Findings Of Fact On September 7, 1977, respondent was behind the counter in Lucy's Grocery attending to requests for potato chips and other snacks from youthful customers crowded against the counter. Robert Young, who sometimes helped out around the store, happened to be in the store at the time, and noticed one Larry Washington leave four cigarettes on the counter. Robert Young told respondent that the cigarettes were on the counter and asked what to do with them. Respondent took them himself and placed them in a drawer behind the counter. Robert Young was still in the store when Victor E. Sosa, who was employed by respondent as a beverage officer, entered and identified himself to respondent. In the course of inspecting the store, Officer Sosa opened the drawer behind the counter and discovered the four cigarettes. In the same drawer he also found some pink paper and what looked to be marijuana seeds wrapped in tissue paper. Respondent first said that these things were for his personal use. When Robert Young told Officer Sosa about Larry Washington, however, respondent said that the cigarettes had just been left in the store and said that he intended to throw them out but had not gotten around to it. Officer Sosa left Lucy's Grocery with the cigarettes and the seeds. He caused these things to be transmitted to the Dade County Crime Laboratory, where Harry Coleman, a chemist, analyzed them. This analysis revealed that the cigarettes, with a combined weight of 0.8 grams, contained marijuana and that the seeds were marijuana seeds.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent's license in the amount of twenty-five dollars (25.00) DONE and ENTERED this 17th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Francis Bayley, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Rick Flores d/b/a Lucy's Grocery 1920 N. W. 95th Street Miami, Florida ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF BUSINESS REGULATION DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Petitioner, vs. CASE NO. 78-130 RICK FLORES d/b/a LUCY'S GROCERY, Respondent. /
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 18th day of September, 1980.
Findings Of Fact During the month of April in 1988, and perhaps also in March of that year, the Petitioner, Sam Anthony Ciotti, conspired with others to purchase 200 pounds of marijuana in Broward County, Florida, for $110,000.00 The conspirators intended to transport the 200 pounds of marijuana to Ohio, where they expected to sell the marijuana to others. Unbeknownst to the conspirators, the persons from whom they arranged to purchase the marijuana were detectives of the City of Fort Lauderdale Police Department. The negotiations for the sale were primarily between the detectives and a conspirator named Klenner. The basic terms of the agreement were that the detectives would deliver 200 pounds of marijuana to Klenner or to someone designated by Klenner, Klenner would then transport the marijuana to Ohio and sell it, and once he received the money for selling the marijuana, Klenner would pay $110,000.00 to one of the detectives. To secure the deal, Klenner agreed that he and the Petitioner, Ciotti, would sign a promissory note for $110,000.00 secured by a boat co-owned by Klenner and Ciotti. On April 14, 1988, one of the detectives met with the Petitioner, Ciotti, at the boat yard where the boat was. docked. During that meeting the detective confirmed with Ciotti that a promissory note would be signed for 200 pounds of marijuana and that the boat would be collateral for the promissory note. On April 15, 1988, the two detectives met with Klenner and Ciotti, at which time Klenner delivered to one of the detectives a promissory note in the amount of $110,000.00 signed by both Klenner and Ciotti. On April 19, 1988, one of the detectives spoke to Klenner and arrangements were made for the marijuana to be delivered to a third conspirator named Bradford. Later that day the two detectives met Bradford at a prearranged location. One of the detectives took possession of Bradford's motor vehicle, loaded it with 200 pounds of marijuana, and returned the motor vehicle and its cargo of marijuana to Bradford. The trunk was opened and Bradford examined the marijuana cargo. Bradford then took possession of his motor vehicle and attempted to drive away with the 200 pounds of marijuana. At that point, he was arrested. Later that same day, the detectives went to the boat yard where the boat owned by Klenner and Ciotti was docked, where they arrested Ciotti and seized the boat owned by Klenner and Ciotti. On June 8, 1989, the Department of Revenue issued a document titled Notice Of Assessment And Jeopardy Findings which assessed tax, penalties, and interest in the amount of $52,534.42 against the Petitioner, Ciotti, pursuant to Section 212.0505, Florida Statutes (1987). The factual basis for the assessment was the Petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following other unsuccessful efforts to resolve the matter, the Petitioner ultimately filed a timely petition seeking a formal hearing. At the formal hearing in this case on September 28, 1990, the Department of Revenue delivered to the Petitioner a document dated September 27, 1990, titled Revised Notice Of Assessment And Jeopardy Findings. The significant difference between the original assessment and the "revised" assessment is that in the latter document the Department seeks to recover less than in the original assessment. Specifically, the "revised" assessment contains a lower estimated retail price than on the original assessment and eliminates a fifty percent penalty that was included on the original assessment. These changes are consistent with the Department's current policies regarding the assessment of taxes, penalties, and interest. The net difference between the two assessment documents is a reduction of $18,809.39 in the amount sought by the Department. The specific amounts assessed in the "revised" assessment are as follows: Tax, $22,000.00; Penalty, $5,500,00; and Interest, $6,225.03; for a total of $33,725.03. Interest continues to accrue at the rate of $7.23 per day. The factual predicate for the "revised" assessment is the same as that of the original assessment.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Department of Revenue issue a final order in this case concluding that the Petitioner, Sam Anthony Ciotti, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1987), and assessing the amount of such liability at $33,725.03, plus interest at the rate of $7.23 per day since September 28, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of February 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February 1991.
