Findings Of Fact The Parties. The Petitioner the Department of Business Regulation and Professional Regulation Division of Alcoholic Beverages and Tobacco (hereinafter referred to as the "Division") is an agency of the State of Florida charged with responsibility for enforcing Chapter 561 Florida Statutes. The Respondent Riffy's Inc. d/b/a Riffy's Pub (hereinafter referred to as "Riffy's") is a corporation. Scott Grant possesses an ownership interest in Riffy's. At all times relevant to this proceeding Riffy's held Florida alcoholic beverage license number 19-00616 series 2-COP (hereinafter referred to as the "License"). The License authorized Riffy's to sell and possess alcoholic beverages beer and wine only on the premises of Riffy's located at 948 S.W. U.S. Highway 41 Inverness Citrus County Florida. The Division's Investigation of Riffy's. Between September 15 1993 and December 15 1993 the Division conducted an investigation of possible narcotic laws violations at Riffy's. Special Agents Michael Bays Richard Hulburt Denise Deen Ashley Murray and Dean Pescia participated in the investigation. Throughout the investigation the agents involved who had the opportunity to smoke marijuana at Riffy's simulated smoking. No marijuana was ingested so that the agents' perception would not be affected. On a number of occasions the agents witnessed the smoking of cigarettes which appeared to be marijuana. The conclusion that marijuana may have been smoked was based upon the agents' observation of the manner in which the cigarettes were smoked and the smell of what was being smoked. Unless specifically indicated otherwise in findings of fact made in this Recommended Order the evidence failed to prove that marijuana or cannabis was actually being smoked. The findings concerning those incidents are made only as evidence of whether the owner of Riffy's should have suspected that illegal activities were taking place on or near the licensed premises. Results of the Division's Investigation. September 16 1993; Count 1: Agent Hurlburt entered the licensed premises of Riffy's (hereinafter referred to as the "Premises"). Agent Hurlburt met and spoke with a patron named Neil. After discussing the consumption of marijuana Agent Hurlburt and Neil left the Premises and went to a vehicle in the parking lot of the Premises. The parking lot was for the use of patrons of Riffy's. Agent Hurlburt purchased a cigarette suspected of being marijuana from Neil. Analysis of the cigarette revealed that it was cannabis commonly known as marijuana. Agent Hurlburt simulated smoking another suspected marijuana cigarette with three other patrons. A female patron suggested to them that they go around to the side of the Premises to smoke. The purchase and smoking of the marijuana cigarette took place approximately 15 to 20 feet from the Premises. The evidence failed to prove that Mr. Grant or any employee of Riffy's witnessed these events or that Mr. Grant was at the Premises. September 30 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons leave the Premises and go to the east side of the Premises where the female patron had suggested that Agent Hurlburt go to smoke on September 16 1993. They were then observed smoking a cigarette in a manner consistent with the manner in which marijuana cigarettes are smoked: the "joint" is held near the front end with the thumb and forefinger. The smell of the burning material was also consistent with the smell of marijuana. There were windows at the east side of the Premises. Patrons were allowed to smoke cigarettes in the Premises. They were not required to go into the parking lot of Riffy's in order to smoke. d. The individuals involved returned to the Premises. October 6 1993; Count 2: Agent Hurlburt returned to the Premises. He met an employee known as Mike. Mike was later identified as Mike Smith. Mike was a doorman for Riffy's. He collected entrance fees from patrons. Agent Hurlburt told Mike that he wished to purchase marijuana. Mike did not indicate that this was not permissible on the Premises. Mike told Agent Hurlburt that he could not get any marijuana that night but that he would have some the next night. Agent Hurlburt paid Mike for the marijuana that night with the agreement that delivery would be made the next night. The purchase was made in an open manner. No effort was made to speak softly or to hide the exchange of money. October 7 1993; Count 2: Agent Hurlburt returned to the Premises and met with Mike. Mike directed Agent Hurlburt to the restroom. Mike gave Agent Hurlburt a plastic bag containing 5.5 grams of cannabis. October 14 1993; Count 3 and 4. Agent Hurlburt returned to the Premises. Several patrons were witnessed leaving the Premises during a break by the band playing that night smoking what Agent Hurlburt believed to be marijuana and return to the Premises. Agent Hurlburt purchased 5.3 grams of cannabis from Mike. The sale took place in the restroom. Agent Hurlburt also purchased what Mike called "percs". The percs were percocet which were found to contain oxycodone. This transaction also took place in the restroom. October 22 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from Mike but Mike was unable to supply any. October 28 1993; Count 5: Agent Hurlburt returned to the Premises and asked Mike if he could purchase marijuana. Mike sold marijuana to Agent Hurlburt. The money for the marijuana was given openly to Mike inside the Premises. Later Mike gave the marijuana to Agent Hurlburt: Agent Hurlburt was on a concrete slab just outside the front door of the Premises. Mike held the entrance door open and stepped onto the concrete slab where he gave the marijuana to Agent Hurlburt. The marijuana purchased consisted of 5.5 grams of cannabis. October 30 1993: Agent Hurlburt returned and twice simulated smoking marijuana with patrons and "Ron" a member of the band playing at Riffy's that night. These incidents took place outside the Premises in the parking lot. November 4 1993; Count 6: Agent Hurlburt returned and asked Mike to sell him marijuana. Mike agreed to sell 5.1 grams of cannabis to Agent Hurlburt. This agreement was reached in the Premises. Delivery took place just outside the front door the Premises. November 17 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt attempted to purchase marijuana from an employee of Riffy's known as Crystal. Crystal indicated she was unable to find any that night. Crystal did not indicate that marijuana was not allowed on the Premises. Agent Hurlburt left the Premises and sat in a car in the parking lot with a patron known as "Keith." The car was parked in the front of the Premises. Agent Hurlburt simulated smoking what he believed to be marijuana based upon its odor and the manner in which Keith smoked the cigarette. The car windows were open. While in the car with Keith and while the cigarette was burning Mr. Grant and Casey manager of Riffy's walked immediately in front of the car. Casey laughing asked "what are you guys doing." Keith responded "what do you think." November 18 1993: Agent Hurlburt returned to the Premises and attempted to buy marijuana from Crystal. Crystal again told Agent Hurlburt that she could not find any marijuana that night. She again failed to tell Agent Hurlburt that Marijuana could not be purchased at the Premises. November 19 1993: Agent Hurlburt returned to the Premises. Agent Hurlburt observed several patrons smoking what appeared to be marijuana cigarettes in the parking lot of the Premises. They did not attempt to hide what they were doing. The patrons returned to the Premises after smoking. November 20 1993: Agent Hurlburt returned to the Premises. He again observed patrons smoking what appeared to be marijuana cigarettes outside the Premises in the parking lot. The patrons then returned to the Premises. Mike approached Agent Hurlburt inside the Premises and asked if he was interested in purchasing marijuana. Mike was not able however to provide marijuana that night. November 24 1993; Count 7: Agent Deen and Agent Murray went to the Premises together. The agents met Kenny Smith an employee of Riffy's. Kenny worked in the kitchen. Kenny took the agents out of the kitchen through a door to the back of the Premises to smoke what appeared to be and Kenny identified as a marijuana cigarette. The agents simulated smoking the cigarette with Kenny. Kenny also sold a 6.2 grams of cannabis to Agents Deen and Murray. The sale took place outside in the back of the Premises near the kitchen door. c. Mr. Grant was on the Premises when this transaction took place. November 24 1993; Counts 8 and 9: Agent Hurlburt returned to the Premises. Agent Hurlburt asked Mike about purchasing marijuana. Mike agreed. This conversation took place in the Premises. Mike delivered the marijuana just outside the Premises at the front door. Agent Hurlburt was sold 6.5 grams of cannabis. Agent Hurlburt also simulated smoking marijuana with other patrons outside the Premises in the rear near the kitchen door. Agent Hurlburt also purchased 5.4 grams of cannabis from a patron named "Dave." This sale took place outside the Premises. Mr. Grant was on the Premises when these events took place. December 1 1993; Count 10: Agent Hurlburt returned to the Premises. Agent Hurlburt purchased 7.1 grams of cannabis from Mike. The sale took place inside the Premises at the front door. Mr. Grant was on the Premises when the sale took place. December 2 1993; Count 11: Agent Deen and Murray returned to the Premises. The agents were introduced by Kenny to Mr. Grant in the kitchen of the Premises. Inside the Premises Kenny gave Agent Deen what he described as a marijuana cigarette. Kenny smoked the cigarette and Agent Deen simulated smoking it just outside the kitchen door. Kenny sold 3.9 grams of cannabis to the agents outside the kitchen door. December 3 1993: Agent Deen and Agent Murray returned to the Premises. The agents simulated smoking a marijuana cigarette with Kenny outside the kitchen door. The cigarette contained .1 grams of cannabis. Casey opened the kitchen door while they were smoking the marijuana and told Kenny to come inside. December 4 1993; Count 12: Agent Deen and Agent Murray returned to the Premises. Kenny told the agent to wait for him outside the kitchen door where they simulated smoking what they believed to be a marijuana cigarette. While simulating smoking the cigarette Mr. Grant was at his truck approximately 15 feet away. Mr. Grant was speaking on a mobile telephone. The agents and Kenny were in plain view of Mr. Grant. The agents also purchased 2.4 grams of cannabis from Kenny at the same location. December 9 1993; Count 13: Agent Deen and Agent Murray returned to the Premises. Kenny sold and delivered 2.4 grams of cannabis to the agents in a room used by the bands that played at Riffy's. The room is part of the Premises. The agents also simulated smoking what they believed was marijuana with Kenny and a band member outside the kitchen door. Mr. Grant was only a few feet away when the agents were simulating smoking. Mr. Grant who admitted he is familiar with the smell of marijuana was close enough to smell what was being smoked and did not make any inquiry as to what the patrons were doing. December 2 and 9 1993: a. Agent Hurlburt returned to the Premises on these dates. 30b. Agent Hurlburt observed patrons exist the Premises smoke what appeared to be marijuana in the parking lot and return to the Premises. Mr. Grant was outside the Premises on December 2 1993 when patrons were smoking outside. December 10 1993; Count 14: Agent Hurlburt returned to the Premises. Mr. Grant was present at the Premises. Agent Hurlburt told Mr. Grant that he had purchased marijuana "here." Agent Hurlburt did not specify whether "here" meant the Premises Inverness or somewhere else. Mr. Grant however did not ask Agent Hurlburt whether he meant the Premises. Agent Hurlburt then asked Mr. Grant if he knew where he could purchase some sensemilla a type of marijuana. Mr. Grant indicated that he did not known where. Mr. Grant did not indicate that he did not allow the purchase or use of narcotics on the Premises. Agent Hurlburt also purchased 6.5 grams of cannabis from Mike that evening. The money was given to Mike inside the Premises and Mike gave Agent Hurlburt the marijuana inside the Premises. December 15 1993: The Division served a Search Warrant Notice to Show Cause and Emergency Order of Suspension on Riffy's. Agent Deen arrested Kenny and confiscated a bag of marijuana from Kenny. The bag contained 2.4 grams of cannabis. A bottle of Jim Bean whiskey was found in a room on the premises used by bands. All of the uses sales and delivery of marijuana described in the foregoing findings of fact took place in a relatively open manner and little effort was taken to disguise or conceal any illegal activity. Riffy's Efforts to Prevent Violations of Law. Mr. Grant testified that he instructed employees to not to engage in drug activities. One employee substantiated this testimony but that employee was Kenny one of the individuals involved in illegal activities on and near the Premises. Mr. Grant's and Kenny's testimony concerning efforts to prevent illegal activities on the Premises is rejected. There was not other evidence of efforts by the owners of Riffy's to insure that illegal activities did not take place on the Premises. In light of the open use of what appeared to be and smelled like marijuana in the parking lot of the Premises Mr. Grant should have taken some steps to prevent illegal narcotics activities on the Premises described in this Recommended Order. This is especially true based upon Mr. Grant's admission during the hearing of this matter that he smelled what he believed to be marijuana smoke "on the way to the dumpster."
