The Issue The issues to be resolved in this proceeding concern whether the Respondent's beverage licensure should be subjected to sanctions for allegedly selling alcoholic beverages to a minor and what if any penalties should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating licensure, and practice under that licensure, of alcoholic beverage-selling entities in the State of Florida, including administration of the laws and rules related to the selling of alcoholic beverages by restaurant businesses. The Respondent is an entity licensed and domiciled in the State of Florida and authorized to sell alcoholic beverages under license number 55-00306, Series 2-COP. The Respondent is subject to the Division's regulatory jurisdiction. The subject license allows the Respondent to make sales "by the drink" for consumption on the premises at the restaurant business located at 1766 S. Eighth Street, Fernandina Beach, Florida. On October 22, 2002, Ms. Deidre Kaye Miller, then 18 years of age, was employed as an I.A. by the Petitioner Agency for the purpose of attempting to purchase beer at the Respondent's restaurant. She was paid a total of $35.00 for her services as an undercover operative that day by the Division. She was given instructions by Agent Edwards and Agent Maxwell to attempt to purchase an alcoholic beverage from the Respondent. Ms. Miller was told that if asked for identification she was to show her valid Florida Driver's License, if asked her age to tell her correct age and not to engage in any extensive conversation with anyone. On October 22, 2002, Ms. Miller entered the restaurant and walked to the left of the entrance where the bar was located. A waitress asked what she wanted and she told her she wanted a Corona (Beer). After Ms. Miller ordered the beer from the waitress the owner and Respondent Mr. Wong came over and asked for her identification. She provided her driver's license as an I.D. to Mr. Wong. As he was checking her driver's license the waitress, Tabitha Cornett, opened the Corona and set it on the counter so that it would be ready when Mr. Wong approved giving Ms. Miller the beer. The point on the bar where the beer was placed was approximately 16 feet away from where Mr. Wong and Ms. Miller were having the conversation about her I.D. Mr. Wong viewed Ms. Miller's Driver License I.D. for 30 or 45 seconds. The driver's license had her correct name and date of birth, which was in 1984, and a statement printed on the license which said "Under 21 until 09-02-05." Mr. Wong allowed the beer to be served to Ms. Miller. Ms. Miller took the beer and placed it on a table near the bar. She then indicated to the waitress that she was going to call friends to meet her and walked outside the restaurant, leaving the beer on the table. In restaurant sales situations, IAs are instructed to depart the premises once they have been served alcohol. Generally payment will not be tendered because, in restaurant situations, the law and licensure calls for consumption on the premises and it is customary to consume the alcohol and pay for at the end of one's stay at the restaurant. In the instant situation neither Ms. Miller nor anyone else ever paid for the beer in question. Mr. Wong acknowledged in a due diligence statement taken at 5:30 p.m., on the day in question October 22, 2002 (in evidence as Petitioner's Exhibit four) that he checked the I.D. but he wasn't wearing his glasses and he thought it said that Ms. Miller was born in 1964. He asked her, "You were born in 64?" He said in his statement that Ms. Miller did not reply to him and then he states (in his due diligence statement) that he told her that she was too young for that I.D. and again she said nothing. He again asked her if this was her I.D. and she said nothing. He handed it back to her. He then said in the statement: "I did not want to insult someone so I allowed it served." In other words he questioned whether she was old enough based upon the I.D. he saw; believing it to say 1964 because he did not have his glasses on, but also believing that she appeared too young for that I.D. Ms. Miller left the premises and Agent Edwards and Agent Maxwell entered the premises and informed Mr. Wong that he had just allowed service of alcohol to a minor. Thereafter Mr. Wong was placed under arrest handcuffed, and taken to the Nassau County Jail. Mr. Wong had never had any beverage-related offense on his record prior to that time. No investigation or prosecution concerning his business had ever occurred up to that point. A criminal prosecution was instituted against him concerning this same incident and facts, which resulted in a jury verdict of acquittal. The totality of the evidence shows that although Mr. Wong did not actually serve Ms. Miller, he did allow a beer to be served to her. She was under 21 years of age. Mr. Wong testified that even though one person checks identification, any employee can open a beer and place it on the counter or service bar. Ms. Cornett did so in this case, placing the beer at the far end of the service bar from where Mr. Wong and Ms. Miller were conversing concerning her I.D. This allows the beer to be ready once the person checking the I.D. authorizes the sale. In the situation at hand, Ms. Cornett opened the beer, placed in on the bar and Mr. Wong then went through the door away from the bar into the main part of the restaurant. Ms. Miller, the I.A., then took the beer from the bar and placed it on the table and told Ms. Cornett that she was going outside to meet her friends or to call her friends. After that occurrence the other agents named above came in, explained the situation to Mr. Wong, and arrested him during the course of which discussion he made the above-referenced statement. Mr. Wong never touched the beer in question and Ms. Cornett never actually physically handed it to Ms. Miller, but both Mr. Wong and Ms. Cornett allowed Ms. Miller to take the beer from the bar and place it on her table, thus taking the beer into her own custody and control at least temporarily, even though no money was exchanged in return for the beer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, finding that the Respondent violated Section 562.11(1)(a), Florida Statutes, and that he be required to pay a $250.00 fine to the Division. DONE AND ENTERED this 31st day of July, 2003, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: Christina Pardieck, Assistant General Counsel P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 31st day of July, 2003. Division of Alcoholic Beverage and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gary Barker, Esquire Post Office Box 1177 Callahan, Florida 32011 Hardy L. Roberts, III, General Counsel Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Peter Williams, Director Division of Alcoholic Beverage and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this matter is whether Respondent’s alcoholic beverage license, Series 3-PS, No. 39- 01099, for the premises located at 13508 Florida Avenue, Tampa, should be disciplined because of the matters alleged in the Administrative Action filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency in Florida responsible for the licensing of outlets for the retail sales of alcoholic beverages, and for the enforcement of the liquor laws of this state. By stipulation of fact, the parties agreed than on or before August 7, 1996, Benjamin Nenno, a male under the age of 18 at the time, became involved in an investigation of Respondent’s retail sales facility in issue by the Division. On the evening of August 7, 1996, Nenno was briefed and searched by agents of the Division and allowed to carry with him only a certain amount of cash and a driver’s license which clearly showed him to be under 21. He was instructed by the agents to indicate he was only 17 if he were to be asked by a store employee and to produce the driver’s license if it were to be requested. Specifically, he was instructed not to make any misrepresentation of fact in order to get the clerk to make a sale to him. Thereafter, Nenno entered the Respondent’s store number 620, located at 13508 Florida Avenue in Tampa and asked to purchase a bottle of Captain Morgan’s Special Rum, an alcoholic beverage which would be unlawful for him to purchase. When he did so, the Respondent’s clerk, identified as Freddy Posey, asked to see Nenno’s identification and Nenno produced the driver’s license which reflected he was under 21. Posey looked at it but made the sale anyway. The sale was witnessed by Special Agent Randall West who confirmed the facts stated above. When Nenno left the premises he met with Special Agents West and Miller who confiscated the beverage. West then entered the store and issued a notice of Violation as well as a vendor check list to Posey which was to be filled out by him and returned to the Division. The investigation continued on August 13, 1996 when Nenno, again under the control of the Division personnel, was again searched and instructed and sent back into the Respondent’s premises by Agents Hamilton and Fisher to again attempt to purchase a bottle of Captain Morgan’s Special Rum. This time Nenno dealt with James Davison, an employee of the Respondent, who asked Nenno to produce a driver’s license. When Nenno did as he was asked, Davison looked at it but nonetheless made the sale even though the license clearly showed Nenno was under 21. This sale was witnessed by Agent Fisher. In this case, however, after having made the sale, Davison came outside the store after Nenno, but after