Findings Of Fact While a student at Southwest Florida Police Academy in April 1981, Petitioner gave Janice Kellogg a baggie containing 3.2 grams of marijuana. The only factual dispute occurred regarding the circumstances leading to Petitioner's acquisition of the marijuana and the reasons for giving the marijuana to Kellogg. Petitioner testified he found the marijuana in the road leading into a trailer space adjacent to his trailer the morning after the trailer had departed. He further testified he threw the marijuana into the cab of his pickup truck intending to turn it in to the authorities; that he was engaged in final exams and forgot about the marijuana until later in the day when a K-9 drug dog was presented and Petitioner hid the marijuana to test the dog; that after they observed the dog locate the marijuana, Kellogg asked Petitioner for the marijuana and he gave it to her; and that when he asked for it back later that day he was told she had smoked it. Kellogg's version of the events surrounding the marijuana is that after the marijuana had been produced for the drug dog, Petitioner gave her the baggie saying, "You look like a girl who likes to lay back and smoke a joint once in a while." Upon receipt of the marijuana Kellogg turned it in to police authorities and at their request attempted to get Petitioner to provide her with additional marijuana, without success. She further testified Petitioner told her he had obtained the marijuana from a suspect he had "frisked" the previous day. Petitioner worked in law enforcement in Tennessee for at least two years before moving to Florida. He has been in charge of the drug section of a police force in Tennessee but has had no special training. His experience caused him to immediately recognize the contents of the baggie as marijuana. Janice Kellogg has been involved in police work in Florida for one and one-half years and worked as a confidential informant to a narcotics squad in Michigan for five years before coming to Florida. She is certified as a law enforcement officer in Florida.
The Issue Whether respondent's law enforcement officer certificate should be revoked or suspended for alleged failure to maintain qualifications for certification, failure to maintain good moral character, and willful neglect of duty, incompetence, or gross misconduct which seriously reduces his effectiveness as a law enforcement officer.
Findings Of Fact At all times relevant to the charges, respondent held a law enforcement certificate issued by the Commission, and was employed as a Deputy Sheriff by the Polk County Sheriff's Department. In December, 1979, Respondent -- while employed as a Deputy Sheriff -- purchased a $5.00 bag of marijuana from an individual identified as "Baldy." The purchase took place in the presence of others and occurred at Baldy's apartment located at 904 Center Avenue, Haines City, Florida. Respondent did not arrest Baldy for possession and sale of marijuana. Moreover, on at least one occasion during the same year, respondent smoked marijuana at Baldy's apartment in the presence of others. This finding is based on respondent's admissions to R. L. Stanley and Jerry Whitehead. Those admissions are corroborated by the hearsay statement made by John Butler, Jr. to investigator Robert Parnell, and by the results of a polygraph examination which respondent took on February 9, 1981. The examination was administered by an expert polygraph examiner. Moreover, respondent did not object to receiving the examination results into evidence. At hearing, respondent admitted using marijuana, but denied having purchased marijuana at Baldy's apartment in December, 1979. His denial is rejected as unworthy of belief. (Testimony of Stanley, Whitehead, respondent; P-1, P-2, P- 3) On February 9, 1981, respondent was involuntarily terminated as a Deputy Sheriff with the Polk County Sheriff's Department for conduct unbecoming an employee, i.e., the purchase and use of marijuana.
Recommendation Based on the foregoing it is RECOMMENDED: That respondent's law enforcement officer's certificate be suspended for one year, with reinstatement upon a showing of rehabilitation. DONE and RECOMMENDED this 30th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 30th day of March, 1983.