Recommendation Based upon 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 finding that Riffy's Inc. d/b/a Riffy's Pub is guilty of Counts 2 3 4 5 6 8 10 11 13 14 and 16 of case number 94-0606. It is further RECOMMENDED that Counts 1 7 12 15 and 17 of case number 94-606 be dismissed. It is further RECOMMENDED that Riffy's alcoholic beverage license number 19-00616 series 2-COP be revoked. It is further RECOMMENDED that Riffy's be assessed a $1000.00 civil penalty. DONE AND ENTERED this 14th day of June 1994 in Tallahassee Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June 1994. APPENDIX Case Numbers 94-0606 and 94-1348 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Division's Proposed Findings of Fact Accepted in 4. Accepted in 5-6 31 and hereby accepted. Hereby accepted. Accepted in 7 and 9. Accepted in 7. Accepted in 10. Accepted in 11. Accepted in 12. Accepted in 13. Accepted in 14-15. The events described in the first sentence took place on October 22 1993. Accepted in 16. Accepted in 17. Accepted in 18. Accepted in 19-21. Accepted in 23. Accepted in 8 and hereby accepted. Accepted in 22. Accepted in 24. Accepted in 25. Accepted in 26. Accepted in 27. Accepted in 27. Accepted in 28. Accepted in 30. Accepted in 31. Accepted in 32. Riffy's Proposed Findings of Fact Accepted in 4. Accepted in 3. Not supported by the evidence. Accepted in 24. Accepted in 11. Accepted in 24. The evidence did fail to prove that Mr. Grant had actual knowledge of these events. Accepted in 22. Accepted in 28. See 28. Accepted in 30. Accepted in 30. Not supported by the weight of the evidence. Statement of law. Not supported by the weight of the evidence. Statement of law. Accepted in 17. Accepted in 4. Statement of law. COPIES FURNISHED: Miguel Oxamendi Assistant General Counsel Department of Business and Professional Regulation 725 South Bronough Street Tallahassee Florida 32399-1007 Stephen C. Booth Esquire 7510 Ridge Road Port Richey Florida 34668 Sgt. Homer Scroggin Department of Business and Professional Regulation 1103 SW 1st Avenue Ocala Florida 32678-4218 Jack McRay DBPR Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792 John J. Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Centre 1940 North Monroe Street Tallahassee FL 32399-0792
The Issue The issue for consideration in this case is whether Respondent’s alcoholic beverage license for the premises located at 11441 Osceola Drive in New Port Richey, Florida, should be disciplined because of the matters alleged in the Administrative Action filed in this matter.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Alcoholic Beverages and Tobacco, was the state agency charged with the responsibility to license and regulate the sales of alcoholic beverages and tobacco products in Florida. Respondent, D & S Cleaning Services, Inc., operated the Golden Acres Market #2 at 11441 Osceola Drive in New Port Richey, Florida, under 2-APS license number 61-00306. Pursuant to a request from the Food and Drug Administration, Special Agent Freese set up a random compliance check of the Respondent’s facility for sales of tobacco products to minors. This is routinely done as the result of an ongoing practice whereby FDA requests the Division to check specific business establishments. On the day in question, of the list of places to be checked, the majority were in Pasco County. On Saturday, October 11, 1997, working with an investigative aide, Mr. Teller, who was fifteen years old at the time, Special Agent Freese conducted a controlled buy at the Respondent’s facility. Freese briefed Teller before sending him into Respondent’s store, and also searched him to ensure he had no cigarettes, false identification, or other contraband on him. Freese then instructed Teller to go into the store and attempt to buy a package of cigarettes from whomever was on duty inside. Teller was to make no gratuitous representations about his age, and if asked for identification, was to be truthful. At approximately 3:00 p.m. on the day in question, Teller entered Respondent’s store, with Freese following shortly thereafter. According to Freese, the store is a typical convenience store. No customers were inside at the time. From fifteen to twenty feet away, Freese observed Teller approach Ms. Sargeant, who was manning the register, and ask for a package of Marlboro Light cigarettes. Freese neither saw nor heard Ms. Sargent ask Teller for proof of age, or for identification. She sold him the cigarettes for $1.71, including sales tax. Teller, who is not a regular patron of the Respondent’s facility, contends that Ms. Sargeant neither asked him his age nor sought any identification. He was dressed in clothing consistent with that of a teenager, without a hat, at the time of the purchase. When Teller left the licensed premises, he gave the cigarettes he had purchased to Freese who marked them for evidence on the spot. Thereafter, Freese went back to the Respondent’s facility the following Monday and advised Ms. Sargeant of the unauthorized purchase. She had no recollection of it. Freese waited until the following Monday to notify the licensee of the alleged violation because of a Division policy which required investigators to ensure that investigative aides are removed from the scene of a violation prior to any arrest or in-person notice of a violation is made. By the time the agency participants got home on Saturday, it was late. The following day was Sunday, in the absence of an emergency situation a non-work day, so the actual notice of violation was not given until the following Monday. Both Ms. Sargeant and Mr. Szymczak contend that by the time they were questioned on Monday, neither could remember a particular patron who purchased a pack of cigarettes. Some time later, on November 10, 1997, an Administrative Action was issued, indicating the Division’s intention to take disciplinary action against the licensee because of the unlawful sale of tobacco products to a minor. According to both Sargeant and Szymscak, there is no way Teller or anyone else could have purchased a pack of Marlboro Lights at their store for $1.71, including tax. At the time in issue, Marlboro was having a large promotion and had supplied them with several signs, for both outside and inside the store, which listed Marlboro Lights for sale at $1.88 per pack, plus tax, for a total of $2.00 per pack. The pricing structure for other cigarettes at the time, they claim, priced generic cigarettes at $1.69 per pack, plus tax, for a total of $1.80 per pack, and, at times, other less known brands on sale for $1.49 per pack plus tax. None, they claim, sell or were sold for $1.71 per pack, either with or without tax. Mr. Szymscak, who claims he is always in the store, also denies having seen either Freese or Teller in the licensed premises until Freese came in on the evening of Monday, October 13, 1997. When the Administrative Action was initially served on the Respondent, it did not contest that the sale had been made. Mr. Szymscak and Ms. Sargent avowed no knowledge of it, however. They were initially contesting the amount of the proposed fine as excessive. However, having heard both Freese and Teller testify at hearing as to the $1.71 price of the cigarettes, they now state they are convinced the purchase was not made at their establishment. The more credible weight of the evidence establishes that the alleged sale was made at Respondent's store.
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 in this case imposing the minimum appropriate penalty for the offense of unlawfully selling one pack of cigarettes to a minor under the age of 18. DONE AND ENTERED this 18th day of April, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1998. COPIES FURNISHED: George G. Lewis, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Deborah Sargeant, President Stanley Szymczak, Secretary-Treasurer D & S Cleaning Services, Inc. Post Office Box 1723 New Port Richey, Florida 34656 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 Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issues presented for resolution in this proceeding concern whether the Respondent's alcoholic beverage licensure should be subjected to disciplinary sanctions because of alleged misconduct involving the sale and use of controlled substances on a licensed premises, more specifically delineated in the Notice to Show Cause filed in this proceeding by Petitioner.