looking around the parking lot, re-entered the store. The Division agents again issued a Notice of Violation and a checklist which was subsequently returned to the Division filled out. On August 20, 1996, the investigation continued with the Division agents this time using Nicole Finch, a female under age 21, who was instructed and briefed as Nenno had been. She, too, was left with only some cash and her driver’s license which reflected her to be under 21. This time, Finch entered the Respondent’s store Number 621 in the company of Agent West and purchased a 200 ml bottle of Bacardi Rum, an unlawful alcoholic beverage for her to buy, from Steven Wilder, the clerk on duty. Before making the sale, Wilder asked to see Finch’s driver’s license, which she showed to him, but after seeing it, he still made the sale. When she left the store, Ms. Finch met Special Agents West and Fischer who subsequently issued a Notice of violation to the Respondent. When questioned by West, Wilder indicated he had received no training nor was he aware of any training program in place regarding sales to underage persons. Special Agent West, who has been an investigator with the Division for more than 18 years, and who has participated in many beverage investigations such as this, entered the Respondent’s store on August 7, 1996 after Nenno had left. He arrested the clerk, Mr. Posey and issued the Notice of Violation. In the course of the transaction, he questioned Posey about how he was trained regarding the sales of alcohol to minors with specific emphasis on whether Respondent has an ongoing training program and whether there were signs or other notices proscribing the sale of alcohol to minors. In response to these questions, Posey indicated he had received verbal training but no formal classroom or video training and had been given no forms to read and sign regarding this. When West looked for signs relating to the practice of checking patrons’ identification or indicating a policy of “no sales to those under 21”, he could find no signs posted or buttons worn by employees to notify prospective patrons of the company’s practice, though the Florida Beverage law does not require buttons to be worn. West made the same observations when he entered the store after the August 20, 1996 purchase by Finch. On this second occasion, in response to West’s questions about the training given by Respondent, Wilder, the clerk involved in that sale, indicated no training programs were in place. At that time, Mr. West could see no changes that had been made in the premises since he was last there on August 7, 1996. Further, West could not find any indication that the Respondent had posted a qualifying birth date for the purchase of alcoholic beverages. In response, Respondent offered into evidence a copy of a sign which, it claims, is posted on the cash register in each store, which refers to the requirement for a person to be 21 years old, (born before the purchase date in 1975) to purchase alcohol. Mr. West, who went behind the cash register to obtain information from the liquor license, did not see a copy of this sign posted in Respondent’s store on either August 7 or August 20, 1996. The Notice of Violations issued by the Division agents were to put the licensee on notice that a violation had occurred so that the employee cannot keep the information from the license holder. Agent Fisher observed the sale to Nenno which took place on August 13, 1996. When he went into the store after the purchase took place, Fisher asked the sales clerk if he had asked to see Nenno’s identification and he had. Fisher also asked the clerk about training offered by Respondent regarding the checking of identification. This employee, who has worked for the company for approximately 16 years, indicated he had seen at least one video which concerned checking identification and admitted he had been required to sign a certificate that he was aware of the rules. Agent Fisher also looked for signs in the store regarding the Respondent’s policy regarding sales to minors but did not see any. When he participated in the operation there on August 20, 1996, he asked the clerk on duty at that time if he had been trained regarding buyers’ identification and was told that since he had been hired by the company in January 1996 he had worked in the warehouse exclusively and had subsequently worked in the store only two days. He had been given no training at all in customer identification before he started working in the store. When Fisher looked behind the counter for some sort of warning sign, he could find none, nor could he find any in the back near the beer cooler. Mr. Davison worked for the Respondent for approximately 16 years prior to his discharge because of the instant sale to a minor. He had worked as manager of store number 620 for about two years before his firing, and his job was to maintain stock and insure the store was properly manned at all times it was open. He employed two other individuals at the liquor outlet to cover the entire week. Only one person was on duty at a time. On the day he made the sale which caused him to be fired, he was the only person on duty. Periodically, he would receive a document from the company containing the company’s policies which he was to read and sign, but nothing more than that, and even they did not come very often. He claims, and it is found, that he was never told he was to train his employees regarding sales of alcohol to minors. He claims that he was never shown a training video even though he signed the document saying he did. He did that because on the one occasion he asked a manager about it, he was told to sign it and not worry about it. Even though each store had a VCR, the entire training process to which Davison was exposed consisted of the reading and signing of this document which was given to him by Mr. Odorosio, the store manager. None of the training reflected on his personnel records as having been given him was, in fact, not given. Davison claims that when he was hired 16 years ago he was not given any training about sales of alcohol to minors and has never been given any since. However, he admits that each store is furnished a chart reflecting the various endorsements to driver’s licenses which are used. He also noted that his store had one sign relating to lawful alcohol sales, given to him by a beverage salesman, which, about two months before the incident, he put on the front of the counter where the customers could see it. He claims that on the evening the agents came to the store, they did not ask to see it. If they had done so, he would have shown it to them. Davison recognized one of the signs placed in evidence as one he has seen in other of Respondent’s stores. He has never seen the other one. As Davison recalls it, Respondent’s policy is to terminate anyone caught selling alcohol to minors. After the incident of August 7, 1996, Mr. Odorosio advised him to be on the lookout because he felt the Division agents would be back. Davison admits having made the sale to the teenager in question. However, he claims, the individual had just had a birthday which Davison mistakenly believed was the 21st. In fact it was the individual’s 17th birthday. He also claims that in the two years he worked at store 620, he always asked potential underage patrons for identification unless he knew the person. He claims he has always refused to sell alcohol and would not knowingly sell alcohol to minors. In fact, on the night he sold to Nenno, August 13, 1996, when he realized he had sold to a minor, he went outside, he claims, to find Nenno and give him back his money. The four-year difference in age belies Davison’s claim of mistake and that claim is rejected. Mr. Wilder, the assistant manager on the grocery store night shift since January 30, 1996, had worked in the liquor store, temporarily, for only a day and a half at the time of the incident. He was filling in until a new clerk could be brought in from another store. When he received his orientation training in January 1996, he was shown a video and exposed to a group class on paperwork, the handbook of rules and regulations, and the sale of alcohol, after which a test was administered. That was the only time he was shown any video or was involved in any personnel meeting relating to alcohol sales. When he went to work at the liquor store, he was given training only on the operation of the cash register. The liquor store registers do not have the capability to punch in the buyer’s date of birth. However, the day he started in the liquor store, Mr. Odorosio told him to always check a purchaser’s identification and never to sell to anyone under the age of 21. This was the day before he sold the rum to Ms. Finch, and he claims this sale was caused by human error. That very day, he claims, he had make “cheat sheets” which showed the lawful dates for the purchase of tobacco and alcohol, and claims he merely read from the wrong sheet. Officials of the Division have made themselves available to work with retailers of alcoholic beverages to bring them up to the sales standards set for a reasonable industry standard as outlined in the Florida Statutes. The information contained on the alcohol compliance instructional guidelines utilized by Respondent on which clerks and cashiers acknowledge their understanding that violation of those policies may result in termination of their employment is not sufficient orientation from an educator’s standpoint. In the opinion of Agent Miller, the minimum acceptable