15-007267 Daniel Banks vs. Department Of Health, Office Of Compassionate Use Status: Closed Recommended Order on Friday, February 26, 2016.

Summary: Petitioner's crime committed in Kansas in 2004 was not a felony, thus it was not a disqualifying event.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL BANKS,

Petitioner,

vs. Case No. 15 - 7267

DEPARTMENT OF HEALTH, OFFICE OF

COMPASSIONATE USE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on February 4, 2016, in Tallahassee,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings. The parties were

represented as set f orth below.

APPEARANCES

For Petitioner: J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

Post Office Box 551 ( 323 02)

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

Michael J. Glazer, Esquire

Ausley and McMullen

Post Office Box 391

123 South Calhoun Street

Tallahassee, Florida 32301

James A. McKee, Esquire

Foley and Lardner, LLP

Suite 900

106 East College Avenue

Tallahassee, Florida 32301

For Respondent: Nichole Chere Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether a nolo contendere plea by

Petitioner, Daniel Banks, to possession of a controlled

substance (phenobarbital) in the State of Kansas in 2004 is a

disqualifying offense under section 435.04, Florida Statutes.

(Unless specifically stated otherwise herein, all references to

Florida Statutes shall be to the 2015 version.)

PRELIMINARY STATEMENT

By letter dated November 23, 2015, Respondent, Department

of Health, Office of Compassionate Use (the ÐOfficeÑ or ÐOCUÑ),

notified Petitioner that his Level 2 background screening

contained a disqualifying offense and that he had not,

therefore, ÐpassedÑ the screening. The basis of the failure to

pass was that Petitioner had pled nolo contendere to illegal

possession of a depressant/stimulant/hallucinogen/steroid

(phenobarbital) in Kansas in 2004. Petitioner timely requested

an admin istrative hearing to contest the OfficeÓs contention

that he had failed to pass the background screening.

Several non - parties moved to intervene in the proceeding,

but their motions were denied. At least one of those non -

parties has appealed the Order den ying the motions to intervene.

See Case No. 1D16 - 0505, Fla. First Dis. Ct. App. On January 22,

2016, the Office filed a Motion to Dismiss the instant case,

arguing that the only basis for challenging a disqualification

under chapter 435 was proof of mist aken identity. Section

435.06(1), Florida Statutes, states in part, ÐThe only basis for

contesting the disqualification is proof of mistaken identity.Ñ

The M otion was denied on the basis that no ÐdisqualificationÑ

had yet been determined, and the OfficeÓ s allegation of

disqualification needed to be proven. Under the OfficeÓs

rationale, a state agency could accuse any person of any

disqualifying crime and the accused could not contest the charge

except as to mistaken identity. The irrationality of that

a rgument is the basis for denial of the Motion. Just prior to

the final hearing, the Office filed a Motion for R elinquishment

of J urisdiction on the same grounds. That Motion was denied for

the same reasons.

At the final hearing, there was considerable d iscussion and

argument as to which party had the burden of proof. In an

effort to expedite the final hearing, the Office agreed to put

on its case - in - chief first notwithstanding who had the burden.

OCU called the following witnesses: Daniel Banks; and C hristian

Bax, director of OCU. OCUÓs E xhibit 1 was admitted into

evidence. Banks testified in his own behalf and called one

additional witness: Rodney W. Smith, Esquire, accepted as an

expert in Ðcriminal practice and procedure as it relates to drug

cri mes, pre - trial intervention, and Florida drug court.Ñ BanksÓ

E xhibits 1 through 9 were admitted into evidence. Four joint

E xhibits were also offered and accepted into evidence.

A Transcript of the final hearing was ordered; it was filed

at the Division of Administrative Hearings on February 8, 2016.

By rule, parties were allowed 10 days to submit p roposed

r ecommended o rders. Each party timely submitted a Proposed

Recommended Order, and each was duly considered in the

preparation of this Recommended Ord er.

(In recognition of the cr itical nature of DOAH Case

Nos. 15 - 7268, 15 - 7274 and 15 - 7276, concerning BanksÓ employer

and Respondent in the instant matter, this Recommended Order has

been abridged for rapid issuance and res olution of the dispute

herein . ) 1/

FINDINGS OF FACT

1. Banks is a 30 - year old resident of Northglenn,

Colorado. He is currently employed as the coordinator of

integrated pest management for MJardin Management Company.

