Findings Of Fact At all times pertinent to the issues herein, Petitioner, Clara Carr, was an inmate at the Florida Correctional Institution. The Respondent Commission is responsible for establishing Presumptive Parole Release Dates (PPRD's) for all inmates in the custody of the State of Florida who meet the requirements of Section 947.173, Florida Statutes. Petitioner met all of the requirements of that section and was entitled to a PPRD initial interview on November 25, 1985. In the establishment of a PPRD, the inmate is first interviewed in the field by an examiner who evaluates and scores the inmates on a form which is then sent to the full Commission which also scores the individual based on salient factors which may be aggravated or mitigated because of other permissible factors. If the Commission decides to assess an aggravating factor, the amount of time is discretionary within certain time limits. Initially, the Commission looks at the offense and its severity in setting a salient factor score and uses that as a beginning. Then the jail time prior to the admission to the Department of Corrections facility, if any, is removed and the pre and post sentencing reports, the interview, and other reports of public hearings and the like are evaluated as aggravating or mitigating factors. The aggravating factors are generally set out in the rule in question here but the list in question in the rule is not all inclusive. The Commission may consider anything which can be founded on a valid or reasonable connection to the action taken. Petitioner was interviewed by Commission staffers on November 25, 1985, for the purpose of setting her PPRD. By action of the Commission at a meeting held on January 8, 1986, the PPRD was established to be December 28, 1988. This date was arrived at by initially utilizing the maximum matrix of 32 months set for her offense and the conditions thereof aggravated by a history of alcohol abuse listed in the pre-sentence investigation; the psychological interview; and the admissions summary, for which the Commission added an additional 36 months. When that time was applied to the commencement of sentence, April 28, 1983, the PPRD was established as stated above. On January 30, 1986, through counsel, Petitioner requested a review of her PPRD alleging that the rule under which the Commission had aggravated her PPRD (Rule 23-21.10(4)(a)2b) is invalid. Petitioner claimed that alcoholism is a treatable illness and it is improper and illegal to aggravate on such grounds. Petitioner cited Article 1 Section 2 of the Florida Constitution; Section 396.022(1), Florida Statutes; 42 USC 4541(a)(8), and other authorities. A commission meeting was held on February 26, 1986, to consider Petitioner's request for review of her PPRD. The Commission did not change it holding that the rule in question was appropriate and provided for the aggravation of a PPRD for history of alcohol abuse. Consequently, the PPRD remained at December 28, 1988. In the pre-sentence investigation conducted by officials of Marion County, Florida, in August, 1983, which was presented to the Judge at the time Petitioner was sentenced and which was considered by the Commission at the time the PPRD was established, Petitioner is alleged to have indicated that she had been drinking very heavily for several hours the night of the incident and does not remember any of the circumstances surrounding it. She described herself as a "weekend drinker" of beer and liquor and denies the use of any drugs, but it is significant to note that her nickname in the community is "Boozie." Though Petitioner denied having a prior arrest record, the records of the Marion County Sheriff's Office and the Ocala Police Department indicate a series of arrests going back to January, 1975, five of six of which relate to aggravated battery or assault and battery, in some cases with a deadly weapon. During the admissions examination conducted at the time Petitioner entered FCI, she indicated that she did not drink, but also that she is a weekend alcoholic. The evaluator was of the opinion that her alcoholic involvement was more than just weekends involvement and in addition, she was diagnosed by the institutional psychiatrist as having an adjustment disorder. She was described as being very aggressive and one who would probably display aggressive behavior if placed under too much stress. The Commission is required, under the provisions of Sections 947.16 and 947.172, Florida Statutes, to provide the Petitioner with a PPRD and to compute that date according to objective parole guidelines outlined in Section 947.165, Florida Statutes. In determining the PPRD, the Commission may use aggravating or mitigating circumstances but these circumstances must not be duplicative of the severity of the offense behavior or the salient factor score arrived at pursuant to Sections 947.1651 and 947.1722, Florida Statutes. The Commission was delegated rulemaking power by Section 947.07, Florida Statutes. Consistent with the authority, the Commission developed parole guidelines outlined in Rule 23-21.10, Florida Administrative Code. The aggravation factor which is the subject of the instant challenge is contained in Rule 23-21.10(4)(a)2b, Florida Administrative Code. This Petitioner is a 28-year old female serving her first felony conviction from Marion County, Florida, for aggravated battery with a dangerous weapon having been sentenced to a term of 10 years (less 81 days jail time), on July 18, 1983. She was received at FCI on July 22, 1983, and presently has a maximum release date of April 25, 1993. Under the provisions of the rule cited above, the Commission may aggravate a Parole Release Date if the inmate has demonstrated a history of alcohol or drug abuse. The Petitioner's PPRD was aggravated for that reason because the history of her alcohol abuse relates to negative behavior on her part. This history of alcohol abuse alone would not be sufficient to cause the Commission to aggravate a PPRD. Here, however, there was a showing of increased risk on the part of Petitioner as a potential parolee. The Commission felt that she was a risk due to the interrelation of her history of bad behavior and alcohol consumption. Even though the rule in question does not specifically refer to aberrant behavior as related to the alcohol abuse as grounds for aggravation, it is nonetheless implied therein and a logical and reasonable extension and interpretation of the rule. The Commission does not specifically consider that the alcohol abuse may stem from a medical condition. It deals with results or behaviors regardless of the cause of the behavior. It is not the function of the Commission to deal with the cause of the problem, but to evaluate each inmate for parole on the basis of that inmate's specific situation. There is no formula for evaluation but instead, it is the best collective judgment of the risk factors in the individual case as arrived at by the members of the Commission. The matrix time ranges are limits of foundation times and the other factors are add-ons or subtractables. If this were not so; if there were to be no independence of thought and judgment by members of the Commission; there would be no need for people to make up the Commission and to make the decision. This function could be performed by a machine on the basis of factors fed into it. Petitioner contests the validity of the rule on the basis that it does not consider the fact that alcoholism is a sickness rather than a mental condition. At the time the rule complained of was drafted, the Commission hired Florida Research Center, Inc. as consultants to help come up with appropriate matrices and salient factors which included alcohol and drug abuse. In addition to this, a survey was conducted in 1978 of 10 individuals including the Commissioners as to how certain factors should be rated. Five of the ten parties questioned rated drug and alcohol abuse as number one. Two others rated those conditions as second in importance. Further, the Commission