The Issue Whether Respondent committed the violations alleged in the Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Parties The Department is the state agency responsible for regulating the practice of medicine in Florida, pursuant to chapters 456 and 458, Florida Statutes. The Department also oversees Florida’s medical marijuana program via the Office of Medical Marijuana Use, formerly known as the Office of Compassionate Use. Art. X, § 29, Fla. Const.; § 381.986, Fla. Stat. Section 381.986 provides that a “qualified patient” can receive medical marijuana from a medical marijuana treatment center.2 A qualified patient must have at least one of the statutorily-designated qualifying medical conditions and obtain a certification from a qualified physician. § 381.986(2) and (4), Fla. Stat. Section 381.986(2)(f) identifies “post-traumatic stress disorder” (“PTSD”) as a qualifying medical condition. A qualified physician must hold an active, unrestricted license as an allopathic physician under chapter 458 or as an osteopathic physician under 2 A marijuana treatment center holds a license issued by the Department to cultivate, process, transport, and dispense low-THC cannabis, medical cannabis, and cannabis delivery devices. § 381.986(8)(a), Fla. Stat. chapter 459, Florida Statutes. § 381.986(1)(m), Fla. Stat. A qualified physician must also “successfully complete a 2-hour course and subsequent examination offered by the Florida Medical Association or the Florida Osteopathic Medical Association, which encompasses the requirements of [section 381.986] and any rules adopted hereunder.” A qualified physician may not have a “direct or indirect economic interest” in a medical marijuana treatment center. § 381.986(3)(b), Fla. Stat. Dr. Davis is a qualified physician and a board-certified family practitioner who has been licensed to practice medicine in Florida since 2003. His practice focuses on holistic medicine and alternative treatments including medical marijuana. Dr. Davis is based in Gainesville, Florida, and practices via a corporation he founded in 2016 called “Florida Marijuana Doctors, Inc.” or “FMD Green.” Dr. Davis has treated hundreds of patients with PTSD and has prescribed medical marijuana to treat PTSD. The Ties Between Dr. Davis and Trulieve Trulieve is a medical marijuana treatment center that operates 43 of the 213 medical marijuana dispensaries in Florida. As measured by sales, Trulieve holds 50 percent of the medical marijuana market in Florida. In 2017, Trulieve’s Florida market share was approximately 80 percent. Trulieve opened a medical marijuana dispensary (“the Lady Lake dispensary”) in the Ocala/Lady Lake area in 2017 by leasing 2,243 square feet for $40,374 a year in a building located in the Oakland Hills Professional Center at 13940 Highway 441 in The Villages. In 2017, there were not enough qualified physicians to handle the number of Florida residents seeking medical marijuana prescriptions.3 In an 3 Benjamin Atkins was involved with ensuring Trulieve’s dispensaries were compliant with state law, and he was involved with opening the Lady Lake dispensary. He described the shortage of qualified physicians as “disastrous.” When Trulieve opened the Lady Lake dispensary, he was unaware of there being any qualified physicians practicing in that area. Mr. Atkins further testified that “[t]here’s approximately 45,000 licensed physicians in Florida, and when [the medical marijuana program] first started there were maybe five effort to alleviate that problem, Trulieve contacted qualified physicians and reached agreements for them to work one day a week or one day a month inside buildings with Trulieve dispensaries where there was a shortage of qualified physicians.4 Trulieve subleased office space to Dr. Davis and at least three other qualified physicians at the Lady Lake dispensary for $100 a month.5 Upon entering the Lady Lake dispensary one would immediately be in a lobby or waiting room with a Trulieve sign identifying the dispensary on one side and office space behind a door on the opposite side.6 physicians that were qualified and willing to see patients So I would call it a crisis. If you [had] that situation with something like pediatrics, the news would have been talking about what a crisis it is.” 4 With regard to how Trulieve contacted Dr. Davis about working in the Ocala/Lady Lake region, Mr. Atkins offered the following testimony: A: And then we would reach out to physicians we were aware of in other parts, and to be honest with you, some were very cold and uncaring and just focused on getting patients to make money, but then there were people like Dr. Davis who were compassionate and caring. And I remember at one time he drove all the way to Miami to see a child who nobody would see. There was just a lot of demand like that. So we would say to somebody like Dr. Davis, “Hey, you know, would you be able to work in the area of The Villages to see people,” and the compassionate physician would agree to one day a month or one day a week, go to different areas of the state that were underserved even though it wasn’t easy. Q: Did you seek out Dr. Davis to have him come to The Villages area then? A: I don’t remember exactly who sought who. What I can tell you is he was always regarded as somebody that was compassionate and, you know, passionate about helping people and was willing to in special circumstances travel around and see people and do stuff like that. I honestly don’t remember who said first, “Hey, would you come to The Villages,” or if he said, “I’m willing to come to The Villages,” or what. 5 Similar arrangements existed at other Trulieve dispensaries. 6 Trulieve did not solicit nonqualified physicians or other businesses to sublease space. However, if a nonqualified physician had inquired about subleasing space in the facility, Lester Perling, a compliance attorney with Broad and Cassell, wrote the sublease, and Trulieve utilized the same sublease for all of the qualified physicians at the Lady Lake dispensary. Mr. Perling did not advise Trulieve what to charge for the subleases, but he did advise Trulieve that it had to be at or above the market price. Benjamin Atkins was responsible for the subleases between Trulieve and any qualifying physicians working at the Lady Lake dispensary. Mr. Atkins testified convincingly that $500 a month was the fair market price for such space. His testimony was substantiated by that of Department witness Thomas Oldenborg as discussed below. Trulieve’s leasing plan was to enter subleases with up to five qualified physicians, and charge each $100 a month to use the space one day a week, thus earning Trulieve $500 a month in rental income, i.e., the fair market value for the space. Dr. Davis’s one-fifth share of the $500 monthly fair market value rental rate for his one fifth share of the monthly occupancy was commercially reasonable. The evidence firmly established that the leasing arrangement was not a trick or scheme related to the practice of medicine. Furthermore, the evidence firmly established that Dr. Davis’s rental of office space at a commercially reasonable rate from Trulieve did not create a direct or indirect economic interest between Dr. Davis and Trulieve.7 Mr. Atkins testified that “we would probably lease to a variety of people so long as they were willing to abide by the lease and it was safe.” 7 Mr. Atkins’s calculations about how much revenue Trulieve realized from the sublease appear to be erroneous in that he believed Trulieve was receiving $100 per week from each sublease rather than $100 a month. Nonetheless, his testimony clearly established the underlying fact that “if somebody came and said I’ll give you $500 a month or something for that space, that was probably well within market.” The subsequent inflation of that figure based on a miscalculation of the lease term does not lessen the weight of his testimony that the total market value was $500 a month, and constitutes competent, substantial evidence that Trulieve was not offering the leases for a below market price. When questioned again about Trulieve’s methodology, Mr. Atkins reiterated his earlier testimony: While the sublease that Trulieve utilized for Dr. Davis and the other qualified physicians had provisions pertaining to late fees, common area maintenance, and a security deposit, the spaces for the associated amounts were left blank. As a result, Trulieve did not: (a) charge Dr. Davis for making late rental payments; (b) pass along the costs of common area maintenance; or (c) require a security deposit. Trulieve was not concerned with a late fee because it would have been an inconsequential amount. As for a common area maintenance charge, Trulieve deemed that to be immaterial given its belief that it was subleasing the physician suite for an amount far in excess of the fair market price.8 So we would take the space and say, okay, what would the space be leased out for in the fair market, and that space I recall was like $500 or something like that. So then to make sure you’re charging above market, say you have 30 days that you could lease in an average year – or in a year, 30 days per month, taking 355 and dividing it by 12, that you would essentially be charging different people to rent, and so charging $100 a month for the four days is like six times market. 8 When asked if Trulieve acted intentionally by omitting those incidental charges, Mr. Atkins testified as follows: A: I don’t want to say it was intentional or unintentional or misremember. I can just tell you from my state of mind sitting here today that when your rent from somebody is $100 a month, because you’re looking for 30 different people to pay that 100 or whatever, whatever the math is, you know, to charge a late fee of, you know, $8 or something would not have been something I would have been concerned with. *** Q: Mr. Atkins, in your experience dealing with the Trulieve dispensary subleases to qualified physicians, could you offer the Court what some typical or reasonable rates would be for late charges in any of those subleases? A: Yeah, my opinion is if it was $100 a month, a late charge would be like $5 or $6 or something. Q: Same question as to the past due on the common area maintenance, the CAM. From your experience with the As for other arrangements, qualified physicians were responsible for bringing their own equipment to the Lady Lake dispensary. Also, Trulieve had a policy prohibiting employees from directing patients to a particular physician. If a patient inquired about where he or she could locate a qualifying physician, a Trulieve employee was supposed to direct that patient to a state-run website or the “find-a-doctor” tool on Trulieve’s website. Qualifying physicians who subleased space from Trulieve did not receive preferential status on Trulieve’s website. Between January 1, 2016, and January 25, 2018, Dr. Davis prescribed 4,941,075 milligrams of medical marijuana. Trulieve filled 76.71% of that amount. Given Trulieve’s dominant position in the Florida market for medical marijuana, that number is not surprising. The Department’s Critique of the Sublease The Department presented the testimony of Thomas Oldenborg, a commercial real estate broker whose territory includes the Lady Lake area. Mr. Oldenborg deals with investment properties and lease analysis. Mr. Oldenborg noted that the main lease between Trulieve and the landlord of the Oakland Hills Professional Center does not allow for subletting. Mr. Oldenborg opined that $100 a month was not a reasonable rate for the sublease between Dr. Davis and Trulieve. He testified that it would be difficult to find parties interested in leasing a 500 square foot space for one day a week. Leases with such terms are not typically advertised to the Trulieve subleases to qualifying physicians, what would the CAM passthrough be? A: I mean, if you’re charging six times market rent, I wouldn’t charge the CAM. I would only charge a CAM if I was overcharging. general public. Instead, such leases are usually done privately between parties that have a preexisting relationship.9 9 Mr. Oldenborg’s full opinion was as follows: Q: Mr. Oldenborg, given your review of this lease and your knowledge of commercial real estate in the area, is the $100 per month rental rate a reasonable rate? A: No. Q: Why not? A: Because there would be, in my opinion, no possible way to facilitate the lease or the transaction as in there is no way to advertise that type of deal on a normal commercial real estate platform or any available commercial real estate platform. Q: Would you mind elaborating on that? A: Sure. Normally if somebody is to sublease a space it has to be pretty clear on what it is and put out to the general public. This, again in my opinion, seems that the two parties would almost have to have a personal relationship or something to come across this deal. Somebody would have to approach somebody in person and have this conversation. *** Q: Have you ever, in your time, seen a lease advertised on one of these lease platforms with restrictions on days of use? A: No, sir. Q: Have you ever seen time restrictions, as in specific hours? A: No, sir. Q: Are you aware of whether that can even be advertised on these platforms? A: I do not believe it can, which is the predication of my answer. I don’t know how they would list it. There’s really no availability to do