standards call for training of personnel in alcohol control three times a year, as once a year is not enough. Mr. Miller indicates he has discussed the Respondent’s situation with Mr. Heuermann, the Respondent’s vice-president in charge of personnel training, at Heuermann’s behest on approximately four occasions, and explained his concerns over the violations and what Respondent could do to improve its program. The first discussion took place in June 1996, shortly after an arrest of another Respondent employee and two months before the instant arrests. At that time they discussed what could be done to alert personnel and modify registers to require checking of ID. It was reported at that time that some employees were overriding this; however, the company is in the process of converting all their cash registers to those which require the customer’s birth date be inserted. They were put in grocery stores first and not in the liquor stores because the liquor stores use a different system. As funds for conversion become available the registers in the liquor stores will also be converted. Company trainers also discusse training standards for employees and Respondent’s need to insure that the lowest level of employees, who deal with the public, are properly trained. Though Mr. Miller made several suggestions as to what Respondent could do to improve its educational program, neither he nor any other Division agent was asked to participate in the training. According to Mr. Heuermann, Respondent has over 100 grocery stores and 34 liquor stores and employs approximately 10,000 people, only 1,500 to 2,000 of whom are involved in the sale of alcohol. No one under the age of 18 is hired to work in a liquor store. Company trainers check to insure the age of employees as does the main office. By the same token, the company would not hire anyone as a liquor store manager who had been convicted within the prior five years of a violation of the liquor law, of prostitution, drugs or a felony. The company’s application for employment has a space for listing such an offense and the company completes a background check on its applicants. Respondent contends it has a formal training program for alcohol law compliance. The orientation program for all new employees includes a video tape, a work sheet, and instructional guidelines, all dealing with alcohol compliance, to be signed by all new hires. At training, the trainer goes through the employee handbook, which treats alcohol compliance, sexual harassment, AIDS, ADA, etc., and this training is required of all new employees, both managerial and non-managerial, but it is sketchy at best. Until 1995, such training as existed was centralized but then was made the responsibility of the individual store manager. Sometime thereafter, the training was placed under the human resources directorate and it is again centralized whenever possible, as in the metropolitan areas where employees from several stores easily can be brought together for training. The company also has a formal substance abuse policy under which the use of illegal drugs or alcohol at work is prohibited because of its impact on safety and other workers. When Mr. Heuermann was advised by the store manager of the incident involving Mr. Posey he immediately instructed the manager to fire Posey and sent the information concerning the incident to all his managers for use in training in the individual stores. He also instructed the district managers to reinforce alcohol training in the stores because he wanted to insure this training met all requirements. He called Mr. Miller at the Division to see what could be done and implemented everything Miller suggested. When Heuermann learned of the Davison case he again reviewed the facts and determined to fire Davison as well. He met with the senior vice-president of operations for Respondent who directed that no one but management personnel be put in that store and reemphasized the need for training. Heuermann also went to the store and advised the district manager that his job was in jeopardy if another violation occurred. When the third violation thereafter occurred, Mr. Heuermann called Agent Miller, Mr. Odorisio, Mr. Metcalfe and the corporations CEO. At that time, Miller made some suggestions which included a paycheck reminder which Heuermann implemented with a copy being stapled to every one of the 10,000 paychecks issued that month. Mr. Heuermann noted that after the incident involving Mr. Posey, Agent Miller advised him that Division agents would be back. Heuermann passed that information on to the district and store managers and instructed them to advise their employees to be careful. Jacqueline N. Iglesias, Respondent’s district training coordinator since October 1996’ was previously the orientation director. Employee training for the Respondent’s Hillsborough district, as noted previously herein, is done in group sessions involving between 12 and 25 people, on Mondays, Thursdays and Saturdays for three-hour sessions conducted twice a day on those days. The instruction covers safety, alcohol compliance and employee appearance and standards. With regard to the instruction concerning alcohol compliance, a form containing relevant information is used along with a video presentation and a multiple choice examination on the provisions of the alcohol compliance law which is administered while the video is playing. The video shown covers hours of sale, sales to minors, sales to those already intoxicated and how to handle unruly patrons. The course material advises the employee to call management in a questionable situation. It also covers acceptable and altered identification, what to look for and what to do in a case of suspected alteration. Specifically, employees are advised to refuse a sale to anyone whose identification is suspect, and employees are warned of the consequences, including job loss, if strict compliance with the law and the company’s policies are not followed. This training program has been in effect since August, 1996. Before that time, the training was done by the individual managers who, according to Iglesias, covered the same information. Though this program appears thorough at first blush, in reality it is considerably less than comprehensive and appears to have been minimally effective. An example of this can be seen in the history of Mr. Posey. Mr. Posey went through the company’s training program training when he was first hired. Company records reflect that he missed seven of the questions on the checklist test but, nonetheless, was still hired since performance on the test is not used to disqualify prospective employees. He supposedly was thereafter given supplemental on the job training under an experienced cashier at his employment location. Kevin Sosa has been employed as a full time liquor store clerk at Store 619-620 for more than two years. He identified a decal which, for some time, including in August 1996, was stuck to the check-out counter just in front of the register. Sosa also claimed that there is, in addition, a decal on the beer cooler located in the back of the store, in the back hallway and on the wall near the register which refer in some way to the legal age for purchasing alcohol. With regard to these signs, Special Agent Hamilton, who participated in the operation involving Mr. Davison on August 13, 1996, did not observe any signs in the store as were described by Mr. Sosa even he claims he looked for them. However, he admitted he did not go behind the counter to where the cashier stood to see if any signs were posted there, nor did he specifically look near the beer cooler. Mr. Sosa also has seen the alcohol compliance guidelines which he has been required to sign at least two or three times during the term of his employment and which he has seen more frequently when training others. He has also been exposed several times to the training guidelines which accompany the alcohol video. The last time he saw it was during the summer of 1996 after the incidents in question, but on each occasion nothing more was done than to show the video. After Mr. Posey was caught and after another incident at another company store, but before the incident involving Mr. Davison took place, he and Davison often discussed how easy it was to become complaisant and not check identification properly. Both recognized they had to be careful. They were frustrated and somewhat angry with the Division over these arrests because they felt anyone could make a mistake and fail to check identification. The efforts at control and procedures described as being in place at Respondent’s stores were reiterated in the testimony of Mr. Stickles, second assistant manager at Respondent’s store in issue, who indicated that numerous and repeated efforts are made to train employees in the proper compliance with the alcohol laws and to get out appropriate and necessary information. Included within these measures used are the use of the company’s DBX system by which individual managers can electronically communicate with headquarters and other managers to identify problems and suggested solutions; memoranda on pertinent topics sent through the mail; consistent verbal reminders from management to clerks; provision of extra stickers for registers and elsewhere in the stores; reminders on employee paychecks and, after the first incident, a mandatory repeat viewing of the alcohol control video by all employees. Aside from the above, however, Mr. Stickles could point to little in the way of formal