Findings Of Fact The Respondent, JIMMIE WILLIAMS, owns the club or tavern known as the "Copa Cabana", doing business at 2901 North Haynes Street, Pensacola, Florida. That establishment holds a Series 2-COP alcoholic beverage license number 27- 00239, authorizing the sale of beer and wine on the premises. The Respondent is the sole owner of the Copa Cabana. Burnett Patterson, at times pertinent hereto, during September 1988 through February 1989, was a patrol deputy with the Okaloosa County Sheriff's Department. While a deputy with that Department, he engaged in special drug investigations. During the course of this employment, he became involved in numerous undercover operations designed to curb traffic and use of controlled substances. He thus became familiar with the appearance, properties and paraphernalia associated with crack cocaine and marijuana. On September 2, 1988, he met with Law Enforcement Investigator, Paul Blackmon, of the DABT. Investigator Blackmon asked Deputy Patterson to assist in a drug investigation of the Copa Cabana. At approximately 8:00 p.m. on that date, Deputy Patterson entered the Copa Cabana licensed premises in an undercover capacity. While in the licensed premises, inside the Copa Cabana, he observed patrons of that establishment openly smoking marijuana and crack cocaine. He observed one black male patron walking around inside the licensed premises holding a piece of crack cocaine visibly in his front teeth in order to advertise it for sale. This activity was done in the presence of the licensee/Respondent, Jimmie Williams. The undercover agent further observed numerous persons selling marijuana and cocaine inside, as well as outside the licensed premises. These persons made no attempt to conceal their illegal actions. It has not been demonstrated who owned or controlled the grounds immediately outside the door of the licensed premises. On September 16, 1988, at approximately 8:15 p.m., Deputy Patterson again entered the licensed premised in an undercover capacity. Upon entering the licensed premises, he observed 15 to 20 patrons inside and observed the Respondent working at the bar. Deputy Patterson went to the restroom inside the Copa Cabana and observed two black males cutting crack cocaine into small pieces, mixing them with marijuana, and rolling the resulting material into cigarettes or "joints" for smoking. Deputy Patterson purchased one piece of crack cocaine for $20.00 from a patron known as William Barker while inside the restroom. While inside the licensed premises, Deputy Patterson observed patrons openly smoking crack cocaine and marijuana. He was approached by other patrons, who asked if he wanted to purchase controlled substances. The substance purchased was analyzed and tested positive for cocaine. On September 19, 1988, at approximately 7:40 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Upon entering, he made contact with patron, Jerry Green, who was accompanied by a patron known as "Killer." Deputy Patterson purchased one "baggie" of marijuana for $10.00 from "Killer." This transaction, along with the open smoking of marijuana, took place in the presence of the Respondent. Deputy Patterson also observed numerous controlled substance transactions taking place outside and near the entrance of the licensed premises. The substance he purchased was analyzed and proved to be marijuana. On September 24, 1988, at approximately 3:30 p.m., Deputy Patterson again entered the license's premises. He observed several patrons entering and exiting the restroom area. He entered the restroom and made contact with patron, John Butler. John Butler asked Deputy Patterson what he was looking for, and the Deputy replied "crack." Deputy Patterson was sold one piece of crack cocaine by John Butler and another unknown patron for $20.00. Deputy Patterson observed several patrons entering the restroom and purchasing crack cocaine. Jimmie Williams was inside the licensed premises during the time Deputy Patterson was present and making these observations. Deputy Patterson further observed several narcotic transactions outside the front entrance of the licensed premised. The substance purchased by Deputy Patterson was analyzed and tested as positive for the presence of cocaine. On October 8, 1988, at approximately 4:10 p.m., Deputy Patterson again entered the licensed premises in an undercover capacity. Prior to entering, he was asked by several patrons loitering near the entrance of the Copa Cabana if he wanted to purchase controlled substances. Once inside the licensed premises, he entered the restroom, where he made contact with patron, Calvin Black. Deputy Patterson purchased one piece of crack cocaine from Calvin Black for $20.00. Deputy Patterson then departed the restroom and observed patrons openly smoking marijuana while playing pool. Deputy Patterson contacted patron, Terry Boutwell, by the pool table. Terry Boutwell sold Deputy Patterson one baggie of marijuana for $10.00 at that location. Upon leaving the building, Deputy Patterson was again approached by persons outside the entrance to the Copa Cabana and asked if he wanted to purchase controlled substances. During all of the aforementioned events, including the sale of marijuana and the smoking of marijuana in the vicinity of the pool table, the Respondent was inside the licensed premises. Both the substance purchased from Calvin Black and that purchased from' Terry Boutwell were subsequently analyzed and proved to be controlled substances. On January 28, 1989, at approximately 5:00 p.m, a confidential informant, Alonzo Blackman, was designated to conduct a controlled substance purchase inside the licensed premises from the licensee, Jimmie Williams. The confidential informant was given specific instructions to buy only from Williams. Prior to departing the Sheriff's Department, he was thoroughly searched. It was determined that he had no controlled substances or money on his person. He was provided with a concealed, wireless voice transmitter. He was also given $50.00 of the Sheriff's Department's money for the purpose of purchasing crack cocaine. Subsequently, the confidential informant departed the Sheriff's Department with Deputy Gwen Salter. The pair was followed and traced by Escambia County Sheriff's Deputy Mark Shaeffer. Deputy Shaeffer was equipped with a radio receiver and monitored transmissions emitted from Alonzo Blackman's transmitter. Deputy Shaeffer observed Alonzo Blackman park behind the Copa Cabana to the rear of the building on a back street and depart Deputy Salter's vehicle. He observed Alonzo Blackman walk through the wooded area behind the Copa Cabana and disappear around the side of the building, moving toward the front of the Copa Cabana building. After Alonzo Blackman was out of sight around the corner of the Copa Cabana building, Deputy Shaeffer could hear normal outdoor sounds, as well as Alonzo Blackman's footsteps through the transmitter. Shortly thereafter, he heard the sound of a juke box playing and loud voices consistent with the noises one would expect when a person entered a bar. Within two or three minutes thereafter, Deputy Schaeffer observed Alonzo Blackman come back in sight around the corner of the licensed premises and enter Deputy Salter's vehicle. Deputy Schaeffer followed the two back to the Sheriff's Department, keeping Alonzo Blackman in visual sight the entire time. When Alonzo Blackman and Deputy Salter returned to the Sheriff's Department, Alonzo Blackman presented Deputy Schaeffer with a slab of rock cocaine and no longer had the $50.00 given to him by the Sheriff's Department. Subsequently, the substance purchased was analyzed and tested positive for the presence of cocaine. The Petitioner adduced a hearsay statement from Deputy Schaeffer to the effect that Alonzo Blackman had told him that he had purchased the rock cocaine in question from the Respondent. That statement was not admitted into evidence since it was not corroborative hearsay for the purposes of Section 120.58, Florida Statutes. The hearsay statement concerning the alleged purchase from the Respondent is not corroborative of the testimony concerning the other independent events in question in this proceeding involving the sale and use of controlled substances on the licensed premises by others. The only testimony or evidence directly concerning the alleged purchase of cocaine from the Respondent was that related by confidential informant, Blackman, to Deputy Schaeffer. The only other evidence purporting to show that the Respondent sold a slab of rock cocaine was the testimony by Deputy Schaeffer revealing what he saw and heard over his radio receiver. All he saw was Alonzo Blackman passing around the side of the building aid later returning around the back corner of the building. He heard his footsteps as he passed around and presumably entered the building, judging from the change in sounds received. There was no evidence that any voices or other noises transmitted to Deputy Schaeffer's listening station consisted of the actual drug transaction and specifically that any of the voices or sounds he might have heard were those of the Respondent in conducting that transaction. Since Deputy Schaeffer's testimony, itself, does not implicate the Respondent in selling the drug, the hearsay statement of the confidential informant, Alonzo Blackman, who could not be located at the time of the hearing, cannot be admissible corroborative hearsay. Thus, it was not established that on this occasion, the slab of rock cocaine was actually purchased from the Respondent. On February 8, 1989, at approximately 5:00 p.m., Alonzo Blackman was again designated to conduct a controlled substance purchase inside the Copa Cabana from the Respondent. He was given the same specific instructions, and Deputy Schaeffer made the same visual and auditory observations as he had with regard to the alleged transaction of January 28, 989. The same factual findings apply, and are made, with regard to this transaction as were made above concerning the January 28, 1989 transaction. The alleged fact that the purchase was made from Jimmie Williams was again predicated on the hearsay statement of Blackman, which was not corroborative and was uncorroborated. It cannot be used to support a finding that the Respondent sold the cocaine in question. On February 7, 1989, at approximately 8:00 p.m., Escambia County Investigators, Tyron Wicks, Melvin Possey and J. Johnson, conducted a "routine drug sweep" of the Copa Cabana. This type of operation was a routine matter for Investigator Wicks in the six months prior to February 7, 1989. Upon entering the licensed premises, Investigator Wicks went directly to the men's restroom where he observed four patrons having a conversation while looking into a paper bag. Investigator Wicks seized the paper bag which contained nine plastic baggies of marijuana ready for distribution and charged him with possession of 20 grams of marijuana with the intent to distribute. Investigator Wicks is familiar with the smell of marijuana smoke; and during "drug sweeps" conducted in the licensed premises, estimated to be 20 or 30 such operations for the previous six months, he smelled such smoke in the licensed premises on a number of occasions. On these occasions, he had also found marijuana and crack and razor blades, as well as pipes and cans used for smoking crack, on the floor of the licensed premises. He has seen people buy drugs at the Copa Cabana while he has been present there with the Sheriff's Department Narcotics Unit during the years 1988 and 1989. Sergeant Bobby Jackson of the Narcotics Division of the Escambia County Sheriff's Department has bean a law enforcement officer for approximately 14 years. He is familiar with the smell and appearance of marijuana and crack cocaine. He has been involved in 20 to 30 raids at the licensed premises. On at least 15 occasions, officers in his party have found controlled substances. The Respondent was always present when these raids took place. On many of the raids, Sergeant Jackson smelled the odor of marijuana smoke in the licensed premises. He is certain that the Respondent was present on these occasions. During these raids, he has observed marijuana cigarette butts on the floor of the licensed premises and has often found people inside bagging marijuana. Prior to the suspension of the beverage license on February 10, 1989, Sergeant Jackson received quite a few complaints about the licensed premises; and each time he visited it, he would observe a great number of people standing around inside and outside the licensed premises. It has been quite different since the suspension of the license and the shutdown of operations at the Copa Cabana. Sergeant Jackson has received very few complaints since February 10, 1989. Sergeant Jackson, however, never received any complaints from the Respondent about drug use in the establishment. John Green is a black male, whose mother lives approximately a block from the licensed premises. He has been a friend of the Respondent for approximately 15 years. During the period of January and February of 1989, he patronized the licensed premises six days a week, every week. He would go there after work and stay until approximately 9:00 p.m. He states that he always saw the Respondent behind the bar. John Green stated that the bar was a self- service bar where patrons could get beer out of the cooler in front of the bar and pay for it at the counter. He maintained that he had never seen Deputy Patterson and that, in his opinion, marijuana smoke smells just like Kool cigarette smoke. He drinks beer every night, including the times when he patronized the Copa Cabana. He testified under oath that he had never seen anyone use drugs in the licensed premises and that on one occasion, however, he had thrown someone out of the licensed premises for using drugs. Dorothy Mouton lives approximately six miles from the Copa Cabana