so, in my knowledge. Q: If a client came in – if a client came in asking for a lease for one day per week for, say, three hours a day, would you be able to facilitate a search to find something of that sort? A: No. However, contrary to his initial opinion, when questioned about other parameters of the sublease between Dr. Davis and Trulieve, Mr. Oldenborg’s testimony indicated that the sublease was priced at fair market value: Q: In your experience and your knowledge of the area, what is the going rate for a single office or executive suite sublease of a comparable size, say 500 square feet in this region? A: You’re normally looking at – for an executive suite, you’re normally looking at a ten-by-ten office with access to a conference room and you’re looking at roughly $500 a month to a thousand dollars a month, [depending] on what area of The Villages you’re in, but you’re not getting very much square footage. *** Q: Could you estimate about how much square footage that $500 a month lease would purchase? A: It would come with a single office, which would be roughly a hundred square feet and then you would have access to a conference room, which is usually an appointment basis. *** Q: In your experience would you say that [the current lease space of Dr. Davis] is consistent with approximately 500 square feet of office space? A: Yes, sir. Mr. Oldenborg was then led through a series of calculations from which he ultimately agreed that the cost to Trulieve of the office space used by Dr. Davis was, based on all of the agreed upon assumptions, $107 per Q: So you would not be able to find a lease offered on the open market similar to this sublease? A: No, sir. month. He further testified that a payment by Dr. Davis to Trulieve of $100 a month is “[f]air market value, just not typical for that type of lease setup or sublease.” However, the qualification to his testimony that the lease was fair market value was reduced to near zero by the following: Q: And describe for me any experience that you’ve had with part-time leasing arrangements with physicians? A: Very little. Q: Okay. Can you recall any of those instances where you’ve done any kind of a part-time lease? A: No. Given that Dr. Davis only had access to the space in question for one day a week rather than five days a week, Mr. Oldenborg’s testimony established that Trulieve charged a fair price for the sublease. Findings as to Whether Dr. Davis Engaged in a Trick or Scheme Related to the Practice of Medicine or Had a Direct or Indirect Economic Interest in Trulieve Trulieve sought out qualified physicians to sublease unused space in Trulieve dispensaries. However, there is no evidence that the arrangement between Dr. Davis and Trulieve was an attempt to defraud Florida residents seeking medical marijuana or an attempt to “game the system” by circumventing any statutory requirements. There is no persuasive evidence indicating that Dr. Davis referred patients to Trulieve or that Trulieve referred prospective patients to Dr. Davis. As a result, the evidence does not clearly and convincingly demonstrate that Dr. Davis employed a trick or scheme related to the practice of medicine. Dr. Davis had no ownership stake in Trulieve. Thus, the evidence does not clearly and convincingly demonstrate that Dr. Davis had a direct or indirect economic interest in Trulieve. K.B.’s Appointment with Dr. Davis K.B. retired in 2015 after 35 years in law enforcement. After a year, she returned to the workforce and was employed as an investigator in the Department’s unlicensed activity section from August of 2017 through November of 2017. Her duties included undercover operations. K.B. used the alias of K.G. (“K.G.”) during her undercover operations. Her “K.G.” alias was a white female who had been in the military and had received treatment for PTSD. K.B. began an undercover investigation of Dr. Davis with the intent to get him to qualify her to receive medical marijuana for the treatment of PTSD. K.B. initially visited the Lady Lake dispensary on August 2, 2017, in order to gather information about the business. She walked through the front door of the Lady Lake dispensary and saw a Trulieve sign to her right. She saw no signs referring to Dr. Davis. K.B. met a security guard named Jason who wrote some information about Dr. Davis on a Post-It note and essentially referred to Dr. Davis as Trulieve’s “in-house doctor.” However, the security guard said that K.B. was not required to utilize Dr. Davis and mentioned other doctors in the area who could qualify her for medical marijuana. After her conversation with the security guard, K.B. returned to her office and ultimately went on-line in order to schedule an appointment with Dr. Davis for November 1, 2017. She used a prepaid card to pay the $300 appointment fee. She also faxed “K.G.’s” fictitious medical records to Dr. Davis’s office. Those fictitious medical records purported to memorialize treatment rendered to “K.G.” at Camp Pendleton in December of 2007, January 2008, and December 2008. Those records indicated that “K.G.” had witnessed a traumatic event while in the military and was experiencing difficulty sleeping and hallucinations. She also supposedly reported that she had become irritable, angry, and had withdrawn from friends and family. Dr. Davis received those records, reviewed them, and incorporated them into the medical records that he created for “K.G.” He also reviewed “K.G.’s” controlled substance history via E-Force, a database for controlled substances. K.B. arrived at the Lady Lake dispensary and waited in the lobby until Dr. Davis brought her back into his office. The appointment began with typical doctor-patient banter before turning to the reason for “K.G.’s” appointment, PTSD.10 Rather than relying on the fabricated medical records that K.B. had faxed to his office, Dr. Davis attempted to ensure that “K.G.” still suffered from PTSD. Accordingly, he had K.B. describe “K.G.’s” purported symptoms. In doing so, K.B. described experiencing nightmares and/or flashbacks for a long period of time and probably alluded to them being related to “K.G.’s” military service. K.B. also mentioned experiencing generalized anxiety and headaches.11 In addition to discussing PTSD and medical marijuana, Dr. Davis measured K.B.’s blood pressure, heart rate, temperature, respiration rate, height, weight, and body mass index. He noticed that her blood pressure was 10 The Department’s expert witness, Dr. Jeffrey Danziger, testified that PTSD “involves the development of certain characteristic symptoms following exposure to one or more extreme traumatic events. And the traumatic event must involve exposure to actual or threatened death, serious injury, or sexual violence. The person must directly experience the trauma, witness it occurring to others or learn that it occurred to a close family member or close friend. Or the exception is people exposed to – with repeated exposure to trauma such as first responders or police officers.” 11 Dr. Davis testified that K.B. “indicated a lot of symptoms. She had extreme nightmares, anxiety, insomnia, and social isolation, some depression, although she made it very clear to me that she wasn’t suicidal. I remember making it clear. She – and I said, ‘social isolation,’ she said she was gaining weight, she said she was having a lot of – she said flashbacks and having a lot of recurring thoughts about death or death of her friend. I think she may have said some other things but those were sort of the salient points and certainly were enough to corroborate her past medical history and her current symptoms.” moderately high and checked her lower extremities for edema. While her blood pressure was not high enough to cause him to prescribe a hypertension drug, Dr. Davis did recommend that she see a primary care physician about her elevated blood pressure. Dr. Davis also checked K.B.’s bodily strength and conducted a gait analysis. K.B. described her demeanor during the appointment as “somewhat brief and evasive” and acknowledged that she was intentionally attempting to give Dr. Davis as few details as possible about her purported symptoms. For example, K.B. deflected Dr. Davis’s questions about the nature of the nightmares and/or flashbacks by saying they were too painful to discuss.12 K.B. acknowledged during her testimony that there was no difference between the symptoms she described to him and the symptoms documented in “K.G.’s” fabricated medical records. Also, K.B. did not recall giving Dr. Davis any information that would suggest “K.G.” did not have PTSD. Dr. Davis and K.B. did not go into great detail about any PTSD treatment that “K.G.” had received between 2008 and the time of the appointment with Dr. Davis, and K.B. did not recall any discussion about taking any medications that might interact negatively with medical marijuana. However, K.B. did tell Dr. Davis that Xanax and Zoloft had not been helpful and were discontinued. She also told Dr. Davis that “K.G.” had previously used medical marijuana and that the treatment had been effective.13 12 While Dr. Davis estimated that the appointment lasted 24 to 30 minutes, K.B. estimated that it lasted 15 minutes. Nevertheless, K.B. testified that she did not feel rushed during the appointment and did not feel that Dr. Davis should have afforded her more time. “I can say this: From the discussion that we had and from the exam that he gave and the discussion we had about the product and he asked me if I had any additional questions, so – and I believe I said I did not at that time, so I think we were done having that discussion.” Also, in response to a question asking if the appointment would have taken longer if she had not been intentionally evasive, K.B. testified that, “I’ll say that Dr. Davis was willing to answer any questions I had if I had chosen to be longer-winded. So I don’t feel like I was rushed and I don’t feel like I was kept in there longer than I needed to be. I’d say it was fair.” 13 With regard to K.B.’s description of “K.G.’s” medical marijuana use, Dr. Davis testified that, “For her symptoms, she had used it previously and it was very effective for her in The fabricated medical records and what was relayed to him during the appointment convinced Dr. Davis that medical marijuana was appropriate for “K.G.”14 At that point, Dr. Davis discussed the risks and benefits associated with medical marijuana, the different types of medical marijuana, and the different delivery methods. Dr. Davis mentioned that one type of medical marijuana would be better to use at nighttime and another would be better for daytime use if she lacked energy. He instructed her to begin with very small doses and gave her a preprinted log to keep track of the amount she was taking. K.B. acknowledged during her testimony that Dr. Davis told her that she did not have to acquire medical marijuana at Trulieve and that she could acquire the product wherever she chose.15 K.B. also acknowledged that Dr. Davis never referred to himself as Trulieve’s “in-house doctor,” and that he never indicated that he had any relieving her symptoms. She also related to me that she had tried not only the – I think she had indicated not only the other medications that were specifically listed on here, but had tried multiple medications and treatments and had not had a lot of success or had had side effects, but that she had used marijuana in the past with excellent results.” 14 Dr. Davis remarked that, “This was a pretty classic textbook case of post traumatic stress, as it was designed to be. She was a very good agent.” 