was provided with the professional literature considered by authorities at the time the preponderance of which supported these evaluations. It is clear that the legislative intent behind Chapter 947, Florida Statutes, was to have rules in effect for the Commission to use in establishing PPRD which call for the use of objective parole criteria within certain limits. Under the statute, the rule need not specify a number of months or a range of months for aggravation due to alcohol abuse. The Commission has not suggested to Petitioner that she seek treatment for her alcohol abuse nor has it offered to reduce her sentence if she should do so. It would be inappropriate for the Commission to do this as a part of a determination but it would not be inappropriate for the interview staff to suggest it as a matter of course. It is not the role of the Commission to suggest the course of an inmate's confinement or rehabilitation. That subject is within the purview of the Department of Corrections. The Commission's function is to assess the propriety of returning the inmate to society and the issue to be decided by the Commission at its hearing is whether the inmate constitutes a threat to the community or not. In fulfilling this function, the Commission uses the Department of Corrections to prepare mental and medical examinations of the inmate and to produce reports. If the evidence indicates there is a mental health problem, the Commission considers it. In early 1984, the Commission published two policy letters dealing with the Commission operations; Numbers 4.17 and 4.20, both of which relate to medical or mental health status reports regarding inmates. The first, dealing with the request for these reports indicates that if the Commission requires an up- to-date report in these areas it may request it and in those cases where a hearing examiner for the Commission feels that the Commission would need it, it is the responsibility of the examiner to request it so that it is available for the Commission to consider at the time the inmate's PPRD is considered. Number 20 deals primarily with the language to be used by the Commission in citing a mental health status report as a source of new information used to alter the PPRD. Neither of these policy letters are necessarily pertinent unless it is considered that alcohol abuse, the language used in the rule in question here, is equated to alcohol dependency and alcohol dependency is considered either a mental health or medical condition. It cannot be found here that alcohol abuse, which may be a single incident of improper consumption of alcohol, is tantamount to or equates to alcoholism or alcohol dependency which may be a mental or physical condition. The term, "aggravation", is defined in Rule 23-21.02(1) as: . . . to exceed the matrix times ranges upper month limit. Alcohol abuse is not defined in the rule or anywhere else for specific use by the Commission. It is basically left up to each Commissioner to apply his interpretation of the term to the facts before him or her and most Commissioners have a common understanding of what the term means. The Commission considers there is a medical difference between alcohol abuse and alcohol dependence for setting PPRDs. The determination of whether to use a history of alcohol abuse may be based on whether the abuse played a part in the current offense or not. If so, the Commission generally will utilize the incident in its deliberations. If not, then it may not, but the issue of whether to use it as either aggravation or mitigation is discretionary with the Commission. Once it is determined to use alcohol abuse as aggravation in establishing a PPRD, then the amount of aggravation and time to be added is also based on the individual judgment of each Commissioner based on his or her evaluation of the degree of risk involved to the general public by the inmate. In arriving at this additional time, the Commission has a range within which it may assess a period of months, but there is no formula. In substance, the Commission is making an assessment of the risk - not a medical diagnosis and the issue is whether, because of that demonstrated alcohol abuse, the inmate constitutes a greater risk to the public if paroled. If so, then additional months are added on. If not, they are not. In that connection, expert evidence tends to indicate that abusers of either alcohol or drugs have a lesser chance of success than those who do not abuse. Alcohol addiction does generally lead to poor behavior and it is often a condition of parole that the inmate not drink to excess. Consequently, if a demonstrated alcohol abuser does drink to excess, the likelihood of his behavior becoming inappropriate again is high, but in addition, he will most likely be in violation of the conditions of his probation. It is again a question of risk assessment by professional judgment on an individual basis. Some experts define alcohol abuse as "a voluntary excess or inappropriate use of alcohol", whereas alcoholism is "involuntary." An abuser is not necessarily an alcoholic and trained medical expertise differentiates between alcoholism and alcohol abuse. Because of the fact that alcohol abuse is voluntary, some experts believe there is no reason to extend a prison term on the basis of alcohol abuse if the extension does not result in treatment for the behavior. Petitioner introduces the Commission's action with regard to inmate Nicky Berkart, wherein the Commission declined to utilize that inmate's alcohol abuse to aggravate his PPRD as evidence of the inconsistency of treatment of this factor. Mr. Burkart's situation is not comparable, however, to the issue here. None of the documentation considered by the Commission here was prepared by a doctor or medical professional with the exception of the psychologist's interview, but there is no indication that it need be. If the Commission had decided that additional medical or professional evaluation was necessary and pertinent, it could have requested it. What must be recognized is that an inmate has no right to parole. The sentence imposed by the court generates an expiration of sentence date (EOS) at which time the inmate will be released unless he or she has committed additional offenses. Parole, which is a release prior to expiration of sentence, is a privilege and if no parole is granted, the inmate will still get out at the EOS less gain time. Consequently, since nothing extends the sentence, denial of parole does not increase the penalty. The Commission may and does make abstinence from alcohol, or the use of antabuse, a condition of parole. Neither, however, is a guarantee that the individual will refrain from using alcohol. The evidence presented by Respondent indicates that it is not at all unusual for a parolee to commit offenses while under the influence of alcohol. Forty to fifty percent of all revocations of parole result from some sort of substance abuse. Many of those parolees have a history of alcohol abuse. Therefore, a history of alcohol abuse would appear to be a negative indicant of parole success. The aggravating factor in this situation is not that the inmate has the medical problem of alcoholism, but that the history of alcohol abuse shows that the inmate is not a good parole risk. It is generally a safe statement that people in prison who abuse alcohol are not a risk to society. Those who are released form prison with a demonstrated propensity to abuse alcohol are. In making this evaluation, the Commission is not, as was indicated previously, bound by any strict formula. Whatever qualification is applied, however, it must be applied on an individual basis and not across the board. Each Commissioner tailors his recommendation on what he knows about the individual before him. Based on the information provided, plus whatever information is requested as appropriate, an individual conclusion is drawn by each member of the Commission. These then are evaluated and a Commission vote is taken which results in the establishment of the PPRD.
