Findings Of Fact Respondent, Steve Martin, d/b/a The Hustler Bar, held alcoholic beverage license number 68-929, series 2-COP, for licensed premises located at 5748 Swift Road, Sarasota, Florida, at all times relevant to the charges contained in the Notice To Show Cause and at the time of the final hearing. On November 10, 1984, Respondent received an official notice from the Division that charges would be filed against him for violations of Chapter 893, Florida Statutes. On January 11, 1985, Deputy Sheriff Bernie Vanderweert entered the licensed premises of The Hustler Bar. He observed patrons engaged in playing pool for money in the presence of the bartender Jim Sealmayer. Deputy Vanderweert played pool with bartender Sealmayer for $1.00 to $2.00 a game. On January 17, 1985, Deputy Venderweert again observed patrons playing pool for money inside the licensed premises of The Hustler Bar. The pool table was in view of the bar, where bartender Dory Korowold was on duty. Deputy Vanderweert played dice at the bar with bartender Dory for drinks. On January 18, 1985, Deputy Vanderweert played the game of pool with various patrons for money. He additiogally gambled with bartender Jim Sealmayer on the pool table. On January 24, 1985, Deputy Vanderweert observed patrons playing pool for money inside The Hustler Bar and himself gambled on the pool table with patron Greg Sullivan. On January 29, 1985, Deputy Vanderweert gambled on the pool table with other patrons inside the licensed premises of The Hustler Bar while bartender Dory was on duty. On January 31, 1985, Beverage Investigator James Woodrow visited the licensed premises of The Hustler Bar. He overheard licensee Steve Martin discuss wagering on games of pool with a patron named Leo. Martin and Leo agreed to play pool for $25.00 a game. Investigator Woodrow observed Martin and Leo playing pool, but did not actually see an exchange of money. On February 5, 1985, Deputy Vanderweert observed patrons gambling on games of pool inside the licensed premises of The Hustler Bar and himself wagered on a game of pool with patron Greg Sullivan. Dory Korswald was on duty behind the bar during this activity. Deputy Vanderweert observed the bartender Dory smoke a marijuana cigarette inside the premises with several patrons. Vanderweert approached Greg Sullivan and asked if he had a marijuana cigarette. When Greg responded that he did, Vanderweert purchased a marijuana cigarette from him while seated at the bar in the vicinity of bartender Dory and other patrons. On February 7, 1985, Deputy Vanderweert gambled on games of pool with patron Sullivan for $1.00 to $5.00 a game while on the licensed premises of The Hustler Bar. Deputy Vanderweert overheard licensee Steve Martin attempting to induce a patron to play the game of pool with him for $1,000.00 per game. When the patron would not play for that amount of money, Martin and the patron played games of pool for $5.00 to $10.00 a game. Vanderweert purchased marijuana from patron Greg Sullivan while they were seated at the bar. Respondent was present in the bar at the time of the transaction. On February 14, 1985, Deputy Vanderweert played games of pool with patron Sullivan for $5.00 to $10.00 a game. Respondent Steve Martin was present during the gambling and was aware that gambling was taking place. Investigator Woodrow observed Sullivan produce a package of marijuana while he was standing at the bar. Sullivan asked the bartender Maggie and the officers if they had rolling papers but received negative replies. On February 19, 1985, Deputy Vanderweert observed Greg Sullivan obtain cigarette rolling papers from bartender Dory Korswald and smoke a marijuana cigarette with her while inside the licensed premises of The Hustler Bar. While Vanderweert and Sullivan were seated at the bar in the presence of bartender Dory, Vanderweert purchased a plastic baggie of marijuana and a plastic baggie of cocaine from Sullivan. On February 21, 1985, Investigator Woodrow was approached by Sullivan inside the licensed premises of The Hustler Bar and asked if he would like to buy cocaine. Sullivan delivered a plastic package of cocaine to Woodrow while they were seated at the bar. Respondent Martin came into the bar during the negotiations and was seated three seats away at the time of the transaction and bartender Dory Korswald was on duty behind the the bar. On February 26, 1985, Deputy Vanderweert played games of pool with patron Greg Sullivan for money. While Vanderweert was seated at the bar, he purchased a plastic package of suspected cocaine from patron Sullivan while bartender Dory Korswald was on duty behind the bar. But the Division never proved that the substance was cocaine. On February 28, 1985, Deputy Vanderweert engaged in playing pool for money on the licensed premises of The Hustler Bar. Vanderweert observed bartender Dory Korowald smoke a marijuana cigarette with patrons inside the premises. Investigator Woodrow observed Greg Sullivan produce a baggie of marijuana and roll a marijuana cigarette while he was seated at the bar. After Sullivan finished rolling his cigarette, Vanderweert purchased the remainder of the baggie of marijuana from him. Woodrow purchased a plastic package of cocaine from Sullivan while they were seated at the bar in the presence of bartender Dory Korawald. On March 5, 1985, Investigator Woodrow purchased from patron Greg Sullivan, inside the licensed premises of The suspected LSD. The transaction took place at the bar. However, the Division could not prove that the substance was LSD. On March 7, 1985, Deputy Vanderweert purchased from patron Sullivan, inside the licensed premises, what was described to him to be two hits of LSD. Again, the Division could not prove that the substance was LSD. On March 11, 1985, Investigator Woodrow purchased from patron Sullivan what was described to him to be two hits of LSD inside the licensed premises of The Hustler Bar. Respondent Martin was seated at the bar during the transaction. Again, the Division could not prove that the substance was LSD. Respondent Martin works at the licensed premises of The Hustler Bar between 11:00 A.M. and 3:00 P.M. every day, but is seldom there at night. He has never seen or possessed illegal drugs inside the bar. He is aware that patrons gamble on the pool tables and has done so himself. He stopped all gambling on the tables after charges were brought by the Division. Respondent cannot afford a manager and has only two full time employees, with one additional fill in. He does not require his employees to fill out an employment application and cannot remember if he checked his employees' prior employment records. He has no signs posted concerning drugs but does have posted a letter from the Division of Alcoholic Beverages and Tobacco. Respondent was told by employees and customers that Greg Sullivan was involved in drug transactions and barred Sullivan from the premises. No evidence was presented as to what, if any, changes were made in Respondent's management of the premises after he received notice in November 1984 that drug transactions were alleged to have occurred on the premises.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law it is RECOMMENDED that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Alcoholic Beverage License Number 68-929, Series 2-COP, held by Respondent, Steve Martin, d/b/a The Hustler Bar. RECOMMENDED this 28th day of May, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1986. COPIES FURNISHED: Louisa E. Hargrett, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Craig Soria, Esquire 766 Hudson Avenue Suite B Sarasota, Florida 33577 Lt. Tom Ewing 2665 Cleveland Avenue Ft. Myers, Florida 33482 James Kearney, Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, Florida 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 Sough Bronough Street Tallahassee, Florida 32301-1927 APPENDIX TO RECOMMENDED ORDER IN CASE NO. 85-3914 The following are specific rulings on the parties' proposed findings of fact as required by Section 120.59(2), Florida Statutes (1985). The following proposed findings of fact submitted by Petitioner are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary: 1-5, 8, 9, 10, 12, 13, 15, and 19. Petitioner's proposed finding of fact 6 would have been included in paragraph 1 above except that the second sentence was not proved. Petitioner's proposed finding of fact 7 would have been included in paragraph 1 above except that the evidence was that other patrons, not Sullivan, were gambling with Vanderweert. Petitioner's proposed finding of fact 11 would have been included in paragraph 1 above except that it is in part subordinate. Petitioner's proposed findings of fact 14, 16, 17 and 18 would have been included verbatim in the Findings Of Fact except that the evidence never proved the identity of the alleged substances. Respondent did not submit any proposed findings of fact.