Banks is also designated as the research and development

director of San Felasco Nurseries, Inc. (ÐSan FelascoÑ), an

applicant to become designated as a low - THC cannabis dispensing

organization by the State of Florida. See §§ 381.986 , et seq,

Fla. Stat. San Felasco filed an application identifying Banks

and other owners or managers, all of whom were required to

undergo a Level 2 backgroun d screening pursuant to

section 435.04, Florida Statutes.

2. After BanksÓ background informati on was submitted to

the Florida Department of Law Enforcement as part of

San FelascoÓs application, a Level 2 background screening was

undertaken by that agency.

3. By letter dated August 7, 2015, OCU notified Banks that

they needed more information conce rning his arrest on June 3,

2004, and subsequent plea of nolo contendere to the charge of

possession of phenobarbital. I n response, Banks had the

Clerk of Court for Geary County, Kansas provide a document

entitled ÐJournal EntryÑ in Case No. 04 CR 294. T he Journal

Entry is equivalent to a Final Judgment in a Florida criminal

court.

4. OCU then notified Banks, via letter dated November 23,

2015, that he had failed to pass his Level 2 background

screening. San Felasco was also notified of BanksÓ failu re to

pass , inasmuch as that failure would impact San FelascoÓs

pending application to be designated as a dispensing

organization.

5. BanksÓ failure to pass the screening was due to the

fact that his nolo contendere plea in Kansas was to a crime OCU

dee med similar to a crime enumerated in section 435.04 as a

disqualifying offense. The construction of the Kansas and

Florida statutes are, indeed, similar. Kansas Statutes

Annotated (K.S.A.) 65 - 4162(a)(1) states in pertinent part:

Except as authorized by t he uniform controlled

substances act, it shall be unlawful for any

person to possess or have under such personÓs

control: Any depressant designated in

subsection (e) of K.S.A. 6504105, subsection

(e) of K.S.A. 65 - 4109 or subsection (b) of

K.S.A. 65 - 4111, and amendments thereto.

K.S.A. 65 - 4111(b)(44) lists phenobarbital as one of the

depressants designated as a controlled substance.

By comparison, Section 893.13(6)(a), Florida Statutes,

states in relevant part:

A person may not be in actual or constructive

possession of a controlled substance unless

such person Ós controlled substance was

lawfully obtained from a practitioner or

pursuant to a valid prescription. . . .

The two statutes are different, however, in the penalties

which will inure fro m violation of the statutes. Section

893.13(6)(a) states that:

[A] person who violates this provision

commits a fe lony of the third degree . . . .

K.S.A. 65 - 4162(b) contains the following penalty language:

Except as otherwise provided, any person who

violates this subsection shall be guilty of a

class A nonperson misdemeanor. If any person

has a prior conviction under this section, a

conviction of a substantially similar offense

from another jurisdiction . . . then such

person shall be guilty of a drug severity

level 4 felony.

Thus, the crime in Florida is a felony; in Kansas it is a

misdemeanor.

6. Banks came to be in possession of phenobarbital while

working at an animal hospital. He was a senior in hig h school

at the time, just two months after reaching the age of 18 years.

He stole the phenobarbital from the animal hospital and took it

home for his own use. His father found the drugs, confronted

Banks with them, and made Banks self - report his theft t o the

police department. The police notified the doctor at the animal

hospital, but she refused to press charges against Banks.

Nonetheless, on June 3, 2004, Banks was eventually charged with

the crimes of theft of and possession of a controlled subst anc e,

to wit: phenobarbital. Both crimes in Kansas at that time were

misdemeanors. Pursuant to advice from his attorney, Banks pled

nolo contendere to the possession charge in exchange for

dismissal of the charge for theft. He was given a suspended

senten ce, placed on 12 monthsÓ probation and ordered to pay

$115.00 in court costs. The theft charge would not have been a

disqualifying offense in Florida. A fact taken into

consideration by Banks before agreeing to the plea bargain was

that the crime was onl y a misdemeanor.

7. When he was arrested , and when he pled to the charge,

Banks did not advise the police that he had previously been

arrested and charged with possession of cannabis, a crime

enumerated under the same statute (K.S.A. 65 - 4162) to which h e

was charged for possessing the phenobarbital. His prior arrest

occurred in Riley County, Kansas , on May 7, 2004. He was

charged with possession of a small amount of marijuana,

possession of drug paraphernalia, and the purchase and

consumption of alcoho l by a minor. He received a suspended

sentence, 12 monthsÓ unsupervised probation, and paid a $250.00

fine in the Riley County matter. The crime was later expunged

from BanksÓ record.