Findings Of Fact Prior to October 1977 the Nite Gallery, Inc., a nightclub featuring topless dancers, held license 2-COP No.58-1175 and the stock was owned by Sherrill Ann Perkins and Dorothy Jean Copeland. The owners were anxious to sell and placed an advertisement which was seen by Robert Waldorf, who visited the bar to discuss price. Waldorf was accompanied by Richard Bragg and Mary Jo Kelly. Following discussion, Waldorf, who did all the talking for the purchasers, agreed to purchase the business for $12,000 and gave each of the owners a check for $1,000, receipt of which was admitted into evidence as Exhibit 3. On 13 October 1977 the operation of the bar was taken over by Waldorf, although the two owners were still holders of the license. The $1,000 checks given as down payment were on the account of Sharon's Novelties, at Winter Park National Bank, an account on which Waldorf was the only one authorized to sign checks. During the next few weeks, Waldorf wrote numerous checks on this same account to pay for various equipment, supplies and labor for the Nite Gallery. In Application for Transfer of Alcoholic Beverage License stamped 8 November 1977 (Exhibit 6), Dorothy Copeland signed the Affidavit of Seller stating the license was transferred to Mary Jo Kelly who signed the affidavit of buyer that "no other person except as indicated herein, has an interest in the alcoholic beverage license for which these statements are made." Nowhere in the application was reference made to Waldorf. In 1973 Waldorf was convicted in the U.S. District Court for the Western District of Tennessee of offenses involving the transportation in interstate commerce of forged securities and was sentenced to three years confinement with a three years probation period running concurrently with the confinement. (Exhibits 1 and 2). As a result of these felony convictions, Waldorf is ineligible to hold an alcoholic beverage license in Florida. At the time of these transactions, Waldorf and Mary Jo Kelly had been living together for approximately two years. She worked as a dancer and B-girl in various nightclubs, usually in a club where Waldorf also worked. Kelly had no experience or knowledge respecting the operation of a bar or any other business, and all decisions, including the decision to buy the bar and all management decisions thereafter, were made by Waldorf. The sellers, Copel and and Perkins, were informed that Waldorf was the one purchasing the bar and that the license was being put in Kelly's name because Waldorf was ineligible to hold the license. This information came from Waldorf. On November 2, 1977 Waldorf signed a promissory note (Exhibit 5) promising to pay Copeland $300 per month until the balance of the $5,000 owed her for the purchase of the Nite Gallery was paid. Immediately prior to and following the transfer of the license to Respondent, Kelly danced at the Nite Gallery occasionally but otherwise had little, if anything, to do with the business. Waldorf did the hiring and firing, kept the accounts, signed checks for the bills owed, zeroed out the cash register, provided the bartender with funds each day to open the bar, and held himself out and performed all the functions of an owner in fact. Waldorf made arrangements for radio advertising for the Nite Gallery and paid for this service. (Exhibit 10). In his application for telephone service ordered 4-2-78 for his residence, Waldorf stated his occupation for the past two years was owner of the Nite Gallery. (Exhibit 12). After the license was transferred to Mary Jo Kelly, Waldorf opened another bank account on which both he and Kelly were authorized to sign checks. Kelly often signed blank checks which Waldorf completed to pay various expenses of the Nite Gallery. Kelly made no deposits in this account, maintained no record of expenditures from this account, and she had no information regarding the disposition of, or the amount of, money passing through the cash register at the Nite Gallery. Respondent testified that she provided all of the money used to purchase the Nite Gallery and to pay the initial bills from her earnings as a dancer. She also testified that this same source of funds provided the capital needed to buy a house, boat and two or three cars including a Continental Mark IV driven by Waldorf. Respondent further testified that she made $400 per week from tips as a dancer at the. Fiesta Club in Orlando immediately before purchasing the Nite Gallery and that she made $400-$500 per week in tips at the Nite Gallery. Her testimony was that the dancers worked on tips only. Exhibit 8, which is a cash and expense report for the Nite Gallery for December 1, 1977, shows that four dancers shared $17 for their work that evening. Although this was shown on Exhibit 8 as Commissions, other testimony indicated it was accumulated at $1 for each drink the customers bought for four dancers in one evening. These figures strongly militate against Respondent receiving $400-$500 per week in tips at this establishment. Respondent's testimony that her earnings provided the funds for a house, boat, and three cars in addition to the costs involved in opening the Nite Gallery is simply not credible. The testimony by Orange County Sheriff's deputies that one of them was struck by an employee of the Nite Gallery while on the premises was unrebutted All of the witnesses, including Respondent, testified that Respondent performed no role in the day-to-day management of the Nite Gallery and that Respondent did not have the experience or ability to run a business. At the time Respondent surrendered her license to Petitioner in March, 1979 she voluntarily submitted to questioning and the tape of that interrogation and the transcript of the tape were admitted into evidence as Exhibits 21 and Therein Respondent gave her age as 20 years old and stated that Waldorf had directed her absence from the first hearing. At Waldorf's direction she went to Pennsylvania and entered the hospital for a short period so she could truthfully advise her attorney that she was in the hospital in Pennsylvania during the March hearing. During this interrogation Kelly stated that she received no income from the Nite Gallery, that Waldorf ran the business, and that she had no knowledge of how the business was doing.
