected cocaine powder residue in it, and three plastic baggies containing narcotics residue in them. Respondent knew Mr. Stoutamire smoked marijuana. Respondent's claim of no knowledge of the presence of marijuana in her car and home is not credible since she knew of Mr. Stoutamire's continued use of marijuana and, as the evidence shows lived in the midst of his drug use in her home. Moreover, at all times Respondent was capable of removing the illegal drugs from her home and the prison grounds by preventing Mr. Stoutamire from living there. In short, Respondent knowingly permitted Mr. Stoutamire to introduce illegal drugs onto Union Correctional grounds, a serious offense and lack of the moral character required for correctional officers. Therefore, Respondent’s license should be disciplined. In Respondent’s favor she has been a corrections officer for seventeen years and has not been the subject of any license discipline during that time.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that Respondent's certifications be revoked. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Harriett A. Cummings A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue to be determined is whether Respondent is guilty of violating Sections 943.1395(7) and 943.13(7), Florida Statutes (2007), and Florida Administrative Code Rule 11B-27.0011, as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact At all times material to these proceedings, Respondent was certified by Petitioner as a correctional officer, and issued certificate number 183026. On June 25, 2008, Respondent was a passenger in a vehicle that he owned but that was driven by his son, James Donaldson. The car was pulled over by Officer Paul King of the Starke Police Department because its brake lights were not working. Officer King explained to the driver the reason for the stop. Officer King smelled what he recognized to be burnt cannabis coming from inside the vehicle. He asked both occupants if they had any marijuana in the vehicle, and both men denied having any. Officer King asked James Donaldson to exit the vehicle. Upon searching his person, Officer King found in a pocket of James' trousers a plastic bag containing less than 20 grams of cannabis. He also seized a package of cigarette rolling papers, of a type commonly used to roll marijuana, from the seat of the car. James Donaldson identified the rolling papers as belonging to him. At that point, Officer King arrested James Donaldson, and placed him in handcuffs. Officer King then asked Respondent to exit the car, and asked him if he had anything on his person. Respondent stated that he had marijuana. A search revealed that in his right-front shorts pocket, there was a silver metal grinder with marijuana residue. In Respondent's left-front shorts pocket, Officer King found a clear plastic baggy containing a green leafy substance, less than 20 grams, along with a package of rolling papers. The metal grinder was of type commonly used to prepare cannabis for smoking, and was approximately the size of a chewing tobacco can. Officer King used a field test kit to test the specimens taken from both men. Both tested positive for cannabis. Officer King then arrested Respondent for possession of cannabis and possession of drug paraphernalia. Respondent did not deny having the marijuana or the metal grinder on his person. However, he claimed that both were hidden within a pack of cigarettes that belonged to his son, but that he had picked up the pack and put it in his shirt front pocket at his son's request. He claimed that he did not smell the marijuana because he has difficulty smelling anything. Respondent's claim is not credible. Even assuming that the metal grinder and the baggie of marijuana would fit in a cigarette package, it is not believable that Respondent would pick up a cigarette package containing such an implement and not realize the cigarette package contained something other than cigarettes. Officer King's testimony that he did not confiscate a cigarette package, on the other hand, was clear, straightforward and candid.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent has violated Section 943.13(7), Florida Statutes (2007), and revoking his certification. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 31st day of December, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Harry J. Donaldson Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This cause concerns the issue of whether the Petitioner should impose disciplinary sanctions against the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. Specifically the issues concern whether the Respondent has failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, requiring maintenance of good moral character by a certified law enforcement officer and, if he has not, what discipline is warranted.