and works at Washington Junior High School in an administrative capacity. She knows the Respondent, who also works there as a coach. She, in the past, has stopped at the Copa Cabana to eat a snack and converse the During the period of August of 1988 to February of 1989, she went to the Copa Cabana every week. According to Ms. Mouton, the Respondent had a stool behind the bar and would get beer from the cooler for patrons who requested beer. She claimed that she was able, by her experience, to identify marijuana smoke and crack cocaine. She maintained that she never saw any drug of either sort in the licensed premises She also testified that it was her habit to depart the licensed premises every day between 6:00 p.m. and 6:30 p.m. Chris Dortch is a 27 year old black male who has known the Respondent for a long period of time. He helped the Respondent operate the Copa Cabana when he first established it. He lives approximately four blocks from the Copa Cabana. He goes to the licensed premises every day and sometimes stays until it closes. He has always observed the Respondent staying behind the bar counter while he is on duty. This witness also claimed under oath that he had never seen any cocaine or marijuana smoked in the licensed premises and had never smelled any marijuana smoke within the licensed premises. He testified that he saw police officers in the licensed premises at least ten times, but never observed any arrests. Elizabeth Freeman lives around the corner from the licensed premises and has lived there approximately four years. During the period of September of 1988 to February 10, 1989, she went to the club every day for about an hour where she would talk to Williams and play video games. She claimed that she observed Williams, on occasion, move from behind the counter into the public area of the tavern. She also testified that she has never seen any indications of drug use on the premises. Shirley Washington was in the habit of going to the club during the period of August of 1988 to February of 1989 at approximately 4:30 p.m. and generally would stay until closing, usually around 9:00 p.m. She was a member of a social group called "The Copa Cabana Queens." It was her habit, during this period of time, to drink four to five six-packs of beer each day. She is familiar with the smell of crack cocaine smoke and marijuana smoke. She testified that she had never observed any marijuana or crack cocaine within the licensed premises. She has been a friend of the Respondent for approximately 25 years. The Respondent is an instructor and coach with the Escambia County School Board. He has owned the Copa Cabana for 15 years. It is a recreation center, lounge, notion store and meeting place. He also has live entertainment and occasionally, a fashion show. His license authorizes him to sell and serve beer and wine. He is the only employee, but Ms. Washington minds the bar for him when he is temporarily away from it (in the restroom, etc.). He testified that he never observed Deputy Patterson until the day of the hearing. He testified that no drugs had ever been in the licensed premises and that he had never dealt in drugs. The testimony of Deputies Patterson and Schaeffer, Investigator Wicks, Sergeant Jackson, and Law Enforcement Investigator Ralph Kelly, to the effect that controlled substances were openly and notoriously used and sold on the premises in question, conflicts in a general sense with the testimony of Respondent's witnesses to the effect that they never saw any marijuana or crack cocaine on the premises or smelled any and so forth. This conflict in the testimony of the witnesses of the Petitioner and Respondent must be resolved by determining which are more credible. Determining the credibility of witnesses is an important and exclusive task of the fact finder Guidelines for resolving credibility issues are provided in Volume 24, Florida Jurisprudence 2nd, Sections 688-696, and grand jury instruction 2.04 on page 779 of West's Florida Criminal Laws and Rules (1989), which sets forth areas to consider in determining whether a witness is credible. Those areas include: whether the witness had an opportunity to observe and know the things about which he testifies' whether his memory seemed accurate; whether he was straight forward in his answers; whether he was interested in the result of the case at issue; whether it is consistent with other testimony and evidence adduced; and whether he has, at some different time, made an inconsistent statement from the testimony given before the court. Firstly, concerning the testimony of John Green, it can be seen that he testified to having patronized the establishment during the period of January and February of 1989 and purported never to have seen Deputy Patterson. This is not surprising since there was no testimony by the Deputy that he was in the licensed premises during those two months. Therefore, John Green would have had no opportunity to observe Deputy Patterson at the time he frequented the licensed the premises. John Green also testified that he drank beer in the licensed premises every night and, thus, could quite likely have suffered a diminution of his powers of observation as a result of drinking beer. Dorothy Mouton maintained that she went to the Copa Cabana every week during the period of August of 1988 to February of 1989. She stated that she went there between the time she got off work until 6:00 p.m. or 6:30 p.m. Her time in the licensed premises was, therefore, very limited; and everything alleged by the Petitioner's witnesses could easily have occurred without her being on the licensed premises to observe the alleged violations. Elizabeth Freeman stated that she went to the Copa Cabana for about an hour each day during the time alleged in the Notice to Show Cause. If her testimony that she saw no drugs used on the licensed premises is accepted as true that still does not resolve the problem that the amount of time that she spent on the licensed premises was quite limited. The violations testified to by the Petitioner's witnesses could have occurred during her absence from the licensed premises. Shirley Washington claimed that she was at the Copa Cabana every day from 4:30 p.m. to approximately 9:00 p.m. during the time pertinent to the charges in the Notice to Show Cause. She also testified that she would drink four to five six-packs of beer every day. That could easily diminish her powers of observation and, no doubt, did. None of the witnesses for the Respondent could describe the events of any particular day alleged in the Notice to Show Cause. Their testimony was rather of a very general nature and not date or time-specific. On the other hand, the Petitioner's witnesses were trained law enforcement officers and observers, who kept meticulous records of their participation in the events in question and who gave detailed testimony as to the time, date and circumstances of each event that took place on the licensed premises and later became the subject of the charges in the Notice to Show Cause. There is no evidence that any of the law enforcement officers were drinking or otherwise had impaired powers of observation during the pertinent times. The Respondent's witnesses' memories and resulting testimonies appeared very general at best. Concerning the issue of whether the witnesses might have some interest in how the case should be resolved, it should be pointed out that the Respondent's witnesses were all old friends of the Respondent. John Green has been a friend of the Respondent for 15 years. Dorothy Mouton is a co-worker of the Respondent's at Washington Junior High School and must be counted as a friend of the Respondent. Chris Dortch has apparently known the Respondent since he was a small child. Elizabeth Freeman has been his friend and customer for the past four years. Shirley Washington has been the Respondent's friend for 25 years. All of these people are not only friends of the Respondent, but apparently considered the Copa Cabana a sort of favorite resort or meeting place away from home and clearly wanted to continue the benefit of the close friendly relationship. The Petitioner's witnesses, on the other hand, were professional police officers, none of whom had any relationship with the Respondent or the Copa Cabana. There was no evidence that any of the officers were somehow targeting the Respondent for special prosecution efforts. It rather appears that the events which came to light, as described in their testimony and the Notice to Show Cause, were discovered through routine police operations. Further, Deputy Patterson testified concerning the issue of whether the Respondent exhibited proper diligence in supervising and maintaining surveillance over the licensed premises. He stated that when the Respondent sold' a beer, he would do so by receiving the money for the beer and then moving outside of the bar to the cooler, kept in the room near the bar, to obtain the beer and give it to the customer. The Respondent's witnesses, however, addressed this matter with differing testimony. John Green, stated that customers would get the beer themselves from the cooler and then go to the counter to pay for it. Dorothy Mouton stated that the Respondent would get the beer from the cooler himself, which required him to walk outside the area behind the bar into the area of the room, in which the bar was located, to the cooler, which would allow him to view the rear room and restroom area of the licensed premises. Chris Dortch testified that the Respondent stayed behind the counter during beer sales. Elizabeth Freeman stated that she had observed the Respondent move from behind the counter into the open area of the licensed premises in the act of getting a beer for a customer. Thus, the Respondent's witnesses' testimony as to this question was inconsistent in terms of rebutting the testimony of Deputy Patterson as to the manner in which beverages were sold by the Respondent, as that relates to the Respondent's physical position in the licensed premises and ability to see what activities transpired in the rear room, the area of the restroom entrance and the pool table. In any event, the foregoing analysis reveals that the testimony of the Petitioner's witnesses is more credible. It is concluded that that of the Respondent's witness, and the Respondent himself, show a lack of knowledge, clear memory, and consistency, at best, without reaching the question of whether any of the Respondent's witnesses deliberately falsified their testimony. Accordingly, the testimony of the Petitioner's witnesses, to the extent that it conflicts with that of the Respondent's witnesses, is accepted as more credible.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the competent, credible evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, JIMMIE WILLIAMS, d/b/a Copa Cabana, be found guilty of the offenses set forth in Counts II and III of the Notice to Show Cause. It is further recommended that Count I of the Notice to Show Cause be dismissed. It is further recommended that the alcoholic beverage license held by the Respondent be revoked and that a civil penalty of $2,000.00 be assessed against the Respondent. DONE AND ENTERED this 26th day of January, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-719 Petitioner's Proposed Findings of Fact 1.-6. Accepted. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted, but not as probative of the ultimate fact of the sale of rock cocaine by the Respondent, himself. Accepted. Accepted. Accepted, but not as probative of any material issue presented for adjudication. 12.-16. Accepted, in that these proposed findings of fact describe the testimony of these witnesses. However, these witnesses have been determined to be not credible. 17. Accepted, to the extent that it is arc accurate description of the Respondent's testimony. Respondent's Proposed Findings of Fact 1.-4. Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not Entirely in accordance with the clear and convincing evidence. 7.-9. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and hot in accordance with the clear and convincing evidence. Rejected, as not materially dispositive of the issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not, itself, materially dispositive. Rejected, as not, .in itself, materially dispositive. Accepted, in part, but the evidence in this case does not delineate the extent of the premises owned or controlled by the Respondent, and to that extent, it is rejected. Rejected, as subordinate to tide Hearing Officer's findings of fact on the subject matter and as to it's purported material import. Rejected, as to its material import in relation to the remainder of Deputy Patterson's testimony. Rejected, as contrary to the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not in accordance with the clear and convincing evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and not being an accurate reflection of the overall sense of the witnesses' testimonies. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as being contrary to the greater weight of the clear and convincing evidence. Accepted, but not, itself, dispositive of material issues presented, except to the extent that it has not been proven that the Respondent, himself, offered any drugs for sale. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and as not being, itself, dispositive of material issues presented. Rejected, as immaterial. Even if this is true, it does not overcome proof that the Copa Cabana club's operations constitute a nuisance. COPIES FURNISHED: Harry Hooper, Esq. Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Leo A. Thomas, Esq. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. P.O. Box 12308 Pensacola, FL 32581 Leonard Ivey, Director Department Of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue The issue in these cases is whether the allegations of the Administrative Complaints filed by the Petitioner against the Respondent are correct, and if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. The Respondent operates a licensed skilled nursing facility in Englewood, Florida. The Petitioner surveyed the facility on July 26, 2002. Based on the surveyor's observations, the facility was charged with failure to ensure the safety of three residents who smoke tobacco. For purposes of maintaining the residents' privacy, the residents are identified in the survey and in this Recommended Order as Residents 4, 6 and 7. The Petitioner imposed a "conditional" license rating on the facility and imposed an administrative fine and survey fee forming the basis for this proceeding. The Respondent was resurveyed on August 5, 2002, and Petitioner determined that the deficiency had been remedied. As of August 26, 2002, the Respondent's license returned to "standard" rating. The facility has a smoking area in a courtyard, which lies in the center of the building and which is surrounded by the facility. The courtyard is visible from inside the facility. The Respondent's employees who smoke do so in the courtyard along with the facility's residents. Generally at the time of admission, incoming residents who smoke are assessed as to their ability to do so safely. The Petitioner asserts that the alleged failure of the facility to assess or to reassess the ability of smoking residents constitutes neglect of the residents. The parties do not dispute that facility residents have the "right" to smoke cigarettes if they chose to do so. There is no requirement that smokers wear protective clothing while smoking. Such clothing (such as a "smoker's apron") may be offered to smokers but the facility may not require that a resident use the clothing. The evidence establishes that two of the three residents (4 and 6) discussed herein had been offered smoking aprons and declined to use them. The facility may encourage residents to smoke during "group" smoking situations, but the facility may not require a resident to participate and may not limit a resident's smoking to such events. There is no legal requirement that cigarette smokers be supervised on a one-to-one basis. The evidence fails to establish that the observations of the Petitioner's surveyor caused, or were likely to cause, serious injury to the residents addressed herein. There is no credible evidence of any injury to any resident. Given the apparent frequency of smoking behavior by residents, it is reasonable to expect that there would be evidence of at least a minor injury to a smoker if such activity posed a credible threat of injury. The Respondent's submission of a required plan of correction does not establish that a cited deficiency existed at the time of the survey. Resident 4 Resident 4 was afflicted with "Fredereich's Ataxia" a degenerative condition which results in diminution of fine motor skills. She spoke and moved in a slow manner. Her head would "bob" in a manner that could suggest she was dozing off. Despite her condition, Resident 4's cognitive abilities were undiminished. She used a motorized wheelchair and was able to leave the facility on her own volition. She used a computer and could operate a television remote control without assistance. She could handle coins and obtain snacks from a vending machine. Resident 4's care plan provided that the resident could smoke cigarettes independently. Based on review of a nurse's notes, the Petitioner asserts that the Resident 4's smoking ability should have been reassessed following an incident on July 4, 2002, during which a "bib" lying on the floor nearby Resident 4 was discovered smoldering after ash from Resident 4's cigarette landed on it. The "bib" was extinguished, and there were no injuries. Although there is evidence that following the burning "bib" incident the staff was advised to monitor Resident 4's smoking more closely, there is no evidence that a formal smoking reassessment was completed for Resident 4. The evidence further establishes that the staff determining that Resident 4's smoking assessment did not need to be re-addressed was unaware of the "bib" incident. The monitoring advisory was not documented in Resident 4's care plan. The written care plan is the document which all facility staff access to determine the current status and condition of a resident. The Petitioner further asserts that the Respondent should have reassessed Resident's 4's ability to smoke cigarettes safely based on burn holes in her clothing and the appearance of an alleged burn mark on a leg brace used by Resident 4. The evidence establishes that Resident 4 wore clothing with burn holes, allegedly caused by the dropping of burning ashes on the clothing. There is no evidence as to the age of the clothing or the frequency with which such burn holes occurred. The evidence establishes that the Respondent's surveyor observed what she believed to be a burn mark on a leg brace worn by Resident 4. The evidence fails to establish that a burning cigarette caused the mark observed by the surveyor. The mark, located on a leather portion of a brace, exhibited no visible charring. No credible analysis of the mark was performed. The evidence establishes that Resident 4 reported to the Respondent's surveyor that she burned her thumb while smoking. The evidence fails to establish that a mark visible on Resident 4's thumb was the result of a cigarette burn. At the time of the survey, the Resident 4 was observed smoking in the courtyard area. The Respondent was wearing a cloth respiratory mask that was hanging freely from one ear. For reasons related to either physical condition or medication, the Respondent appeared to be periodically dozing as she was smoking. The evidence fails to establish whether Resident 4 was actually "nodding off" or whether the appearance was related to the head "bob" resulting from her diagnosis. The evidence fails to establish that additional smoking restrictions for Resident 4 were necessary. The evidence fails to establish that Resident 4, who apparently strongly valued her independence, would have accepted smoking restrictions or additional supervision. Resident 6 Resident 6 was admitted to the facility subsequent to suffering a stroke. His cognitive abilities were not impaired. Resident 6's care plan provided that he could smoke with minimal supervision. The Respondent's surveyor observed Resident 6 smoking in the facility's courtyard. A staff person was present, as was another resident. Resident 6 had cigarette ashes on his clothing. Articles of clothing in Resident 6's closet had burn holes in them. There is no evidence as to the age of the clothing or the frequency with which such burn holes occurred. The evidence fails to establish that Resident 6's plan of care was violated or that the Respondent was negligent in supervising the Resident 6's cigarette smoking. Resident 7 Resident 7 was admitted to the facility on July 17, 2002, with a diagnosis of organic brain syndrome. Although Resident 7's cognition was moderately impaired, he was permitted to move freely about the facility and smoked in the smoking area. At the time of the survey, Resident 7's care plan did not address his cigarette smoking. On July 25, 2002, a smoking evaluation was completed and included in Resident 7's written care plan. His cigarettes were stored for him and supplied to him upon request. He was to be accompanied by staff when he smoked. Resident 7 was also known to rummage through ashtrays looking for additional smoking material. Although the facility obtained tamper-resistant ashtrays, Resident 7 was nonetheless apparently able to obtain additional smoking material when staff was not present. The Respondent's surveyor observed Resident 7 smoking in the facility's courtyard. At the time of the surveyor's observation, Resident 7 appeared to be sitting alone and unsupervised in the courtyard. It is unknown whether the smoking material was obtained from the staff (in which case he should have been accompanied by a staff member) or had been obtained from the ashtray (in which case the staff was likely unaware that he was smoking). Burn holes were present in Resident 7's clothing. There is no evidence as to the age of the clothing or the frequency with which such burn holes occurred. The Respondent asserts that prior to completion of a written assessment, a smoking assessment care plan was orally communicated to all staff members working in Resident 7's unit. The evidence establishes that staff members were aware of Resident 7's smoking habits prior to completion of the written plan of care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints filed in these cases. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 22nd day of August, 2003. COPIES FURNISHED: Joanna Daniels, Esquire Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Teresa A. Collins was certified by the Criminal Justice Standards and Training Commission on April 19, 1985, and was issued Certificate No. 35-85-002- 02. On February 22, 1985, Respondent was employed by the City of Tampa Police Department as a police recruit and commenced training at the Police Academy. At this time, Respondent was considered to be a civilian employee of the police department. When Respondent applied for employment with the Tampa Police Department, a background investigation, polygraph test and physical examination including a urinalysis was done. Respondent acknowledged experimenting with marijuana in 1982 while in college. Following the background investigation and tests, Respondent was recommended as morally fit for duty as a police officer. On an evening in April 1985, Gloria Thomas observed Respondent, who she knew only by sight, sitting at a table in the rear parking lot at McDonald's with another woman. Ms. Thomas saw Respondent pass a cigarette to the other woman who held it between her thumb and forefinger while taking a puff off the cigarette. Ms. Thomas passed within five feet of the table and thought the smoke smelled like marijuana smoke. She did not see Respondent smoke the cigarette and could not definitely state the cigarette was a marijuana cigarette. At the time Respondent commenced her training at the police academy she roomed with Gina Rodriguez with whom she had formerly roomed at Florida State University. Sometime in mid February 1985, Respondent and Rodriguez had a fight during which Respondent struck Rodriguez in the face with her fist breaking her cheekbone. The date of this fight was not clear. Respondent testified it occurred in mid-February and that Rodriguez made demands on her for money for medical bills up to 21 February--the night before she was sworn-in as a police officer. The parties stipulated that Respondent was sworn in April 19, 1985, as a law enforcement officer and she entered the police academy February 22, 1985. Although not completely clear, it appears that Respondent and Rodriguez roomed together in Tampa from February 1, 1985 until the end of March, 1985. Following the fight Rodriguez threatened to see that Respondent never worked in Tampa. Gloria Thomas' observation of Respondent in the parking lot at McDonald's got back to the Tampa police by word of mouth as a rumor and an investigation was launched. On May 8, 1985, Rodriguez was interviewed by the police to inquire if Respondent smoked marijuana while she roomed with Rodriguez. At this interview Rodriguez denied Respondent ever smoked marijuana at the apartment. On May 29, 1985, Rodriguez contacted the police to give another statement about Respondent. At this interview Rodriguez told the police that she saw Respondent frequently use marijuana in late February and March 1985. At the hearing Rodriguez acknowledged making several conflicting statements about Respondent's use of marijuana but insisted that she saw Respondent smoke marijuana at least once in their apartment between February 22, 1985 and the end of March 1985, but could not identify the time of day this occurred, whether anyone else was present, or any detail at all regarding the circumstances in which this event occurred. Rodriguez also acknowledged she had threatened to "get" Respondent after the fight and they are still on unfriendly terms. These factors made her testimony less credible. Elaine Daniels, a friend of Rodriguez at the time of the fight, was interviewed by the police regarding Respondent's use of marijuana. She told the police she traveled in a car one night when Respondent had a package of marijuana with her. The exact date of this trip was not ascertained, but at the time the incidents were related to the police, Daniels was angry at Respondent for hurting her friend Rodriguez, and had been encouraged by Rodriguez to help her "get" Respondent. Daniels testified that she, herself, was stoned most of the time during this period and the only time she could definitely state she saw Respondent smoke marijuana was the end of January 1985. Daniels also testified to a party on Rodriguez's birthday, March 15, at which a marijuana joint was passed around while Respondent was present but she cannot recall Respondent taking a hit. Four women, who associated with Respondent from January through March 1985, never saw Respondent smoke marijuana during that period, but some of them had seen Respondent smoke marijuana a year or so prior to that period of time. In her testimony Respondent categorically denied smoking marijuana in April 1985 at the McDonald's parking lot and could not recall being there at that time; although she has been to this particular McDonald's on several occasions. Respondent acknowledged the "bad" fight she had with Rodriguez and that she had agreed to pay part of the medical bills resulting from that fight. However, Rodriguez never provided her with copies of bills for medical treatment. Respondent categorically denied smoking marijuana or possessing marijuana at any time subsequent to her entry into the police academy on February 22, 1985.