The Issue Whether Respondent, the holder of a license to sell alcoholic beverages, sold an alcoholic beverage to a minor as alleged in the Administrative Action dated June 17, 1997, and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Mahmoud Mohamed, was doing business as Kwik Stop, which is a convenience store located at 1200 Broadway, Riviera Beach, Florida. Respondent holds license number 60-02476, series 2APS, which authorizes him to sell alcoholic beverages at his business location (the licensed premises). On June 13, 1997, the Division initiated a general investigation to determine whether persons under the age of 21 were being sold alcoholic beverages by licensees of the Division. As part of that general investigation, two special agents employed by the Petitioner and an investigative aide employed by the Petitioner made a random stop at the licensed premises between 8:30 p.m. and 9:00 p.m. One of the special investigative agents was Andrew Panzer, an experienced law enforcement officer. The other special agent was Agent Panzer's partner, who did not testify. The investigative aide was Casey Fand, a seventeen-year-old high school student. The special agents instructed Mr. Fand to enter the licensed premises and to attempt to purchase a beer. Mr. Fand entered the premises first, and shortly thereafter, Mr. Panzer entered the store. The other agent remained outside the premises. Mr. Fand went to the cooler, selected a 12-ounce can of Budweiser beer, and walked to the counter where Respondent was working. Mr. Panzer selected a soft drink and followed Mr. Fand to the counter. Mr. Panzer stood behind Mr. Fand and was in position to observe and hear what transpired between Mr. Fand and the Respondent. There is a dispute in the record as to what happened next. Respondent testified that when Mr. Fand came to the counter with the beer, Respondent asked him for identification. Respondent further testified that Mr. Panzer then took the beer from Mr. Fand. Respondent testified that Mr. Panzer paid for the beer and the soft drink. The testimony of Mr. Fand and Mr. Panzer conflicted with Respondent's testimony. Both Mr. Fand and Mr. Panzer testified that Respondent never asked Mr. Fand for identification and that Mr. Fand paid for the beer and left the store. They both testified that Mr. Panzer thereafter paid for the soft drink and left the store. Mr. Panzer testified that after he conferred outside with his partner and Mr. Fand, he re- entered the premises, advised Respondent of the violation, and issued him a notice to appear. In resolving the conflicts in the evidence, it is determined that the clear and convincing testimony of Mr. Fand and Mr. Panzer is more credible than that of the Respondent. In reaching this conclusion, the undersigned has considered the demeanor of the witnesses, the training and experience of Mr. Panzer, and the fact that neither Mr. Panzer nor Mr. Fand has an apparent motive to fabricate evidence. Based on the more credible testimony, it is found that on June 13, 1997, Respondent sold a beer, which is an alcoholic beverage, to a minor, Mr. Fand, without asking for identification. Respondent's license has not been previously disciplined by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that incorporates the findings of fact and conclusions of law contained herein. It is further recommended that the Final Order impose an administrative fine against Respondent in the amount of $1,000 and suspend his license for a period of seven days. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mark R. Hanson, Esquire 415 Fifth Street West Palm Beach, Florida 33401 Captain Debbie Beck 400 North Congress Avenue, Suite 150 West Palm Beach, Florida 33401 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against the Respondent's medical license based on an alleged violation of section 458.331(1)(s), Florida Statutes, concerning his ability to practice medicine with reasonable skill and safety by reason of illness, substance abuse, or mental or physical condition.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine as delineated in Chapter 458, Florida Statutes. The Board of Medicine is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times pertinent to this proceeding, Dr. Murtha has been licensed to practice medicine in the State of Florida, holding license no. 0037467. As a licensed physician in the State of Florida, Dr. Murtha is subject to the licensure and medical practice regulatory jurisdiction of the Board of Medicine of the Agency of Health Care Administration. Dr. Murtha, at the time of the Agency's investigation, was approximately 42 years of age. He received his medical degree in 1978 from the University of Florida and completed his residency at the University of Tennessee. In 1981, he became board certified in internal medicine. He has been on the staff of St. Joseph's Hospital in Tampa, Florida for the ten years prior to the initiation of this action. In August 1995, the Agency filed a complaint against Dr. Murtha alleging that two episodes affected Dr. Murtha's ability to practice medicine with reasonable skill and safety to patients by reason of use of alcohol. The first episode related to a charge of driving under the influence. On May 2, 1994, Dr. Murtha was involved in a minor traffic accident and charged with driving under the influence (DUI). On August 24, 1994, Dr. Murtha pled no contest to the charge, and he received 12 months probation, six months revocation of his driver's license, a $250.00 fine, required attendance of DUI school, and court costs. 7/ The officer who investigated the May 2, 1994 accident and who also charged Dr. Murtha was not available for the hearing and did not testify. The second episode alleged by the Agency relates to the allegation that Dr. Murtha practiced medicine while intoxicated. Specifically, the Agency alleged that Dr. Murtha saw patients while intoxicated. Relating to the second factual allegation, Nurse Georgia Jacinta Paille testified that on January 30, 1995, she encountered Dr. Murtha visiting a patient at St. Joseph's Hospital. Ms. Paille is the day charge nurse at St. Joseph's Hospital in Tampa, and she appeared as the first witness for the Agency. Nurse Paille testified that on January 30, 1995, she encountered Dr. Murtha and that he had a strong odor of alcohol on his breath. She further testified that Dr. Murtha was acting angry and inappropriate and that he raised repetitive questions relating to care given to one of his patients. While Nurse Paille noticed the odor of alcohol, she did not notice if Dr. Murtha's speech or gait was affected by the alcohol. Furthermore, Nurse Paille could not testify that Dr. Murtha acted like someone who had been drinking. Nurse Paille reported her observations of Dr. Murtha to her manager, Margie Butler, who in turn made a report to Dr. Gilbert J. Pitisci, the Hospital Administrator. Gilbert J. Pitisci is a medical physician and the Senior Vice President for Medical Affairs at St. Joseph's Hospital in Tampa, Florida. In addition to various administrative duties, Dr. Pitisci is authorized to summarily suspend a physician's privileges at a hospital. On January 30, 1995, the same day that Nurse Paille observed Dr. Murtha, Dr. Pitisci encountered Dr. Murtha. Dr. Pitisci also noticed the odor of alcohol on Dr. Murtha's breath, and he noticed that Dr. Murtha had a slight slurring of his speech and that there was a slight tremor in his hands. Dr. Murtha declined Dr. Pitisci's invitation to discuss his condition in private. Rather, Dr. Murtha insisted that the discussion be held publicly at the nurses' station. Based on Dr. Murtha's physical appearance and based on the odor of alcohol on his breath, Dr. Pitisci summarily suspended Dr. Murtha as a potentially impaired physician and directed him to leave the hospital. Subsequently, Dr. Pitisci notified the state that it had a physician with a potential impairment with alcohol abuse. Other than detecting the odor of alcohol on Dr. Murtha's breath, Dr. Pitisci had no information as to the amount of alcohol consumed by Dr. Murtha. On or about March 24, 1995, the Agency received notification of Dr. Murtha's suspension from St. Joseph's Hospital. In response, the Agency opened an investigation that led to the filing of an order compelling physical and mental examination. Subsequently, Dr. Murtha received an order from the Agency compelling him to submit to both a physical and mental