training. Mr. Odorisio, the store manager at the facility in question related his practice of insuring that all new employees are sent to the centralized orientation program conducted by the company. He attends periodic manager meeting at least three times a year after which he briefs his clerks on any relevant material he picked up. After the incident involving Mr. Posey he again briefed the remaining clerks, including Davison and Sosa, repeatedly advising them that the Division agents would be back and to be sure to card all suspicious customers Mr. Montoto, Respondent’s district manager over the store in question, indicated his efforts to insure proper alcohol compliance included, in addition to those previously noted, a requirement that all employees have attended the pre-hiring orientation program; conduct of store manager meetings at least two or three times a year; and specific posting of managers in the stores who were trained in how to handle alcohol compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order imposing an administrative fine of $3,000 against Respondent’s alcoholic beverage license number 39-01099, series 3-PS. DONE and ENTERED this 4th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Miguel Oxamendi, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Craig E. Behrenfeld. Esquire Barnett, Bolt, Kirk & long 601 Bayshore Boulevard, Suite 700 Tampa, Florida 33606 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Richard Boyd Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether Petitioner established, pursuant to section 1012.33(1)(a), Florida Statutes (2011),1/ "just cause" to terminate Respondent from employment based on a breath alcohol level of 0.112, as alleged in the Administrative Complaint dated February 8, 2012.
Findings Of Fact In January 2003, Petitioner hired Respondent to teach exceptional student education courses. Since commencing her employment with Petitioner, Respondent has always received an annual performance evaluation rating of no less than fully satisfactory. Respondent has a bachelor's degree in exceptional student education and, most recently, received a master's degree with an endorsement in reading and special education. For the 2011-2012 academic school year, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent's professional services contract provides that "THE TEACHER SHALL BE BOUND TO SERVE AS PROVIDED IN SECTION 1012.33, FLORIDA STATUTES," and "SHALL NOT BE DISMISSED DURING THE TERM OF THIS CONTRACT EXCEPT FOR JUST CAUSE AS PROVIDED IN SECTION 1012.33(1)(a), FLORIDA STATUTES." (Capitalization in original). The contractual term of Respondent's contract covered the period of August 16, 2011, through June 8, 2012. On the morning of January 13, 2012, Respondent began her day by dressing both herself and her two-year-old daughter. Respondent safely drove her daughter to daycare and then proceeded to safely drive herself to Bayshore High School. Respondent arrived at school around her customary time of between 7:15 a.m. and 7:25 a.m., parked her car in the school's parking lot, without incident, and then entered the school building where she checked her mail, walked to her classroom, and made general preparations for the school day, which included briefly exchanging pleasantries with her colleague, Michele Neathery. Although the exchange between Respondent and Ms. Neathery was brief, at no time during the encounter did Ms. Neathery smell alcohol about Respondent's person or observe Respondent behaving in a way that would suggest impairment. Respondent's first instructional period of the day on January 13, 2012, started at 8:50 a.m., and ended at 10:20 a.m. A.M. was a student in Respondent's first class and also served as Respondent's classroom aide. At the time of the final hearing, A.M. was 19 years old. A.M. testified that on January 13, 2012, Assistant Principal Ginger Collins came to Respondent's classroom and asked her to step into the hallway. Before this occurred, A.M. had conversed with Respondent for about ten minutes, and during this time, he did not notice anything unusual about Respondent's appearance or her behavior. At approximately 10:20 a.m., on the day in question, Ms. Collins had gone to the classroom occupied by Respondent to discuss with her a situation from the previous day that involved one of Respondent's students. Ms. Collins entered the classroom occupied by Respondent and asked Respondent to step into the hallway with her so that they could discuss the situation from the previous day. Respondent complied with the request from Ms. Collins, exited the classroom, and positioned herself outside of her classroom door so that she could speak with Ms. Collins and simultaneously monitor her students through the window of the door to the classroom. Respondent, while speaking with Ms. Collins in the alcove to her classroom, observed that two of her students were not on-task. Ms. Collins, from her vantage point, did not observe the two students that Respondent saw who were off-task and otherwise did not witness any "rambunctiousness or loud behavior" in Respondent's classroom. Respondent, in an attempt to alert the two students to the fact that they were being monitored and to otherwise get them back on-task, slapped her hand against the door three times. Ms. Collins had never observed Respondent use this student management technique. Because Ms. Collins did not see that two of Respondent's students were off-task during the time when she conversed with Respondent, Ms. Collins thought it was odd and out of character for Respondent to have slapped the classroom door for what to Ms. Collins, was no apparent reason. Although Ms. Collins thought it "odd" when Respondent slapped the door, Respondent's student, A.M., credibly testified that prior to January 13, 2012, he had witnessed Respondent slap her hand against the door a "couple of times before" as a technique for refocusing her students. There was no evidence offered during the hearing that slapping a door with one's hand is an inappropriate classroom management technique. Respondent's act of slapping the door with her hand is not evidence of Respondent's normal faculties being impaired but is instead, under the circumstances, evidence that her faculties were intact. Respondent was able to observe and appreciate that two of her students were off-task and she responded by taking appropriate corrective action to redirect the errant students. Had Respondent not taken such corrective action, it would certainly make for a more credible assertion that her normal faculties were impaired because, then, it could be said that Respondent was unable to appreciate the need to correct her students because of alcohol-related influences on her judgment. This, however, is not the case. Furthermore, the evidence establishes that all of Respondent's students were on-task until Respondent was asked to step into the hallway by Ms. Collins. The fact that all of Respondent's students were on-task when Ms. Collins initially entered Respondent's room is further indication that Respondent was in control of her classroom and not suffering from diminished faculties related to alcohol consumption. When Ms. Collins conversed with Respondent outside of Respondent's classroom, Ms. Collins became concerned about allowing Respondent to return to the classroom because Ms. Collins observed that Respondent "was covering her mouth" with her hand when she spoke, was shifting her body "from side to side," had a strong smell of alcohol emanating from her person, and was speaking louder than usual. Although Ms. Collins had concerns about Respondent's ability "to return to the classroom," Ms. Collins did not monitor Respondent's performance in the classroom upon completion of their conversation. According to evidence stipulated to by the parties, one of the behaviors associated with alcohol-related impairment is "decreased inhibition." The word "inhibition" is defined as "a mental process imposing restraint upon behavior or another mental process." Merriam-Webster Online Dictionary. Respondent's act of covering her mouth while speaking is not evidence of decreased inhibition, but is, instead, evidence of heightened inhibition. Respondent was cognizant of the smell of her breath and by covering her mouth with her hand, she was taking steps which were reasonably designed to deflect any offending breath-related odor. Had Respondent suffered from "decreased inhibition," then it is certainly more likely that Respondent would have spoken to Ms. Collins in such a way as to not have shielded Ms. Collins from any smells that may have been emanating from Respondent's mouth. After completing her initial conversation with Respondent, Ms. Collins immediately shared her concerns about Respondent with Assistant Principal Baron McCombs, Respondent's supervisor. Within a few minutes of being alerted to the situation by Ms. Collins, Mr. McCombs went to Respondent's classroom. Mr. McCombs entered Respondent's classroom and asked Respondent to accompany him to his office. The total time that Mr. McCombs was in Respondent's classroom was "[j]ust a matter of seconds." During the few seconds that Mr. McCombs observed Respondent in her classroom, he noticed that Respondent "was acting very out of character . . . sort of flamboyantly, [and] [h]er voice was sort of boisterous, and her hands were sort of flailing, and her speech patterns were sort of elongated." Mr. McCombs described Respondent as usually being a very reserved person. Although Mr. McCombs observed Respondent behaving