Findings Of Fact The Petitioner is an agency of the state of Florida charged with licensing (certification) of law enforcement officers and with enforcing the practice standards embodied in Chapter 943 Florida Statutes and pendent rules. It regulates the practice of law enforcement officers through the enactment of regulatory standards and enforcement of such standards by rulemaking, as well as by implementation of policy decisions. The Respondent was certified as a law enforcement officer on June 17, 1982. He was issued certificate number 02- 331-00. The Respondent was employed as a police officer by the City of Gainesville Police Department at all times pertinent to this proceeding. Early on the morning of January 2, 1988, the Respondent returned from a trip to Atlanta, Georgia, of several days duration. He returned directly to his residence at the Gardenia Apartments, an apartment complex in Gainesville, Florida. On that morning, Sergeant Louis Aceveda of the Gainesville Police Department responded to a call to investigate a complaint of loitering and a possible illicit drug transaction at the apartment complex. Sergeant Aceveda is a narcotics investigator for that police department. Shortly after his arrival at the Gardenia Apartments complex, Sergeant Aceveda coincidentally encountered the Respondent, a fellow police officer, when the Respondent was driving into the parking lot of the complex. They engaged in a brief conversation about Sergeant Aceveda's purpose at the site and the Sergeant asked the Respondent if he could use the restroom in the Respondent's apartment. The Respondent readily agreed. Upon entering the Respondent's apartment the Sergeant smelled an aroma of burnt marijuana. No one else was present in the apartment at that time other than Sergeant Aceveda and the Respondent. The Sergeant made his way to the only restroom in the apartment and closed the door. Once he was in the restroom he observed a partially-burned marijuana cigarette in an ashtray lying in plain view on the top of the toilet tank. He confiscated that cigarette remnant, placed it in his pocket, and left the Respondent's apartment without revealing his discovery to the Respondent. After leaving the apartment he reported the incident to his supervisors and fellow investigators. Later that same day, Detective Drayton McDaniel of the Gainesville Police Department Narcotics and Organized Crime Section executed a probable cause affidavit in support of a search warrant application in order to attempt a search of the Respondent's apartment. The affidavit was based on Sergeant Aceveda's observations made earlier that day. It was presented to a county judge who found probable cause and issued a search warrant for the Respondent's apartment. At approximately 7:50 p.m. on January 2, 1988 Detective McDaniel and several other officers met the Respondent outside his apartment. Detective McDaniel knew the Respondent as a fellow police officer. He read the search warrant to the Respondent and the Respondent exhibited no specific reaction, asked no questions and made no comments concerning the search. Detective McDaniel and the officers assisting him then entered the apartment and began the search. Detective McDaniel collected, packaged and placed identification on certain seized items found during the search. Sergeant A. W. Smith, the Respondent's former supervisor, assisted with the search. He found a metal can top which contained approximately one tenth of a gram of marijuana (cannabis) as well as "rolling papers" commonly used to roll marijuana cigarettes. This material was in plain view on top of the Respondent's dresser in his bedroom. The Respondent's police badge and identification had been placed almost in contact with the metal can top on top of the dresser also. Investigator Richard Brooks of the Alachua County Sheriff's office also assisted in the search. He found an ashtray in the Respondent's bedroom which contained three marijuana cigarettes. Inside a drawer in the dresser Detective McDaniel found a black ceramic smoking pipe containing the residue of cannabis in the bowl. Sergeant Smith found a closed, purple handbag in the same bedroom on top of a chest at the foot of the bed. Inside the handbag was the Respondent's service revolver, issued to him by the Gainesville Police Department, as well as a small bag containing 1.5 grams of cannabis. Detective McDaniel found two cannabis cigarettes in the Respondent's automobile after he had obtained the Respondent's consent to search it. Sergeant Smith found four partially smoked marijuana cigarettes weighing approximately a tenth of a gram which were in a metal tray on the top of a dresser in the Respondent's bedroom. These were in plain view. Sergeant Smith also found a round tray under the dresser in the Respondent's bedroom which contained .1 gram of cannabis. During this lengthy search the Respondent was present. Despite this he made no statements nor asked any questions of his fellow police officers, who were known to him, while they were searching his home and his vehicle. However when Detective McDaniel discovered a small bag of suspected cocaine in his vehicle the Respondent indicated to him that his fingerprints would not be found on the bag. Other than this he was heard to make no comment during the entire search. After the search was concluded Detective McDaniel told him that he would be arrested. Again he made no statement. On January 4, 1988 Investigator Raymond Griffin of the Gainesville Police Department Internal Affairs Unit conducted an administrative interview of the Respondent. The Respondent was asked to submit to a urinalysis to determine if he had used narcotics but refused to do so. On January 5, 1988 the Respondent resigned his position with the Gainesville Police Department after having worked in that capacity for five and one- half years. On May 31, 1988 he entered a plea of nolo contendere on the charge of possession of cannabis before the County Court, In And For Alachua County. The Respondent maintained