examination. The Agency chose the physician and directed Dr. Murtha when to appear for his appointment. On June 6, 1995, Dr. Murtha complied with the Agency order compelling his mental examination, and he was evaluated by Daniel J. Sprehe, M.D. Daniel J. Sprehe, M.D. is a psychiatrist licensed in the State of Florida. He has been qualified by various Florida courts as an expert in clinical and forensic psychiatry and was accepted as an expert in the area of psychiatry on behalf of the Agency. Dr. Sprehe's examination and testing of Dr. Murtha lasted approximately three hours. Dr. Sprehe obtained and prepared a detailed social and medical history of Dr. Murtha, administrated the Minnesota Multiphasic Personality Inventory Psychological Test (MMPI) and MMPI II, administered the Michigan Alcoholism Screening Test (MAST), and administered a Beck Depression Inventory. He also questioned Dr. Murtha and performed a mental status examination. The purpose of the evaluation was to determine Dr. Murtha's medical condition and to make any recommendations for treatment concerning his fitness to practice medicine. Dr. Sprehe completed a written evaluation, including a written opinion based on the evaluation. In addition to the aforementioned tests, Dr. Murtha was given a blood test that revealed no alcohol or drugs in his system. Dr. Sprehe's report indicated that Dr. Murtha scored rather low, a score of 7 (out of a possible 30), on the MAST test. He stated that the MAST is a self-reporting test and that a score of five or more places the subject in the range to be considered an alcoholic. Later, Dr. Sprehe indicated that based on the facts presented in other reports relating to Dr. Murtha, he would have modified Dr. Murtha's score to 9. Still later at the hearing, Dr. Sprehe again revised his scoring of Dr. Murtha's MAST test and concluded that he scored a 20. Dr. Sprehe surmised that Dr. Murtha did not answer the test questions candidly and that his score should have been higher. Dr. Sprehe also found that Dr. Murtha minimalized his abuse of alcohol. Based on the MAST test, Dr. Sprehe found that Dr. Murtha fell into the alcoholic range. For reasons fully stated in paragraphs 26, 27, and 41, the undersigned declines to adopt, as a finding of fact, any diagnosis of Dr. Murtha based on the MAST test. Dr. Sprehe explained the differences between the definitions of abuse and dependence. Subsequently, Dr. Sprehe opined, within a reasonable degree of medical certainty, that the Respondent was an alcohol abuser. Based on his opinion, Dr. Sprehe recommended that Dr. Murtha consider a diversionary program such as the Physicians Recovery Network. Dr. Sprehe also opined that Dr. Murtha suffered from narcissistic personality disorder, which can complicate the diagnosis of alcoholism. A person with narcissistic personality disorder tends to deny defects in themselves. Dr. Sprehe's diagnosis of narcissistic personality disorder was made after a one-hour examination of Dr. Murtha. Dr. Sprehe could not state with certainty that Dr. Murtha could not practice with reasonable skill and safety. Dr. Sprehe did opine, however, that "there is at least a question in my mind as to [Dr. Murtha's] ability to practice medicine with reasonable skill and safety." Dr. Sprehe opined that the results of the MAST test and the mental examination, coupled with Dr. Murtha's history, placed Dr. Murtha in the high risk category. No where in the written report to the Agency did Dr. Sprehe advise the Agency that Dr. Murtha was not able to practice medicine with skill and safety. Dr. Sprehe also opined, based on a hypothetical question, that Dr. Murtha "is not in a position to practice medicine safely to patients." The hypothetical question, however, was based on the testimony of Dr. Murtha's ex- wife which has been found to lack consistency. (See paragraphs 28-30). Therefore, for the reasons stated in paragraphs 28-30, the undersigned declines to adopt, as a finding of fact, Dr. Sprehe's opinion which was based on a factually deficient hypothetical question. On August 9, 1995, sixty-five days after Dr. Sprehe's examination and report, the Agency issued an Emergency Suspension Order against Dr. Murtha's license to practice medicine. Dr. Murtha called Mark Stuart Goldman, Ph.D. as his sole witness. Dr. Goldman is a clinical psychologist and distinguished Professor of Psychology at the University of South Florida. Dr. Goldman specializes in the area alcohol research and is currently the director of the Alcohol and Substance Abuse Institute at the University of South Florida. Dr. Goldman was accepted as an expert witness in the field of alcohol and alcoholism, and he testified on behalf of Dr. Murtha. Dr. Goldman testified to the issue of alcoholism and discussed in detail the Michigan Alcoholism Screening Test (MAST). As discussed earlier, Dr. Sprehe relied on the MAST to help make his diagnosis that Dr. Murtha is dependent on alcohol. Dr. Goldman testified that the MAST can be skewed and that the very accusation of alcohol abuse can result in the subject having points scored against him. Dr. Goldman stated that tests such as MAST are crude devices used for screening alcohol problems but are not designed for the purpose of making diagnosis. To make this point, Dr. Goldman cited the Handbook of Alcoholism Treatment Approaches, by Hester and Miller, for the purpose that screening tests such as MAST should not be used for the purpose of making a diagnosis and that to do so represents a violation of professional and ethical standards. The undersigned is persuaded by Dr. Goldman's position that tests such as MAST should be used as screening not diagnostic tools. As such, any opinions based on results from the MAST test are rejected as not supported by credible evidence. Dr. Goldman examined Dr. Murtha on two separate occasions. Dr. Goldman obtained and reviewed Dr. Sprehe's report, and he reviewed the results of the MMPI and the MAST. Based on his review of the materials generated by Dr. Sprehe and on his own examination of Dr. Murtha, Dr. Goldman could not offer an opinion as to whether Dr. Murtha is safe to practice medicine. In addition, Dr. Goldman felt the record was incomplete to offer an opinion as to whether the Respondent was dependent on alcohol. In summary, Dr. Goldman found that a conclusive diagnosis would take considerably more time and would involve additional examination techniques. The undersigned adopts Dr. Goldman's position that inadequate information was available to render an opinion regarding Dr. Murtha's ability to safely practice medicine. In addition to the expert testimony received at the hearing, the Agency also offered the testimony of Dr. Murtha's ex-wife, Donna Gail Murtha. Mrs. Murtha is a registered nurse employed at James A. Haley Veterans Administration Hospital, and she was married to Dr. Murtha for 23 years until their divorce in December of 1994. Mrs. Murtha was offered for the purpose of establishing that Dr. Murtha was an abuser of alcohol and that he regularly consumed alcohol while engaging in the practice of medicine. Mrs. Murtha offered conflicting testimony relating to the quantity of alcohol Dr. Murtha consumed during their marriage. At the hearing she stated that he consumed "at least a pint [of liquor] a day. During the discovery deposition, however, she stated that "she couldn't state an amount [of alcohol consumed]." She also denied ever stating that he [Dr. Murtha] drank a fifth a day. Mrs. Murtha offered additional conflicting testimony as it related to Dr. Murtha's use of alcohol while on call at the hospital. At the hearing she testified that Dr. Murtha consumed alcohol while on call. During the discovery deposition, however, she testified that she knew of no specific incident when Dr. Murtha used alcohol on call. She also stated that she could not recall any instance when Dr. Murtha went to the office after having consumed alcohol. Mrs. Murtha's testimony is rejected because it is inconsistent and it lacks reliability 8/ At no time during or prior to the Agency's investigation had any complaints been received against Dr. Murtha.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That a final ordered be entered dismissing with prejudice the complaint filed against the Respondent in DOAH Case No. 96-0567. DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida. WILLIAM A. BUZZETT, 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 20th day of June, 1996.