in a manner that he considered "out of character," he did not believe that Respondent's behavior was detrimental to her students. Respondent admits the behaviors described by Mr. McCombs, but credibly testified that the observed behaviors were intentionally orchestrated because she was trying to get her students excited about learning about President George Washington and his false teeth. Mr. McCombs and Respondent exited her classroom and walked together to his office. During the walk to his office, Mr. McCombs did not observe Respondent staggering or otherwise having difficulty ambulating. Once in Mr. McCombs' office, Respondent and Mr. McCombs spoke briefly about an incident from the previous day involving one of Respondent's students. Respondent did not elongate her words while speaking with Mr. McCombs in his office, and according to Mr. McCombs, Respondent's demeanor at the time was "reserved." Ms. Collins entered Mr. McCombs office within a few minutes of Respondent's arrival, and once Ms. Collins took her seat, the conversation shifted to the real reason why Respondent had been summoned to the office by Mr. McCombs. Mr. McCombs informed Respondent that she was suspected of being under the influence of alcohol. Respondent's initial response to the accusation was to say, "Oh my God, I can't believe that this is happening," and she then became emotional and started to cry. When questioned, Respondent admitted that she had been drinking the night before. Specifically, Respondent admitted that she had her last drink "somewhere around 1:00 or 1:30 in the morning." Mr. McCombs left the room to report the matter to school Principal David Underhill. While waiting for Mr. Underhill to arrive, Respondent continued to converse with Ms. Collins. Respondent asked questions about the protocols and procedures related to the allegations and also wanted to know the impact of the situation on her employment. While discussing these issues with Respondent for more than an hour, Ms. Collins did not detect that Respondent's "speech was slowed or sluggish." Mr. Underhill eventually arrived and explained to Respondent the procedures and protocols associated with suspected impairment testing. At about 12:30 p.m. Ms. Collins, who had been with Respondent the entire time since entering Mr. McCombs' office, prepared to transport Respondent to the medical clinic for suspected impairment testing. Before leaving for the clinic, Ms. Collins escorted Respondent to her car to retrieve some items. The walk to Respondent's car took about five minutes. During the walk, Ms. Collins observed that Respondent did not experience any difficulty walking and that Respondent was coherent. Ms. Collins drove Respondent to the medical clinic for suspected impairment testing. Once at the medical clinic, Respondent provided two breath samples for a breathalyzer testing machine that measured Respondent's breath-alcohol level at 0.112. Since commencing employment with Petitioner, this was Respondent's first positive, confirmed alcohol test. The testing protocol at the medical clinic was such that Respondent met with a nursing assistant and stayed in the presence of the nursing assistant throughout the testing process. During the 20 or so minutes that Respondent was with the nursing assistant, it was observed by the nursing assistant that Respondent was coherent, she understood instructions that were given to her, and her speech was not sluggish. The nursing assistant did observe that Respondent had glassy eyes. After completing her final breathalyzer test, Respondent met with medical doctor Craig Trigueiro for about five to ten minutes. Dr. Trigueiro has been a physician for 37 years. When Dr. Trigueiro evaluates patients for suspected alcohol impairment, he described his process for face-to-face evaluation as follows: I look at them. I smell their breath. I observe their behavior. I ask them various questions, and then I document everything on the drug testing forms. [T-17] When Dr. Trigueiro met with Respondent, he noted the following on her drug testing form: Admits to last p.m. drinking until 1:00 a.m. In Alcoholics Anonymous. Glassy eyed. Has alcohol on breath. Breath alcohol, 0.112 and 0.112. Assistant principal. Ginger Collins here. Legally under the influence. Acutely intoxicated and cannot drive. Dr. Trigueiro stated that he noticed that Respondent was "a little unsteady on her feet," but on cross-examination, admitted that Respondent's apparent unsteadiness could have been related to causes other than alcohol consumption. Dr. Trigueiro, contrary to his stated practice of "document[ing] everything on the drug testing form," did not note on Respondent's drug-testing form that she was "a little unsteady on her feet." Dr. Trigueiro also testified that he noticed that Respondent was "sluggish in her speech." On cross-examination Dr. Trigueiro admitted that he did not mention on Respondent's drug-testing form that Respondent was "sluggish in her speech." Dr. Trigueiro testified that the reason why he did not note on Respondent's drug-testing form his observations of Respondent's sluggish speech and her being unsteady on her feet, was because he "didn't think that this type of situation would end up in court." Dr. Trigueiro stated that had the instant case been one involving "great bodily harm or death," as opposed to one merely involving an employer for-cause breath test, he would have performed a higher level of medical examination that would have included diagnostic exams, such as the "finger to nose" and "heel to toe" test. In Dr. Trigueiro's opinion, Respondent's intoxication was "cut and clear" because she had a breath-alcohol test which showed that Respondent was "legally intoxicated." Contrary to Dr. Trigueiro's conclusion that Respondent was "legally intoxicated," a breath-alcohol level of 0.08 or higher does not establish, ipso facto, "legal intoxication," but instead merely establishes a rebuttable presumption, as it relates to the operation of a motor vehicle, that a person is under the influence of alcoholic beverages to the extent that his normal faculties are impaired. § 316.1934(2)(c), Fla. Stat. Specifically, section 316.1934(2) provides that the presumptions created therein do "not limit the introduction of any other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired." Id. Ms. Collins was with Respondent when she was seen by Dr. Trigueiro. According to Ms. Collins, when Dr. Trigueiro spoke to Respondent "he was very upset" and treated Respondent quite harshly. When Respondent told Dr. Trigueiro that she had been drinking until about 1:00 a.m., Dr. Trigueiro said to Respondent: "Do you think I'm a fool?" Dr. Trigueiro went on to state that he had been practicing medicine for over 30 years and that Respondent could not have consumed her last drink at the stated hour and then some twelve hours later have a breath- alcohol level of 0.112. Despite this initial assertion by Dr. Trigueiro, he, nevertheless, admitted on cross-examination that some people are more tolerant of alcohol than others and that not all individuals metabolize alcohol at the same rate. According to Dr. Trigueiro: The more alcohol someone drinks, the more enzymes in the liver exist to detoxify alcohol, which is why someone who drinks all the time has to drink more alcohol to . . . get a buzz to become--you know, feel the central nervous system effects of the alcohol. So someone who drinks a lot has to drink more alcohol simply because the liver enzymes are revved up to detoxify alcohol; whereas someone who doesn't drink much alcohol would become intoxicated at a much lower beverage intake, alcohol intake because the liver enzymes are not induced by chronic drinking. Dr. Trigueiro did not perform any tests on Respondent to determine that rate at which her body metabolizes alcohol. Dr. Trigueiro's medical opinion establishes that Respondent had glassy eyes, but does not establish that Respondent's normal faculties were impaired. When asked specifically if Respondent's "normal faculties were impaired," Dr. Trigueiro could only state that Respondent was "clinically impaired." Petitioner did not offer any evidence as to whether "clinical impairment" is synonymous with impairment of one's normal faculties, and Dr. Trigueiro's response suggests that the two standards are not synonymous. Dr. Trigueiro was more concerned with lecturing Respondent about her alcohol consumption, as opposed to conducting a thorough assessment of Respondent's level of functional impairment. Dr. Trigueiro obviously believed that a more thorough evaluation of Respondent's level of cognitive functioning was unwarranted because in his opinion, Respondent's case was "cut and clear" due to her breath-alcohol level of 0.112 and the fact that this was merely a case involving an employer for-cause evaluation. The greater weight of the competent substantial evidence establishes that when Respondent reported to school on January 13, 2012, and through and including the time that she met with Dr. Trigueiro, she was coherent, she was able to process information that was communicated to her and provide appropriate responses thereto, she was oriented to time and place, her speech was not sluggish or slurred, and she did not have any difficulty ambulating. The greater weight of the competent substantial evidence also establishes that during all times relevant hereto, the glassy appearance of Respondent's eyes was the only objective manifestation of the alcohol that was in Respondent's system and that the presence of "glassy