in his testimony that he had been to Atlanta on a vacation trip for several days, during which time his brother and some of his friends had used his apartment, apparently as a place for temporary residence and to "party". The Respondent indicated that he felt that his brother or other persons occupying the premises temporarily, during his brother's possession of them, had left the marijuana cigarettes and remnants of them on the premises. The Respondent maintained that he was gathering these items to begin investigating their origin and who might be responsible for them and that this was why he had the marijuana in the purple handbag and on top of his dresser. He had no explanation for the marijuana cigarette remnants from the bathroom or under the dresser or from his vehicle, however. The same is true of the discovery of the cocaine in his vehicle. The Respondent maintained that he was unable to locate his brother to secure his testimony for this proceeding because at some point after the Respondent's arrest and resignation from the Gainesville Police Department, and before this hearing, the Respondent's brother was convicted of a felony, and sentenced and incarcerated in the state prison system. The Respondent professed not to know his whereabouts at the time of the hearing. The Respondent's version of events concerning his gathering the marijuana in his bedroom as evidence, for purposes of conducting an investigation concerning its origin is not accepted. It is not credible to believe that a police officer of five and one-half years experience would gather marijuana and place it on his dresser in a convenient location, in the belief that persons not normally using his apartment had left those items there, without conducting a thorough search of his apartment so that he would have discovered the other marijuana remnants and also gathered them into a central location for preservation as evidence. If he had really intended gathering the marijuana in his bedroom as evidence, he would certainly have discovered that which was found in the bathroom, under the dresser and the marijuana smoking pipe from the dresser drawer. The fact that these other items were discovered not gathered and preserved in one location for transmittal to the police department, and the origination of an investigation, belies the Respondent's story in this regard. In fact, it appears that the Respondent was simply in possession of an illegal substance, marijuana, in his apartment and the search was conducted and the discoveries made before he could dispose of it. His story is further belied by the fact that cocaine and marijuana cigarettes were found in his automobile, which does not fit his description of events concerning his gathering of evidence to investigate who might have left the marijuana lying around the apartment. He was in possession of his automobile during the Atlanta trip. Further, his possession of the marijuana in question in the apartment was shown by the fact that he was present at home in the residence when the search warrant was served and the marijuana was lying around, or most of it was, in plain view. It is, thus, difficult to believe that he was unaware of its presence and did not have dominion and control over it. The fact that the marijuana in his apartment was under his dominion and control and, therefore, his possession, is corroborated by the fact that marijuana was found, along with cocaine, in his vehicle, which points to the fact that all the illegal substances found were possessed by the Respondent with his knowledge. There was certainly no evidence that Respondent's brother or other unknown persons had used his vehicle and left marijuana and cocaine therein unbeknownst to the Respondent. In summary, the marijuana being in plain view in the apartment at several different locations indicates that it was in the Respondent's actual possession, that he knew of it, and that he simply was surprised before he could discard it or otherwise dispose of it.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement revoking the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings Of Fact: 1-28. Accepted. Respondent's Proposed Findings Of Fact: Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, and not entirely supported by the clear and convincing evidence of record. Accepted. Accepted. 5-13. Accepted. 14. Accepted, but not itself materially dispositive of the issues presented for adjudication. Copies furnished to: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Horace N. Moore, Sr. Attorney at Law Post Office Box 2146 Gainesville, FL 32602 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact The Respondent is licensed by the Florida State Board of Nursing as a Licensed Practical Nurse. On or about January 2, 1979, the Respondent and Linda Sue Hilton, another Licensed Practical Nurse, resided together as roommates in an apartment in the town of Indian Harbor Beach, Florida. They were both at that time employed as Licensed Practical Nurses at the Holmes Regional Medical Center, which is also known as Brevard Hospital. On the evening of January 2, Respondent was the victim of a knife attack by an unknown assailant. Respondent was taken to the hospital accompanied by Linda Sue Hilton. The police were notified, and Stephen D. Hand, a detective employed by the City of Indian Harbor Beach Police Department, conducted the investigation. He came to the Respondent`s apartment on the night of January 2. Two other police officers were already at the scene, and the apartment door was open. He observed a towel full of blood on the couch in the living room and one on the floor in the bathroom of the apartment. He entered the bathroom and found syringes and various pills. There was a trail of blood leading into one bedroom. He followed the trail, and found additional pills in the bedroom, and several small plants which were later identified as cannabis sativa on the window sill. On his way out of that bedroom he observed through the open door of another bedroom several