The Issue The issue for consideration in this hearing was whether the Department of Environmental Regulation's Amended Rule 17-105, F.A.C, Smoking Policy, was properly implemented and is a proper exercise of delegated legislative authority.
Findings Of Fact At all times pertinent to the issues herein, the Petitioners were employees of the Department. Petitioner Huck was employed in the Tallahassee headquarters and the other Petitioners were employed elsewhere. GENESIS The Florida Legislature, in 1985, enacted Chapter 386, Part 11, Florida Statutes, The Florida Clean Indoor Air Act, (Act), under the authority of which, in February, 1986, the Department promulgated its own "Smoking Policy" incorporated in Rule 17-105, F.A.C.. This rule prohibited smoking in all Department facilities except in those areas specifically exempted as designated smoking areas. These included private office areas and employee lounge areas as well as the first floor cafeteria. Dale Twachtmann was appointed Secretary of the Department in January, 1987. At the very beginning of his incumbency, he became aware of the ongoing controversy over smoking within the Department and concluded that a management decision to put the matter to rest was called for. He determined, from the information made available to him, that even before his arrival, the headquarters building in Tallahassee had serious air handling problems due partially, at least, to activities that had previously been carried on in parts of the building. A previously operating print shop and laboratory were moved shortly after his arrival. He could not determine how much of the "bad" air was attributable to each program. THE RULEMAKING PROCESS Mr. Twachtmann also determined that smoking within the building was considered, by a significant number of employees, to be a part of the air problem second only in seriousness to the laboratory. When the lab was moved, those proponents of clean air struck upon smoking as their bete noire. No studies of air quality were done during Mr. Twachtmann's tenure, however, nor had anything been done to curb smoking except for the promulgation of the original Rule 17-105. The controversy over smoking within the building continued, however, culminating in the drafting and circulation, in December, 1988, by an employee, Mr. Billy Kahn, of a petition to totally ban smoking in the facility. This petition was signed by approximately 275 of the 500 to 600 employees in the Tallahassee office. Though the Secretary did not recognize all the names thereon, he did recognize enough to satisfy him of its validity, notwithstanding a few irregularities on it, and he was influenced by it to do something. It reinforced his own observations of the smoking situation gathered while going about the building. For example, though he never noticed smoke in the halls, nor did he ever see anyone smoking in open areas, he would find some heavy and unpleasant odors in some of the break rooms and the lunchroom where smoking was allowed. Mr. Twachtmann thereupon decided, as Department Secretary, to take action which would resolve the smoking issue once and for all. He decided to initiate the rulemaking process with a view toward, if and after all legal requirements were met, banning smoking completely in all Department facilities and vehicles. Part of the process, which called for workshops to advise all employees of the proposed action and to solicit employee input, included consideration of alternative solutions to banning smoking. The process also included consideration by the Secretary of the substantial information available on both sides of the issue which was provided to him by his staff and by experts whose opinions on the matter were solicited. Much of this information was presented by advocates of both positions at a series of senior staff meetings held in early 1990 at which the senior staff voted unanimously to proceed with rulemaking to amend the smoking policy in Rule 17-105 to ban smoking. At this point, no studies had been made of air quality within the Tallahassee headquarters building. Nonetheless, after the vote was taken to amend the rule, in May, 1990, Mr. Shearer prepared and dispatched a memorandum to Department staff, referring to the "decision" by the Secretary to ban smoking from the headquarters building. This memo solicited personnel participation in the rulemaking process and instructed anyone who had any input to coordinate it through their supervisors. The task of drafting the amended rule was given to Mr. Peyton, the chief administrator of the Department, who, in turn, delegated the task initially to his counsel, Ms. Costas. Mr. Peyton was not told, when assigned his task, that he could not change the substance of the existing rule. Because Mr. Peyton was not satisfied with the draft of the proposed amendment prepared by Ms. Costas, he reassigned the task to one of his deputies, a nonlawyer, Ms. Drew. He instructions to her were to cut it down and make it simple, but to reflect the Department policy to ban all smoking in Department facilities and vehicles. The latter was an afterthought subsequent to Mr. Peyton's receiving comments regarding the smell in the Department's vehicles. After the draft of the rule was prepared, workshops to address the proposed rule were scheduled, noticed in the Florida Administrative Weekly, (F.A.W.), and conducted in various locations throughout the state. The published notice indicated discussion would include the need, if any, for the rule, and the proposed terms thereof. Instructions governing the conduct of the workshops and the method of handling employee comments were disseminated by Ms. Costas to the Deputy Assistant Secretary in each district. Those employees who held opinions on the need for or terms of the proposed rule were to be instructed to forward their comments in writing to the Department headquarters in Tallahassee. Hearings were held throughout the state in late June and early July, 1990. The comments received by Mr. Peyton, who conducted the Tallahassee workshop, and those submitted from elsewhere within the Department, were consolidated and summarized by Ms. Costas and thereafter forwarded, through Peyton, to the Secretary. Comments in writing were received from members in the Central, Northeast and Northwest Districts and orally from the Southeast District. There is no record of any comments having been received from any other district. All comments received were forwarded to, discussed with, and considered by the Secretary personally. Consistent with appropriate rulemaking procedure, a hearing on the rule was scheduled to be held by the Secretary regardless of whether there was a request therefor or not. In the interim, on June 20, 1990, copies of the hearing notice, the rule, the economic impact statement and the Statement of Facts and Circumstances Justifying the Proposed Rule were sent to the required agencies for coordination. Thereafter, based on the input received from employees and other pertinent sources, the rule was changed and notice thereof appropriately published in the F.L.W.. The secretarial hearing was held as noticed and did not result in any input sufficient to cause delay in the process. On July 27, 1990, the rule was certified to the Secretary of State by Secretary Twachtmann. MATTERS RELATING TO THE NEED FOR THE RULE There has been and continues to be discourse in the medical and lay communities on the harmful effect of secondhand tobacco smoke. While few disagree that the direct inhalation of tobacco smoke by smokers has harmful effects on the health of those individuals, controversy is still rampant as to what effect, if any, the forced inhalation by nonsmokers of tobacco smoke generated by smokers in the area, has on the health of these passive exposees. It is well recognized that chemicals shown to be carcinogens are found in tobacco, (cigarette) smoke. Responsible medical studies have also shown a higher incidence of lung cancer in persons exposed to second hand cigarette smoke than in those who have routinely been free of it. A secondary effect is a higher incidence of pulmonary disease and a detriment to lung development. "Secondary smoke" is that smoke generated by burning tobacco between puffs and that smoke exhaled by smokers. There is substantial evidence that the inhalation of secondary smoke for 8 or 9 hours per day over time increases the risk of cancer in an individual so exposed since tobacco smoke contains known carcinogens. Dr. Dennis Williams, a cardiologist accepted by the parties as an expert in the effect of tobacco on human health, is not aware of any showing of increased danger there in the workplace as a result of secondary smoke. However, studies have conclusively shown such an increased danger in the home and to children. Increased levels of nicotine and cotenine have also been observed in the blood and urine of nonsmokers in a workplace where smoking is permitted. Cotenine is a known carcinogen and nicotine, while not, itself, a carcinogen, is an addictive substance. The tar from cigarette smoke contains thousands of cancer causing chemicals. Admittedly, some of these can be found in substances other than cigarette smoke. However, lung cancer is now the leading cause of death among men and women in the United States, and 90% of all lung cancer deaths are due to the use of cigarettes and other tobacco products. Considering all the above, Dr. Williams feels there is no reasonable alternative to concluding that secondary smoke creates a health hazard to the nonsmoker who is frequently exposed to it. It is so found. It is also found that limiting smoking to a closed room does not protect the nonsmoking worker. Smoke quickly diffuses, through the ventilating system, throughout the total air of the facility. Cigarette smoking is a major cause of indoor air pollution and constitutes a major exposure of the worker to a carcinogen. Nonsmokers in the workplace have been found to have metabolized nicotine and cotenine in their urine which could have come only from secondary smoke to which they have been exposed there. The 1986 Report of the Surgeon General of the United States on the Health Consequences of Involuntary Smoking supports the conclusions drawn by Dr. Williams both as to the adverse health effects of secondary smoke and the ineffectuality of artificial separation, within the same air space, of smokers and nonsmokers. This report, along with other supporting information, was considered by Mr. Peyton during the rulemaking process and reported to Secretary Twachtmann prior to final decision. SPECIFICS The poor quality of air in the Department's headquarters building in Tallahassee has been known for some time. Studies of the building's air quality in both 1987 and 1988, while not dealing with the issue of cigarette smoking, both recognized the problem and recommended solutions. The building's ventilation is accomplished through two air handlers on each floor which re- circulate heated or chilled air, depending on the season. Interior air lost through doors and exhaust fans is replenished by outside air brought in by the air handlers. Approximately 88% of the air in the building at any time, however, is re-circulated. In very cold weather, when the introduction of cold outside air must be restricted, that percentage is increased. Any tobacco smoke in the air is, therefore, re-circulated again and again on the floor where it originates. Consequently, regardless of physical separation, nonsmokers sharing a ventilation system with smokers will be exposed to their