eyes" does not establish in and of itself that a person's normal faculties are impaired. Respondent admits to being a recovering alcoholic. She is actively involved in an alcoholics support group and consults with her sponsor regularly. Near the end of the 2010-2011 academic school year, Respondent was experiencing difficulty in maintaining sobriety. There was no evidence presented that Respondent's challenges with maintaining sobriety during the previous school year negatively impacted her performance in the classroom. In recognition of her challenges, Respondent self-disclosed to the school principal, Mr. Underhill, her challenges with alcohol and requested a leave- of-absence so that she could receive in-patient treatment. Respondent's request for leave-of-absence was granted, and she attended and completed a rehabilitation program. Mr. Underhill, when asked about whether he had concerns about Respondent being in the classroom with students with alcohol in her system, testified that he "would be extremely concerned when a teacher in a classroom has to make multiple decisions, all at any given time, that any type of circumstances can arise [and Respondent's] level of [breath] alcohol is going to impair good judgment." Petitioner did not offer any credible evidence establishing that on January 13, 2012, Respondent's judgment was impaired or that she had difficulty, or would likely have difficulty, making appropriate decisions while in her classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The violations alleged in paragraphs 10, 12, 13, and 14 of the Administrative Complaint should be dismissed. The violation alleged in paragraph 11 of the Administrative Complaint should be dismissed to the extent that it seeks to establish just cause for termination of Respondent's employment. Paragraph 11 of the Administrative Complaint should be sustained to the extent that it establishes grounds for imposing non-terminable discipline against Respondent. Respondent shall be suspended, without pay, for a period of 60 calendar days. Respondent shall not be eligible to use any accrued leave during her period of suspension. Upon return from her suspension, Respondent, during the remainder of the 2012-2013 academic year, shall at her expense be subject to random alcohol testing as determined by the Manatee County School Board or its designee. A positive alcohol test shall result in further disciplinary action. Upon return from her suspension, Respondent, during the remainder of the 2012-2013, shall be assigned to a position where she does not have responsibility for the supervision of students. During Respondent's period of suspension, she shall remain eligible to participate in the Employees' Assistance Program and shall enroll in and successfully complete an alcohol dependency program. Respondent may be subject to disciplinary action should she fail to successfully complete the alcohol dependency program. DONE AND ENTERED this 16th day of August, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2012.
Findings Of Fact Respondent Paul N. Fjell is a 45-year-old graduate of Eastern Illinois University. In 1970, he was employed as a teacher by Petitioner, the School Board of Dade County, Florida. He subsequently was placed on continuing contract and continued in his capacity as a teacher for Petitioner until December 5, 1990, when he was suspended from his employment and this termination proceeding was commenced. Respondent has a long history of alcohol abuse. Since 1984, Petitioner has encouraged Respondent to avail himself of the services offered by Petitioner's Employee Assistance Program (hereinafter "EAP"). Respondent has been referred on a number of occasions to the EAP by his supervisors since his alcohol problem appeared to be a fitness-related problem. On April 25, 1986, Respondent was admitted to the Addiction Treatment Program at Mount Sinai Medical Center, where he remained hospitalized for 28 days. His admitting diagnosis was poly-drug dependency and alcoholism. Respondent had been referred to that program by Petitioner's EAP. During the 1988-1989 school year Respondent again came to the attention of the Office of Professional Standards when he was removed from his position at Horace Mann Middle School because of absences and a resulting referral to EAP. Respondent was next assigned to two Cope Centers (North and South). He was assigned to work one-half day at each Center as a Work Experience Coordinator. Respondent's duties were to teach a class of young, pregnant students, locate part-time jobs for them, and monitor them at their places of employment. A Work Experience Coordinator occupies a highly visible position since the Coordinator must visit businesses and other organizations in the community in order to locate jobs for students. After approximately two months, Respondent was removed from his position at both Centers because of his non- performance and because of complaints from students, staff, faculty, and a School Board member that Respondent had the odor of alcohol on his breath at work. Respondent was next assigned to the Office of Vocational, Adult, Community, and Career Education (hereinafter "OVACCE"). The offices of OVACCE are located in the School Board Administration Building; consequently, Respondent had little contact with students or the public. While he was assigned there, Respondent was repeatedly absent, did not produce any work that could be used, and his supervisor detected an alcohol odor about Respondent. As a result, prior to the end of the 1989-1990 school year, Respondent was removed from OVACCE and relocated to the Dorsey Skill Center for a few months to complete the school year. In August, 1990, Respondent was arrested and charged with driving under the influence, leaving the scene of an accident, and violation of driving restrictions. On August 15, 1990, a conference-for-the-record was held in Petitioner's Office of Professional Standards (hereinafter "OPS"). At that time, Respondent's arrest record and employment history were reviewed, and he was given specific directives as to the procedures he must thereafter follow regarding absences. Respondent was then placed on alternate assignment pending court disposition of his DUI arrest. Respondent was temporarily placed in the Physical Education Department at the School Board Administration Building at the end of August, 1990. His duties were essentially clerical in nature: stuffing envelopes, collating documents, distributing mail, and re-arranging the mail boxes. Within five weeks, his supervisor requested that OPS remove Respondent from that work assignment. His supervisor complained that Respondent reported late for work, left early, took long breaks, and was frequently absent. He also complained that other workers in the area were becoming demoralized because Respondent did not carry his share of the work. On one occasion Respondent's supervisor thought he smelled alcohol on Respondent's breath. Several times during this period Respondent was observed taking his shoes and socks off and elevating his feet to relieve swollen joints. Even after being instructed to not remove his shoes and socks and elevate his feet while at work, Respondent did so again and was observed by the Deputy Superintendent. Respondent was next placed in Petitioner's Security Investigative Unit (hereinafter "SIU"), where he performed clerical chores. On November 2, 1990, Respondent reported to his work location in an impaired state. This was discovered when other employees at the work site noted that Respondent was talking to himself, his clothing was disheveled, his speech was slurred, he had bloodshot eyes which he was trying to conceal by wearing dark glasses, he kept repeating himself, the content of his speech was nonsensical, and he had a strong odor of alcohol on his breath. Later that morning, a blood specimen was drawn from Respondent, which upon analysis showed an ethanol content of at least 50 milligrams per deciliter. During October, 1990, it had been determined that further psychological evaluation of Respondent was medically indicated, and he was directed by OPS to submit to further evaluation. An appointment was scheduled for him by OPS. Respondent, however, rescheduled that appointment several times and never did submit for further evaluation. Respondent disregarded directives given to him by OPS on August 15, 1990, regarding absence and leave procedures. Between November 5 and 14, 1990, Respondent was absent from work and failed to contact OPS regarding his absences in accordance with the directives previously given to him. Respondent understood that he was to contact OPS. The reason that Respondent did not contact OPS when he failed to report to work between November 5 and 14 was as a result of his drinking and not as a result of any lack of understanding of the directives which he had been given. Petitioner's EAP has had 140 contacts directly with Respondent or with his medical providers in an attempt to assist Respondent in dealing with his fitness-related alcoholism. Respondent is generally non-compliant with the recommendations made to him by professionals for dealing with his alcohol problem. Recommendations for long-term residential treatment have been ignored. Although Respondent has voluntarily admitted himself for treatment in hospital mental health units, his stays there are short and do not appear to be assisting him in dealing with his long-term alcohol problem. Although Respondent is currently attending daily AA meetings, his attendance may be