Findings Of Fact The Respondent, Judith Blake Persky, is a licensed practical ours holding License No. 39779-1 issued by the Florida State Board of Nursing. On or about May 30, 1978, the Respondent converted to her own use a controlled substance, Dilaudid. She admitted this to her supervisor, and she was suspended and referred to a psychiatrist for evaluation. The psychiatric evaluation determined that the Respondent was not dependent upon drugs. Upon this determination, the Respondent was reinstated and continued to work at the Hollywood Medical Center. On or about March 6, 1979, members of the staff at the Hollywood Medical Center discovered that stocks of Dilaudid, more than twenty (20) doses, maintained in the Intensive Care Unit and the Progressive Care Unit, had been tampered with and the tampering disguised. As a result of this discovery, members of the staff with access to these stocks were polygraphed. The Respondent, when advised that her responses indicated deception, admitted she had taken the drugs in question and prepared a hand-written admission. The handwritten admission asserts that the Respondent had been coerced into taking the drugs by threats of physical harm to her and to her husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and fully considering the facts in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing suspend the license of the Respondent for one year. DONE and ORDERED this 25th day of October, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Judith Blake Perskey 202 South Federal Highway Dania, Florida 33314 Geraldine B. Johnson, R. N. Board of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue Whether Respondent committed the violations described in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been since October 4, 1979, a licensed pharmacist in the State of Florida. He holds license number PS 0017661. In October of 1987, based upon Respondent's having the year before "pled guilty [in criminal court] to one count of grand theft and one count of possession of diazepam," the Board of Pharmacy suspended Respondent's license for a period of one year and placed him on probation for a period of three years, commencing upon the conclusion of his suspension. On February 4, 1991, February 11, 1991, February 19, 1991, March 6, 1991, and April 18, 1993, in exchange for cash, Respondent sold to Melvin Owens, who was serving as a confidential informant for the Drug Enforcement Administration, 3/ various quantities of drugs, to wit: quazepam, under the brand name of Doral (February 4, February 19, and March 6), triazolam, under the brand name of Halcion (February 4, February 11, February 19, March 6, and April 18), alprazolam, under the band name of Xanax (February 11, February 19, March 6, and April 18), and diethylpropion hydrochloride, under the brand name of Tenuate Dospan (March 6), without first being presented with a prescription for these drugs. All five transactions took place in Palm Beach County, Florida. Although Respondent was employed as a pharmacist at a Phar-Mor Discount Pharmacy (hereinafter referred to as "Phar-Mor") located in Palm Beach County at the time of these transactions, in selling these controlled substances to Owens, Respondent was not acting in the usual course of his professional practice as a Phar-Mor pharmacist. Respondent did not have a permit authorizing him to act as a drug wholesaler at the time of these transactions. On April 24, 1991, Respondent was indicted in federal court on five counts of unlawful distribution of controlled substances for his role in the above-described transactions. Subsequently, the Department issued a three-count Administrative Complaint charging Respondent with wrongdoing in connection with these transactions. Respondent pled guilty to the federal criminal charges pursuant to a plea agreement. Thereafter, Respondent was adjudicated guilty and sentenced to 60 days confinement, followed by two years of supervised release, on each count of the federal indictment, with the sentences to run concurrently.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and disciplining him for having committed these violations by revoking his license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1993. STUART M. LERNER 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 12th day of October, 1993.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent, who holds a Florida teaching certificate, on the basis of allegations regarding the Respondent's purchase of crack cocaine.
Findings Of Fact The Respondent, Wayne Thurston, holds Florida teaching certificate number 479646, covering the area of physical education, which is valid through June 30, 1995. During the period from April 1991 to July 1991, the Respondent was employed as a teacher at James H. Bright Elementary School, in the Dade County School District. On April 5, 1991, Detective Laurick Ingram was working as an undercover police officer with the Metro-Dade Police Department, assigned to a tactical narcotics team detail. As part of his assignment, Detective Ingram was posing as a seller of cocaine in what is termed a "reverse sting" operation. It was an operation in which several undercover police officers posed as sellers of crack cocaine at premises which were previously know by the police to be the location of frequent drug sales. The reverse sting operation in question took place in the front yard of a house located at 2520 N.W. 159th Street, Miami, Florida. At approximately 8:00p.m. on the evening of April 5, 1991, the Respondent approached Detective Ingram at the location described above and asked the Detective for $20.00 worth of cocaine. Detective Ingram gave the Respondent two rocks of crack cocaine and in exchange the Respondent gave Detective Ingram $20.00. Detective Ingram did not conduct any tests on the substance sold to the Respondent to verify that it was, in fact, cocaine. However, it is the regular and consistent practice of the Metro-Dade Police Department, in conjunction with reverse sting operations, to use genuine cocaine. Detective Ingram then gave a signal to one of the other police officers and one of the other police officers then arrested the Respondent. The Respondent was processed and was subsequently charged by information in the Circuit Court for Dade County with one count of purchasing cocaine and one count of possession of cocaine. On or about July 11, 1991, the Respondent was accepted into the Dade County Drug Treatment Pretrial Release Program. During the period from February 27, 1992, to May 7, 1992, the Respondent was subjected to urinalysis examinations on eighteen occasions and on each occasion the results were negative for use of drugs. Ms. Joanne Goberna Molina has been the principal of James H. Bright Elementary School since January 23, 1992. During the year that she has been the principal at that school, the Respondent's performance as a teacher has been acceptable. During that period the Respondent has not been tardy. The fact that the Respondent was arrested has received very little notoriety among the faculty, staff, students, or parents of the school where he works.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the Respondent is guilty of the violation alleged in the Administrative Complaint and imposing a penalty consisting of a three year period of probation, which probation shall include the requirements that the Respondent: Shall make arrangements for his immediate supervisor to provide the EPC with quarterly reports of his performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent; Shall make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written performance evaluation prepared by his supervisor, within ten days of its issuance; Shall satisfactorily perform his assigned duties in a competent professional manner; Shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B-1.006; and Participate fully and to its completion in a substance abuse program and submit to random drug testing as directed by his employer or the Education Practices Commission. DONE AND ENTERED this 27th day of July, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7063 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in whole or in substance. Paragraphs 8 and 9: Rejected as constituting primarily argument about conflicting testimony, rather than specific proposed findings of fact. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraph 11: First sentence rejected as unnecessary procedural details. Second sentence rejected as subordinate and unnecessary details. Paragraph 12: Rejected as based on speculation or conjecture, rather than on reliable evidence. Paragraph 13: Accepted in substance with some unnecessary details omitted. Findings submitted by Respondent: Paragraph 1: This paragraph is rejected because as stated it is nothing more than an unnecessary summary of the allegations of the Administrative Complaint. (It should be noted, nevertheless, that findings have been made to the effect that the acts alleged in the Administrative Complaint have been proved.) Paragraphs 2 and 3: These paragraphs are rejected as constituting summaries of testimony, rather than statements of specific proposed findings of fact. (It should be noted, nevertheless, that findings have been made consistent with the testimony summarized in these two paragraphs.) Paragraph 4: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 5: Rejected as constituting a summary of testimony, rather than a statement of a specific proposed fact. Also rejected for the reason that the exculpatory explanation offered by the Respondent has not been credited. Paragraph 6: Rejected as constituting argument about the quality of the evidence, rather than a statement of a specific proposed finding of fact. Paragraph 7: The first line is rejected as not supported by persuasive, credible evidence. The remainder is rejected as subordinate and unnecessary details. Paragraphs 8, 9, 10, 11, and 12: Accepted in whole or in substance. COPIES FURNISHED: William T. Jackson, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner Robert Friedman, who has resided in Miami, Florida since January 1973, filed an application with Respondent for registration as a real estate salesman on January 9, 1978. Question 6 of the application was answered by the Petitioner as follows: 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Yes If yes, state details including the outcome in full: Arrested in Feb. '72; charged with sale of dangerous drugs - sentenced to 6 mos. in Allenwood & 2 yrs. probation - Prior to Feb. '72, approximately 5 arrests - all dismissed. Respondent issued an Order denying the application on May 22, 1978, because Petitioner failed to disclose in his application the fact of his arrest in Dade County, Florida, on January 25, 1974, on a charge of grand larceny. The Order also noted that the February 1972 arrest disclosed by Petitioner in the application actually occurred in February, 1971. Based on the foregoing, Respondent found that Petitioner had not made it affirmatively appear that he met the qualifications for registration contained in Chapter 475, Florida Statutes. (Petitioner's Exhibit 6, Pleadings.) A Federal Bureau of Investigation Record showing numerous arrests of Petitioner by state and federal authorities dating from 1966, primarily on charges alleging drug offenses, was received in evidence without objection by Petitioner. Petitioner testified that the record was true. (Petitioner's Exhibit 1, Testimony of Friedman.) On January 25, 1974, Petitioner was arrested in Miami, Florida, on a charge of grand larceny in violation of Section 811.021, Florida Statutes. He was found guilty of the offense in the Dade County Circuit Court, Case No. 74- 964, on April 26, 1974, but adjudication of guilt was withheld and he was placed on probation for a period of eighteen months. (Petitioner's Exhibits 1, 3-5). Petitioner testified at the hearing and admitted his failure to list the 1974 arrest on his application to Respondent. His explanation for the omission was that the Circuit Judge had told him that he could "forget about it" because adjudication of guilt had been withheld, and his lawyer had said that it would never interfere in the future. Petitioner denied that he was attempting to deceive the Respondent in his application, but had attempted to forget the arrest and did not intentionally omit it from his application. He further testified that he had been a drug addict who had been in a methadone program of treatment until about two and one-half years ago, but that he was now leading a normal life without drugs. (Testimony of Petitioner.)
Recommendation That the application of Robert Friedman for registration as a real estate salesman be denied. DONE AND ENTERED this 7th day of November 1978 in Tallahassee, Florida. COPIES FURNISHED: S. Ralph Fetner, Jr. Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert Friedman 242 Southwest 78th Place Miami, Florida 33144 THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November 1978.
Findings Of Fact Respondent Michael G. Mandeville, d/b/a The Sugar Shack (Mandeville), is licensed under the Beverage Law, license number 27-1311, series 2-COP, for the premises known as The Sugar Shack located at 11 East Fairfield Drive, Pensacola, Escambia County, Florida. Mandeville has operated The Sugar Shack at that location under that license from July 1985 through the emergency suspension of the license and closing of the business on January 16, 1986. Previously, Mandeville was President, Secretary and Treasurer and 100 percent stockholder of Someplace Else Pensacola, Inc., a licensee under the Beverage Law. On February 1, 1984, Someplace Else Pensacola, Inc., entered into a Stipulation with Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), settling a Notice To Show Cause containing eight counts of solicitation of drinks and one count of conspiring to deliver a controlled substance. At the time, the licensee, Someplace Else Pensacola, Inc., was doing business as The Sugar Shack at 720 West Government Street, Pensacola, Florida. Earlier the licensee Someplace Else Pensacola, Inc., was doing business as Someplace Else at Highway 29 and Roberts Road in Pensacola, Florida. Mandeville was its Secretary and Treasurer and owned half of the stock issued by the corporate licensee. On July 29, 1982, the licensee Someplace Else Pensacola, Inc., d/b/a Someplace Else, entered into a Stipulation with the Division settling a Notice To Show Cause containing twelve counts of solicitation of drinks and five counts of delivering a controlled substance. In the short time Mandeville's current license was being operated, he was aware of drug problems on the premises. Problems of this sort in approximately September 1985 caused Mandeville to be in contact with the Escambia County Sheriff's Office, Narcotics Division. In order to help himself, Mandeville agreed to cooperate with the Sheriff's Office. Although Mandeville told officers in the Sheriff's Narcotics Division that he personally knew no drug users on the premises, he would have a part-time employed disk jockey named Darrel Able, who might have information, contact the Narcotics Division. Mandeville and his staff also had to fire several employees on suspicion of drugs, including a dancer named Margie. The Sugar Shack's premises consist of one large major room with a separate room for playing pool, separate dressing rooms, and men and ladies restrooms. The licensed, premises contain two stages for topless dancing performances, a booth for the disk jockeys and a large bar. It is not possible to see into the dressing rooms from the main room, from the bar or from the disk jockey booth. It is not possible to see the room containing the pool tables from the main room, the disk jockey booth, or the bar. Within the licensed premises, there are many tables where customers sit. During business hours of The Sugar Shack, there are topless dancers performing to loud music. Because of the loud music, it is difficult to hear normal conversations even among those sitting at one of the various tables in the licensed premises. Mandeville employs several people to assist him in the operation and maintenance of The Sugar Shack. During most of the business day, Mandeville is present at the licensed premises. When Mandeville is not present, his brother Steve is in charge of the licensed premises. When