Findings Of Fact The amount in controversy following initial conferences between the parties was $108,028 district-wide. The Mental Health Board acknowledges and admits liability as a result of the 1980-81 state audit of $41,955. DHRS acknowledges that an audit adjustment of $38,296 is justified. This principally comprises the rental value of donated space which was initially disallowed. The Board contracts with health care providers to provide services to residents of the area. One of these providers is the Pinellas Comprehensive Alcohol Services (PCAS) which the Board contracted to reimburse for the cost of providing alcohol treatment and services to the residents of Pinellas County. PCAS entered into a contract with the Veterans Administration to provide services to veterans of the area at a cost to the VA of $17 per day. The difference in the actual cost of providing the services to the veterans for the period covered by this audit and the $17 per day per veteran reimbursed to PCAS amounts to $27,675. It is this sum that DHRS has disallowed and contends is owed to DHRS in addition to the $41,955 acknowledged as owed by the Board. All persons receiving services pursuant to the VA contract would have qualified to receive services pursuant to PCAS contracts with the Board and the total cost of their treatment would have been allowable if they were financially unable to pay. No evidence was submitted regarding the financial ability of these VA patients to pay for the services had they not been entitled to veterans hospitalization. Absent the $17 per day contract with the VA, all of these veterans could have been treated at PCAS and the total cost of their treatment for which the patients were not financially able to pay would have been allowed as a cost for which DHRS would provide matching funds. In reaching the sum $27,675 in disallowed costs, the auditor for DHRS found the total cost of providing these services by PCAS to be $95,695. Thirteen of the 25 beds were allocated to the VA patients and 12 were allocated to DHRS patients. Allocating 13/25 of the cost of $95,695 results in just under $50,000 costs allocated to the VA. Reimbursement from the VA was $22,530 which, when deducted from the costs for the VA patients, equals $27,675, the amount in dispute.
Recommendation It is therefore RECOMMENDED that the expenditure of the disallowed $27,675 cost of providing services to VA patients be allowed and that a final order be entered directing the Pinellas/Pasco District Mental Health Board V, Inc., reimburse DHRS in the amount of $41,955 for disallowed expenditures for the 1980-81 fiscal year. DONE AND ENTERED this 25th day of June 1984 at Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June 1984. COPIES FURNISHED: Claire D. Dryfuss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jeffrey L. Myers, Esquire Galleria Plaza, Suite 10 12551 Indian Rocks Road Largo, Florida 33544 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue This case concerns a Petition for the Revocation of Teacher's Certificate brought by the State of Florida, Department of Education, through Lynnl Guettler, Chairman of the Executive Committee of the Professional Practices Council, against Stephan P. Lee, Respondent, who holds a Florida teaching certificate number 339018, Special Post Graduate, Rank IA, valid through June 30, 1987, covering the areas of social studies and junior college. The allegations of the Administrative Complaint accuse the Respondent with writing one or more notes to Alice Ann Lee during the fall of the school year 1978-79 at a time when Alice Ann Lee was a thirteen-year old student at Ft. Caroline Junior High School, Duval County, Florida. The allegations further assert that Ms. Lee is not a family relation of the Respondent. It is contended through the complaint that in one of the notes the Respondent indicated his apartment address and invited Alice Ann Lee to visit him at that apartment. It is alleged that on one evening during the first nine weeks of the 1978-79 school year, Alice Ann Lee and one Laura Edenfield went to the Respondent's apartment, where he served alcoholic beverages to the two named individuals, at a time, when these individuals were students and had not reached their majority. In connection with events of that evening, the Petitioner asserts that the Respondent smoked a "joint", viz. marijuana, which the students had brought to his apartment. Finally, it is alleged that the Respondent, through one of the notes written to Alice Ann Lee, invited her to go to St. Augustine, Florida, with him for a "day on the beach and in the shops" and to go "to a nice restaurant for dinner and drinks". For these acts, the Respondent purportedly has violated Section 231.28, Florida Statutes, in that the conduct alluded to constitutes gross immorality and personal conduct which reduces the effectiveness of the Respondent as an educator. The Respondent is also charged with the violation of Subsection 231.09(2), Florida Statutes, for not setting a proper example for students. The Respondent is further charged with a violation of Rule 6H-1.02(c), Florida Administrative Code, for failing to protect students from conditions harmful to learning, health and safety and with a violation of Rule 6B-1.02(d), Florida Administrative Cede, for conducting professional business in a way that exposed students to unnecessary embarrassment and disparagement.