related as much to his pending traffic charges and this termination proceeding as to any commitment on his part to finally resolve his alcohol problem. When Respondent was a patient at Mount Sinai, once he was detoxified, he exhibited no personality disorder or psychiatric condition. His problem was alcoholism and poly-drug dependency; his behavior was secondary to that problem. Based upon protocols established by the American Society of Addiction Medicine, a physician cannot, with certainty, diagnose a mental condition while the patient is still under the influence of alcohol or other mind-altering drugs. Although Respondent has been receiving treatment from a psychiatrist on an irregular basis over the last few years, that physician's opinion that Respondent suffers from a manic depressive disorder requiring the administration of anti-depressant medication is rejected. That physician has not had the benefit of seeing Respondent on a regular basis. It is uncertain whether that physician has had the benefit of treating Respondent in a detoxified state since approximately 1985. Although it is believed that Respondent has been in a detoxified state during certain time periods since 1985, there is no assurance that the recovery program Respondent has created for himself is working. Respondent received acceptable annual evaluations for the 1988-1989 and 1989-1990 school years and was recommended for reemployment at the conclusion of each of those school years. Each year's annual evaluation was based upon one classroom observation only. Although fitness-related issues such as active alcoholism appear to be included within Category VII, Professional Responsibilities, on Petitioner's annual evaluation form, principals completing annual evaluations of teachers are prohibited from considering fitness-related issues. By union contract, only the Office of Professional Standards can deal with issues relating to a teacher's fitness for duty. Over the years, Respondent's drinking problem has become known to more and more students, staff, medical professionals, and members of the community. His failure to ultimately resolve his alcohol problem has achieved some degree of notoriety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent's suspension as of December 5, 1990, was proper and dismissing Respondent from his employment as a teacher for the School Board of Dade County, Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of May, 1991. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-10 13-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11, 12, and 16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-3, 5-7, and 9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4, 8, and 11 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 10 and 12-14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. transmitting transcript, together with Petitioner's exhibits numbered 1-14 and Respondent's exhibits numbered 1-4. COPIES FURNISHED: Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One Miami, Florida 33129 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Honorable Betty Castor, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Respondent, Lauderdale Copa, Inc., d/b/a The Copa (Respondent or The Copa) should pay an alcoholic beverage surcharge in the amount of $18,960.48 as alleged by the Administrative Complaint dated March 27, 2006. The Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Petitioner or Department) claims that the surcharge is owed and due pursuant to Sections 561.502(2) and 561.29, Florida Statutes (2005).
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating the alcoholic beverage industry within Florida. § 561.501 Fla. Stat. (2005). At all times material to the allegations of this case, the Respondent was a licensed entity authorized to sell alcoholic beverages pursuant to its license number 16-00516, Series 4-COP. The Copa was authorized to sell liquor, wine, and beer at its licensed premises for on-site consumption. Alcoholic beverage sales are subject to a surcharge. § 561.501 Fla. Stat. (2005). In addition to other sales taxes that may be imposed on the sale of the product, an alcoholic beverages licensee (such as the Respondent) must also collect and remit to the Department a surcharge on the sale of the alcoholic beverage. The amount of the surcharge remittance is computed pursuant to the guidelines set forth in the laws and regulations. To confirm accurate reporting and remittance of the surcharge, the Department conducts after-the-fact audits of licensees. In this case, the Department audited The Copa’s alcoholic beverage sales for period from November 1, 2002, through October 31, 2005 (the audit period). There are two methods to review or audit the sales of alcoholic beverages. The inventory method directs the Department to take the beginning inventory plus purchases for the period and subtract the ending inventory (and a spillage allowance) to calculate the sales for the period. The calculated sales volume is then used to derive the surcharge obligation. The second method is based on the actual sales incurred during the audit period. The sales method requires that the licensee keep records to verify the volume of actual sales. The surcharge is due based on the on-premise consumer’s purchase of the alcoholic beverage at the licensed site. Both of the methods described require that the licensee keep and maintain records. The inventory method is verifiable since licensees purchase their stock from vendors also regulated by the Department. On or about October 24, 2005, Hurricane Wilma struck Florida and crossed to the Atlantic Ocean from the west coast. The storm caused extensive damage to the Respondent's property. The Respondent claims that its beverage records were lost in the storm. The audit in this case used the inventory method to compute the surcharge. By using the distributors’ sales reports the Department calculated a surcharge owed in the amount of $11,257.52. To that amount the Petitioner seeks interest and penalties. The Respondent does not acknowledge that any surcharge is owed. The Respondent maintains that its inventory, records, and package sales information (alcoholic beverages not consumed on the premises) were lost in the storm. The Department gave the Petitioner over five months to obtain records from other sources to refute the audit findings. As of the date of the formal hearing in this case, the Respondent did not have any records to refute the audit findings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a Final Order sustaining the surcharge liability in the amount of $18,960.48. DONE AND ENTERED this 6th day of December, 2006, in Tallahassee, Leon County, Florida. S J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2006. COPIES FURNISHED: Gregg Bernard Lauderdale Copa, Inc., d/b/a The Copa Post Office Box 22961 Fort Lauderdale, Florida 33335 Michael J. Wheeler, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 6 1940 North Monroe Street Tallahassee, Florida 32399-2202 Steven M. Hougland, Ph.D., Director Division of Alcoholic Beverages And Tobacco Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated Subsection 466.028(1)(s), Florida Statutes (2000-2005), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456 and 466, Florida Statutes (2006). Dr. Driggers is a licensed dentist in the State of Florida, having been issued license number 5473. The Professional Resource Network (PRN) is the impaired practitioner program for the Board of Dentistry, pursuant to Section 456.076, Florida Statutes (2006). PRN monitors the evaluation, care, and treatment of impaired healthcare professionals. Dr. Driggers has a long history of problems with alcohol. On January 15, 1987, he was arrested for driving under the influence (DUI). He was adjudicated guilty of that offense. In 1990, Dr. Ken Thompson did an intervention on Dr. Driggers based on Dr. Driggers' alcohol abuse. As a result, Dr. Driggers was admitted to Glenbeigh Hospital of Tampa for a three-day evaluation of alcoholism and chemical dependency. Dr. Driggers was diagnosed with alcohol abuse and benzodiazepine abuse. Dr. Martin Zfaz, who evaluated Dr. Driggers, recommended that Dr. Driggers attend an outpatient treatment program with Dr. Ken Thompson five days a week, attend 90 Alcoholic Anonymous (AA) and Narcotics Anonymous (NA) meetings in 90 days, and obtain a sponsor. On December 17, 1990, Dr. Driggers entered into an Impaired Practitioner Program of Florida Physicians Recovery Network Advocacy Contract. The contract required that he "abstain completely from the use of any medications, alcohol, and other mood altering substances." He agreed to attend a self-help group meeting such as AA or NA three times per week, to participate in continuing care group therapy one time per week, and to attend a 12-step program of recovering professionals every other week. The contract was for five years, with renewal subject to review by PRN. Dr. Driggers did complete an outpatient treatment program with Dr. Thompson by February 1991. He did attend some meetings of recovering professionals. In January 1992, PRN referred Dr. Driggers to Anton M. Krone, M.D., for an evaluation of Dr. Driggers' status. Dr. Driggers told Dr. Krone that he had not completely abstained from consuming alcohol, but that his consumption had not caused a problem. He was not attending AA meetings and did not have a sponsorship. Dr. Driggers did not consider himself to be an alcoholic and was opposed to attending AA meetings and abstaining completely from