Steve Mandeville is not present, the assistant manager and doorman Russell Sapp is in the licensed premises and supervises them. When Sapp is not present, John Chiarito, an employed disk jockey, manages the licensed premises and supervises them. For most of the day, two or three of these people are present in the licensed premises and serve in a supervisory capacity. Additionally, Mandeville employs a day bartender named Helen Mabie, who functions in a supervisory capacity. Mandeville also employs other personnel including bartenders and waitresses who are in the licensed premises during business hours and are supposed to inform management of any violations of laws and rules they suspect. Mandeville himself is present at the licensed premises for approximately eight hours a day at various times between 1:30 p.m. and 2:00 a.m. Mandeville generally supervises the overall business operations of The Sugar Shack, including the hiring and firing of employees. Since Mandeville opened the licensed premises, he has announced a policy applicable to all employees prohibiting the possession of drugs in the licensed premises and the solicitation of drinks by employees. Generally, all employees, especially dancers, are required to sign statements agreeing to the policies. Rules implementing the policies are posted prominently in several locations within the licensed premises including the dancers' dressing rooms. However, the signs contain statements like: "there's a time & place for everything, please think before making your move"; "they are watching you know the law, they know you"; and "the law has the right to walk in this dressing room at any given second keep yourself & your friends out of trouble." Although the overall message of the signs and policies prohibit drugs and drink solicitation, the above unfortunately phrased parts of the signs might tend to imply a management attitude that those activities are acceptable as long as no employees are caught doing them. Mandeville has made it known to his employees that violation of the prohibition against drugs would result in termination, supposedly without giving anybody a second chance. Mandeville and his management staff have in fact fired several employees for violation of the prohibition against drugs on the licensed premises: Toni for smoking marijuana in the dressing room; Nicki for possession of prescription drugs not in a bottle; Margie for using and selling cocaine; and Nicole for suspicion of selling cocaine. According to Mandeville, even suspicion of violating the drug prohibition will result in termination, and there is not supposed to be a second chance for anyone. However, Margie was rehired after being terminated for violating the drug prohibition. In addition, Mandeville did not fire Margie a second time before his license was suspended and did not fire another dancer named Nicole until the first week of January 1986 although he suspected both of them of selling cocaine as early as December 19, 1985, when an undercover Escambia County Sheriff's Office narcotics deputy posing as a patron told him that Nicole had sold the deputy cocaine. Mandeville also made it known to his employees that patrons were supposed to be asked to leave the premises if they violated drug laws on the premises. If such a patron refused to leave, either they were to be forced to leave or law enforcement was to be notified. However, Mandeville did not ask the undercover deputy to leave on December 19, 1985, although the undercover deputy told Mandeville that he had bought cocaine from Nicole. Similarly, the same undercover deputy was not asked to leave by an employee named Sophia on December 27, 1985, when the deputy told Sophia that he had bought cocaine from Nicole. Mandeville or his managements staff conducts periodic unannounced searches of the dancers' lockers. These searches are conducted in the dancers' presence. Refusal to permit a locker search is grounds for termination, and two employees, one a dancer named Connie, were fired for refusal to allow a locker search. According to Mandeville, his management staff is supposed to periodically review with the employees the rules prohibiting drugs and drink solicitation. However, Mandeville does not follow up on the performance of his management staff and several understand their obligation to be only to go over the rules with the employees when one of the employees violates the rules. Only Dwight Sparks, the Sunday night manager, goes over the rules each night he works. Violation of the rule against drink solicitation, when detected, is supposed to result in termination. But there was no evidence that any employee has been fired for drink solicitation. Enforcement of this policy is not as strict as enforcement of the policy against drugs on the premises. Mandeville does not require his employees to subject themselves to a polygraph lie detector examination. He asks prospective employees for an oral history of employment but does not get it in writing and does not check the validity or quality of the references. Mandeville does not check for arrest records of his employees. On December 3, 1985, Officer Zeka of the Escambia County Sheriff's Department entered the licensed premises in an undercover capacity posing as a patron. Within minutes of entering the premises, Zeka was able to buy five capsules of cocaine from the employed dancer Nicole. Nicole and Zeka were sitting back to back in adjoining booths when the transaction took place. Nicole reached over the waist high back of the booths and placed the capsules on Zeka's table in exchange for $50. Because of the loud music, dark lighting, relatively cluttered table and the topless dancing performances attracting attention elsewhere, the transaction would have been difficult for anyone to detect who was not paying attention and trying to detect a drug transaction even though the transaction was not completely concealed. Zeka quickly counted the capsules and put them in his pocket. On December 4, 1985, Zeka bought from Nicole another three capsules of cocaine in a clear cellophane cigarette package wrapper for $50. The circumstances of the transaction were essentially the same as on December 3. Later on December 4, 1985, Zeka bought from Nicole another five capsules of cocaine for $50. The circumstances of this transaction also were the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 5, 1985, Zeka again bought from Nicole five capsules of cocaine. Again, the circumstances were essentially the same as on December 3. As on December 3, Nicole placed the capsules on the table in front of Zeka who counted them and put them in his pocket. On December 26, 1985, Zeka was in the licensed premises and asked employed dancer Margie to sell him some cocaine. At first Margie was unable to because "her man," i.e., her source of drugs, was not around. Later she walked over to and embraced "her man," Darrel Able, who slipped a clear plastic bag containing approximately one-half gram of cocaine into the back of her g-string type panties. Margie returned to the table and put the bag on the table between Zeka and another undercover officer named Lewis. Somehow the bag opened, and some cocaine spilled on the table. Margie suggested they "do a line" from the cocaine spilled on the table and took a straw out of one of the glasses on the table. When Zeka and Lewis affected to warn her not to be so open about it in order to preserve their cover, Margie told them not to worry because it was done all the time. However, it was not proved that Margie was not either joking or intoxicated, and no credence can be given to her statement that cocaine was used at the tables in the licensed premises. As before, the licensed premises were dark and noisy at the time and the attention was directed to the dance stage. Although the transaction was not completely concealed it still would not have been easy to detect. On December 27, 1985, an employed dancer named June openly handed Lewis a marijuana cigarette she said she had been given as a tip and invited Lewis to smoke it outside. Again, although June made no attempt to conceal what she was doing, it would have been difficult to detect exactly what she