15 Dr. Davis testified that patients frequently ask him to recommend a dispensary. However he does not do so because “that’s not my job. I have no interest in any dispensary. I actually have very good relationships with all the dispensaries, and my business is to educate people about – make sure that they’re qualified and then educate them about the safe use of marijuana and what products might be appropriate for them, et cetera, it’s not which dispensary. And it’s also a very individualized thing. You know, people like different dispensaries for different reasons, they have different products, and the system is actually designed specifically to encourage people to be allowed to go to different dispensaries, and that’s very different than narcotics where it’s very frowned upon. If you go to – if you get an Adderall prescription and then you go to another pharmacy, it’s very frowned upon, whereas this system is specifically set up to be transparent and allow people to go to any dispensary that they wish, and I encourage that.” relationship with Trulieve. Also, Dr. Davis corrected K.B. when she referred to Trulieve as “your dispensary.”16 Findings Regarding the Sufficiency of Dr. Davis’s Assessment of “K.G.” Dr. Davis’s medical records for “K.G.” list her problems as PTSD stemming “from traumas she witnessed in the military,” anxiety, flashbacks, and extreme nightmares. His medical records note that “K.G.” “[s]ays that the worst for her has been nightmares. She is looking for something that can help her. She has tried numerous medications in the past and they have not worked and she hates the side effects.” Dr. Davis also noted that “K.G.” “has tried [medical marijuana] in the past and it worked very well for her.” Dr. Jeffrey Danziger has been a Florida-licensed psychiatrist since November of 1986, and he has treated patients suffering from PTSD. Dr. Danziger based his testimony about the diagnosis of PTSD on the Diagnostic and Statistical Manual, Fifth Edition, the DSM-5. In addition to suffering a severe trauma, Dr. Danziger explained that someone suffering from PTSD must have “at least four categories of symptoms:” The first category is the presence of intrusion symptoms associated with the traumatic event, which can incur – involve recurrent and intrusive distressing memories, recurrent distressing dreams in which the content or nature of the dream are related to the trauma, dissociative reactions and/or if one is exposed to stimuli that symbolize or resemble the traumatic event they develop intense or prolonged psychological distress or marked physical reactions. The second broad category is persistent avoidance of stimuli associated with the trauma, which can be efforts to avoid distressing memories, thoughts or feelings, or avoidance or efforts to avoid external 16 When asked if she had any reason to believe that Trulieve and Dr. Davis were referring patients to one another, K.B. testified that, “I’m just basically saying that in my presence, no one did any direct referral from one – from the doctor to the business or from the business to the doctor. While the – while the employee of Trulieve did say that Dr. Davis was the in- house doctor, he did not state [that] I had to get product if I saw Dr. Davis at Trulieve.” reminders, people, places, conversations, objects or situations that remind them of the trauma. The third category is that of negative alternations in cognition and mood associated with the trauma, which begins or worsens after the trauma occurred. And there’s several – there’s seven factors, somebody must have two or more of them. Persistent or exaggerated negative beliefs about oneself or the world; trouble remembering a key event to the trauma; inappropriate guilt; distorted cognitions that lead them to inappropriately blame themselves or others; a persistently negative emotional state such as fear, horror, anger or guilt; markedly diminished interest in activities; feelings of detachment or estrangement from others; or, the inability to experience positive emotions. You need to have at least two of those seven. The fourth broad category is marked alternations in arousal and reactivity associated with the trauma. And people suffering from PTSD need to have two of the following six. Irritability and angry outbursts, reckless or self-destructive behavior, hypervigilance, an exaggerated startle response, problems with concentration or sleep disturbance. And a few other qualifiers are that this constellation of symptoms in response to a sufficiently severe qualifying trauma must last at least one month. That the syndrome causes significant distress or impairment in functioning, either social, occupational or other important areas. And the disturbance is not due to the effects of a drug or other medical condition. So these are the basis criteria for PTSD as defined in our Diagnostic and Statistical Manual, Fifth Edition. Based solely on a review of the medical records that Dr. Davis maintained for “K.G.”, Dr. Danziger offered the following critique: We know that, looking at the military records, that Criterion A [was] probably met. Criterion A means exposure to actual or threatened death or serious injury. So, if those records from 2007, what they reflected, that would be a sufficient stressor. Now what the patient talked about was, there’s references on the problem list to anxiety, flashbacks and nightmares. Now flashbacks and nightmares are intrusion symptoms, which are B. But there [were] no questions asked as to how often, how frequent, how distressing, tell me about the flashbacks which involve a literal – involve a sense that the incident is literally recurring. So, but Criterion A was probably in the old notes and if she did talk about extreme nightmares and was reluctant to discuss them, all right. I’d give him Criterion B. But what we’re not seeing is, was there any investigation as to avoidance of stimuli, negative alternations in cognition and mood or marked alternations in arousal and activity. So there’s some information as to a qualifying stressor contained in the old records and some information, albeit brief, about nightmares. But other important facets of PTSD were not addressed. Further, there’s a reference there to she’s been tried on numerous medications. Well, what medications? It’d be reasonable to ask what medications were you tried on that failed. And then secondly, in treating PTSD, there are various specific psychotherapies [that are] very useful in the treatment of PTSD. And that would include cognitive processing therapy, cognitive exposure therapy and EMDR, the eye movement resonance treatment. So there was, in other words, there was no inquiry into what medicines have you been on that failed and then have you had any counseling or psychotherapy. Because PTSD spontaneously resolves for up to half of those suffering from it, Dr. Danziger was adamant that Dr. Davis could not base his diagnosis solely on “K.G.’s” old medical records: The records from a decade earlier reflect Criterion A, which refers to a sufficient stressor. That’s there. And Criterion B. She says she’s having nightmares, she didn’t want to talk about it further. Okay. I’ll give him Criterion B. I’ll give Dr. Davis that and if someone didn’t want to talk about it, you don’t want to force it. But there’s no reference to C, D, and E, which is the avoidance behavior, negative alterations and marked alterations in arousal and reactivity. And no documentation as to, well, what treatments were tried, what medicines were you on, did they do individual therapy, group therapy, how did you respond. That’s what’s missing. So what’s missing in terms of PTSD assessment is the full dimension of PTSD, is it still present and what treatment did you or did you not receive before making his decision on how to treat. Despite the supposed shortcomings in Dr. Davis’s diagnosis of “K.G.”, Dr. Danziger declined to say that Dr. Davis’s diagnosis was erroneous: I would answer that by saying she had possible PTSD, but the examination was not complete enough to definitively make the diagnosis and proceed with treatment. So, possible PTSD, but insufficient data to verify that was the right diagnosis. Dr. Danziger also qualified his testimony by stating he was not comfortable opining about the standard of care in different specialties and, as a psychiatrist, he is not a qualified physician under section 381.986: Q: Is there any difference in what you would anticipate for an initial patient visit or an encounter to make a determination of posttraumatic stress between a psychiatrist and a non-psychiatrist? A: There likely would be. My colleagues in primary care treat hypertension, diabetes, asthma, arthritis, heart failure, a host of medical conditions that I don’t treat. Some may – some of my colleagues in primary care and internal medicine are very comfortable treating psychiatric conditions and only referring those who are the most severe or refractory to treatment, and others refer just about everything. So it depends on the practitioner. I want to be careful opining what’s an appropriate standard on a different specialty than mine. Dr. Davis had “K.G.’s” fabricated medical records at his disposal, and those records indicated that she had been diagnosed and treated for PTSD. In addition, Dr. Davis’s own exam indicated that “K.G.” had several symptoms indicating she was still suffering from PTSD. Section 381.986(4)(a) requires a qualified physician to conduct “a full assessment of the medical history of the patient,” and Dr. Davis did not gather a significant amount of information about “K.G.’s” struggles with PTSD during the years between the last fictitious appointment in 2008 and her appointment with Dr. Davis in 2017. However, the Department has not adopted a rule elaborating on what a qualified physician must do in order to conduct a “full assessment.” Also, the Department has not adopted a rule requiring qualifying physicians to follow the DSM-5. The evidence does not clearly and convincingly demonstrate that Dr. Davis violated section 381.986(4)(a) by failing to conduct a full assessment of “K.G.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine issue a Final Order dismissing the Administrative Complaint against Justin C.K. Davis, M.D. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2020. COPIES FURNISHED: Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Mark S. Thomas, Esquire Thomas Health Law Group, P.A. 5200 Southwest 91st Terrace, Suite 101-B Gainesville, Florida 32608 (eServed) Major Ryan Thompson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health Board of Medicine 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed)
The Issue The central issue in this cause is whether the Respondent is guilty of the misconduct alleged in the Amended Administrative Complaint dated January 26, 1987, and, if so, whether her certificate should be revoked.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Patricia M. Rosenfeld, was certified by the Criminal Justice Standards and Training Commission on November 11, 1981, and was issued Certificate Number 02-29462. At all times material to this cause, Respondent was employed by the Metro-Dade Police Department. During the fall of 1982, Carolyn Washington was employed as a dispatcher by the Florida City Police Department. Ms. Washington participated in the theft of some 1450 lbs. of marijuana from the evidence cellar at the Florida City Police Department. After the marijuana had been sold, Washington received a total of $20,000 (cash) as her portion of the proceeds. Alice Clanton Butler was a dispatcher for the Homestead Police Department during the fall of 1982. At all times relevant to the issue in this case, Butler shared an apartment with Respondent. References to "Wendy" or "Alex" in the transcript refer to this person. Washington confided the details of the marijuana theft to her friend, Butler. Washington was allowed to store some of the proceeds from the sale at Butler's and Respondent's apartment. During September, 1982, Washington agreed to loan Butler money. Washington gave Butler $2000 to keep and spend, and requested that Butler store an additional $8000. This money, all proceeds from the sale of the marijuana which had been stolen from the Florida City Police Department, was placed in a hope chest at Butler's apartment. Washington entrusted Butler with the money because she considered her to be a good friend. Some time later, Respondent became aware that Butler was storing money from Washington at the apartment. Washington was asked to come over, at which time she and Butler engaged in a conversation, in Respondent's presence, as to the storage of the money and its origin. On one visit to the apartment, Washington, Butler and Respondent sat at a table counting and arranging the money in stacks of $100, $50, and $20 denominations. During this incident Respondent asked Washington for a loan. This loan was to be used as part of a payment on a new car. Washington agreed to let Respondent use some of the money for the new car purchase. Respondent knew, however, prior to borrowing the money, the manner in which Washington had come by the funds. Respondent used the money borrowed from Washington to purchase a new car. This purchase was made during the month of October, 1982. Washington and Butler discussed the theft of the marijuana, as well as the identity of others who had participated in the theft, in Respondent's presence. Respondent acted as though she did not wish to become involved. The fact that one of the conspirators had purchased a Chili Shop with some of the theft proceeds was also discussed in Respondent's presence. Washington and Butler fabricated a story to explain the new found financial success Washington was having. They told Respondent, Patricia Rosenfeld (Respondent's mother), and Virginia O'Regan (a friend) that Washington had received an inheritance from her grandmother's estate. Thus, Rosenfeld and O'Regan believed the estate money to be the source for the car loan. Respondent, however, had been present during conversations wherein the true source of the funds had been disclosed. Additionally, Respondent knew the money (cash) was being stored in her apartment. Respondent did not file a police report on Butler or others involved in the theft. A memorandum filed regarding Washington alleged Washington may have been involved with cocaine. At no time did Respondent expose Washington as part of the marijuana theft group. On March 23, 1983, John Johnson, an investigator for the Dade County State Attorney's Office, subpoenaed Washington for questioning. At this session Washington admitted her involvement in the marijuana theft and named others, including Butler and Respondent. Washington explained how the thefts had been arranged and that she had stored the cash proceeds with Butler. Washington, Butler, and Virginia Ann Woodlief, a dispatcher at the Florida City Police Department who was a friend of Butler's and Respondent's, agreed to assist with the investigation regarding the Florida City marijuana theft. On several occasions they wore body bugs and attempted to engage Respondent in conversation. On one such occasion, Respondent told Woodlief that the cash could not be traced. Woodlief understood Respondent to be referring to the cash proceeds from the marijuana sale. Washington was not prosecuted for her role in the marijuana theft. Respondent was prosecuted and acquitted. On September 17, 1983, Respondent wrote a letter to the Florida Department of Law Enforcement wherein she admitted "a bad judgement (sic) call."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent's certificate number 02- 29462. DONE and RECOMMENDED this 15th day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0189 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact, paragraph 4. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact paragraph 5. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7. Accepted. Finding of Fact, paragraph 5. Accepted in material part in Finding of Fact, paragraph 6. Accepted in material part in Finding of Fact, paragraph 6. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary. Paragraph 19 is accepted. Finding of Fact paragraph 6. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car. Paragraph 22 is accepted. Finding of Fact paragraph 12. Rulings on Respondent's Proposed Findings of Fact: Accepted. Finding of Fact paragraph 2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5. Accepted. Finding of Fact paragraph 5. Accepted in material part in Finding of Fact paragraph 5. Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence. Accepted but unnecessary since true origin of funds was known to Respondent. 11 Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence. Accepted in material part in Finding of Fact paragraph 13. Rejected as contrary to weight of credible evidence. Rejected as argumentative. Rejected as argumentative. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael R. Fishman, Esquire 19700 Caribbean Boulevard Suite 240 Miami, Florida 33189 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302