drinking. Dr. Krone opined that "it would be very difficult to engage [Dr. Driggers] in a recovery process at this time which is abstinence based." Dr. Krone suggested that "PRN follow him on an informal basis and watch to be sure that he is not getting into future trouble and to be ready to intervene with him promptly if such trouble begins to appear." The contract between Dr. Driggers and PRN dated December 17, 1990, was voided as of February 1992. On October 6, 2000, Dr. Driggers was again arrested for DUI. He drove his car into the back of a car stopped at a red light. He was given a breathalyzer test, which showed a blood alcohol level of .23, which is almost three times the limit for a presumption of DUI in Florida.1 Dr. Driggers did not feel like he was intoxicated and blamed the accident on his leaning over to prevent carry-out food from falling to the floor. He was adjudicated guilty of DUI in October 2001. Dr. Driggers reactivated with PRN and agreed to an inpatient evaluation. On November 13, 2000, he went to Shands at Vista for the evaluation. Dr. Thompson evaluated Dr. Driggers and concluded that he was concerned about Dr. Driggers' ability to practice with reasonable skill and safety. He made the following recommendation for the treatment of Dr. Driggers: "Return for inpatient detoxification with further assessment. I do not believe that in view of his denial, stress, shame, and anxiety level that he would likely be very successful in detoxing himself on an outpatient basis even with supervision." Dr. Driggers remained at Shands at Vista until he was discharged on March 9, 2001, with a diagnosis of alcohol dependence, sedative dependence, and anxiety disorder. On April 1, 2001, Dr. Driggers signed another five- year Impaired Practitioners Program of Florida Physician Recovery Network Advocacy Contract. As before, Dr. Driggers agreed to abstain completely from the use of any medications, alcohol, and other mood altering substances. He agreed to attend self-help meetings such as AA or NA three to four times per week. He agreed to attend a PRN monitored professional support group. Dr. Driggers agreed to participate in a random urine drug or blood screen program within 12 hours of notification. On June 23, 2004, Dr. Driggers tested positive for a metabolite of alcohol based on an ethyl glucuronide test, which detects metabolites of alcohol in urine. On July 12, 2004, Dr. Driggers again tested positive for a metabolite of alcohol based on an ethyl glucuronide test. His July score was higher than his June score. Dr. Driggers admits that he had not completely abstained from the use of alcohol and that he occasionally had a glass of wine with his new wife. Dr. Driggers rationalized his consumption of alcohol with the following comment: "I didn't think that the--that a glass of wine on a particular day would--would not only show in urine, but I didn't think that it was any major thing at the time. It was--it was something I did that I regret." On August 16, 2004, Dr. Driggers was referred by PRN to Martha E. Brown, M.D., for an evaluation. Dr. Driggers admitted to Dr. Brown that he had not abstained completely from alcohol. He told her that he went to PRN group meetings for a while, but quit going to the meetings. Dr. Brown concluded that she did "not feel Dr. Driggers can practice with reasonable skill and safety. He has been diagnosed with Alcohol Dependency in the past, yet has again resumed drinking. He appears to have much minimization of his alcohol use with rationalizations about it is okay that he has returned to drinking." Dr. Brown recommended that Dr. Driggers continue to participate in PRN, follow PRN recommendations, enter into a long-term residential treatment for chemical dependency, and abstain from all mood altering substances, including alcohol. In September 2004, Dr. Driggers sought a second opinion from Chowallur Dev Chacko, M.D., who is board-certified by the American Board of Psychiatry in general psychiatry, addiction psychiatry, and forensic psychiatry. Based on Dr. Driggers' long history of alcohol abuse and his continuing to drink while under a monitoring contract with PRN, Dr. Chacko opined that Dr. Driggers was not able to practice his profession with reasonable skill and safety and recommended that Dr. Driggers receive long-term residential treatment for his alcoholism. Dr. Driggers refused to follow the recommendations of either Dr. Brown or Dr. Chacko. On November 9, 2004, PRN sent notice to the Department advising that Dr. Driggers was not in compliance with his PRN monitoring contract. On June 17, 2005, Dr. Driggers returned to Dr. Brown for a new evaluation. Dr. Brown was still of the opinion that Dr. Driggers had a substance dependency problem and needed treatment. During her evaluation of Dr. Driggers, he told her that he would not be in PRN and would not follow PRN's recommendations. He was in severe denial concerning his chemical dependency. Dr. Brown recommended that Dr. Driggers should participate in PRN and follow the recommendations of PRN; that Dr. Driggers should minimally enter a partial hospitalization program with a step-down to an intensive out- patient program for his chemical dependency; that he should abstain from all mood altering substances, including alcohol; that he should attend 90 meetings of a self-help program in 90 days; and that he should turn in a signed list for attendance at 12-step meetings for six months to document his recovery. Dr. Driggers was evaluated by Jeffrey A. Danziger, M.D., on September 8, 2005, at the request of Dr. Driggers' attorney. Dr. Danziger opined that Dr. Driggers did not meet the criteria for alcohol dependence or active alcohol abuse at the time of the evaluation. Dr. Danziger diagnosed Dr. Driggers with posttraumatic stress disorder, in remission, and alcohol abuse, in sustained full remission. It was Dr. Danziger's "opinion that, from a psychiatric standpoint, Dr. Driggers did not have any substance abuse or psychiatric problems that would impair his ability to safely function as a dentist." Dr. Danziger explained that much of his evaluation was focused on whether Dr. Driggers posed an immediate danger that would justify an emergency suspension. Dr. Brown reviewed Dr. Danziger's evaluation report on Dr. Driggers and her prior evaluations of Dr. Driggers. On January 30, 2006, she opined as follows: I continue to believe that Dr. Driggers has a diagnosis of Alcohol Dependency as evidenced by having a BAL [blood alcohol level] of .2 at the time of one of his second DUI, indicating tolerance to the use of alcohol as "social" drinkers at a BAL of .2 would not have been able to get in their car to drive; he has been unsuccessful in his efforts to control his substance use while in PRN (he had continued to drink while in PRN) and again, if he was a social drinker, should have been able to completely abstain from substance use in PRN without any difficulty; and he has continued to use alcohol despite knowledge of having a persistent and recurrent problem with alcohol. Certainly of note is the fact that he has had not one but 2 DUIs in his past. He continues to have a great denial about the disease of chemical dependency and the need to abstain from all mood altering substances. This type of thinking poses an extreme risk to the public for him practicing without appropriate monitoring of his status by PRN. Alcohol Dependency is a permanent medical disease that does not go away once you develop it. A healthcare professional that has Alcohol Dependency must have long-term, appropriate treatment and monitoring to ensure they do well and can practice. In the most recent records you sent, numerous individuals gave affidavits that they have never seen him impaired while practicing. However, I would point out that simply not drinking at work, or not looking impaired, does not translate into whether one can practice their profession with reasonable skill and safety. Dr. Brown continued to recommend abstention from alcohol and mood altering substances, outpatient treatment, and participation in PRN monitoring. If those recommendations were followed, she felt that he could practice with reasonable safety and skill. However, Dr. Driggers has continued to refuse to participate in any PRN monitoring. On September 27, 2006, Dr. Danziger again evaluated Dr. Driggers. He was still of the opinion that Dr. Driggers had a diagnosis of alcohol abuse rather than alcohol dependence. Once you have a diagnosis of alcohol abuse, you will always have alcohol abuse, but it can be in remission. He agrees with Dr. Brown that Dr. Driggers is in need of outpatient treatment and monitoring. Whether Dr. Driggers' drinking problem is labeled alcohol abuse or alcohol dependence, the consensus of the experts in addiction psychiatry who evaluated Dr. Driggers is that Dr. Driggers must have some type of treatment and must be monitored in order for him to be able to practice dentistry with reasonable skill and safety. Dr. Driggers has been disciplined previously by the Board of Dentistry in 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Driggers has violated Subsection 466.028(1)(s), Florida Statutes (2004); giving Dr. Driggers a written reprimand; requiring Dr. Driggers to undergo a new evaluation by a PRN- approved evaluator; requiring Dr. Driggers to comply with PRN recommendations; and suspending his license until he undergoes further evaluation and begins compliance with PRN recommendations. DONE AND ENTERED this 17th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2007.