Findings Of Fact This cause comes on for consideration based upon the Petitioner, State of Florida, Department of Education, Professional Practices Council's petition for the revocation of teaching certificate of Stephen P. Lee, Respondent. The exact details of that petition are related in the issues statement of this Recommended Order and that account in the issues statement is made a part of the Findings of Fact herein. The Respondent has answered the petition and requested a formal hearing under the provisions of subsection 120.57(1), Florida Statutes. The facts reveal that the Respondent was employed as a school teacher during the year 1978-79 in a position at Ft. Caroline Junior High School, Duval County, Florida. Two of the students who were being taught by the Respondent were Alice Ann Lee and Laura Edenfield. These individuals were students of the Respondent in separate classes. In the fall of 1978, Alice Ann Lee was thirteen years of age and Laura Edenfield was sixteen years of age. Both of the students were attending the ninth grade. The students in question in the academic year 1978-79 had made a poor academic showing and their attendance record was not satisfactory. In the first nine weeks of the school year, Alice Ann Lee wrote a note to the Respondent indicating that she felt that the Respondent was a nice teacher and she would like to be his friend. The Respondent replied to that note by a letter, a copy of which may be found as Petitioner's Exhibit #1 admitted in evidence. Beyond that point of the first reply there ensued a series of notes from the student Lee, two or three in number, and three additional notes or letters from the Respondent. Copies of the additional notes or letters written by the Respondent may be found as the Petitioner's Exhibits #2 through #4, admitted into evidence. In the Respondent's correspondence, Petitioner's Exhibit #2, he mentions his home address and tells Alice Ann Lee that she may call him by telephone when she feels so compelled. That correspondence also tells Alice Ann Lee that she is "welcome to drop by. . ." the Respondent's apartment if she would so desire. The student, Laura Edenfield, was a friend of Alice Ann Lee, and Edenfield had also been extended an invitation to visit the Respondent at his apartment. To assist the students in finding his home, the Respondent had drawn a diagram map directing them to his apartment and a copy of that diagram may be found as Petitioner's Exhibit #5 admitted into evidence. The students acted on Respondent Lee's invitation and called him one Friday night during the fall term of 1978-79. The call was made while the Respondent was at home in his apartment and the Respondent indicated that it would be acceptable if Alice Ann Lee and Laura Edenfield came to visit him on that evening. The students arrived at the Respondent's apartment between eight and nine p.m. on the night referred to above. The visit lasted until approximately midnight. While the students were in the apartment, the Respondent asked them if they would like to have a drink and among the choices offered were alcoholic beverages, to include beer and bourbon. Respondent recognized that the students were minors and not entitled to consume alcoholic, notwithstanding the fact that both students had previous experiences with alcoholic beverages before this occasion. The conversation between the Respondent and the students was social in nature as opposed to tutoring for school work or counseling. At one point during the visit, the Respondent put his arm around the shoulders of Alice Ann Lee. Alice Ann Lee consumed a number of glasses of bourbon which glass the Respondent continued to fill when the contents would be consumed. Laura Edenfield drank five or six containers of Coors beer. When the students left the apartment, Alice Ann Lee was inebriated and Laura Edenfield, who was driving, had less control of her faculties than when she entered the apartment. The Respondent walked the girls to their car and kissed Alice Ann Lee on her lips. The students returned to the Respondent's apartment on the next day, arriving between eight and nine p.m. and staying until approximately midnight. While at the apartment, the students consumed more alcoholic beverages, namely, beer. In addition, the students had brought marijuana with them to the apartment and offered the Respondent the opportunity to smoke the marijuana with them. The Respondent agreed and the students smoked the marijuana. Again, the nature of the conversation was as stated in discussing the first visit made by the students to the Respondent's apartment. Subsequent to these visits, Alice Ann Lee's mother discovered some of the letters which the Respondent had written her daughter, and in the course of attempting to have her daughter readmitted from a suspension situation, revealed the existence of these letters to the principal of Ft. Caroline Junior High School. This information was imparted in November, 1978. Alice Ann Lee's mother also went on a local television station news program at six p.m. and made comments about her daughter's relationship with the Respondent concerning the letters, etc. A knowledge of the circumstances of the relationship also was gained by students in the school and by faculty members and Alice Ann Lee felt embarrassed by the situation and missed classes as a result of the circumstances; however, Ms. Lee does not feel that the situation affected her overall classroom performance. The Respondent also asked Alice Ann Lee to go to St. Augustine, Florida, with him and the details of this proposed trip are set out in the Petitioner's Exhibit #4, one of the aforementioned notes from the Respondent to Alice Ann Lee. They did not make such a trip. After being confronted with the accusation concerning the letters and the visits by the students to his apartment, the Respondent tendered his resignation to the Duval County School Board without the necessity for further investigation by that body. The Respondent's explanation of this matter, which was offered in the course of the administrative hearing, was to the effect that be had no immoral or inappropriate intentions in his relationship with the students, particularly Alice Ann Lee. He stated that he was attempting to counsel troubled youngsters who had not been reached by other methods of counseling. He also stated that after conferring with members of his family and the faculty, he determined to write the letters in the fashion that he did, hoping to discourage Alice Ann Lee's infatuation by scaring her through proposals which made it appear that he was interested in her romantically. In retrospect, the Respondent indicated that he felt that his approach was wrong and that he did not have the necessary qualifications to undertake counseling directed to these young people.
Recommendation It is recommended that the teaching certificate of the Respondent, Stephen P. Lee, be suspended for a period of two (2) years. DONE AND ENTERED this 5th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Harry B. Mahon, Esquire Mahon, Mahon and Farley 350 East Adams Street Jacksonville, Florida 32202 Dr. Juhan Mixon Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: STEPHEN P. LEE CASE NO. 79-1069 /
Findings Of Fact The Respondent is now and was at all times material to the allegations in the Administrative Complaint, a licensed Registered Nurse in the State of Florida, license number 71601-2. On April 13, 1982, Respondent's Florida nursing license was placed on probation. On April 13, 1982, the Florida State Board of Nursing entered a Final Order placing the Respondent's license on probation for two years, with the following terms and conditions. The licensee shall not violate any applicable federal or state laws, or rules or orders of the Board of Nursing. For the duration of the probationary period, the licensee will report immediately (within seven calendar days) either by telephone or letter to his/her probation supervisor assigned by the Department, and by certified registered mail to the Department of Professional Regulation, Attention Administrator, Office of Investigative Services, 130 North Monroe Street, Tallahassee, Florida 32301, by license number and licensed name, any change in Respondent's residence address; any change in Respondent's employment (including address); and any arrests. If employed as a nurse, the licensee will be responsible for causing reports to be fur- nished by his/her employer to the Board or the probation supervisor, relative to the licensee's performance, and any problems. These reports shall be submitted every 3 months during probation as scheduled by the probation supervisor. The licensee shall not consume alcohol while on duty as a nurse, nor function as a nurse while under the