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
Findings Of Fact At all times here relevant, Respondent, Howard W. Adams, held Florida teaching certificate number 237388, Graduate, Rank III, and Randy D. Ward held Florida teaching certificate number 404713, Graduate, Rank III. On or about 1 April 1979 Respondents were arrested by the Fort Myers police and charged with possession of marijuana. Respondent Adams, who was on continuing contract, was suspended without pay from his position in the Lee County school system and Respondent Ward, who was on annual contract, was fired from her position in the Lee County school system. Considerable publicity was given to the arrests and school board actions resulting therefrom. The criminal charges against these Respondents were subsequently dropped by the State Attorney's office for lack of evidence. This too received publicity in the local press. Suffice it to say the arrest and subsequent release of Respondent Adams was well-known by both faculty and students at Cypress Lake Middle School, where Adams taught orchestra, and by the adult population of Fort Myers with children attending the Lee County public schools. Both of the witnesses called by Petitioner testified that Respondent Adams' effectiveness in the school system had been seriously reduced as a result of the marijuana incident. This loss of effectiveness was caused by the belief that Adams had, in fact, violated the law by having in his possession marijuana. Since Adams was suspended from his position on the faculty at Cypress Lake Middle School as soon as the newspapers published the circumstances surrounding his arrest, no specific incidents to show how Adams' effectiveness had been reduced was available, let alone presented, to support these conclusions. No evidence regarding the loss of effectiveness of Respondent Ward was submitted. Fort Myers and Lee County are populated predominantly by residents with a conservative outlook on morals and moral values. As a result, possession of marijuana is deemed a more serious offense in Lee County than in more cosmopolitan areas. Students found in possession of marijuana on school premises are routinely expelled. Possession of drugs of any sort is deemed immoral in this area, and marijuana is included in the definition of drugs.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that their teaching certificates numbered 237388 and 404713 be revoked. DONE and ENTERED this 27th day of August, 1980, in Tallahassee, Leon County, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1980. COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Dr., Ste. 224 Tallahassee, FL 32301 Philip Padavano, Esquire P. O. Box 527 Tallahassee, FL 32302
Findings Of Fact The Respondent was a public school teacher employed by the Washington County School Board under a continuing contract of employment at the time of the events referred to in the Petition for Dismissal. He remained on continuing contract status as a teacher at the Roulhac Middle School until his suspension on November 7, 1983. On the morning of April 5, 1982, William Poole, Chief of Police for the City of Bonifay, responded to a confidential informant's report of suspected marijuana plants growing on property located at 312 Caldwell Avenue, Bonifay, Florida. Chief Poole went to that location accompanied by Assistant Chief of Police Ike Gardner. When he arrived at the scene in the rear of the house located at that address and across the back fence marking the rear boundary of the property, the Chief looked over or through the fence on the rear boundary of the property and observed what he believed to be ten to twelve marijuana plants growing in a garden along the back fence. The house was owned at the time by the Respondent's Mother, Lavada Forehand, who was living in the house with the Respondent at the time the suspected marijuana plants were discovered. Chief Poole took photographs of the property, the garden and the suspected marijuana plants at that time, which were admitted into evidence as Petitioner's Exhibit 1. An investigation was initiated and in the early morning hours of April 7, 1982, Chief Poole again observed the suspected marijuana plants in the Respondent's garden. Later that day the Chief received a call from a confidential informant to the effect that the Respondent was, at that time, in the garden. Chief Poole proceeded to a residence on adjacent property and viewed the garden, and at approximately 4:00 p.m. that afternoon observed the Respondent watering plants in the garden for approximately 20 minutes. The officers were equipped with a camera with a telephoto lens at the time, and took photographs of the Respondent watering his garden, which were offered and admitted into evidence as Petitioner's Exhibit 2. Based upon his personal observations and the photographs which he obtained, Chief Poole proceeded to the State Attorney's office where he was assisted in the preparation of a search warrant for the subject property, which was duly issued by the Court. That evening of April 7, 1982, the two officers proceeded to the Caldwell Avenue residence owned by Respondent's mother, where the Respondent resided, and served the search warrant. When they arrived the Respondent was present with his mother and another lady with several children. The officers served the search warrant and thereupon went to the garden area which they had earlier observed and found it "standing in water." The suspected marijuana plants which they had previously observed were no longer present, and no traces of marijuana could be found in the house or on the grounds. At the time the premises were searched, and at the time the officers observed the Respondent watering the garden, the Respondent resided at the premises in question with his mother and by his own admission had resided there for approximately the last three weeks prior to April 7, 1982. In addition to the Respondent and his mother residing at the premises, various friends and relatives and other persons had access to the premises and visited there from time to time. Other persons have lived there or been invited there from time to time and his mother had problems during 1982 with trespassers on her property and has complained to the Bonifay Police Department regarding trespassers. Respondent acknowledges that he maintained the garden on the site growing tomatoes, bell pepper and other large and small vegetables including "a couple of hills of squash" and broccoli. On the day in question he was watering tomato plants according to his testimony. The Respondent has a nephew who sometimes resides with Respondent's mother and so do other young persons. The Respondent maintained he did not plant the marijuana plants and does not know who did plant them. In fact it has not been established that the Respondent planted the marijuana plants. The Respondent knows the neighbors who own the property and live adjoining his mother with the exception of neighbors who lived in the house from which the officers conducted the surveillance and from which the photographs were taken, who moved in and out quickly so that the Respondent did not become acquainted with them. The Respondent is active in his teacher's union and has incurred an increasingly hostile relationship with Superintendent Adams since 1981 when the Superintendent ordered interscholastic sports terminated at Roulhac Middle School where the Respondent coached as well as taught Civics. The Respondent conducted a campaign to reinstate athletics at the school at the behest of many of the parents of students at the school, and in the course of this campaign engendered a relationship of animosity with Superintendent Adams. The Respondent maintains that he cannot identify the plants depicted in the photos considered by the officers to be marijuana plants. He once smoked marijuana 14 years ago when in college but has not smoked it since and once taught a drug abuse course for the Northwest Florida Drug Abuse Council. He agrees with Superintendent Adams' view that a teacher using drugs should be dismissed but he denies doing so since becoming a teacher. Although it was established that the Respondent was likely capable of identifying marijuana by sight in view of his prior experience with the drug education course, it was not established that in fact he knew the marijuana was in the garden on his mother's property, nor was it established that he had sole access to or control of his mother's property, including the house and surrounding grounds, and particularly, the garden in question. Chief Poole had no doubt that the plants he observed, and which were photographed and are depicted in Petitioner's Exhibit 1, were marijuana plants. The Chief could not establish however, that the plants that Forehand was observed and photographed watering were actually marijuana plants as opposed to tomatoes, bell peppers, squash or some other vegetable which were present in the garden. Both Chief Poole and Agent William Fisher of the Florida Department of Law Enforcement are trained to make visual identification of marijuana. Chief Poole, however, is not trained to make a chemical analysis in identification of controlled substances, including marijuana, nor is he trained to give a positive identification of marijuana based upon other forms of testing, aside from visual identification. Agent William Fisher is very familiar with marijuana and testified that the plants depicted in Exhibit 1 "appeared" to be marijuana. Agent Fisher was shown the photographs of the plants the Respondent was watering but could not identify that the plants he was watering were actually marijuana. Agent Fisher testified that there was a "strong probability" that the plants depicted in Petitioner's Exhibit 1 were marijuana plants but added that he was not trained to make a positive identification of marijuana plants and did not consider himself qualified to do so. He was unable to perform any sort of "presumptive test" as for instance, by smell or taste or touch, because he was only shown a photograph of the plants in question. Chief Poole has had 11 years of law enforcement experience and attended numerous classes concerning drug enforcement and drug identification, and has served as a drug-handler for a "drug dog." In his years of law enforcement experience he has sent numerous samples of suspected marijuana to the FDLE Crime Lab in Tallahassee and Pensacola, and none of his samples have ever been confirmed as anything other than marijuana. Chief Poole, however, did not succeed in obtaining the plants he observed growing in the subject garden upon his search of the premises, however, because they had "disappeared." Thus, no chemical or other positive identification test has been performed on anymarijuana seized on the premises in question, because none was seized at all. The officers performing the search did not know whether other people might have access to the house and garden in question, and Chief Poole admitted he did not know who else might have access to the garden. The Respondent called five "character witnesses" (four teachers and one parent) each of whom had had acquaintance with the Respondent for a substantial period of time and had knowledge of his reputation in the community for truth and veracity. The Respondent has a reputation for being truthful. The Respondent has never before been subjected to disciplinary action during his career as a teacher.