8. Under K.S.A. 65 - 4162, the existence of the prior charge

just wee ks before the Geary County possession of phenobarbital

charge could have resulted in the Geary County crime being

upgraded to a felony. However, for whatever reason, BanksÓ

Geary County violation was handled as a first offense and Banks

was only fo und gui lty of a misdemeanor. 2/

9. The illegal possession of a controlled substance, in

this case phenobarbital, is the similarity tying the Kansas and

Florida statutes. In that respect, they are similar. However,

the degree of penalty differs greatly between the two statesÓ

laws, at least for a first offense.

10. Following his arrest and nolo contendere plea in Geary

County, Banks attempted to rehabilitate his life. 3/ He entered

college, attending the University of Northern Colorado in 2004

and 2005. He attended Kansas State University in 2005 and 2006.

He then took time off from his formal studies to work in various

jobs for a few years. He returned to college in 2009, attending

and ultimately graduating magna cum laude from Colorado State

University i n 2012. He has since worked for various

organizations in the fields of horticulture and agriculture.

That experience led to his current position with San Felasco.

11. There is no doubt BanksÓ life following his arrest in

2004 has been successful and d evoid of any further criminal

activity. He has engaged in activities indicative of a stellar

member of society. However, this proceeding is not an

Ðexemption from disqualificationÑ case. If it was, there is

little doubt Banks would receive such an exemp tion based upon

his obvious and documented rehabilitation from the 2004 crime.

The issue in this case, however, is simply whether the arrest

and conviction in Kansas was for a crime similar to a

disqualifying offense in Florida and, if so, whether the cri me

constitutes a disqualifying offense.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

13. The general rule is that the party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue. DepÓt of Banking & Fin., Div. of Sec. & Investor

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 (Fla. 1996),

( citing F la. DepÓt of Transp. v. J.W.C. Co. , 396 So. 2d 778

(Fla. 1st DCA 1981) ) . In the instant matter, the Office had the

burden of proving that the Kansas violation was similar to a

Florida crime and that it was a disqualifying event. OCU

clearly established t hat the illegal possession of a Schedule 4

controlled substance (phenobarbital in this case) is a crime

under K.S.A. 65 - 4162 and also under section 893.13(6)(a),

Florida Statutes. It is of no moment that the penalties for the

two crimes are different in e ach of the states; the crimes

themselves are essentially identical. The crimes are therefore

similar. But the examination cannot end there.

14. Level 2 employment screening standards set forth in

section 435.04(2)(ss) provide that a person who has pled nolo

contendere to an offense under chapter 893 relating to drug

abuse prevention and control is disqualified from employment in

a position of trust or, in the present case, as an officer,

owner, or manager of a cannabis dispensing organization, Ðif the

of fense was a felony.Ñ

15. The relevant portion of section 435.02 states:

(2) The security background screening under

this section must ensure that no persons

subject to the provisions of this section

have been arrested for and are awaiting

final disposi tion of, have been found guilty

of, regardless of adjudication, or entered a

plea of nolo contendere or guilty to, or

have been adjudicated delinquent and the

record has not been sealed or expunged for,

any offense prohibited under any of the

following pro visions of state law or similar

law of any jurisdiction:

* * *

(ss) Chapter 893, relating to drug abuse

prevention and control, only if the offense

was a felony or if any other person involved

in the offense was a minor.

16. There is no allegation that a minor was involved in

BanksÓ offenses in Kansas.

17. This hearing, to determine whether BanksÓ arrest and

nolo plea in Kansas is a disqualifying offense in Florida, is a

Ðde novo proceeding intended to formulate agency action, and not

to review actio n taken earlier or preliminarily.Ñ Beverly

Enters. - Fla., Inc. v. DepÓt of HRS , 573 So. 2d 19, 23 (Fla. 1st

DCA 1990). Banks, in this case, has the opportunity to rebut

the OfficeÓs determination that the Kansas conviction was a

disqualifying event in Flo rida and to change the OfficeÓs mind

concerning his disqualification. See Capaletti Bros., Inc. v.

DepÓt of Gen. Servs. , 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983).

While showing quite clearly that his arrest and conviction could

have ended in pretrial di version or drug court had it happened

in Florida, the disposition of his case in Kansas was handled

differently. He pled nolo contendere and received punishment

for the crime for which he had been charged. That crime was

similar to the chapter 893 charge set forth in the Florida

employment screening statute.

18. BanksÓ efforts at final hearing to differentiate

between his plea to a misdemeanor offense in Kansas and the

similar felony offense in Florida were credible. However, the

distinction was irrele vant to the issue of whether the two

offenses were similar under the provisions of chapter 435,

Florida Statutes. While the distinction would be given due

consideration in an exemption from disqualification proceeding,

it had no weight in the instant case .