smoke. In order to reduce that risk, internal air would have to be expelled and more outside air brought in. This cannot be done without a major modification to the building structure and a replacement of the existing air handling system. This is neither reasonable nor economically feasible. In order to reduce the air pollution problems within the building, the Department relocated two of the major polluting functions; the laboratory and the print shop. All these factors were known to and considered by the Department during the rulemaking process. Previous efforts were also made to accommodate the desires of both smoking and nonsmoking employees. Until the adoption of the total ban, smoking was allowed in private offices, in the break room on the fourth floor, and in the employee deli on the first floor. Since smoke concentration in the deli was heavy, many nonsmoking employees found it either unpleasant or impossible to eat there. Consequently, business and the resultant income therefrom was lost. On the other hand, since the ban on smoking, many smokers who formerly patronized the facility during their breaks no longer use it, with a resultant loss of business and income. The use of private offices for smoking was equally unsuccessful since not only were nonsmokers put off from entering either for business or other purposes, but smoke and the smell of smoke escaped through the ventilation system and open doors, and the odor of smoke, so unpleasant to many, would linger in an office long after the occupant thereof was gone. Taken together, the information available on the subject indicated that the only way to safely allow smoking in the building was to limit it to an area that was independently ventilated. This would require an independent access to the outside for the exhaust of old air and the re-supply of fresh air. Only one area in the building ever had an independent air exhaust, and that system, formerly in the laboratory, has been removed and is now being used in the Jacksonville district office. The former lab space is now an open office. As was found previously, physical modification of a currently operational building to accommodate the desires of a portion of the employee force is neither required nor justified. The issue regarding vehicles is somewhat different. The Department operates a fleet of state-owned vehicles, access to which is available to all Department employees. These vehicles are not separated into groups reserved for smokers or nonsmokers. Department employees are sometimes required to travel in Departmental vehicles. Some trips are of several hours duration, and while so occupied, the employees are on Department business. The vehicles also may be used, under proper authorization, to carry individuals other than state employees. Nonsmoking passengers, whether employees or not, may be in the position of riding with another passenger who smokes or in a vehicle which has previously been occupied by a smoker. There have been complaints regarding both situations, with the latter relating primarily to the objectionable smell left in the vehicle by the former smoking occupant. Dr. Williams opined that occupying a vehicle with another, smoking, individual poses the same risk to the nonsmoker's health as does occupying a room with such an individual. However, the residual odor of smoke left in a vehicle by a previous smoking passenger, while offensive, normally is not harmful. It is so found. All these factors were considered by the Department during the rulemaking process. The Department has taken the position that when Departmental vehicles are occupied by its employees, the vehicles are the employees' assigned workplace and individuals are, therefore, afforded the protection of the Act. OPERATION AND EFFECT Penalties for violation of the rule are incorporated therein and provide for a fine of $100.00 for the first violation, and of $500.00 for each subsequent violation in addition to discipline in accordance with the provisions of Chapter 17-130, F.A.C., the Department's disciplinary rule. Those provisions for fine are taken directly from the terms of the Act, Section 386.208, Florida Statutes. The disciplinary rule previously mentioned, (Section 17- 130.300(7)(b)2, F.A.C.), makes it a violation to smoke in a restricted area, an area in which smoking is prohibited. Penalties are outlined in the rule for the various violations which might occur, and each employee is provided with a copy of that rule upon employment with the Department. The Department claims it incorporated the fine provisions of the Act into its amended rule to "reference those disciplinary actions what would be involved" as a result of a violation of the rule and that they are informative only and do not create any additional disciplinary rules. This may be so, but any provision for discipline of an employee for violation of the terms of an agency rule should be incorporated in the agency's employee discipline rule to which reference is made in the instant rule. OTHER PROBLEMS Petitioners have objected to the use of the term, "right" in the amended rule which refers to the objection of nonsmokers to the effects of having to work in closed areas with smokers. Petitioners urge that the Department has sought to create and utilize a new "constitutional" right and that such action is unlawful and unsupportable. A thorough review of all the evidence presented in relation to the promulgation of this rule and its predecessor 1986 rule clearly demonstrates that the use of the term, "right" was no more than an in-artful word choice and in no way dispositive of the smoking issue. To be sure, the Legislature has, by implementation of the Act, encumbered the freedom of the smoker to engage in his passion in a public place, absent an affirmative designation of a smoking area. The use of the term, "public", does not necessarily mean only open to the general public. A building is public if it is owned or operated by a governmental agency. Here, the Department's use of the word, "right", in its rule is no more than a recognition of the differences of opinion which separate the ranks of the smoker and nonsmoker and a recognition of the proposition that the interests of one are as important as are those of the other. The Petitioners have also argued that in its implementation of the amended rule, the Department has denied them due process, specifically referring to the May 8, 1990 memorandum, and the participation in the rulemaking process of Ms. Drew, who was a signatory to the anti-smoking Petition solicited and presented by Mr. Kahn. In his memo, Assistant Secretary Shearer indicated that, "...a decision ha[d] been made .... " to ban smoking, and Petitioners claim that that "decision" having been made, the entire subsequent rulemaking process was a sham. Again we see what appears to be, in light of all that followed, no more than in-artful phraseology to announce the recognition of a Departmental problem and the initiation of a process designed to correct that problem. Admittedly, the use of that phrase raises a spectre of improper influence and a closed mind on the part of the Department hierarchy. However, the testimony of the principals, Secretary Twachtmann and Assistant Secretary Shearer, as to their intent from the beginning of the process, and the uncontroverted testimony regarding the openness of the succeeding activity toward the ultimate determination of a need for and the drafting of the proposed rule, clearly dispels any shade of impropriety. The process was conducted in the open. Employee comment was solicited and several forums were employed in which these comments, pro or con, could be made known to the Secretary. Inquiry was solicited and none who now object to the rule either asked questions or made recorded comment at the time. Petitioners have not shown by any definitive evidence of record, that any interested party who wished to object was prevented from doing so or dissuaded from negative comment by fear of reprisal. To the contrary, the evidence clearly demonstrates that all required notices were published, and that management went far beyond that which was required to insure the opportunity for fair comment and to, as best as possible, guarantee the maximum available input to the Secretary before the final decision was made. As for the participation of Ms. Drew in the process, the evidence shows that she is Mr. Peyton's deputy. When Mr. Peyton received Ms. Costas' draft of the proposed amended rule and was dissatisfied with it, he requested Ms. Drew, with Ms. Costas, rework it. His guidelines were to cut excessive wordage and make it simple. The operating thesis was also simple and left little room for interpretation. There is little risk that Ms. Drew, or anyone else, could have, in this instance, gone beyond the basic instructional premise upon which she was to work because of her own feelings about the subject matter. The lines were simply drawn on this issue. There were those who favored allowing smoking and those who favored abolishing it. To claim that one who supported abolition could not, thereafter, work on a rule to bring about that end is unrealistic and inappropriate. Petitioners also claim that the Department failed to provide a statement of data and methodology with its Economic Impact Statement, (EIS). Review of the EIS filed with the Joint Administrative Procedures Committee, (Respondent's Exhibit K), reveals that it contains the required statement which appears to demonstrate that the agency's methodology for information collection was appropriate. There was no evidence presented by Petitioners to demonstrate to the contrary. Petitioners further claim that the Department was not the appropriate agency to take the action regarding smoking, assuming, arguendo, such action was appropriate. The Act, which formerly provided that the government entity "responsible for the management and maintenance" of a government building should "implement" the provisions of the Act, was amended in 1988 to require that agency only to report observed violations of the Act to the Department of Health and Rehabilitative Services. In this case, the management and maintenance of Departmental buildings is accomplished through contracts entered through leases on the buildings let through the Department of General Services, (DGS). Petitioners claim that as a result, the rule, if appropriate, should have been promulgated and implemented by DGS. Petitioners overlook the fact that the Department is ultimately responsible for the headquarters building and the activities therein, and is the major employer therein. Petitioners raise the issue that the Department should have, under the Act, designated a smoking area since it claims to be the agency charged with enforcing the Act. This claim presupposes that the Act requires a smoking area be designated in all buildings where smoking is otherwise regulated. Such is not the case. Section 386.202 specifically noted that the Act shall not be interpreted to require the designation of smoking areas. The Department has construed the Act to indicate that as the employer, it implements smoking policy in its facilities. This interpretation conforms to that of other state agencies, including the Department of Education, the Department of Transportation, and the Division of Administrative Hearings, all of which have implemented smoking policies in their facilities. The Department's interpretation appears to be correct, even though different agencies than those listed have provided for separate smoking areas.