Recommendation Having considered the foregoing Findings of Fact, 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 the Administrative Complaint filed by the Petitioner herein should be DISMISSED and the Respondent should be reinstated with full back pay from the date he was suspended without pay. DONE and ENTERED this 18th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Charles Adams, Superintendent of Schools Washington County School Board 206 North Third Street Chipley, Florida 32428
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
Findings Of Fact The Petitioner is an agency of the State of Florida charged under Chapter 943, Florida Statutes, and related rules, with regulating the licensure status, including determination of entitlement to licensure, of law enforcement and correctional officers in the State of Florida. The agency is also charged by the Legislature with regulating and enforcing the practice standards for certified law enforcement officers, including correctional officers, embodied in Chapter 943, Florida Statutes, and related rules. The Respondent was certified by the Criminal Justice Standards and Training Commission (Commission) on or about March 7, 1991. She was issued corrections certification number 45-90-502-11. From March of 1991 through July 31, 1992, the Respondent was employed as a corrections officer for the Taylor County Sheriff's Office. She has no criminal record and no record of administrative discipline of any sort. During the course of her training to be a corrections officer, the Respondent received classroom training in the identification of controlled substances, including cannabis (marijuana). This training included the viewing of actual cannabis in the classroom but did not include training in recognizing it as a growing plant in the field. Charles R. "Chuck" Morgan is an employee of the Perry Lumber Company. On or about July 29, 1992, and until sometime in February of 1995, he was employed by the Taylor County Sheriff's Office. Danny Williams is an investigator with the Taylor County Sheriff's Office and has been employed in that capacity since January of 1990. Investigator Williams has had training in the aerial detection, and other means of identification, of marijuana. He participates in four to eight flights per year in aircraft searching for marijuana plants, essentially in rural areas of Taylor County. On July 29, 1992, Investigator Williams was the passenger in a helicopter, provided to the Taylor County Sheriff's Office by an unknown agency, participating in an aerial search for marijuana plants. During this search, he noticed what appeared to be marijuana plants growing in or adjacent to the backyard of a residence which proved to be the Respondent's residence. Investigator Williams, upon being landed at the airport, entered his patrol vehicle and drove to the residence of the Respondent and her husband, James Byrd. On route to that location, Investigator Williams, presumably by radio communication, summoned other law enforcement officers of the Taylor County Sheriff's Office. He was, therefore, met at the front gate of the residence premises in question by Captain Worsham and Sheriff Deputy Chuck Morgan and others. The front gate was on the portion of the premises immediately adjacent to the public thoroughfare by which the premises are normally entered by vehicles. The residence premises contained a wood-frame house on a well- landscaped yard of a fairly-open character with few or no trees. The rearward portion of the premises, analogous to the "backyard", was that portion of the premises most distant from the public highway (toward which the house faces). It is observable by an observer looking in the opposite direction or away from the public highway upon which the premises fronts. In this rearward portion of the premises, in a rearward corner of the backyard, there was a dog pen, located approximately 75-100 feet from the northwest corner of the rear portion of the house. Investigator Williams and Deputy Morgan observed an individual, who proved to be James Byrd, the Respondent's husband, recognized by Investigator Williams, standing behind the dog pen. They observed him in that location attempting to cut down several plants which were growing there. Deputy Morgan stopped Mr. Byrd from cutting any other plants and removed him from the immediate area. He was ultimately taken into custody that day. The plants he was attempting to cut down proved to be cannabis plants. Investigator Williams and Deputy Morgan observed 13 cannabis plants growing in that location behind the dog pen. Most of the plants were approximately 10-12 feet tall. Investigator Williams took samples from the grown plants, and a laboratory analysis proved the plants to be cannabis and that the samples taken totaled 27.3 grams of cannabis. The cannabis plants were in plain view from the residence. They were tall enough to be observed over the top of the dog pen, which lay between the back wall and back door of the residence, the site where the plants were growing and immediately adjacent to it. Deputy Morgan described the area where the cannabis was located as being in a clear, open area with grass but no high weeds which would conceal the cannabis from the plain view from the rear portion of the residence. Investigator Williams has received some training in the growth rate of cannabis plants so that he could make a somewhat educated estimate of the age of the plants found behind the dog pen. He estimates that they could have grown to a height of 10-12 feet in approximately 60 days, depending upon climatic conditions, care and maintenance, and the amount of fertilization they received. The mature plants, as well as the small plants, discovered growing adjacent to the dog pen, would in Investigator Williams' experience, produce something in excess of 13 pounds of cannabis leaf. Investigator Williams and Deputy Morgan also observed a bucket and flowerpot in the backyard containing several smaller cannabis plants. These containers and plants were in plain sight from the rear portion of the residence. Deputy Morgan escorted Mr. Byrd to the residence and obtained his consent to search it for cannabis. Deputy Morgan, with Mr. Byrd's cooperation, discovered a partially-smoked cannabis cigarette in a desk drawer in the family room of the residence and also found rolling papers and marijuana-smoking paraphernalia in the desk, as well. Deputy Morgan then proceeded to the bedroom shared by Mr. Byrd and his wife, the Respondent. In the bedroom closet, he located approximately one-half pound of marijuana in a grocery bag on the floor in the middle of the closet. In the closet were both male and female clothing, with each spouse having a designated side of the closet for their personal clothing and other items. The middle of the closet contained a filing cabinet, which was for the Respondent's use. A laboratory analysis determined that the bag found on the closet floor contained approximately 118 grams of cannabis. Mr. Byrd admitted to Investigator Williams and Deputy Morgan that the cannabis found belonged to him and that smoking cannabis was a bad habit he acquired during his service in the Vietnam War. He stated to them that he grew the cannabis for personal consumption and was not engaged in the sale or distribution of it. He stated that he smoked cannabis but that his wife, the Respondent, did not. He never stated to law enforcement officers that the Respondent had knowledge of the cannabis in the residence and on the surrounding curtilage. The Respondent was not present at the residence that day when the officers seized the cannabis and arrested Mr. Byrd. She was at Moody Air Force Base in Valdosta, Georgia, at the time and only learned of her husband's arrest and the incident when she returned late that afternoon. She learned of it from her father or daughter, who also resided on the premises. There is a separate mobile-home residence on the same parcel of property as the house in which the Respondent and her husband reside. Although the officers, on the day in question, interviewed Mr. Moore, the Respondent's father, who resided in the mobile home, they never questioned the Respondent and charged no one other than James Byrd. The Respondent was terminated from her position with the sheriff's office on approximately July 31, 1992 because of the above-described incident. After her termination from her job with the sheriff's office, the charges against her husband, James Byrd, were "nol prossed". The Respondent and Mr. Byrd have been married for approximately 35 years. They have resided in Taylor County since November 1, 1979 and have resided in the same residence where the cannabis was found and shared the bedroom and closet where some of it was found since that time, including on and around the date in question. The Respondent was not a record title holder of the premises on which the cannabis was found but considered herself as having a practical ownership interest in the residence. Despite his statement to law enforcement authorities that he had had the habit of smoking cannabis since returning from the Vietnam War, the Respondent denied knowledge of her husband's cannabis habit. Although they had been married for 35 years and resided in the same residence, including at the times when the marijuana in question was placed in the residence and grown in the backyard of the residence, the Respondent maintains that she had no knowledge of its presence on the premises. She maintains that she had no knowledge of her husband's cultivation and use of marijuana. Neither the Respondent's husband nor any other witness testified in corroboration of the Respondent's denial of knowledge of the presence of cannabis on the subject premises. Although, as the Respondent stated, Mr. Byrd commonly cared for the dogs which are normally kept in the dog pen, and the Respondent seldom went to that vicinity of the backyard, the marijuana plants growing adjacent to the dog pen were in plain view from the rear portion of the house itself. The Respondent's testimony is the sole testimony that is exculpatory. She is an "interested witness" testifying on her own behalf, in a proceeding where she can potentially lose the valuable right to practice her livelihood. In consideration of the totality of the evidentiary circumstances and the demeanor of the witnesses, it is found that, indeed, she knew of the presence of the growing marijuana on the premises and the marijuana which was found inside the residence. It simply strains credulity beyond acceptance that she could live with her husband in the same residence, in the same bedroom and use the same closet for a substantial period of years and not know of the marijuana smoking habit he freely admitted to and his activities involved in growing marijuana in plain sight on their marital premises. In addition to the Respondent having no record of any criminal or administrative offense, the above-found misconduct was not facilitated by the Respondent's official authority nor did it occur while she was performing her duties. There was no damage or danger caused to others by her conduct. The Respondent gained no pecuniary benefit from the misconduct and its effects, through penalties, can obviously damage her livelihood, which is already the case. Finally, her employing agency has already imposed the discipline of termination approximately three and one-half years ago. Rule 11B-27.005(6)(a- v), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that her certification be suspended for one year, with one additional year of probation, as well as such career development training or re-training as the Commission shall deem appropriate. DONE AND ENTERED this 29th day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3844 Petitioner's Proposed Findings of Fact 1-20. Accepted. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert J. Schramm, Esquire Post Office Box 29 Perry, Florida 32347-0029 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement O. Box 1489 Tallahassee, Florida 32302
The Issue The issues to be decided are whether Respondent violated sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Findings of Fact below are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a licensed medical doctor holding DOH license number ACN 244. Respondent holds a temporary certification to practice medicine only in areas of critical need (ACN) approved pursuant to section 458.315. Respondent is the owner of and only physician practicing at Gulf Coast Holistic and Primary Care, Inc., a Department- approved ACN facility. Her current primary practice address is 219 Forest Park Circle, Panama City, Florida 32405. Medical Marijuana Regulation in Florida As a preliminary matter, this case is not about the wisdom of the policy decision to allow patients access to medical marijuana in the State of Florida, the efficacy of its use, or the nature of the regulatory scheme to implement the medical marijuana program. Rather, this case involves Respondent’s actions in ordering medical marijuana and whether those actions comported with Florida law as it existed at the time. Generally, at all times relevant to these proceedings, cannabis or marijuana was a Schedule I controlled substance pursuant to section 893.03(1)(c)7., Florida Statutes, meaning that it is a drug with a high potential for abuse and had no accepted medical use in treatment of patients. In 2014, the Florida Legislature created section 381.986, Florida Statutes (2014), which legalized the use of low-THC cannabis for medical use under limited and strictly regulated circumstances. In sum, low-THC cannabis would be available to patients suffering from cancer or a medical condition causing seizures or persistent muscle spasms that would benefit from the administration of low-THC cannabis. The 2014 version of the law is sometimes referred to as “Charlotte’s Web.” Section 381.986(2) contained the requirements that a physician had to meet to be qualified to order low-THC cannabis for his or her patients. A physician had to take an eight-hour course provided by the Florida Medical Association (FMA); register as the ordering physician in the compassionate use registry; and document the dose, route of administration, and planned duration of use by the patient. A physician also had to submit a treatment plan for the patient to the University of Florida. Further, registered physicians could only order low-THC cannabis for Florida residents. In 2016, the Florida Legislature amended section 381.986, effective March 2016, to include use of full-THC medical cannabis, sometimes referred to as medical marijuana, for terminal conditions. In November 2016, Amendment 2 passed, which created Article X, section 29 of the Florida Constitution, providing for the production, possession, and use of medical