pills on a dresser. He seized all of the pills and the cannabis sativa plants. He also seized from the living room of the apartment a pipe, a smoking device called a "bong", and cigarette rolling papers. Residue of cannabis sativa was later identified in the Pipe. At the time he conducted this investigation, Detective Hand was 22 years old and had been employed as a detective for only a few months. He is the only, and the first detective employed by the Indian Harbor Beach Police Department. At no time during the investigation did he obtain a search warrant, despite the fact that he observed drugs which he thought might be illicit, and despite the fact that he had ample opportunity to secure the premises and obtain a search warrant. No criminal charges were ever brought against the Respondent, or against Linda Sue Hilton. The drugs which Detective Hand seized were turned over to the Holmes Regional Medical Center. On January 12, 1979, the Director of Nursing at Holmes Regional Medical Center, Sally A. Taylor, confronted the Respondent and Hilton with the drugs that had been seized from their apartment. The Respondent told her that some of the pills had been obtained by prescription, and that some were not prescription drugs. The Respondent admitted that she had taken some Surfak, a non- prescription drug which is also a a controlled substance, from the hospital. Both the Respondent and Hilton admitted to taking some used syringes home from the hospital. The Respondent and Hilton told Miss Taylor that the drugs were taken inadvertently . Taylor testified at the hearing that they did not tell her the drugs were taken inadvertently, and that she felt the Respondent and Hilton admitted to stealing the drugs. The testimony of the witness Taylor is in conflict with testimony that the witness had given earlier at a deposition. The deposition was received in evidence as Hearing Officer Exhibit 1. The testimony is also contrary to the testimony of Virginia Bixby, the Assistant Director of Nursing at Holmes Regional Medical Center, who was present during the interview. The testimony of the witness Taylor that the Respondent and Hilton admitted to taking the drugs home other than through a mistake is not creditable. There is no competent evidence in the record in this case from which it could be concluded that any drugs were taken from the hospital other than inadvertently. The testimony in this matter does not reveal which of the seized drugs were taken from the bathroom, and which were seized from which of the two bedrooms. Neither does the testimony reveal which of the Respondents used which bedroom. Detective Hand testified that he recalled either McDonald or Hilton telling him at a later date that the bedroom where the cannabis sativa was found was Respondent's bedroom. His memory in this regard was, however, quite blurred, and is not worthy of reliance. There is no competent evidence in this matter from which it could be concluded that the Respondent was in possession of any particular combination of the pills and drugs seized from her apartment, or that Hilton was in possession of any of them. Indeed, it was not established whether other persons than the Respondent and Hilton occupied the apartment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered dismissing the complaint filed against the Respondent, Kathie Verlene McDonald. RECOMMENDED this 1st day of June, 1979, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jerrold A. Bross, Esquire MITCHELL, LITUS, BROSS, & HENDERSON 2323 S. Washington Avenue Suite 117 Titusville, Florida 32780 Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32201 Geraldine B. Johnson Investigation & Licensing Coordinator Florida State Board of Nursing 111 East Coastline Drive Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Kathie Verlene McDonald 201 Harbor City Parkway Apt. F331 CASE NO. 79-416 Indian Harbor Beach, Florida 32939 As a Licensed Practical Nurse License Number 0468641 /
Findings Of Fact While a student at Southwest Florida Police Academy in April 1981, Petitioner gave Janice Kellogg a baggie containing 3.2 grams of marijuana. The only factual dispute occurred regarding the circumstances leading to Petitioner's acquisition of the marijuana and the reasons for giving the marijuana to Kellogg. Petitioner testified he found the marijuana in the road leading into a trailer space adjacent to his trailer the morning after the trailer had departed. He further testified he threw the marijuana into the cab of his pickup truck intending to turn it in to the authorities; that he was engaged in final exams and forgot about the marijuana until later in the day when a K-9 drug dog was presented and Petitioner hid the marijuana to test the dog; that after they observed the dog locate the marijuana, Kellogg asked Petitioner for the marijuana and he gave it to her; and that when he asked for it back later that day he was told she had smoked it. Kellogg's version of the events surrounding the marijuana is that after the marijuana had been produced for the drug dog, Petitioner gave her the baggie saying, "You look like a girl who likes to lay back and smoke a joint once in a while." Upon receipt of the marijuana Kellogg turned it in to police authorities and at their request attempted to get Petitioner to provide her with additional marijuana, without success. She further testified Petitioner told her he had obtained the marijuana from a suspect he had "frisked" the previous day. Petitioner worked in law enforcement in Tennessee for at least two years before moving to Florida. He has been in charge of the drug section of a police force in Tennessee but has had no special training. His experience caused him to immediately recognize the contents of the baggie as marijuana. Janice Kellogg has been involved in police work in Florida for one and one-half years and worked as a confidential informant to a narcotics squad in Michigan for five years before coming to Florida. She is certified as a law enforcement officer in Florida.