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.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 10, 1990 and issued certificate number 05-89-502- 09. On May 30, 1990, Apalachee Correctional Institution Assistant Superintendent for Operations Joe W. "Bill" Davis, the chief corrections officer, received information to the effect that the Respondent possessed marijuana in his bachelor officer's quarters (BOQ) on the grounds of the Apalachee Correctional Institution, Jackson County, Florida at that time. Mr. Davis thereupon contacted Jackson County Sheriff's office investigator, Lieutenant Robby Wester, to assist him in an investigation of this report. Both Mr. Davis and Lt. Wester made contact with the Respondent at the BOQ in the afternoon of May 30, 1990. The investigating officers received the Respondent's permission to conduct a search of his quarters on that day. During the search of his quarters Mr. Davis discovered and seized a small amount of marijuana and two photographs of marijuana from a piece of furniture which was located next to the Respondent's bed. Lt. Wester spoke with the Respondent shortly after the seizure of the marijuana from the Respondent's room. The Respondent told Lt. Wester that the Respondent had been "tipped off" about the search two hours prior to the arrival of Mr. Davis and Lt. Wester and that he had destroyed five bags of marijuana which he had possessed in the Respondent's residence. The Respondent also admitted he had previously smoked marijuana but was drug free on this occasion, May 30, 1990. The marijuana (cannabis) which was seized by Mr. Davis and Lt. Wester from the Respondent's room was submitted to the FDLE crime laboratory, was analyzed and proved to be cannabis. As a result of the discovery of the marijuana in the Respondent's room the Respondent was charged by Lt. Wester with possession of less than 20 grams of marijuana in violation of Chapter 893, Florida Statutes. Lt. Wester did not arrest the Respondent on May 30, 1990 but told him to appear in court the following day. The Respondent, pursuant to notice to appear, appeared before the county court in Jackson County, Florida and in mid-July agreed to conditions of an order of pretrial intervention. The Respondent however failed to fulfill the conditions of the pretrial intervention order and was returned to the jurisdiction of the county court for the marijuana possession charge originally filed. The Respondent thereupon entered a plea of guilty to the marijuana possession charge on February 4, 1991. Judge Hatcher of the county court adjudged the Respondent guilty of the marijuana possession charge at issue herein and ordered the Respondent to be incarcerated, to pay certain costs, and to participate in a public works program. The Respondent was incarcerated at the Jackson County, Florida jail from February 4, 1991 through March 20, 1991 on the marijuana possession charge at issue in this proceeding. He has completed service of his incarceration time.
Recommendation Having considered the foregoing findings of fact, the conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission revoking the certification of the Respondent, Jeffrey S. Richter. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: (Respondent presented no Findings of Fact) 1. - 14. Accepted. COPIES FURNISHED: Craig Rockenstein, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey S. Richter 3881 Highway 273 Graceville, FL 32440 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue At issue is the appropriate penalty to be imposed for respondent's violation of the provisions of Section 893.13, Florida Statutes.
Findings Of Fact The offense At all times pertinent hereto, respondent, Jabal, Inc. d/b/a Gus Food Store, held alcoholic beverage license number 23-1219, series 2-APS, for the premises located at 1490 N.W. 71st Street, Miami, Florida. Ghazi Farraj is the president and owner of respondent. On or about December 3, 1993, respondent, through its president and owner Ghazi Farraj, did unlawfully possess marijuana, specifically two marijuana cigarettes in a cigarette pack on his person while on the licensed premises. Mitigation Respondent submits the following information to be considered as "mitigating factors" in assessing the appropriate penalty to be imposed for its violation of the beverage laws: The Defendant Ghazi Farraj, entered a No Contest Plea on March 28th, 1994 before the Honorable Judge Leesfield to the charge of the possession of marijuana; to wit two marijuana cigarettes's [sic] and was found Quilty [sic] of said charge. The Respondent Ghazi Farraj, is a married man who has six children ranging in years as follows: eight thru nineteen who are living with the Respondent Ghazi Farraj, here in Miami, Dade County, Florida and he's the sole provider of his children and his wife. The Respondent Ghazi Farraj, here in [sic] has no prior Criminal Record prior to the incident described in Paragraph A. The Respondent Ghazi Farraj, fully recognizes the errors of his ways as stated in Paragraph A and he no longer will participate or get involved in any Criminal Act or Violation of the Department of Business and Professional Regulation, Division of Alcoholic Beverages And Tobacco Rules. The Respondent Ghazi Farraj, is a United States Citizen in good standing and if this Board suspends his beverage license it would not only put him out of business but will deprive the Respondent Ghazi Farraj, to fully support his family that was stated in Paragraph A.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of Count 4 as charged, and suspending respondent's license for a period of sixty (60) days. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January 1995. COPIES FURNISHED: Thomas A. Klein, Esquire Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. Ghazi Farraj 1490 NW 71st Street Miami, Florida 33127 Mr. Ghazi Farraj 1490 NW 71st Street Miami, Florida 33147 Mr. Paul Pollack, Esquire 1704 Northwest 7th Street Miami, Florida 33125 John J. Harris, Acting Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material to the allegations contained herein, Respondents held alcoholic beverage license No. 64-00029 for the Palatka Blue Diamond, located at 424 North 11th Street, Palatka, Florida. Alphonso S. Junious is a beverage investigator with the Fort Lauderdale office of the Division of Alcoholic Beverages and Tobacco and has been so since August 1971. [During that period of time, he has investigated seven cases for Petitioner which involved marijuana.] He has had considerable specialized training in drug identification, having been a drug and alcohol specialist while in the military, and since his discharge has taken several courses in drug identification and detection, including 80 hours training with the U.S. Drug Enforcement Agency. He is able to identify marijuana by sight and smell based not only on his formalized training and experience as an adult, but also from the fact that he used it when he was younger. On May 12, 1982, pursuant to instructions given him as a part of an investigation into Respondents' premises, he entered the Palatka Blue Diamond, went to the bar and ordered a beer. Leroy Lane and Queen Ester Simmons, whom he subsequently identified by name, were working behind the bar, selling drinks. While there, he noticed the smell of marijuana smoke and also saw people in the bar area making what appeared to him to be marijuana cigarettes. He identified them from the way they were rolled; a method consistent with what he recognized as hand-rolled marijuana cigarettes. The cigarettes were small and had crimped ends. The smokers utilizing these cigarettes were at the bar at the time in plain view of the bartenders, neither one of whom made any effort to stop this course of conduct. On May 14, 1982, he again went to the Palatka Blue Diamond and stood at the bar. The same two bartenders were there. He saw an unidentified black female sitting at the bar roll what appeared to him to be a marijuana cigarette. The paraphernalia with which she was making the cigarette was sitting out on top of the bar, and the bartenders were standing approximately 6 to 8 feet away. During the entire time he was there, he did not hear either bartender attempt to stop the young lady from making the cigarette. By the same token, he did not see her smoke it, either. He did, however, observe others smoking what appeared to be, and smelled to him like, marijuana while walking about the barroom and in the disco room. Some of these individuals could have been in view of the bartender, but the witness does not know if they were or if the bartenders in fact saw anything improper. Mr. Junious again was at the bar on May 16, 1982. At that time he observed a black male, subsequently identified to him as Luke Simmons, tending bar. Luke Simmons is Willie Lee Simmons, Jr., son of the licensee and Respondent Willie Lee Simmons. On this occasion, Officer Junious did not observe any marijuana being smoked, but he did observe Luke Simmons make sales of small manila envelopes to patrons at the bar. Junious could not hear the conversations regarding the sales and does not know what was in the envelopes sold to other people. However, somewhat later that day, he went over to Luke and asked Luke for a "nickel bag." In return, he was given a small manila envelope, folded and sealed at both ends, for which he paid $5. This bag closely resembled the bags he saw Luke Simmons sell to others. Junious did not look into the bag while on the premises, but it was subsequently turned over to the evidence custodian of the agency and thereafter properly identified as marijuana. Junious went back to the Palatka Blue Diamond on May 18, 1982, and again Luke Simmons was tending bar. Junious approached him and engaged him in general conversation. Again this evening, he saw several persons smoking what appeared to be hand-rolled marijuana cigarettes, and the smell of marijuana was prevalent both in the bar and in the disco room. Again, as in previous occasions, the individuals smoking these hand-rolled cigarettes were in plain view of the bartender had he looked, but Junious did not see or hear Luke Simmons attempt to stop any of this conduct. At approximately 9:30 that evening, Junious again approached Luke Simmons and asked for a "nickel bag" for which he paid Luke the sum of $5. In return, he got a similar manila envelope as on the previous occasion which was subsequently determined by the Florida Department of Law Enforcement crime lab in Jacksonville to contain marijuana. It was not until August 13, 1982, that Officer Junious went back to the Palatka Blue Diamond. When he entered on this occasion, he sat at the bar and ordered a beer. The bartender this time was a black female subsequently identified as Linda Simmons, who is not related to either Respondent. On this occasion, Linda Simmons was playing a card game which the witness called "Black Jack" with a black male at the bar. They appeared to be betting $1 per hand. Junious asked Linda if he could join the game and himself played two hands during which he bet on each hand and lost both times for a total of $2. Later that evening, he saw another black male subsequently identified as Rudy Swindler selling small manila envelopes similar to those he had purchased earlier in the year. He observed Linda in a conversation with Rudy and heard her try to convince him to give her three marijuana cigarettes. Rudy refused to do so, but offered to sell her a nickel bag. She did not offer to buy. Throughout this entire transaction between Swindler and Linda Simmons, at no time did Linda Simmons, acting in the capacity of an employee of the Respondent, make any effort to prevent Swindler from selling what both recognized as marijuana. Junious went back to the bar on August 26, 1982. When he entered this time, he immediately saw a black female identified as Marian MacRae and otherwise known as "Mulu," selling the similar type of manila envelope. Junious personally observed Mulu sell at least three while in the disco, but because of that location it is possible that the bartender, Linda Simmons, might not have seen her engaged in this type of conduct. This evening, Junious smelled what to him was marijuana pervading the establishment, but he cannot conclude that he actually saw anyone else smoking, selling, or in any way using that substance. When Officer Junious went into the bar again on September 3, 1982, he observed that the odor