was doing and that she had a marijuana cigarette. Also on December 27, 1985, Zeka asked employed dancer Nicole to sell him some more cocaine. Nicole had none and had to leave the licensed premises to obtain some. She put on her street clothes, left, returned and handed Zeka four capsules of cocaine in a concealed manner. On December 31, 1985, a man named John Carroll sold cocaine to Zeka's confidential informant twice within 20 minutes. Both times the confidential informant walked over to Carroll, who was standing by the bar. The first time Mandeville himself was seated five bar stools away from Carroll. Both times the confidential informant persuaded Carroll to sell the cocaine, reached into his front shirt pocket to get the cocaine and returned to Zeka who was approximately 15 feet away. In a concealed manner, the cocaine was handed to Zeka, who held the clear plastic bag containing the cocaine up by the corner, looked at it and placed it in his pocket. Again, although Mandeville was in a position to see the first transaction if he had been paying attention and watching for it, the evidence did not prove that he actually saw the transaction. It was not proved that Carroll was an employee, as opposed to a patron, of Mandeville. On January 13, 1985, Lewis bought a half gram of cocaine from employed dancer Margie for $50. Margie delivered the cocaine in a concealed manner that would have avoided any detection. In addition to the activity involving controlled substances described above, Mandeville's employees on numerous occasions solicited drinks from Lewis as follows: Sophia December 19, 1985 Liz December 19, 1985 Angela December 19, 1985 Debbie December 19, 1985 Candy December 30, 1985 Judy December 30, 1985 Chastity December 30, 1985 Candy December 30, 1985 Margie December 26, 1985 June December 27, 1985 Cindy December 27, 1985 Candy December 27, 1985 Peggy December 27, 1985 Mandeville never asked the Division for assistance in, or suggestions for, supervising the licensed premises so as to control or eliminate illegal drug violations and drink solicitations. Rather, the evidence is that Mandeville offered to cooperate with the Escambia County Sheriff's Office to "help himself and them" in September 1985 and later in late December 1985 or early January 1986. In essence, as previously mentioned, Mandeville put the Sheriff's Office in contact with Darrell Able and, on one occasion in early January 1986, telephoned the Sheriff's Office to relate that Able supposedly thought he was going to be able to set up a drug deal for the Sheriff's Office. Neither Mandeville nor Able ever re-contacted the Sheriff's Office. Weighing the totality of the evidence, it is found that Mandeville did not supervise the premises and his employees in a reasonably diligent manner under the circumstances. Mandeville was aware from past experience of the problem of drugs in an establishment like the licensed premises in general and in the licensed premises themselves in particular. Mandeville announced adequate policies and placed some management techniques in effect to implement the policies. However, Mandeville did not adequately follow up and did not know that his staff was not following all of the techniques. They were not, for example, regularly reviewing the rules prohibiting drugs and drink solicitation with the employees, and the employees did not understand that they were to report all suspicion of violation of the rules by both employees and patrons to the management. Mandeville himself failed to follow his own procedures by rehiring Margie and failing to fire Margie and Nicole immediately upon receiving information or knowledge of their drug use and dealing at least by December 19, 1985. Not only did Mandeville and his staff not follow all the procedures that he had in place, Mandeville did not seek the assistance and suggestions of the Division for additional management techniques. He did not improve the lighting in the licensed premises, did not polygraph his employees and did not check the background of prospective employees. A combination of the laxity of Mandeville and his staff in enforcing the procedures he had in place and Mandeville's failure to adopt more effective available procedures that he should have known were required under the circumstances proximately caused the employee violations on the premises. As for the drink solicitation violations, Mandeville's written policy against drink solicitation appears to be more honored in the breach. In addition to the thirteen violations within eleven days charged in this case, the two previous notices to show cause against a licensee in which Mandeville had substantial interest and control contained a total of twenty counts of drink solicitation which were settled by stipulation.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order revoking Alcoholic Beverage License Number 27-1311, Series 2-COP, held by Respondent, Michael G. Mandeville, d/b/a The Sugar Shack, 11 Eastfair field Drive, Pensacola, Escambia County, Florida, on all the grounds alleged in the Notice To Show Cause in this case except paragraphs (1)g. and (2)g. RECOMMENDED this 13th day of February 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of February 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0203 Rulings On Petitioner's Proposed Findings of Fact. Covered by Finding 1. 2.-5. Covered by Findings 16.-19., respectively. 6. Covered by Finding 10. 7.-8. Covered by Findings 20-21, respectively. 9. Covered by Finding 11. 10-11. Covered by Findings 22-23., respectively. Covered by Finding 25. Rejected as cumulative. Covered by Finding 26. 15-16. Covered by Findings 2-3., respectively. Covered by Finding 27. Covered by Findings 8-14. 19-20. Covered by Findings 6, 10 and 13, to the extent necessary. Covered by Findings 8 and 10, to the extent necessary. Whether Mandeville has fired June is irrelevant since the Sugar Shack has been closed since the license was suspended. Covered by Finding 13. Covered by Findings 23 and 24. Covered by Findings 4, 7, and 27. Rulings On Respondent's Proposed Findings of Fact. Covered by Finding 1. 2-4. Covered by Findings 5-7, respectively. 5. Covered by Findings 15, 8, and 9, to the extent necessary. 6-9. Covered by Finding 10, to the extent necessary. (The evidence was not clear exactly who fired the various employees but that is not necessary or relevant). 10. Covered by Finding 1. 11-13. Rejected as unnecessary recitation of procedural history. 14-17. Covered by Findings 16-19., respectively. 18. Covered by Findings 11 and 28. (There was no persuasive evidence that Mandeville "conducted an investigation concerning the activities of Nicole" or "obtained additional information" or that Mandeville fired Nicole "as soon as the Respondent verified this information"). 19-22. Covered by Findings 20-23, respectively. Covered by Finding 23. Rejected as not proven by the weight of the totality of the evidence. See Finding 11. Also, he certainly would not have been in trouble if caught by Nicole, Margie or June. Covered by Finding 25. Rejected as irrelevant and unnecessary. 27-37. Covered by Finding 26, to the extent necessary. 38-40. Rejected as incomprehensible. See also paragraphs 41-49. below. 41-49. Covered by Findings 8-14. There was no evidence that any employee ever has been fired for solicitation of drinks. The evidence was not clear which individual or group of individuals actually fired all of the individuals listed in Finding 10. Their identity is not necessary or relevant. 50. Covered by Findings 8, 13. and 14. 51-52. Covered by Finding 12. (There was only evidence that two employees were fired for refusing to allow a locker search). Covered by Findings 4 and 27. Accepted and covered by Finding 23 and the absence 55.Accepted and covered by the absence of any finding that they did. Covered by Findings 16-23. Rejected as irrelevant and unnecessary. 58-59. Accepted and covered by the absence of any finding that they did. COPIES FURNISHED: Sandra P. Stockwell, Esouire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Michael J. Griffith, Esguire Post Office Box 12308 Pensacola, Florida 32581 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronugh Street Tallahassee, Florida 32301