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
The Issue Whether Petitioner may be granted an exemption to work in a position of special trust, pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Since July 1997, Petitioner has been employed continuously as a driver for Big Bend Transit, Inc., an organization that provides transportation services to disadvantaged persons. In this capacity, Petitioner provided direct hands-on care to children and disabled adults by driving them from place to place in the course of her job. When Petitioner was hired by Big Bend Transit, Inc., she was screened, pursuant to the provisions of Chapter 435, Florida Statutes. It was determined during this screening that Petitioner had been convicted of a felony for possession of cocaine in 1987 and convicted of the misdemeanor of petit theft in 1994. Both of these offenses occurred in Florida. By operation of law, Petitioner is disqualified from working in a position of special trust on the basis of her 1987 conviction for possession of cocaine. It was stipulated by the parties that the petit theft conviction is non-disqualifying. Petitioner also has had a lengthy involvement with, and dependence on, alcohol and cocaine. From before her 1987 conviction for possession of cocaine until at least August 1994, Petitioner regularly used these drugs to excess. Petitioner and her immediate supervisor, Ms. Eddie B. Smith (no relation), were both apparently under the erroneous impression that it was acceptable for Petitioner to continue her employment in a position of special trust, despite the disqualification letter sent them by certified mail on January 26, 1998. There was nothing unclear about the Agency's notification letter. Petitioner has had an incident-free driving record with Big Bend Transit since her employment. Eddie B. Smith, is the Big Bend Transit supervisor for Petitioner. Ms. Smith has never ridden with Petitioner in the Big Bend van nor has she ever observed Petitioner driving the van. However, she considers Petitioner to be a safe, dependable, responsible driver and employee. She testified that among other Big Bend employees and their disadvantaged clientele, Petitioner's reputation is that "all speak highly of her." Although Eddie B. Smith did not know Petitioner prior to her drug rehabilitation, she is aware of Petitioner's past record and experiences, and still wishes to employ her. From 1987 to 1994, Petitioner repeatedly attended and participated in several substance abuse programs, none of which were successful for her. Notwithstanding her substance abuse during the foregoing period, Petitioner managed to maintain regular employment. Petitioner admitted that the shoplifting incident in September 1994 was inspired by her need to get money to buy cocaine and/or alcohol. However, in August 1994, Petitioner had voluntarily entered detox at Apalachee Center for Human Services, in Tallahassee, and voluntarily proceeded immediately afterward to the residential drug rehabilitation program run by Promise Land Ministries in Crawfordville, Florida. Petitioner admitted to one relapse using alcohol in early 1995, but forthrightly asserted that she knows now that she cannot even take one drink of alcohol, let alone use it socially. Petitioner also used drugs on her one night of relapse. She testified that she has not used either alcohol or drugs since that date in 1995. Petitioner quit smoking cigarettes approximately one year before formal hearing. Primary to Petitioner's successful rehabilitation has been her love for, and taking responsibility for the care of, her son, who is now seven years old. On November 14, 1995, Petitioner tested negative for the use of drugs as part of her employment with Cabot Lodge Motel in Tallahassee, Florida. Petitioner also took a mandatory drug screening test ordered by Big Bend Transit when she went to work for that corporation in July 1997. She also tested drug-free on that occasion. The foregoing two successful drug tests are only accurate to show that Petitioner had not used cocaine or other illegal drugs for a period of two to three days prior to the administration of each test. Petitioner is buying her own home at Lake Talquin Resort. She is a community leader and holds the position of a Director on the Board of the Home Owners' Association at Lake Talquin Resort. As a Director, Petitioner oversees the maintenance and quality of her trailer park neighborhood. Petitioner runs her own yard and cleanup service to supplement her regular employment with Big Bend Transit and also baby-sits for