of marijuana was very heavy. Linda was the bartender along with Leroy Lane, and Junious saw people sitting at the bar smoking, as well as in other areas of the premises. The bartenders were between 4 and 6 feet away from people who were smoking. These cigarettes, smoked by these people sitting at the bar, were small, apparently hand-rolled, and twisted at the end; and Junious's training leads him to conclude that these cigarettes are usually marijuana. Another black female whose name is unknown came in and started tending bar. After this individual became the bartender, Officer Junious noticed an unidentified black male standing at the bar, selling the manila envelopes. This individual was close enough to Junious (directly opposite him) so that Junious could see what was going on. On this evening, he saw this individual make at least three sales of manila envelopes which he took from a cloth bag with a drawstrng. On this same date, there were at least five people selling these manila envelopes, including Marian MacRae, in the bar. Junious came back to the Palatka Blue Diamond on September 23, 1982. On this occasion, he did not observe anyone selling the manila envelopes, but he did see people sitting in the bar smoking what appeared to be, and smelled like marijuana. Linda Simmons and Leroy Lane were the bartenders that night, but it is quite possible that because of the fact that the smokers were in the disco, which was not readily observable from the bar, both Lane and Simmons might not have seen the smoking. However, in Junious's opinion, the smell of marijuana was so prevalent that it would have been difficult for them not to notice it. Junious again returned to the bar on September 24, 1982. As he walked up to the bar door from the outside, he saw a barbecue grill and a black male identified as "Short Man" tending the barbecue. Junious saw Short Man, otherwise identified as "Dunnell," selling the manila envelopes openly while working at the barbecue and while Junious was standing there talking to him. In fact, Junious himself bought a "nickel bag" from Dunnell, paying the $5. This bag was subsequently identified as containing marijuana. The barbecue was approximately 15 feet from the front door at the time that the sale was made. After leaving Dunnell, Junious went to his car and placed the manila envelope he had just bought inside. Then he went back to the Palatka Blue Diamond and, when he entered, he saw Marian MacRae again selling the manila envelopes both inside and outside the bar. While inside, she spent the majority of the time in the disco; and Junious later saw her seated with some other individuals smoking what appeared to be, and smelled like, marijuana. Junious noticed this when he passed her and went to sit at the next table to her, asking to buy from her a nickel bag. When he did this, she opened a black purse from which she took a small manila envelope, and he paid her the sum of $5. This envelope was subsequently identified as containing marijuana. When he came back into the bar after having put that manila envelope in the trunk of his car, he stood at the west end of the bar, from which he could see what was going on in the disco. He saw a black male, subsequently identified as "Quiller Elkins," shooting pool. This individual had a blue cloth bag with a drawstring in his pants pocket. When individuals would come up to him, he would take out the bag and make sales of small manila envelopes from it. Junious personally observed three of these sales being made before he went up to Elkins and commented on his pool skills. He also asked Elkins for a nickel bag, which he subsequently bought from Elkins for $5. This entire transaction was openly conducted, and Linda and Leroy were tending bar at the time. Because of the location of the pool table, he cannot be sure that this sale was observed. On October 15, 1982, Officer Junious went back to the Palatka Blue Diamond and found Linda Simmons and Leroy Lane again bartending. On this occasion, he observed the smoking by various people of what appeared to be, and smelled to be, marijuana, but saw no sales. The smokers were walking around inside and outside the bar, and others were inside the disco area. On no occasion did he see or hear the bartenders make any attempt to stop the patrons from smoking these cigarettes. When Junious went back to the Palatka Blue Diamond on October 22, 1982, Linda Simmons and Leroy Lane were again tending bar. On this occasion, Juniors did not see any sales of manila envelopes, but he saw people smoking what appeared to be, and smelled to be, marijuana; and again, as on previous occasions, in his opinion, the bartenders could see them smoking, but made no effort to stop them. His last visit to the Palatka Blue Diamond was on October 30, 1982, when again Linda Simmons and Leroy Lane were tending bar. On this occasion, he saw patrons smoking, but saw no sales. Again, as on previous occasions, he recognized the smell of the burning substance and the appearance of the cigarettes being smoked was that of the hand-rolled marijuana cigarette. On this occasion, while the bartenders could have seen what was going on, he does not know if, in fact, they did. In any case, no one in authority at the bar said anything about the smoking to any of the patrons. None of the cigarettes observed being smoked by Officer Junious nor the smoke, which he identified as marijuana smoke, was analyzed. However, the degree of expertise evidenced by Officer Junious, based on his experience and training, is sufficient to tip the evidentiary scale toward a finding that those hand-rolled cigarettes, which to him appeared to be marijuana cigarettes and to him smelled like marijuana cigarettes, were in fact marijuana cigarettes; and this finding is hereby made. With regard to the purchase from Quiller Elkins on September 24, 1982, Officer Junious does not know if anyone working for the Simmonses at that time saw him make that purchase or, even if they had seen the purchase made, that they would know what the purchase was. There is no evidence to establish that, in any case, Quiller Elkins was an employee of the Respondents. With regard to the purchase outside the establishment from the barbecue