marijuana in Florida. During the 2017 Special Session, section 381.986 was amended to implement Amendment 2. Ch. 17-232, §§ 1, 3, 18, Laws of Fla. None of the amendments, which were passed in 2016 and 2017, were in place during the period relevant to this case. The first course offered by the FMA pursuant to section 381.986 was available on November 4, 2014. The substance of the course covered the requirements of section 381.986 and the lawful ordering of low-THC cannabis. The Office of Compassionate Use within the Department first allowed physicians to register as ordering physicians on July 1, 2016. On September 8, 2015, Respondent sent an email from her DOH email address to her personal email address with a hyperlink to the FMA course. Instead of taking the course at that time, which she knew to be the required course for ordering low-THC cannabis, Respondent instead took a free online course from an entity called NetCE, entitled “Medical Marijuana and Other Cannabinoids.” Respondent did not complete the required FMA course until August 25, 2016. She is presently an authorized ordering physician. Respondent’s Care and Treatment of R.S. Patient R.S. is a 66-year-old retired physician assistant, who resides in Minnesota. R.S. practiced as a physician assistant for approximately 40 years in Minnesota. For about four years, R.S. spent his winters in the Panama City area. R.S. suffers from a variety of medical conditions, including Stage IV metastatic renal cell carcinoma. When R.S. first presented to Respondent the fall of 2015, he had stopped all treatments for his cancer because he could not tolerate the chemotherapies or the immunotherapy prescribed for him. While wintering in Panama City, R.S. took his dog to a dog park and got to know some people who went there regularly. When some of those people learned that he had metastatic cancer, one person asked him if he had tried medical marijuana, and he told her that it was not then legal in Minnesota. R.S. was told that Dr. Skidmore could provide legal medical marijuana to him. At the time that R.S. presented to Respondent for treatment, it was not lawful to order, prescribe, or dispense medical marijuana in the State of Florida. R.S. called Respondent’s office to obtain an appointment. At the time of his call, he told the receptionist that he had heard Respondent could give him a prescription for medical marijuana. R.S. knew his cancer was incurable, but given his inability to tolerate conventional treatment, he was hoping that the medical marijuana might help reduce the size of his tumors and lengthen his life. R.S. first presented to Respondent on September 28, 2015. He provided to Respondent medical records from his local oncologist, which confirmed his diagnosis of terminal cancer, and contained his most recent laboratory results. Respondent took R.S.’s blood pressure and pulse, and most likely checked his respiration. She listened to his heart and chest with a stethoscope. She did not perform a review of systems, which is review of the patient from the head working down through the different systems of the body. As a physician assistant, R.S. was familiar with the components of a review of systems, and described them in detail at hearing. He testified that Respondent did not check his eyes, feel his lymph nodes, palpate his abdomen, or check his reflexes. R.S. testified that Respondent did not ask him about any history of depression, did not ask him to provide any additional medical records, and did not tell him she wanted to see more lab work than what he had provided to her. R.S. believes that Respondent may have mentioned meditation, which he was already doing, but did not recommend yoga, essential oils, or any modifications in his diet. Had she suggested them, he would have tried them. His testimony is credited. She also did not attempt to place Respondent in a federally-approved experimental marijuana therapy program. Respondent testified and her medical records indicate that she ordered labs for R.S. R.S. testified that no labs were ordered. The medical records indicate that labs were ordered, but do not indicate what tests were actually ordered, an omission that she blamed on her medical assistant. She testified in deposition that she ordered a lipid panel, Vitamin D panel, thyroid panel, and urine panel. The lab tests that R.S. provided to her from his oncologist contained none of these. R.S. never had the tests Respondent claims she ordered because Respondent never actually ordered them. The one treatment that Respondent performed was a form of acupuncture at this first visit. R.S. paid $140 in cash for his first visit to Respondent. R.S. was a cash-pay patient because medical marijuana was not a benefit under his existing insurance plan. Respondent advised R.S. that he would need to be seen three times over a 90-day period in order to obtain medical marijuana. R.S. returned to Respondent on October 19, 2015. R.S. paid $90 for this visit. As with the first visit, Respondent performed only a very limited physical examination, taking his blood pressure, pulse, respiration, and listening to his chest. While the electronic medical records for this visit indicate that labs were pending, none were actually ordered. Despite not having any lab results, the records state “will recommend medicinal marijuana after receiving previous records.” R.S.’s third visit was January 15, 2016. As with the previous visits, Respondent performed only a perfunctory examination, and the charge for this visit was $90. At this third visit, Respondent told R.S. that he had complied with the requirements in Florida to be seen for 90 days, and that she would send in her assistant with the paperwork R.S. would need to obtain medical marijuana from a dispensary in Pensacola. Respondent did not advise R.S. that medical marijuana, as described in the certificate, was not lawful in Florida at that time, and that he could be arrested if he purchased it in Florida. She did not advise him that he was ineligible for low-THC cannabis when it became available because he was not a resident of Florida. Respondent did not discuss the risks and benefits of medical marijuana. Respondent then provided to R.S., through her receptionist/medical assistant Caitlyn Clark, a document that she referred to as a “certificate” or a “recommendation.” The certificate, discussed in more detail below, appears to be a prescription for medical marijuana. It was not for low-THC cannabis. As R.S. described the document, it looked like a prescription to him, just not on a prescription pad. R.S. was required to pay $250 for this certificate, which was in addition to the visit fee of $90. Respondent provided this certificate despite the fact that, according to her records, R.S. had not completed the labs she claimed to have ordered for him, and did not comply with any recommendations for modification of his diet, or use of essential oils, yoga, or meditation. His electronic medical record for this visit included a plan of “1000 mg of canabis [sic] extract oil daily.” In addition to the certificate, R.S. received from Ms. Clark a flyer from an entity called Cannabis Therapy Solutions, with the names of Joe and Sonja Salmons and their telephone numbers. While R.S. received the flyer from Ms. Clark, copies of the flyers were also available on the tables in the reception area of the office. R.S. believed, based on the information given to him from Respondent and Ms. Clark, that he was being referred to Cannabis Therapy Solutions to obtain the medical marijuana, which he believed was prescribed for him through the use of the certificate. R.S. called the numbers on the flyer and was unable to reach anyone. One number was disconnected, and the messages he left on the other number were never returned. When R.S. was unable to reach the Salmons at the numbers listed on the flyer he received at Respondent’s office, he did some research on the Internet. Through this research, he learned for the first time that medical marijuana could not yet be obtained legally in Florida. R.S. felt that he had been “taken” by Respondent, and wanted to get his money back. R.S. returned to Respondent’s office in February 2016, and demanded a refund of the money he had paid. He told Respondent that he was unable to reach the Salmons, and had learned that medical marijuana was not yet legally available in Florida. Respondent told him that she was only trying to help him. She also tried to contact the Salmons, and was unsuccessful in doing so. Respondent’s staff initially offered to refund the $250 R.S. had paid for the certificate, but only if he returned it. R.S. refused to do so, and stated that it was his only proof to present to the Florida Board of Medicine. R.S. admitted at hearing that he was angry and loud when he visited the office to demand his money. He was intentionally loud because he wanted the patients in the waiting area to hear what was going on. While he was loud, he was not violent, and Ms. Clark testified that she did not feel threatened by him. It was only after he stated that Respondent would have to deal with the state licensing board that he was refunded all of the money he had paid to Respondent’s office. R.S. became a participant in the medical marijuana program eventually authorized in his home state of Minnesota. It has not provided the results for which he was hoping, in that his tumors have increased in size and number. “The Certificate” The certificate that Respondent issued to R.S. was on 8 1/2 by 11 inch paper. It was printed on security paper, meaning that when copied, the document is reproduced with the word “void” printed all over it. The document had Respondent’s office name, address, and telephone and fax numbers at the top, along with Respondent’s name, DEA number, and Florida medical license number. It lists R.S.’s name, patient number, and address, along with the date the document was issued to him. At the bottom of the document, there is a blank to fill in how many refills are allowed, and a statement “to insure brand name dispensing, prescriber must write medically necessary on the prescription.” Immediately below the patient name and address, the document reads: RX Allowed Quantity: 1-2 gm/d THCa-THC: CBD concentration in ratio of 1:1 or 1:2 via oral ingestion or vaporization, include plant vaporization. Max allowance 2 gm/d In the center of the document is the following statement: I certify that I have personally examined the above named Patient, and have confirmed that they [sic] are currently suffering from a previously diagnosed medical condition. I have reviewed the patient’s medical history and previously tried medication(s) and/or treatment(s). Based on this review, I feel cannabis is medically necessary for the safety and well- being of this patient. Under Florida law, the medical use of cannabis is permissible provided that it’s [sic] use is medically necessary. See Jenks v. State, 566 So. 2d (1St DCA 1991). In making my recommendation, I followed standardized best practices and certify that there exists competent and sound peer-reviews [sic] scientific evidence to support my opinion that there exists no safer alternative than cannabis to treat the patient’s medical condition(s). In addition, I have advised the patient about the risks and benefits of the medical use of cannabis, before authorizing them [sic] to engage in the medical use of cannabis. This patient hereby gives permission for representatives of GreenLife Medical Systems to discuss the nature if [sic] their [sic] condition(s) and the information contained within this document for verification purposes. This is a non-transferable document. This document is the property of the physician indicated on this document and be [sic] revoked at any time without notice. Void after expiration, if altered or misused. The certificate that R.S. received was signed by both Respondent and R.S. The copy the Department obtained from Respondent is not signed. Respondent testified that she did not want the references to prescriptions to be on the certificates, but was told by the printer she used that the only security paper available was preprinted with that information. This claim is not credible. Much of what is contained on the document is preprinted. Had Respondent objected to the use of the word “prescription” on the document, she could have directed that the references to it be redacted or blacked out. She did not do so. Respondent testified that she issued only three of these certificates, which she referred to as “recommendations.”1/ Ms. Clark, testified that during her employment from May 2015 to April 2016, about 15 certificates were distributed to patients. Ms. Clark testified that the certificates were kept in a folder separate from the patient’s medical records. When Respondent directed that a patient was to receive a certificate, Ms. Clark would type in the patient’s name, patient ID, address and the date issued. She would print it out, making no changes to the allowed quantity, maximum allowance, or any other language in the certificate. Ms. Clark’s testimony is credited. The certificate given to R.S. does not indicate that R.S. would receive medical marijuana by extract oil, as noted in Respondent’s medical records for R.S. nor does it include a route of administration or planned duration for the substance prescribed. The markings and appearance of the certificate are consistent with what a reasonable person would expect to see on a prescription. Here, R.S. did not expect that it would be filled by a pharmacy. Instead, R.S. expected that it would be filled at a dispensary authorized to dispense medical marijuana. At that time, no such dispensary existed. The certificate was given to R.S. simultaneously with the flyer for Cannabis Therapy Solutions. In her deposition, Respondent stated that Joe and Sonja Salmons came to her office and said that they were able to grow a medical grade cannabis with CBD, as well as a concentrated oil, and that they were located in Pensacola. From the more persuasive evidence presented it is found that the coupling of the certificate with the flyer for Cannabis Therapy Solutions was intentional. Respondent only stopped providing certificates to patients when she learned that they could no longer obtain marijuana from the Pensacola dispensary. It is also found that the certificate provided to R.S. and described above is a prescription. DOH’s Complaint and Investigation While Respondent returned all of R.S.’s money, he nonetheless felt that Respondent’s actions were fraudulent. On February 24, 2016, R.S. filed a complaint with the Department, and provided a copy of the certificate he received, as well as a copy of the flyer from Cannabis Therapy Solutions. As a part of its investigation, the Department requested that R.S. provide a copy of his medical records from