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
Findings Of Fact The Petitioner is an agency of the State of Florida which has as its responsibility licensure and regulation of beverage license holders in the State. The Respondents hold Division of Alcoholic Beverages and Tobacco License Number 13-490, Series 2-COP. At all times pertinent here to Larry E. Bunton and Ronald L. Jennings were the sole owners and operators of the license and licensed premises, which is located at 8503-A Thomas Drive, Panama City, Florida. Between the dates of June 4, 1981, and July 17, 1981, a joint investigation of the subject Respondents was conducted by the Division of Alcoholic Beverages and Tobacco and the Bay County Sheriff's Office. On the evening of June 24, 1981, Investigator Mike Broadway and Agent Al Whitfield of the Bay County Sheriff's Department and the Division of Alcoholic Beverages and Tobacco, respectively, entered the licensed premises for the purpose of ascertaining whether controlled substances or drugs were either used, dispensed or sold on the premises. On that occasion they made the acquaintance of one Wendall Earl Holt ("Windowpane") and after talking with him inside the licensed premises and negotiating the purchase of drugs, the three went out into the parking lot by the front door of the licensed premises at which location Officers Broadway and Whitfield purchased three methaqualone tablets from "Windowpane" for ten dollars. Methaqualone or "quaalude" is a controlled substance within the purview of Chapter 893 Florida Statutes. The next evening on June 25, 1981, Officers Broadway and Whitfield entered the licensed premises once again, ordered a beer and engaged the bartender, Dan Barbeau, in conversation. During the course of that conversation they inquired of him of the possibility of purchasing drugs and Barbeau indicated that he was the "distributor" for "Windowpane" or Wendall Earl Holt. Shortly thereafter, in the course of the conversation, the two officers and the bartender agreed upon the sale and purchase of three round white tablets, which later proved to be methaqualone, from Dan, the bartender. This transaction occurred in plain view, over the top of the bar, during the course of which he handed to them the three tablets in return for a ten dollar-bill. On July 6, 1981, Officers Whitfield and Broadway again entered the bar and engaged in conversation with Dan Barbeau. They inquired of him about the possibility of purchasing a thousand to five thousand methqualone tablets. Barbeau agreed to make arrangements for the purchase of that quantity of methaqualone and also indicated that he could obtain a supply of marijuana. Barbeau then introduced the officers to an individual known as "Stargazer" and the Officers gave Dan, the bartender, thirty-five dollars to purchase a bag of marijuana from "Stargazer." They observed Barbeau keep out five dollars of that purchase for himself. The Officers visited the bar again on July 9, 1981, and bought a forty- dollar bag of marijuana from "Stargazer" at the bar, giving him the money at the bar, whereupon he went outside to obtain the goods. He returned to the bar and delivered the marijuana to them inside the licensed premises. On July 15, 1981, the Officers returned to the bar and were inside drinking beer and shooting pool when "Windowpane" Holt arrived and offered to sell them more methaqualone or quaalude tablets. This negotiation occurred inside the premises and the three then went outside to the parking lot where the Officers bought one tablet from Bolt. Thus, during six or seven visits to the licensed premises, the Officers made five separate drug purchases of illegal controlled drugs. These transactions occurred on June 24 and 25, July 6, July 9, and July 15, 1981. Two of the five purchases were made directly from the licensees' bartender, Dan Barbeau. The other purchases were made from the two patrons named above. On one occasion the acting manager was made aware of controlled substances on the premises because one of the Officers showed him a methaqualone tablet he had just purchased. During the course of the investigation and at no time during any of the transactions referred to above was either of the licensee-owners observed on the premises, nor were they observed dealing in drugs. They were not shown to be involved in any of the subject purchases of drugs. There was no showing that the licensees had any direct knowledge that drug transactions were occurring on the premises. The Respondents have been licensed for only a few months and have never been charged with a violation of the beverage or drug laws previously.
The Issue Whether Petitioner has been substantially affected by agency statements made by Respondent, and, if so, whether the statements violate section 120.54(1)(a), Florida Statutes?
Findings Of Fact Petitioner, Harmony Environmental (Harmony), is duly- licensed as a Universal Waste Transporter Facility (UWTF) with the Florida Department of Environmental Protection (FDEP), holding EPA ID No. FLR000202424. Additionally, Harmony is registered as a Hazardous Waste Transporter by FDEP as well as the U.S. Department of Transportation (USDOT); a Used Oil Handler by FDEP; a Biomedical Waste Transporter by the Florida Department of Health; and as a Waste Transporter by Broward and Miami-Dade counties. Respondent is the state department charged with regulating drugs, devices, and cosmetics pursuant to section 20.165 and chapter 499, Florida Statutes. Respondent does not have jurisdiction over the permitting of universal waste transporters or over Florida Administrative Code Chapter 62-730. Respondent has not issued any permits or licenses to Petitioner. On May 20, 2014, Respondent’s Inspector Dr. Tram Vu inspected Petitioner. The Entry Notice and On-Site Inspection Report was included as an exhibit to the Petition filed in this matter. It makes reference to the “inspection” by Dr. Vu as one, “conducted under Ch. 499.051, F.S., and Rule 61N-1.019, F.A.C., to assess firm’s activities and compliance.” Respondent admitted the May 20th inspection was conducted under the authority cited in the report. On July 16 and 17, 2014, Dr. Vu again inspected Petitioner. A number of photographs were taken during the inspection. The photographs depict two large white containers referred to in the Petition and at the hearing as “yard super sacks.” Inspector Vu testified that the yard super sacks were sealed and that none of the “prescription drugs” photographed were found outside of the sealed Universal Pharmaceutical Waste (UPW) containers. Dr. Vu subsequently requested Petitioner to “voluntarily” quarantine the super sacks and a black tote, and a voluntary quarantine form was prepared and executed. The voluntary quarantine form states that it is “an alternative to the Florida Department of Business and Professional Regulation (‘DBPR’) removing some or all of the products for examination and sampling pursuant to Section 499.065(2), Florida Statutes.” Respondent issued a Notice of Intent to Deny (NOID) to Petitioner on August 18, 2014, regarding its application for a restricted drug distributor/destruction permit. The NOID concluded that Petitioner acted as a restricted drug distributor/destruction establishment without a license. The NOID cited rule 61N-1.023(4), which provides that such a permit is required for a person to take possession in Florida of a prescription drug for the purpose of arranging for its destruction. When asked by Petitioner in an interrogatory, “Are there any facts or circumstances that would cause the DDC to consider that a prescription drug has become UPW and no longer subject to its authority? If so, state or identify each and every such fact or circumstance.” Respondent answered, “No. The term ‘UPW’ is a term that is within the jurisdiction of another Florida state agency, the Department of Environmental Protection (DEP). A prescription drug is no longer a prescription drug when the nature of the prescription drug is altered or changed in a way that the active ingredient which causes the prescription drug to be a prescription drug is no longer active.” Reginald Dixon, the Director of