her friends and neighbors. Petitioner's immediate neighbors, who know her both professionally and intimately as a friend and baby-sitter for their nine-year-old son, are Sergeant Shelton Turner of the Gadsden County Sheriff's Office and his wife, Annetheria. According to Mr. and Mrs. Turner, Petitioner is a model neighbor and friend. Both expressed the sentiment that "my house is her house." Mr. Turner serves on the Home Owners' Association Board with Petitioner. He has known Petitioner for ten years and testified that since her rehabilitation, Petitioner has made a 360-degree change in her life. He considers her totally rehabilitated and has seen her "transformation." Sergeant Turner has had an opportunity to observe Petitioner in her home at all hours of the day and night and testified that, "[She's] not in that old white station wagon at the drug hole [anymore]... no one with drugs is ever hanging on [at her house]." Sergeant Turner further testified that two signs of drug abuse can never be observed in Petitioner's home, e.g., the lights are never cut off for failure to pay, and there is always food in the house. Antheria Turner is a Program Director at a group home for the elderly, where she has observed Petitioner with disadvantaged clients. She testified that, "If there were a position in one of my homes, I would have no problem hiring her." Mrs. Turner has only known Petitioner for the last three years during which time Petitioner has been drug-free, but she is well aware of Petitioner's past criminal record and drug/alcohol dependency. Petitioner is an active church-goer and credits her religious faith as another reason for her continued rehabilitation. She is characterized by Ms. Turner as a "good Christian." Edith Smith is the former owner of Precious Angels Family Home Daycare. Ms. Smith is employed elsewhere at the present time, but has known Petitioner for six to seven years. She also has had an opportunity to observe Petitioner's transition, subsequent to her final successful drug rehabilitation. Before rehabilitation, she would distance herself from Petitioner but now Petitioner often babysits for Ms. Smith's four year old daughter, and Ms. Smith considers Petitioner to be "very loving and caring around children," and trustworthy. At formal hearing, the Department presented one witness, a district screening coordinator who did not recommend that Petitioner be granted an exemption from disqualification. She speculated that the Petitioner might be somehow "covering up" possible continued weekend drug abuse. Her testimony is to the effect that if Petitioner could remain fully employed while "using," the fact that Petitioner has remained fully employed since she quit "using" in 1995 should not be considered as part of the evidence of good moral character. Ms. LeClair's testimony does not amount to either a policy statement by the agency or an expert opinion that Petitioner's current full time employment should be held against her. The Department seemed to merely assert a "legal position" that a longer period of rehabilitation should be necessary to clearly and convincingly establish Petitioner's good moral character, under the circumstances of this case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner Jacqueline Smith's request for exemption from disqualification. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Albert Thornburn, Esquire Grant Dearborn, Esquire Legal Services of North Florida, Inc. Suite 200 8 West Jefferson Street Quincy, Florida 32351 John Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Suite 100A Tallahassee, Florida 32399 Gregory D. Venz, Agency Clerk Department of Children and Family Service Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact 1-8. Adopted in Findings of Fact 1-8, respectively. 9-24. Adopted in Findings of Fact 8-23, respectively. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Arthur W. Quicksall, Pro Se 2123 Raiford Road Starke, FL 32091 Jeffery Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Post Office Box 1489 Tallahassee, FL 32302
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and the seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is, therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent, Arthur W. Quicksall's correctional officer certification. Respectfully submitted and entered this 14th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE 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 March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4000 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