Respondent. R.S. wrote back, advising that when he requested his records in March 2016, Ms. Clark provided him with the clinical records he had brought with him from his oncologist on his first visit, and advised him that Respondent did not do patient care records on cash-pay patients. At hearing, Ms. Clark testified that Respondent uses electronic medical records for insurance patients and handwritten records for cash-paying patients. To her knowledge, cash-paying patients never had electronic medical records. Respondent’s Medical Records for R.S. On April 11, 2016, the Department issued a subpoena to Respondent, requesting all medical records for R.S. for a stated time period. Respondent received the subpoena on April 13, 2016. The records that Respondent supplied in response to the Department’s subpoena include forms filled out by R.S., prior medical records from R.S.’s oncologist, and electronic medical records from Respondent’s office. Curiously, the office note for R.S.’s visit September 28, 2015, visit is electronically signed by Respondent on April 18, 2016. The record for the October 19, 2015, visit is electronically signed April 19, 2016, and the record for the January 15, 2016, visit is electronically signed by Respondent on April 19, 2016. Also included with the medical records provided to the Department is an “addendum” that references an encounter date of January 15, 2016. In the body of the note, Respondent references R.S.’s visit to the office on February 17, 2016, when he demanded a refund of his money. Respondent described R.S. as having a “violent attitude,” and noted that he was asked to return the “recommendation” and refused to do so. This note was electronically entered on April 19, 2016, and, similar to the other medical records from Respondent’s office, electronically signed April 20, 2016, within a week after receiving the subpoena from the Department and months after R.S.’s last visit to the practice. Respondent is not charged with falsifying medical records. However, the evidence related to the electronic medical records is relevant in assessing Respondent’s credibility with respect to her claims that she completed a full examination of R.S., ordered labs for him, and made several recommendations for alternative treatments that she claims he failed to follow. It is found that Respondent did not complete a full examination for Respondent; did not complete a review of systems; did not order labs for him to complete; did not recommend the alternative treatments, such as yoga, essential oils, or meditation; and did not recommend that he modify his diet. The Advice upon Which Respondent Allegedly Relied The certificate that Respondent provided to R.S., as well as other patients, included a partial citation to Jenks v. State, 582 So. 2d 676 (Fla. 1st DCA 1991). Jenks stands for the premise that the common law defense of medical necessity is still recognized in Florida with respect to criminal prosecutions for possession and use of marijuana where the following elements are established: 1) that the defendant did not intentionally bring about the circumstances which precipitated the unlawful act; 2) that the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and 3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it. 582 So. 2d at 679. Respondent relies on the medical necessity defense as justification for her issuance of the certificates, such as the one R.S. received. However, the genesis of her reliance on this defense remains a mystery. In Respondent’s written response to the Department’s investigation, she does not mention seeking the advice of counsel. Instead, she stated: As soon as I open [sic] my practice, I had a visit from a company in Pensacola, that showed me some documents about the medical necessity regulation for medical marijuana and how it was helping so many patients with cancer. One of my patients with cancer, said he was going to wait until it gets legalized and died waiting. The second patient requested the recommendation, and is in remission as we speak. At hearing, however, Respondent testified that she relied on the advice that she received from her lawyer, Billy-Joe Hoot Crawford, about the applicability of the medical necessity defense. Mr. Crawford is a criminal defense lawyer in the Panama City area. His experience in representing individuals in the professional license regulatory area is scant, by his own admission. Both Respondent and Mr. Crawford testified that they met when attending a meeting of people who were working on medical marijuana issues. Both testified that Mr. Crawford provided some advice to Respondent regarding the medical necessity defense. Both testified that Respondent did not pay for the advice. From there, however, their testimony diverges. Mr. Crawford testified that he could not remember the names of the people who attended the meetings, other than Dr. Skidmore. Despite his inability to remember their names, he believed that the group had people in each field necessary to “set up business” should medical marijuana become legal. He believed that there were a couple of meetings before Respondent attended one, but once she did, he met with her in conjunction with the meetings. Mr. Crawford testified that he met with Respondent approximately a dozen times. He said that their discussions were most likely after the meetings, because to discuss issues related to her patients in front of others would not be appropriate. Respondent testified that she met with Mr. Crawford once at a meeting of people discussing the legalization of marijuana, and that he gave her advice in the meeting itself. Her ex-husband also spoke to him on the phone once, to ask for some clarification regarding his advice. Mr. Crawford also testified that he traveled to Orlando to speak to a physician (unnamed), who was recommending marijuana to her patients, and got a copy of what she was using to bring back and provide to Respondent. Respondent testified that she wrote down “word for word” what he had told her that she needed to include in the recommendation and soon thereafter stated that he gave her a sample to use that was not on security paper. Respondent claims that the reference to GreenLife Medical Systems (GreenLife) was on the sample she received from Mr. Crawford, and that she did not know what GreenLife was. Mr. Crawford testified that while he knew about GreenLife before giving Respondent advice, he did not have a reference to GreenLife on the recommendation he provided. Most importantly, Mr. Crawford testified that he advised Respondent that she needed to tell her patients that they could be arrested if they were caught with medical marijuana and that he fully expected them to be. He also advised her that if any of her patients were arrested for possessing marijuana pursuant to her recommendation, then he would represent them for free. Respondent, however, did not remember the conversation that way. She stated, “in my mind, I remember he said, if, not when. ‘If’ was if they get in trouble, we give them free legal help.” She did not advise R.S. that he could be arrested, and when asked at hearing whether it concerned her that her patients might be arrested from what she was doing, her response was, “Yes. But life goes first in my priority algorithm.” She repeated this theme, saying, “my algorithm of priority, health and life go on top. On top of money. I’m sorry, but on top of law.” Indeed, she confessed that she did not read all of the Jenks case, because she found it boring. What is clear from the evidence is that, while Mr. Crawford provided some advice to Respondent regarding the medical necessity defense, he did not provide any advice concerning the impact her actions could have on her license to practice medicine. Equally clear is that Respondent did not seek that advice.2/ Respondent’s contention that she accepted Mr. Crawford’s advice without question and did not concern herself with the technicalities is not credible. At deposition, Respondent was questioned about her blog posts, media interviews, and Facebook posts. What emerges from these documents and from her testimony is a woman who was quite aware of the status of medical marijuana, both in Florida and elsewhere. In fact, a blog she wrote in October 2014 details the requirements of the regulatory scheme for ordering low-THC marijuana. The blog includes the statement, “[a]ll physicians that plan to prescribe medical marijuana are required to keep strict documentation of all prescriptions and treatment plans and submit them quarterly to the University of Florida College of Pharmacy to maintain proper control.” The reality is that she knew the regulatory scheme to order medical marijuana, with all of its technicalities. She simply chose not to wait for the new law to be implemented. Assuming that Respondent truly believed that the medical necessity defense outlined in Jenks would protect her patients, she did not act to satisfy the three elements required for the defense. First, while the medical necessity defense might protect her patients if arrested, nothing in Jenks negates the regulatory scheme in chapters 456 and 458, or addresses a physician’s ability to prescribe medical marijuana. Second, the evidence indicated that R.S. did not follow through with the recommendations that Respondent claimed would benefit him before providing him with the prescription for medical marijuana. Under these circumstances, ordering medical marijuana would not be the last resort contemplated under Jenks. Most disturbing is the fact that a patient was required to pay $250 for a “recommendation” that the patient obtain a substance that could not be legally provided, with no assurance that he or she would receive anything to address their suffering. While Respondent claimed repeatedly that her goal was to help people, charging for this “recommendation” looks more like exploiting the hopes of those who are desperate for relief for Respondent’s financial gain, and providing nothing to actually ease her patients’ pain. Respondent’s Practice Address Respondent’s address of record, and primary practice address on file with the Department between August 11, 2014, and August 19, 2017, was 756 Harrison Avenue, Panama City, Florida 32401. Between June 2016 and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida 32405. The Department did not send a warning letter to Respondent regarding her address update. However, section 456.035 states that it is Respondent’s responsibility, not the Department’s, to ensure that her practice address on file with the Department is up-to-date. This is especially so where a physician’s eligibility to practice is predicated on practicing in an area designated as an ACN. Section 456.042 requires that practitioner profiles, which would include a physician’s practice location, must be updated within 15 days of the change. This requirement is specifically referenced in bold type on license renewal notices, including notices filled out by Respondent in 2012, 2014, and 2016, and included in her licensure file. On May 22, 2013, Respondent sought and received approval for Gulf Coast to be a designated ACN facility at 756 Harrison Avenue, in Panama City, Florida. On May 16, 2016, she sought and received approval for Gulf Coast to be a designated ACN facility at 105 Jazz Drive, also in Panama City. This approval however, is for the entity, not an individual licensee, and does not automatically update an individual licensee’s primary practice address. Between August 11, 2014, and August 19, 2017, Respondent’s address of record and primary practice address on file with the Department was 756 Harrison Avenue, Panama City, Florida 32401. Sometime between June and August 2016, Respondent relocated her practice to 105 Jazz Drive, Panama City, Florida. Respondent did not update her practitioner profile with the practice address at 105 Jazz Drive. That address never appeared as her primary practice location in her practitioner profile. When Andre Moore, the Department investigator assigned to investigate R.S.’s complaint, went to interview Respondent, he went to her address of record, which was the Harrison Avenue address. When he arrived, he found a sign on the door stating that the practice had moved to 105 Jazz Drive. Mr. Moore went to the Jazz Drive location and interviewed Respondent there. At that time, Mr. Moore told Respondent that she needed to update her address. Normally, physicians can update their practice location address online using the Department’s web-based system. Physicians who hold an ACN license, however, must update their addresses in writing because verification that the new practice address qualifies as an ACN is required before an ACN can practice in the new location. All licensees, including Respondent, can update their mailing address online. Respondent had completed updates of her practice address before by sending a letter and a fax, so she was familiar with the process. The Department’s internal licensure database does not show any attempts made by Respondent between June and August 2016 to access the web-based system or otherwise update her practice address to 105 Jazz Drive. A search of the Department’s licensure information on Respondent, viewing every address change request, indicates that she did not update either her mailing address or her practice location address to list 105 Jazz Drive. On or about August 19, 2017, Respondent updated her mailing address online to 219 Forest Park Circle, Panama City, Florida 32405. The Department received a request from Respondent by mail on or about September 5, 2017, to update her practice location to the Forest Park Circle address. Respondent claims that she tried multiple times to update her address with no success, and when she called the Department, she was told by an unidentified male to just wait and update her address when she renewed her license. This claim is clearly contradicted by Florida law and by multiple notices for renewal that Respondent had received and returned previously. It is found that Respondent did not update her practice address as required with respect to the 105 Jazz Drive address.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating sections 456.072(1)(a), (n), and (w), and 458.331(1)(g), (k), (q), and (v), Florida Statutes (2015). It is further recommended that Respondent’s license be revoked. DONE AND ENTERED this 30th day of April, 2018, 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 30th day of April, 2018.
The Issue The issue in this case is whether Petitioner may terminate the continuing teaching contract of Respondent on the grounds that she has been guilty of misconduct in office, immorality, breach of contract, and other just causes for dismissal. Petitioner alleges that Respondent had in her possession two pipes for the purpose of smoking marijuana.