The Issue At issue is whether respondent committed the offense alleged in the administrative action and, if so, what disciplinary action should be taken.
Findings Of Fact The offense At all times pertinent hereto, respondent, Rodi Enterprises Corporation d/b/a La Ferrolana Supermarket, held alcoholic beverage license number 23-00094, series 2-APS, for the premises located at 3380 N.W. 7th Street, Miami, Florida. Rolando Nunez is an owner and president of the licensee. On July 22, 1994, Leonard Del Monte, an investigator employed by the Division of Alcoholic Beverages and Tobacco, entered the licensed premises to conduct a routine inspection. At that time, Inspector Del Monte discovered nine packages of Benson & Hedges Menthol 100's cigarettes in a display rack over the counter, each of which bore a fraudulent tax indicia and on which the excise tax had not been paid as required by law. Each cigarette package contained twenty individual cigarettes, and such packages, considering their location, were obviously offered for sale to the general public. Apart from the nine packages of untaxed Benson & Hedges Menthol 100's, Inspector Del Monte discovered no other untaxed cigarettes on the premises, which, at the time, contained approximately 300 other packages of cigarettes, as well as approximately 300 cartons of cigarettes, for sale to the general public. Indeed, this is the first occasion in over fifteen years of operation that respondent has ever been cited with a violation, and the first time Inspector Del Monte has ever discovered a violation in the fourteen or fifteen years he has been inspecting the premises. The reason for the offense Ovilio Reyes is a long-time customer of respondent, and purchased a carton of Benson & Hedges Menthol 100's from a vendor who sells, among other things, cigarettes from a lunch truck outside the factory where he works. Since he did not like the menthol taste, Mr. Reyes prevailed upon Mr. Nunez, an owner and president of petitioner, to exchange the nine packages that remained from the carton he had purchased for nine packages of Winston cigarettes. Mr. Nunez noted the stamp on the bottom of the packages, assumed it was valid, and agreed to the exchange. Thereafter, Mr. Nunez placed the packages in the display rack for resale. Having considered the proof, Mr. Nunez' testimony that he believed the packages to carry an appropriate stamp and that he had no intention of selling untaxed cigarettes is credited. Indeed, had Mr. Nunez thought the stamp was a forgery, it is doubtful that he would have placed them in the display rack so that the stamp was plainly visible to a customer or, in this case, an inspector standing at the counter. Moreover, for the untrained, a cursory glance at the stamp would not raise a suspicion as to its validity. It is only when one is apprised, as through the proof in this case, that a tax indicia must be stamped in purple ink as opposed to the black ink used on the subject packages, that the stamp was not affixed evenly on the bottom of each package as it should be, that the stamps used are slightly longer than the standard stamp, that the scallops or ornamental edge around the rectangular stamp did not match the scallop of a valid indicia, and that the subject packages, upon close inspection, contained the phrase "Tax No," as opposed to the proper phrase "Tax Paid," that one would have cause to suspect the legitimacy of the stamp in question. Notable, petitioner has not shown by rule or otherwise that it has advised its licensees in general or respondent in particular of the factors that should be considered in assessing the authenticity of a tax indicia.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of the offense as charged, and directing respondent to pay a $50.00 civil penalty and the excise tax of $3.59. 1/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January 1995. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January 1995.
The Issue The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Santos Navarro Osornio (respondent or Santos), held alcoholic beverage license number 21-00850, series 2-COP, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent operated a bar known as Santos Corner or The Pink Panther located at 190 South Third Street, Immokalee, Florida. Respondent's license authorized him to sell beer and wine for consumption on the premises and package sales for off-premises consumption. Respondent has operated the lounge since October 1987. As a licensee, respondent's establishment was subject to inspection during regular hours of operation. The Division conducts spot checks of such establishments at random in addition to checking establishments that have been the subject of complaints. It is noted that when respondent was issued his license in October 1987, he signed a statement authorizing Division agents to inspect and search the licensed premises during normal business hours without a search warrant. In early May 1989 petitioner's Fort Myers district office received a request from other area law enforcement agencies to participate in "Operation Fast Track", an operation planned and coordinated by the United States Department of Immigration and Naturalization Services (INS) in an effort to apprehend illegal aliens residing in the Immokalee area. Among other things, the operation called for a raid on respondent's licensed premises. Besides INS agents, other law enforcement agencies participating in the raid were the "SWAT", team of the Collier County Sheriff's office, the fire marshal's office and the county health department. Petitioner agreed to send agent Thompkins, a certified law enforcement officer, whose sole purpose was to inspect respondent's premises to ascertain if the licensee was in compliance with alcoholic beverage and tobacco laws and regulations. The raid took place around 11:30 p.m. on Friday, May 12, 1989. The crowded and noisy bar was then filled with more than one hundred customers, primarily Hispanic, who were enjoying entertainment provided by a popular Spanish band from Homestead, Florida. The events which occurred after the agents stormed the premises are sharply in dispute. In reconciling this conflicting testimony, the undersigned has accepted the more credible and persuasive testimony and embodied this testimony in the findings below. After entering the bar through the front double doors, and going around the partition which lies immediately in front of the doors, the agents observed a bandstand, tables, booths and dance floor to the immediate right, a horseshoe shaped bar to the front, a long unused bar to the left, and, in the upper left rear of the bar, five pool tables sitting between the unused bar and the horseshoe bar. A diagram of the bar received in evidence as respondent's exhibit 7 provides a more precise description of the premises. A SWAT team and a single INS agent first entered the front doors yelling "police" and "immigration" in English and Spanish. They did not have a search warrant. The SWAT team members wore their uniforms and bullet-proof vests. They also carried billy clubs and weapons. The attire of the INS agent is unknown although all members in the operation were expected to wear something which identified them as law enforcement officers. The first group's mission was to secure the area, line the patrons against the wall and pat them down. The INS agent then checked the patrons for citizenship documents. After the first group of officers entered, they were followed by another group of deputies and other agents, including agent Thompkins, who wore a new dark blue t-shirt with the word "POLICE" encaptioned in bold yellow letters on its back. In smaller letters beneath that word were the words "Division of Alcoholic Beverages and Tobacco". As Thompkins entered the front door he yelled "police" and did so a second time once he entered the bar area. Shortly after entering the premises, Thompkins observed deputy sheriff Joe Jones talking with a lady behind the horseshoe bar. The lady was Olga Candia, who lived with Santos in an adjoining apartment. Candia, a woman of small stature, was dressed in a red dress and high heel shoes and occupied a chair in the entrance way to the bar. Jones asked Candia to come out from behind the bar so that he could secure the bar area. She refused because, in her words, she "wasn't no wetback" that was going to be lined up against the wall and patted down. After Candia refused several requests to move, Jones advised Candia that she would be arrested for obstruction of justice if she did not comply with his request. At that point Candia started for the back door, but after taking only a few steps, Jones pulled her face down on the floor between the bar and pool table. As Jones attempted to pull her arms behind her back to handcuff her, Candia began to squirm. Agent Thompkins then assisted Jones in holding Candia down while the handcuffs were placed on the detainee. It should be noted that Thompkins is a rather large man who stands over six feet, two inches tall and weighs three hundred plus pounds. Candia immediately began screaming "Santos" at the top of her voice. While the above events were occurring, Santos, who was described by one officer as being "very cooperative", had complied with a request of another deputy to install a light in the bandstand area. The purpose of this was to provide more light in the dimly lit lounge. From that vantage point, Santos could not see Candia being held on the floor since the horseshoe bar stood around four feet high and was between him and the area where she was being held. However, over the turmoil and yelling in the bar he heard the screams of his girlfriend and proceeded as quickly as he could towards the bar area bent on furnishing Candia assistance. He could not run because of a gimpy leg. After he rounded the horseshoe bar he ran into the back of Thompkins, who was in a bent over position holding Candia down. Thompkins described the bump as having a "battering ram effect" on him and caused him to "stumble". However, he did not lose his grip on Candia, probably because Santos weighs no more than half as much as Thompkins and is much shorter. To illustrate the confusion and conflicting versions of events surrounding the alleged battery, deputies Jones and Strickland recalled seeing Santos flying through the air into Thompkins, jumping on his back and placing his arms around Thompkins' neck. However, Thompkins did not recall anyone hanging onto his back and placing their hands around his neck. Instead, he remembered only that someone or something had rammed his back. Two defense witnesses disagreed and contended that respondent never touched Thompkins but was knocked to the floor by a deputy before he reached Thompkins and Candia. Santos also related this version of events. It is found, however, that as Santos rounded the bar at a quickened pace, he accidentally ran or was pushed into Thompkins' back and was thereafter immediately secured on the floor with handcuffs by deputies. It is found that Santos did not intend to batter the officer nor did he know that the person he was running or falling into was a law enforcement officer. Santos was then arrested and charged with felony counts of battery and obstructing justice. A county judge later reduced those charges to a misdemeanor. After the above events occurred, Thompkins conducted an inspection of the licensed premises but found no serious violations of alcoholic beverage and tobacco laws or agency rules. Except for the pending charges, Santos has never been disciplined for a violation. Finally, numerous patrons of the bar were arrested the evening of May 12 for being in the country illegally and were taken to an INS detention center for further processing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found not guilty of violating the cited statutes and that the notice to show cause be DISMISSED with prejudice. RECOMMENDED this 22nd day of May, 1990, in Tallahassee, Florida. DONALD ALEXANDER 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 22nd day of May, 1990.