cook, Short Man, again Junious does not know if anyone in authority from inside the bar saw the sale being made or for that matter, if they had seen it, would know what was in the envelope. There is no evidence that Marian MacRae (Mulu) was an employee, and Officer Junious himself does not know whether she was or not. However, on the several occasions he was there, he never saw her tending bar or doing any other work there. He also cannot say that any employee of the establishment saw him make the buy from Mulu on August 26, at least. He also cannot state with any degree of certainty whether any of the employees saw him make the purchase from Rudy with regard to that purchase. This individual does not deny using marijuana with Officer Junious. While he does not recall the exact date, he states that Junious asked him if he, Rudy, knew where he could get any marijuana and he, Rudy, got it for him. They smoked it together on two separate occasions in Rudy's car. While Swindler's recitation that he smoked with Junious is somewhat suspect because of several inconsistencies, there is little doubt that he sold either directly or as an intermediary. In fact, Junious indicates Rudy was a connection with whom he, Junious, palled around while in Palatka on the investigation. He used Rudy to introduce him around in the neighborhood. Willie Lee Simmons, Sr., one of the Respondents and a longtime resident of Palatka, Florida, has been a co-owner of the Palatka Blue Diamond since 1970 or 1971, and he has had a state beverage license since that time. Though he is one of the owners of the establishment, he works there only on Sunday afternoons to tend bar, working from 5:30 in the evening until midnight for the last 7 or 8 years. During all this time, no one has ever approached him to buy marijuana; he does not smoke it himself; nor does he have any familiarity with it. He has seen people smoking there, but was under the impression that what was being smoked were cigarettes. He is in the migrant labor business, as well as a part-owner of the bar, and he recognizes many of his bar patrons as his employees in the field. These migrant workers, he says, often smoke a type of tobacco called "Bugle" tobacco, which they hand-roll into cigarettes. He feels these hand-rolled tobacco cigarettes could well be confused with marijuana cigarettes. Mr. Simmons contends he has a completely clean record in Putnam County and with the Division of Alcoholic Beverages and Tobacco. If he had had any knowledge that marijuana cigarettes were being smoked in his bar, he would have stopped it immediately, but he has never been given any indication that marijuana was a problem in his establishment. The police, who have been in his bar on many occasions, have never mentioned to him the smell of marijuana, nor have there ever been, to his knowledge, any marijuana arrests or searches conducted in his establishment prior to those set out in the Notice to Show Cause. Johnny Lee Simmons, the son of Willie Lee Simmons, is also a part- owner of the Palatka Blue Diamond. He works on Sundays during the day before his father comes on duty at night. He knows what marijuana is and has seen other people smoke it. He believes he could identify the smell of marijuana smoke. He admits that his patrons smoke in the bar. In fact, the bar sells cigarettes and cigars, as well as "Bugle" tobacco, a cheap, low-grade loose tobacco referred to by the other Mr. Simmons. On several occasions, he has stopped the smoking of what he thought was marijuana in the bar and found out that it was Bugle tobacco. When he does catch someone smoking marijuana, he immediately puts them out of the bar and, in fact, Mulu has been put out several times for trying to sell marijuana in the premises. To counter the threat of marijuana transfer, Leroy Lane was hired to keep out minors and drugs, and in this witness's opinion, has done a pretty good job of it. Mr. Simmons feels he has done a good job in exercising control over the place to keep narcotics out, but he admits that neither he nor anyone else is perfect. Sometimes he does not get it all. He contends he has contacted the police on several occasions to get help with drug traffic and gambling. He used to sell cards in the bar and has seen card games conducted there. However, when he reread the manual furnished by the Petitioner, which indicated that gambling is not appropriate or permitted, he immediately got rid of the cards; no longer sells them; and no longer permits card playing in the premises. His sister, the lady allegedly involved in the gambling transaction, is not a gambler. In his opinion, the card games she was in were probably friendly games engaged in to pass the time during the slack periods. To his recollection, the only gambling ever conducted in the Palatka Blue Diamond was carried on by old retired men who spent a lot of time there and who passed the time playing cards. These individuals got angry with him, he contends, when he stopped it The denial of the Simmonses that marijuana is frequently utilized in the Palatka Blue Diamond was supported by the testimony of John J. Melton, a Deputy sheriff with the Putnam County Sheriff's Office, who, himself, is familiar with both the appearance and the smell of marijuana and has made arrests for the possession of marijuana in the past. Officer Melton goes into the Palatka Blue Diamond frequently--three to four times a week--and has done so both on and off duty for the past three years. If he goes in while on duty, he is there for between 15 and 20 minutes; if off duty, for between three and four hours. In any case, he has never seen anyone selling the small manila envelopes when he was in there, nor has he ever seen any card playing or gambling going on. If he were to see anyone involved in any unlawful activity, he would arrest them if in uniform and on duty. If not, he would notify the manager. He does not believe that anyone would smoke in front of anyone who they knew to be a police officer. Palatka is a small town and, by his own admission, he and other police officers are well known to the general public both when in and out of uniform. Consequently, his testimony establishes only that no illegal activity went on while he