the Division of Drugs, Devices, and Cosmetics (DDC), acknowledged that in his two years as Director, Respondent’s chapter 61N-1 has not contained any definition that addresses the difference between viable drugs and non-viable drugs and that it contains no reference to UPW. Mr. Dixon further acknowledged that chapter 61N-1 does not contain the statement that “[a] prescription drug is no longer a prescription drug when the nature of the prescription drug is altered or changed in a way that the active ingredient which causes the prescription drug to be a prescription drug is no longer active.” He further acknowledged that he is not aware of any federal or Florida law, rule, or regulation that provides the same or similar statement; and that chapter 61N-1 does not contain any definition or explanation as to how the change or alteration that may render the active ingredient inactive takes place. Respondent’s policy that a drug continues to be a prescription drug until its nature is altered or changed so that the active ingredient that makes it a prescription drug is no longer active applies not only to Petitioner. Such policy would apply to other entities engaged in a similar business, as well as to pharmacies, drug wholesalers, and hospitals when considering how to legally dispose of prescription drugs. Respondent takes the position that the UPW rule “is not a rule that belongs to DBPR” (Hr’g Tr. 62); that Respondent “does not have any jurisdiction over the DEP rules” (Hr’g Tr. 75); and that Respondent does “not look at the DEP rules to determine or use their determination of whether or not a drug is viable . . . or nonviable” (Hr’g Tr. 75). “To the extent that [the UPW] rule talks about viable and nonviable pharmaceuticals, that’s not something within our jurisdiction and we don’t deal with it” (Hr’g Tr. 78). Respondent admitted that it is important for regulated entities to know when the agency considered that a drug is no longer under its jurisdiction. Respondent also admitted that if other regulations exist that do not call prescription drugs “prescription drugs” anymore, but instead call them “solid waste, universal pharmaceutical waste or hazardous waste,” those statutes and regulations may “possibly” have a bearing on chapter 499 and chapter 61N-1. In response to Petitioner’s Request for Admissions, Respondent claimed to be “without knowledge” of whether the hazardous waste program under the Federal Resource Conservation Recovery Act (RCRA) established a “cradle to grave” system for controlling hazardous waste; and whether pursuant to 40 C.F.R. § 272.501, the Federal EPA approved the hazardous waste management program administered by the FDEP pursuant to chapter 403, Florida Statutes. Moreover, Respondent was “without knowledge” of whether the U.S. Food and Drug Administration (FDA) does not regulate drugs that have been discarded as hazardous or pharmaceutical waste; and that the FDA does not regulate generators or handlers of hazardous or pharmaceutical waste. Respondent also claimed to be “without knowledge” that some UPW is generated by hospitals during surgical procedures when a vial containing a standard dose of medication is not fully used because of the patient’s size or condition, with the unused dose “wasted” by placing it in a sealed, properly labeled UPW container; that hospitals that dispose of non-controlled and non-viable drugs in a properly labeled UPW container pursuant to rule 62-730.186, do not routinely create a list or inventory of the drugs being wasted or placed in the container that includes the name of the manufacturer, the name of the drug, the quantity, lot number, expiration date, or any combination of these elements; and that hospitals wasting non-viable controlled substances maintain a log that identifies the name and quantity of the controlled substance wasted, but not the manufacturer, the lot number, or the expiration date; and that such controlled substance log complies with DEA regulations as well as chapter 893, Florida Statutes. Mr. Dixon testified that the act of disposing of the unused portion of a prescription drug in a UPW container at a hospital that also contains sharps, broken glass, tissue, and bloody gauzes could constitute the adulteration of that prescription drug. Further, Mr. Dixon testified that when hospitals dispose of drugs in UPW containers they are “possibly” adulterating drugs, and when Petitioner picks up the UPW container, Petitioner may likewise “possibly” be holding adulterated drugs. Petitioner’s witness, Michelle Chambers, was accepted as an expert witness on UPW and related regulations, both state and federal. Although unpaid for her work due to being the spouse of Petitioner’s owner, she is the compliance coordinator, bookkeeper, and registered agent for Petitioner. Mrs. Chambers trains drug wholesalers how to manage their UPW by directing them to “utilize a return if they can get credit for the drug, but that once a drug becomes waste it falls under the guidelines of UPW and those drug wholesalers need to create a separate area that can handle UPW containers.” When discussing the process of sending UPW to a reverse distributor regulated by Respondent, Mrs. Chambers referred to the FDEP’s pharmaceutical waste guidelines, which state: Only pharmaceuticals with a reasonable expectation of credit can be sent to a reverse distributor. Drop pills, non- credible items, formulated mixtures, items with patient’s names, and raw chemicals cannot be sent to a reverse distributor for credit; thereafter, a waste determination is required and the decision must be made to manage this waste as hazardous waste or UPW waste. Mrs. Chambers stated she had knowledge of unexpired drugs, still in the original packaging that were declared waste by the wholesaler. She asserted that drug wholesalers abandoned or discarded the unexpired drugs in their original packaging because “they couldn’t send it back to a reverse distributor to get credit. There was just no value to it, whatsoever, so they decided to make that waste determination that this is waste, UPW.” Mrs. Chambers stated that UPW labels are attached to UPW containers in Petitioner’s facility, according to the FDEP rule regarding UPW. These labels represent the characteristics of the hazardous waste and other waste inside those containers. Some of the notations on the label refer to a substance, material, or a chemical product that is a prescription drug. She also testified that several documents may be created in the UPW process, such as a hazardous-waste manifest and a bill of lading. In records that a UPW handler is expected to maintain under FDEP rules, a UPW handler is not required to have those records contain the name of the drugs that are in the UPW containers, the manufacturer’s information, or the expiration date of the drugs in the UPW container. She asserted that Petitioner could not reasonably create inventories of all the drugs inside a UPW container because “some of the labels have been poured on by other elements within the container; some are unidentifiable; some are broken . . . it would be very difficult to create an inventory.” Based upon her audits of more than 200 hospitals, Mrs. Chambers stated that if a hospital has a procedure to put non-viable drugs in a UPW container, it is because they are trained to do so. She testified that no hospital she has ever audited has ever kept records that include drug names, manufacturers, or expiration dates for anything they have placed in the UPW containers. Petitioner picks up these containers and brings them to its facility. A UPW handler can add waste to the container, as well as consolidate those containers. Mrs. Chambers also discussed consumer packaging under rule 62-730.186(4)(a), which states: “Consumer packaging” means the packaging that surrounds and encloses a container, in a form intended or suitable for a healthcare or retail venue, or rejected during the manufacture process as long as it is enclosed in its bottle, jar, tube, ampoule, or package for final distribution to a healthcare or retail venue. Further, UPW handlers can conduct activities, including disassembling packages containing several pharmaceuticals into individual