Findings Of Fact Respondent is a 37 year-old second-grade teacher. She has continuing contract status. She has taught continuously for 10 years in the Osceola County School District, until she was suspended in early January, 1992, as a result of the subject incident. At the time of her suspension, she was completing her third year at Ventura Elementary School, which has only been open for three years. She taught the prior five years at Boggy Creek Elementary School. Respondent has always had good relations with principals, fellow teachers, and parents. Her students stand out when they enter third grade. Respondent has a unique ability to maintain rapport and control in the classroom. She is an enthusiastic teacher who invests considerable energy in teaching. Respondent has enjoyed excellent evaluations. The most revealing indicator of her exceptional value as a teacher rests in the fact that other teachers with children entering second grade select Respondent much more frequently than they select the other second-grade teachers. Respondent has consistently produced students better prepared than their counterparts to meet the academic and social demands of third grade. Since being divorced several years ago, the center of Respondent's life has been teaching. About a year prior to the subject incident, Respondent met Richard Kenny. Mr. Kenny, who apparently lives out of town, shares Respondent's residence when he visits. On December 20, 1991, Mr. Kenny and Respondent invited four casual acquaintances over to Respondent's home for a barbecue. Respondent invited her guests to make themselves at home. At some point after the party began, Respondent and Mr. Kenny re-entered the house. Respondent smelled burning marijuana and, although she saw no one smoking it, immediately informed her guests that she would not tolerate the consumption of marijuana in her home. Offended, the guests left. The following day, Respondent and Mr. Kenny were cleaning the house. Winter break had already begun, and they were planning to drive to New Hampshire to visit Mr. Kenny's family. In the course of cleaning the living room, Respondent found two marijuana pipes that had been left by her guests the prior day. There was no more than trace amounts of marijuana residue in the pipes so, without considerable thought, Respondent took them into her bedroom and placed them on the dresser. It is unclear what Respondent intended to do with the pipes. Her focus at the moment was on completing a hurried housecleaning, so she and Mr. Kenny could get on the road and begin their vacation. She typically placed in her bedroom all misplaced items found during housecleaning. On the evening of December 21, Respondent and Mr. Kenny went out to eat. When they returned, Respondent changed and went to the utility room to turn on the water heater, which she turned off when unneeded in order to save money. She noticed that a window had been broken in the utility room in an apparent attempt to burglarize her home. Respondent called the police. A female sheriff's deputy arrived about five minutes before a male deputy arrived on the scene. The deputies, who are young and inexperienced, remained on the scene together. The male deputy arrived while Respondent was showing the female deputy the utility room, which was at the other end of the house from Respondent's bedroom. Because the house was in the male deputy's territory, he assumed the primary responsibility of investigating and filling out the police report. The male deputy and Mr. Kenny sat down in the living room to fill out the police report. Respondent went back to her bedroom to find a sweater and a lighter in order to smoke a cigarette. Unknown to her, the female deputy had followed her. Standing in the doorway, the deputy saw one of the pipes on the dresser. Returning to the living room, the deputies conferred momentarily about the pipes. The female deputy returned to the bedroom, seized the pipes, brought them out to the living room, and confronted Respondent with them. Respondent initially denied ownership of the pipes. In the course of questioning, Respondent became emotionally upset and, defying the instructions of the deputies, kept walking back into her bedroom. Exasperated, the male deputy, who is 21 years old and had been in law enforcement less than one year, handcuffed Respondent. He and possibly the female deputy expressed a concern, unfounded as it turned out, that Respondent might be returning to her bedroom to destroy evidence. Neither deputy could give credible testimony as to when Respondent was given her Miranda rights. In fact, she was advised of her rights as the handcuffs were applied. The details are unclear as to how an investigation of a house burglary transformed into the arrest of the homeowner without any criminal record for possession of drug paraphernalia in the form of two empty pipes (except for residue) commonly available in the Central Florida area. At some point prior to being handcuffed, Respondent "admitted" that the pipes were hers. But the admission was induced by what can be characterized as nothing less than a fraudulent inducement on the part of one or both deputes, who assured Respondent that if she admitted to ownership of the pipes, nothing would happen. Numerous material inconsistencies exist between the stories of the two deputies. Based on all of the circumstances, the State Attorney's office agreed that Respondent could enter a pretrial diversion program designed to leave Respondent without a criminal record. After being booked and obtaining release on bail, Respondent returned home in the early morning hours of December 22. She and Mr. Kenny proceeded to leave town on their trip. When she returned, Respondent learned that Petitioner had been advised of her arrest. On the second day of school following Winter break (car trouble had delayed Respondent's return by one day), Petitioner informed Respondent that she was suspended without pay due to the incident. Considerable evidence was produced at the hearing concerning a teacher's effectiveness following two versions of the subject facts. The first version is that Respondent possessed the pipes without any intent to smoke marijuana. This is the version adopted in the present case in which one or more guests had, without permission, lighted the pipes to consume marijuana, had been told to leave, and had left the pipes. There was no evidence that such innocent possession of the pipes, together with a subsequent arrest, would impair Respondent's effectiveness as a teacher, constitute immorality, jeopardize the welfare of Respondent's students, or establish other grounds for the cancellation of Respondent's contract. The second version is that Respondent possessed the pipes with an intent to smoke marijuana. Petitioner has failed to establish such guilty possession. Even if Respondent had been guilty of possession of the two pipes with an intent to smoke marijuana, Petitioner has failed to establish, absent any evidence suggesting that this would have been more than an isolated incident, that Respondent's effectiveness as a teacher would be impaired, the welfare of her students would be compromised, or that prevailing community standards of morality would be violated. Petitioner has undertaken considerable efforts at eradicating drug abuse among students. Justifiably concerned that the subject incident could undermine these critically important efforts, Petitioner prudently decided to initiate a process that would trigger an administrative factfinding process in which both sides could present evidence for impartial consideration under principles of law. Not surprisingly, there is no uniformity of opinion as to Respondent's fitness as a teacher had been she been proved to have had guilty possession of the two pipes in an isolated incident. However, several critical facts emerge. First, Respondent is an outstanding teacher. There is no evidence that any aspect of her personal life has ever had an adverse bearing on her ability to teach. Second, Respondent's effectiveness as a teacher would be unaffected, even if Respondent were found guilty of possession of the two pipes with an intent to smoke marijuana in an isolated incident. Respondent has for many years maintained firm control of her classroom. There is no evidence that her effectiveness in this regard, especially given the tender age of her students, would be impaired if she were to return to the classroom, even after having been found guilty of possessing the pipes with an intent to smoke marijuana. The majority of parents and fellow teachers would not be troubled by Respondent's return to the classroom even if she had possessed the pipes with an intent to smoke marijuana in an isolated incident. To the contrary, with the exception of managerial-level school administrators, the evidence suggests that all components of the relevant community would want Respondent to be able to bring her considerable talents back to the classroom even if she had been guilty of possessing the pipes with an intent to smoke marijuana in an isolated incident. The willingness of the parents and teachers to receive Respondent back in the classroom, even if she had been proved guilty of wrongful possession of the pipes in an isolated incident, is based in part upon the recognition of her unique talents working with students. The opinions of many teachers and parents are informed by a willingness to tolerate a considerable separation between a teacher's private and public lives. These persons focus on the work of the person rather than aspects of her personality or personal life when these latter factors do not impact her teaching. Parents and teachers offered a variety of explanations as to why Respondent should be allowed to return to the classroom, even if she were guilty of wrongful possession of the pipes. The most articulate explanation was offered by Elizabeth Williams, who had a daughter in Respondent's class during the 1991-92 schoolyear. She also has another daughter who will be in second grade in the 1993-94 schoolyear. Explaining why Ms. Williams would want her younger daughter to be taught by Respondent, even if she were guilty of wrongful possession of the pipes in an isolated incident, Ms. Williams first described her older daughter's reaction when Respondent was abruptly suspended in January. The daughter told her mother that she wanted to quit going to school. As a mother residing in the neighborhood served by Ventura Elementary School and a teacher at Ventura, Ms. Williams explained that second graders, unlike older students, are not thinking about drugs. Ms. Williams' attitude toward Respondent's return to the classroom, even if Respondent had possessed the pipes with an intent to smoke marijuana in an isolated incident, reflects conservative values prevalent in the community. Describing herself as a member of a conservative Christian denomination, Ms. Williams, while rejecting a repetitive cycle of sinning followed by repentance, emphasizes the importance of forgiveness in an isolated incident. Expressing this core aspect of the community's moral code, Ms. Williams testified that she would welcome Respondent back to the classroom and send her younger daughter to Respondent's class as long as there was no evidence that the guilty possession was other than an isolated incident. The core community value of forgiveness was recently embraced by the administration in connection with a principal of another school in the district. He was arrested for driving under the influence of alcohol. Unlike Respondent, the principal was convicted of the offense. Petitioner decided in his case to impose a two-week suspension without pay and other relatively minor sanctions. In part, the attitude of the administration, which is an important community with which Respondent must interact in order to be an effective teacher, appears to have been based on a misreading of the attitudes of other members of relevant communities, such as teachers and parents. For example, one representative of Petitioner identified several teachers by name as opponents to Respondent's return to the classroom. But when these persons were called as witnesses, they testified differently. In any event, there is no evidence that Respondent would have trouble working with any member of the administration if she were not found guilty of wrongful possession of the pipes. Even under the guilty-possession scenario, the weight of the evidence is that the administration is properly mindful of the vital need to protect students from the scourge of drug abuse, the support for Respondent from the parent and teaching communities, and the importance of maintaining exceptional teachers. After weighing these factors, even under the wrongful- possession hypothetical scenario, the evidence is that the administration would continue to work professionally with Respondent, despite in an isolated incident, as it has with the principal who was actually convicted of driving under the influence. Petitioner has failed to establish that Respondent was guilty of possession of the two pipes with an intent to smoke marijuana. The evidence shows that she came into possession of the pipes under innocent circumstances so that, notwithstanding her arrest, there is no question surrounding her moral fitness and effectiveness as a teacher or the welfare and safety of her students. Even if Petitioner had proved that Respondent possessed the pipes with an intent to smoke marijuana in an isolated incident, Petitioner failed to prove that, under the circumstances of this case, her contract should be terminated. Even under this scenario, the evidence fails to show that Respondent's effectiveness as a teacher would have been impaired, she would have been guilty of immoral behavior or moral turpitude, or that the safety, health, or welfare of her students would have been imperilled.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Osceola County enter a final order reinstating Lynn Epstein and awarding her full back pay for the time that she would normally have worked following her suspension. ENTERED this 27 day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Chris Colombo, Superintendent Osceola County School Board 817 Osceola Blvd. Kissimmee, FL 34744-4495 Andrew B. Thomas Rowland, Thomas & Jacobs, P.A. 1786 N. Mills Ave. Orlando, FL 32803 Joseph Egan, Jr. Egan, Lev & Siwica, P.A. P.O. Box 2231 Orlando, FL 32802 ROBERT E. MEALE 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 27 day of July, 1992.