was in there. These sentiments were echoed by Abraham Smith, a retired U.S. Customs agent who has a working familiarity with marijuana, its appearance, and its smell from his 32 years in Customs work. Since he moved to Palatka in May of 1982, he has been in the Palatka Blue Diamond three to four times a week for an hour or two at the time. He is familiar with the types of small manila envelopes used for the sale of small amounts of marijuana and has seen them many times, but never in the Palatka Blue Diamond. He has never smelled marijuana nor seen marijuana in that establishment. Harold Lightfoot, the salesman for the Eli Witt Tobacco Company who has been selling to the Palatka Blue Diamond for 15 years, including to the prior ownership, comes in once a week in the early afternoon. He also knows what marijuana is and can recognize the appearance and smell, but has never smelled the odor in the Palatka Blue Diamond nor ever seen any sales of manila envelopes while there. Another frequent patron is James Williams, Jr., a retired Army noncommissioned officer who has patronized the Palatka Blue Diamond daily since his retirement from the Army in June 1980. He usually goes in for several hours in midday and then for several hours in the evening. He is familiar with the appearance and smell of marijuana because of the training he received in the military and is also familiar with the small manila envelopes used in marijuana sales. To his knowledge, he has never smelled marijuana smoke in the Palatka Blue Diamond nor has he ever seen sales of small manila envelopes. Leroy Lane, the lead bartender at the Palatka Blue Diamond for the past six to nine years, lives upstairs from the bar and tends bar from early evening to closing. He has seen several marijuana cigarettes outside the bar. He is familiar with its appearance and its smell, and he has seen people in the bar start to smoke marijuana. When he observes it, he puts them out and, if they refuse to leave, calls the police. For the past three to four years, there have been signs on the wall prohibiting the use or sale of marijuana on the premises, placed there at the direction of the owners and, also at their direction, he patrols the bathrooms. Mr. Lane knows of Marian MacRae (Mulu) by reputation. At first he stated he would not know if he would recognize her if he saw her, but later indicated that she is outside the bar frequently. Because of her reputation, when she comes in the bar, he asks her to leave. He denies knowing Short Man and several other regular patrons by name because he does not ask customers their names nor does he ask them the stories of their lives. His credibility is not significant. Queen Esther Simmons, the wife of Johnny Simmons for 16 years, is also a bartender in the Palatka Blue Diamond. She swaps shifts with Linda Simmons, the sister of Johnny and the daughter of Willie Simmons. Queen Esther contends she has never seen marijuana nor has she seen any transfers of the envelopes in the bar. She claims she does not know what a marijuana cigarette is nor has anyone ever told her what they look like so she could keep them out. It is Leroy Lane's job to do that. However, never having seen nor smelled marijuana, if she smells what she thinks is marijuana, she calls out, "If anyone here is smoking marijuana, leave or I'll call the police." Queen Esther Simmons' credibility is totally lacking, and her testimony has no probative value whatsoever.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: Respondents' alcoholic beverage license No. 64-00029 be revoked. RECOMMENDED this 19th day of June 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of June 1984. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Angus W. Harriett, Esquire 314 St. Johns Avenue Palatka, Florida 32077 Mr. Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Howard M. Rasmussen Director, Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent's corrections officer license should be disciplined.
Findings Of Fact The Respondent was certified as a corrections officer by the Commission in Corrections on July 1, 1981. She was issued certificate number 61024. On February 22 and 23, 1996, Bart Knowles, Mark Islar, and Kelly Mims were law enforcement officers assigned to the Special Investigations Unit (SIU) under the Eighth Circuit State Attorney's Office. The SIU was a narcotics enforcement unit consisting of members of the six counties within the Eighth Circuit, under the supervision of the State Attorney. The SIU collectively enforced narcotics violations under state statutes. The SIU received a call from the Inspector General's office of the Department of Corrections. The SIU was asked to investigate allegations of an individual selling narcotics to an inmate. The allegations were that narcotics were being sold from a residence located at 240 Redwood Drive. The residence is located on the prison grounds of the Union Correctional Institution. The individuals residing at the residence were identified as Respondent and Robert Stoutamire, Respondent's boyfriend. On February 22, 1996, Agents Knowles, Islar, and Mims met with Inspector Hayes of the Department of Corrections Inspector General's Office. Inspector Hayes indicated to the agents that an inmate had admitted that when he was cleaning the grounds of the institution, he would go to the Respondent's residence for the purpose of purchasing cannabis from Mr. Stoutamire. The agents provided the inmate with a wire transmitting device, searched the individual, and allowed the inmate to approach the Respondent's residence, contact Mr. Stoutamire, and attempt to purchase cannabis. The inmate owed Mr. Stoutamire $80 from a previous purchase, so the agents gave the inmate $100 for the prior debt, plus $20 to purchase more cannabis. The inmate contacted Mr. Stoutamire at the residence, who stated that he would have the additional cannabis for the inmate on the following day. On February 23, 1996, Agents Knowles, Islar, and Mims re-initiated the investigation at Respondent's residence. The agents, along with Inspector Hayes, re-briefed the inmate about how they wanted him to proceed at the residence. The agents searched the inmate to ensure that he wasn't hiding any