pharmaceuticals from consumer packaging. In her experience in the auditing of hospitals for UPW, as well as with Petitioner, Mrs. Chambers stated that controlled substances are put into UPW containers from time to time, yet Petitioner has never been cited or received a notice of violation from the DEA regarding the possession of a controlled substance. To her knowledge, the DEA has never notified any UPW handler in Florida of any violations for possessing controlled substances. Dr. Vu conducts inspections and investigations pursuant to chapter 499, specifically investigating unlicensed activities as well as inspecting facilities that are attempting to obtain a DDC permit. Dr. Vu was tendered and accepted as an expert in pharmacy and conducting inspections for Respondent pursuant to chapter 499. She testified that during her inspection of Petitioner on July 14, 2014, she pulled drugs from UPW containers to inspect them. She admitted there were no prescription drugs outside the UPW containers on Petitioner’s premises. She stated that Petitioner’s agents or employees volunteered to open the UPW containers for her inspection. The scant evidence Dr. Vu relied upon that Petitioner had any controlled substances on the premises was based upon documents she obtained from a third party as well as from Petitioner. She admitted there was no evidence of controlled substances on Petitioner’s premises. While Dr. Vu stated she is able to recognize prescription drugs when she sees them, she is not able to recognize UPW since she is “not trained in universal pharmaceutical waste.” She also stated she is not able to recognize a non-viable drug when she sees it. Dr. Vu has received no training from Respondent on the opening of UPW containers, and even though she has not been trained in UPW rules and definitions, she strongly asserted that Petitioner “[c]learly was in possession of prescription drugs,” and that Petitioner had no permit or authorization to possess prescription drugs. When asked about her understanding of when a prescription drug ceases to be a prescription drug, she replied that “a prescription drug is always a prescription drug unless it’s inactivated or loses its drug ability –- characteristics.” Dr. Vu noted that this understanding is not stated in chapter 61N-1 or chapter 499. David Laven, another drug inspector for Respondent, was tendered and accepted as an expert in pharmacy and issues related to the inspection for Respondent under chapter 499. He testified that Petitioner is not allowed to possess prescription drugs without a DDC permit. On cross-examination, however, he admitted he had not read the rule on UPW, has no knowledge of EPA rules and requirements, and that he is not trained to recognize a non-viable drug. He testified that he considers a prescription drug that is discarded in a UPW container still to be a prescription drug because “there’s still a possibility, depending on how that drug has been disposed of, the container may be partially full –- it can be a full container sometimes. Drugs are thrown in a container for a number of reasons, doesn’t necessarily mean that the drug is no longer viable or can be used in any way.” Regarding the definition of prescription drugs, Mr. Laven stated that “[a] drug is no longer viable or useable if it’s out of date, it’s been damaged in some way, compromised, mis-branded, [or] adulterated.” On October 6, 2014, Petitioner sent a Notice of Unadopted Rules letter to Respondent, stating that the conduct and statements set forth above constitute unpromulgated rules and that, according to section 120.595(4)(b), Florida Statutes, they have 30 days to begin proposed rulemaking in order to rectify the actions and statements made. Respondent did not begin proposed rulemaking in that 30-day period. Respondent presented no evidence or testimony to establish that rulemaking was not feasible or practicable.
The Issue Whether Respondent has been guilty of gross immorality or an act involving moral turpitude and/or guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.
Findings Of Fact At all times relevant hereto, Marilyn Joan Pelaez held Florida Teacher's Certificate No. 463945 covering the subjects of elementary and secondary physical education and secondary English. On February 20, 1989, while returning home from a party, Respondent became disoriented, sleepy and was in a section of Tampa of which she was not familiar. She pulled her car off the road and into the driveway of a business establishment (Cox Lumber Company) and went to sleep. Some time thereafter Deputy Sheriff Bradley Sanderson, on patrol, observed the parked car and, following standard procedures, stopped his vehicle to investigate. Upon approaching the car, he observed Respondent apparently asleep. He rapped on the windshield, Respondent awakened and opened the car door on the driver's side. When the door was opened, Deputy Sanderson saw what appeared to be drug paraphernalia in the pocket of the door and seized the "pipe". Although this pipe was offered into evidence, it was not accepted. In lieu thereof, a description of the "pipe" was read into the record. This paraphernalia seized is used for "snorting" cocaine rather than smoking it. The pipe was tested on the scene, and traces of cocaine were found in the pipe. Respondent was forthwith arrested for possession of drug paraphernalia and cocaine and transported to the sheriff's office. She was subsequently brought to trial on charges of unlawful possession of cocaine and having in her possession drug paraphernalia with intent to use to ingest unlawful drugs (Exhibit 1). Respondent pleaded nolo contendere to these charges, adjudication of guilt was withheld, and Respondent was placed on probation for one year (Exhibit 2). Respondent readily acknowledged the above facts but contends, without contradiction, that she did not own the "pipe" found in the car door pocket and was unaware that the instrument had been left there by an unknown person. She admitted that she was careless in not locking her car, but acknowledged that the car had been left unlocked and outdoors all weekend. Respondent further testified that she had never used cocaine since experimenting with it in college, and that she requested the officers who arrested her to test for cocaine in her system, and they refused. Had this not been true, the officers who arrested Respondent were present, heard the testimony and were available to rebut this evidence. The deputy who was called in rebuttal reinforced Respondent's testimony that she had opened the door immediately upon being aroused and did not try to close the door when he saw and reached for the pipe. Respondent pleaded nolo contendere because she had no defense to the charge that drug paraphernalia had been found in her car and, therefore, in her possession, and that plea would get her probation rather than a possible prison sentence if she contested the charges. No evidence was presented that Respondent's arrest had received wide publicity in the Hillsborough County School System, nor was other evidence presented respecting Respondent's effectiveness in the school system subsequent to her arrest.
Recommendation It is recommended that the charges contained in the Administrative Complaint dated June 19, 1989, against Marilyn Joan Pelaez be dismissed. ENTERED this 31st day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except for the following. Respondent became lost when she was fifteen minutes driving time from her home. Inconsistent with H. O. Finding #2. 9. Rejected as unsupported by the evidence. 18. Accepted as modified by H. O. #11. 21-24. Rejected as beyond the allegations contained in the Administrative Complaint. 25. Accepted insofar as included in H. O. #8. COPIES FURNISHED: Steven G. Burton, Esquire Post Office Box 3273 Tampa, FL 33601-3273 Marilyn Joan Pelaez 13809 Fletcher's Mill Drive Tampa, FL 33613 Karen B. Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399 Martin Schaap Administrator Professional Practices Services 325 W. Gaines Street, Room 352 Tallahassee, FL 32399 Mark Herron, Esquire 216 S. Monroe Street Suite 300 Tallahassee, FL 32301 =================================================================