19. It is equally clear that the offense to which Banks

pled nolo contendere was not a felony, at least in Kansas. And

since he was charged in Kansas, not Florida, his crime was a

misdemeanor, not a felony, for purposes of determining whether

it was a disqualifying offense. Stated differently, the

Ðsimilar law of another jurisdictionÑ [K.S.A. 65 -

not a felony. Thus, Banks did not plead nolo contendere to a

Ðdrug abuse prevention and controlÑ offense that was a felony.

20. The only mention of expungement in the Florida statute

addressing disqualification is contained within the phrase which

discusses a person who has been adjudicated delinquent. That

does not apply in the instant case. However, the expungement

statute in Kansas is relevant. K.S.A. § 21 - 6614(i) (2015) says

that the person who has been expunged is to be treated as not

having been arrested, convicted , or diverted of the crime.

Under Kansas law, the 2004 conviction and nolo plea would not be

a disqualifying event under section 435.04 because the

conviction never happened.

21. The Office argues that, as in a Recommended Order

issued by the undersigned in DOAH Case No. 15 - 4459, if the

elements of a crime in another jurisdiction were similar to a

crime in Florida, then th e crime could be disqualifying

regardless of the penalty in the other jurisdiction. That

Recommended Order is distinguishable: The offenses listed in

s ection 435.04 in that case did not add the Ðonly if the offense

was a felonyÑ language. There are no F lorida cases which

establish whether the Ðonly if the offense was a felonyÑ

language is construed to mean a felony in Florida or a felony in

the jurisdiction where the crime occurred. The plain language

of the statute appears to suggest the latter. Inasm uch as

possession of phenobarbital in Florida is already a felony,

adding the phrase Ðonly if the offense was a felonyÑ could

logically be intended to look at the other jurisdictionÓs

Ðsimilar lawÑ and whether it was a felony. The Legislature

failed to cl early elucidate its meaning. Needless to say, the

recommendation herein is a very close call.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Department of Health, Office of Compassionate Use, finding that

Petitioner, Daniel Banks, does not have a disqualifying event in

his Level 2 background screening . 4/

DONE AND ENTERED this 26th day of February, 2016 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 Cle rk of the

Division of Administrative Hearings

this 2 6 th day of February, 2016.

ENDNOTES

1/ A number of legal issues were raised by the parties but, as

none of them were completely dispositive of this matter, they

are not discussed further herein for expediencyÓs sake.

Included in those issues are the following: The OfficeÓs

argument regarding B anksÓ ability to challenge the background

screening only on the basis of mistaken identity; BanksÓ

estoppel argument relating to the OfficeÓs proceeding with San

FelascoÓs application review; the possibility that Î in Florida

Î Banks would not have been co nvicted anyway due to diversion

projects; and whether the expungement of BanksÓ conviction can

be considered.

2/ It would only be speculation to say why Geary County did not

know about or act upon the Riley County conviction. No

competent evidence was i ntroduced at final hearing to establish

that fact.

3/ In furtherance of his rehabilitation, Banks was able to have

his Geary County conviction expunged from his record in October

2015.

4/ It is fairly obvious that Banks would be eligible for an

exempti on from disqualification should he apply for one. But

this case did not involve an exemption request; it was solely

focused on whether the conviction of a crime in Kansas

constituted a disqualifying offense in Florida.

COPIES FURNISHED:

Nichole Chere Geary, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

Post Office Box 551 (32302)

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

( eServed)

Michael J. Glazer, Esquire

Ausley and McMullen

123 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32301

(eServed)

Benjamin J. Grossman, Esquire

Foley & Lardner, LLP

Suite 900

106 East College Avenue

Tallahassee, Florida 32301

( eServed)

James A. McKee, Esquire

Foley and Lardner, LLP

Suite 900

106 East College Avenue

Tallahassee, Florida 32301

(eServed)

Eugene Dylan Rivers, Esquire

Ausley & McMullen, P.A.

123 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Eduardo S . Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

William Robert Vezina, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Megan S. Reynolds, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Jon C. Moyle, Esquire

Moyle Law Firm

118 North Gadsden Street

Tallahassee, Florida 32301

(eServed)

Karen Ann Putnal, Esquire

Moyle Law F irm, P.A.

118 North Gadsden Street

Tallahassee, Florida 32301

(eServed)

Shannon Revels, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

(eServed)

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exc eptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.