narcotics, placed an audio-transmitting device on his person, and then dropped him off near the Respondent's residence. The inmate was given a verbal signal to indicate to the agents that the transaction was complete. The inmate proceeded to the residence, and tapped on the window of the back door. Mr. Stoutamire met with the inmate at the rear of the residence and gave the inmate a small plastic baggy containing cannabis. When the inmate gave the verbal signal indicating that he had the narcotics in hand, the agents, who were positioned near the rear of the residence, approached the individuals. Agent Knowles ordered both the inmate and Mr. Stoutamire to lie on the ground. The agents retrieved a green leafy substance that appeared to be cannabis lying on the ground next to Mr. Stoutamire. One of the Inspectors from the Department of Corrections left to pick up the Respondent, who was in a class at the prison firing range. The agents wished to search for more evidence of narcotics in the residence and in Respondent's vehicle. When the Respondent arrived at the residence, Agent Islar explained to her that Mr. Stoutamire had been arrested, and that the agents had reason to believe that there were narcotics inside her residence and vehicle. Agent Islar requested the Respondent's consent to search her residence and her vehicle. Agent Islar presented the Respondent with a Consent to Search form, and fully explained the form to her. Respondent voluntarily consented to a search of her residence and vehicle. Respondent told the agents that her car was at the prison firing range. She gave them her car keys. Respondent testified that Mr. Stoutamire had dropped the car off at the firing range earlier that morning because he had had Respondent's vehicle for the last three days prior to this incident. She testified that Mr. Stoutamire and his friends had been driving her car around for the last three days, smoking marijuana in it and partying in it. Respondent also testified that she had not seen her car or purse during that three-day time. However, the evidence shows that Mr. Stoutamire was not driving around in her vehicle smoking cannabis, but was at home when the inmate went by her residence twice during that three-day time frame. Respondent’s testimony on this point is not credible. Agent Knowles proceeded to the firing range where he found the Respondent's vehicle. Inspector Hayes unlocked the vehicle with the Respondent's keys. Agent Knowles found the Respondent's purse in the vehicle. Agent Knowles verified that it was the Respondent's purse by locating her driver's license, other forms of identification of the Respondent, and papers with the Respondent's name on them in the purse. The purse contained a silky lining that was torn inside towards the top of the purse. At the hearing, Respondent acknowledged the purse in the car was her purse. Agent Knowles pulled back the lining, and discovered what he immediately identified as cannabis in the purse. Agent Knowles also discovered rolling papers in the compartment next to the cannabis. Agent Knowles has seen cannabis over two hundred times prior to this day. The substance found in the purse looked and smelled the same as the cannabis he had seen previously. Agent Knowles found several cannabis roaches located in the front passenger-side ashtray of the vehicle. Throughout the front floorboard of the vehicle, Agent Knowles discovered cannabis residue. Agent Knowles described the residue as very small leafy, green pieces of cannabis. Agent Knowles received 40 hours of training from the Institute for Police Training (IPTM) in narcotics investigation and identification, which included instruction in the use of the Valtox narcotics testing kit. Agent Knowles also attended an 80- hour course from the Drug Enforcement Agency, which also included instruction of the use of the Valtox narcotics testing kit. Agent Knowles has used the Valtox testing kit over 200 times, and has never had a positive test refuted by later chemical analysis. Agent Knowles field tested the cannabis found in the Respondent's purse, which tested positive. Inspector Hayes and Agent Knowles secured the vehicle, and returned to the residence. Agent Mims took part in the search of the Respondent's residence. The agents found several small baggies commonly used for narcotics. Some of the baggies contained residue of controlled substances, and some did not. The agents also found an ashtray containing residue of controlled substances in it. The baggies and ashtray were found in the bedroom that the Respondent and Mr. Stoutamire shared. The baggies and ashtray were found on top of and inside of a dresser in the bedroom. Baggies were found in at least two dresser drawers. One drawer contained female clothing. However, there were at least three dressers in Respondent's bedroom one of which contained here daughter's clothing. The evidence was not clear as to which dresser the cannabis was found in. The agents also found narcotics paraphernalia in the living room area, which included a plastic tube with suspected cocaine powder residue in it, and three plastic baggies containing narcotics residue in them. Respondent knew Mr. Stoutamire smoked marijuana. Respondent's claim of no knowledge of the presence of marijuana in her car and home is not credible since she knew of Mr. Stoutamire's continued use of marijuana and, as the evidence shows lived in the midst of his drug use in her home. Moreover, at all times Respondent was capable of removing the illegal drugs from her home and the prison grounds by preventing Mr. Stoutamire from living there. In short, Respondent knowingly permitted Mr. Stoutamire to introduce illegal drugs onto Union Correctional grounds, a serious offense and lack of the moral character required for correctional officers. Therefore, Respondent’s license should be disciplined. In Respondent’s favor she has been a corrections officer for seventeen years and has not been the subject of any license discipline during that time.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and that Respondent's certifications be revoked. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Harriett A. Cummings A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