influence of alcohol. The licensee shall obtain/continue counseling with a psychiatrist, psychologist or other recognized drug/alcohol rehabilita- tion program, and shall cause progress reports to be furnished to the Board or probation supervisor every 3 months during treatment as scheduled by the probation supervisor. Any deviation from the requirements of this probation without the prior written consent of the Board or the Department shall constitute a violation of this probation. Upon a finding of probable cause that a violation of this probation has occurred, the licensee's license to practice nursing in this state shall be immediately and automatically suspended pending the licensee's appearance before the next Board meeting, or such subsequent meeting as may be mutually agreed upon between the licensee and the Department. The licensees will be given notice of the hearing and an opportunity to defend. The Petitioner assigned Investigator Gerry Padgett to be Respondent's probation supervisor. During 1982, the Respondent satisfactorily complied with the terms of her probation. During the latter part of January, 1983, Respondent received a letter from the Board of Nursing indicating that she had not complied with the probationary terms. After receipt of the letter, Respondent went to see her probation supervisor, who in turn informed the Board of Nursing that the Respondent was, in fact, in compliance with the probationary terms. At that meeting in late January 1983, between Respondent and her probation supervisor, the latter told Respondent that she would be seeing her in three months. Prior to that meeting, Respondent had made appearances in her probation supervisor's office every three months. The next date which the probation supervisor had scheduled to see Respondent was April 1, 1983. There was no clear evidence adduced to show that the scheduled date of April 1, 1983, was communicated to Respondent, and she denied being told specifically to return on April 1, 1983. However, Respondent acknowledged that she knew that she was to see her probation supervisor sometime during April 1983. For several months prior to April 1983, Respondent had been employed by Indian River Memorial Hospital. The last day that Respondent worked at Indian River Memorial Hospital was April 19, 1983. On April 27, 1983, the Respondent admitted herself to the Heritage Health Corporation, an alcohol treatment program located in Sebastian, Florida, to he treated for alcohol abuse. At that time, according to the Respondent's own testimony, she could not have functioned as a nurse due to alcohol impairment. The program in Heritage Health Corporation was a 30 day in-patient alcoholic rehabilitation program. During the Respondent's stay at the Heritage Health Corporation, her employment with Indian River Memorial Hospital was terminated. The Respondent did not report her change in employment status nor her change in residence or entry into an alcohol rehabilitation program to her probation supervisor as required by the above quoted order of probation. On May 18, 1983, after not having beard from the Respondent, her probation supervisor attempted to locate her, and did in fact locate Respondent at the Heritage Health Corporation facility. At that time, Respondent informed the probation supervisor that her employment with the Indian River Memorial Hospital had been terminated. The meeting between the probation supervisor and Respondent on May 18, 1983, was the last time until the formal bearing in this matter that the Respondent reported any information to her probation supervisor. On or about June 20, 1983, the Respondent moved her residence address from Vero Beach to Sebastian, Florida. Three weeks prior to the formal bearing in this matter, the Respondent moved her residence address from Sebastian, Florida to Orlando, Florida. Neither changes of residence address were forwarded by Respondent to her probation supervisor or to the DPR administrator, as required by the order of probation. However, she reported the move from Vero Beach to Sebastian, Florida directly to the Board of Nursing office in Jacksonville. Respondent never received written consent to deviate from the terms of the order of probation.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent's license as a Registered Nurse be suspended until such time as she demonstrates to the Board of Nursing her fitness to practice nursing. This demonstration should include a psychological or psychiatric evaluation, along with a recommendation from a licensed mental health care professional, that Respondent be reinstated. Upon reinstatement, Respondent should be placed on probation with generally the same terms as her previous probation, along with any other reasonable terms, such as urine or blood screens as appropriate under the circumstances. DONE and ENTERED this 16th day of March, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1984.
The Issue This case concerns the issue of whether Respondents' beverage license should be suspended or revoked or otherwise disciplined for sale of alcoholic beverages to a minor. At the formal hearing, the Petitioner called as witnesses Ervin A. Hooper, Patricia Perkins, Christine Ellis, Paul C. Davis, and John Sokol. Petitioner offered and had admitted into evidence one exhibit. Respondent Richard N. Jiosne testified on behalf of Respondents and Respondents also called John Hanks as a witness. Respondents offered and had admitted two exhibits. Counsel for the Petitioner and counsel for the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact At all times relevant to these proceedings, the Respondents Richard N. and Ann N. Jiosne were the holders of beverage license No. 39-186, Series 2APS. The license is issued to a drive-through beverage establishment located in Brandon, Florida, and known as the Beverage Castle. The licensed premise is a drive-through facility which sells beer, along with other grocery items and sundries. The Beverage Castle is operated by Mr. and Mrs. Jiosne, along with their son and an employee named John Hanks. Late in the afternoon or early evening of July 22, 1983, Patricia Perkins and Christine Ellis drove into the Beverage Castle for the purpose of buying beer. They drove in and stopped and a young boy that appeared to be between 12 and 14 years old came to the car and asked what they wanted. The driver, Patricia Perkins, told him that they wanted a six pack of Michelob beer and he immediately went to a cooler and removed a six pack of Michelob beer and handed it to an older gentleman. The older gentleman then handed the beer to Patricia Perkins and collected her money for the beer. At no time was Patricia Perkins asked for identification. She had not purchased beer at this establishment previously. The young boy was Ritchie Jiosne, the son of Mr. and Mrs. Jiosne, the owners. The older gentleman was John Hanks, the evening manager of the Beverage Castle. On July 22, 1983, Patricia Perkins was 16 years old and her date of birth is December 30, 1966. The passenger in the automobile, Christine Ellis, at the time of the purchase was 17 years old and her date of birth is December 28, 1965. Prior to Patricia Perkins and Christine Ellis entering the Beverage Castle, a deputy of the Hillsborough County Sheriff's Department had had the licensed premises under surveillance. He had observed several cars drive through with individuals who appeared to be young purchasing beer without being required to show identification. The officer also observed the purchase made by Patricia Perkins and Christine Ellis and observed no identification being shown by Patricia Perkins to either of the individuals working at the Beverage Castle that evening. The owners have a policy against selling alcoholic beverages to minors. There is a sign posted next to the register which states: LOOK WE ABSOLUTELY DO NOT, WILL NOT, AND REFUSE TO SERVE ANYONE!, WHO IS ASKED AND DOES NOT HAVE PROPER I.D. HAVE YOUR CARD READY. The employees have been instructed to not serve alcoholic beverages to minors and to check identification. The Beverage Castle has a reputation within the high school students of Brandon, Florida, as a place where minors can buy beer. A prior violation was brought against the Respondents' license within the past year for sale of alcoholic beverages to a minor. That case resulted in recommended dismissal by the Hearing Officer and the Director of the Division of alcoholic Beverages and Tobacco adopted that recommendation and dismissed the case.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding the Respondents guilty of the charge as set forth above and imposing a civil penalty of $150.00. DONE and ORDERED this 8th day of June 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of June 1984. COPIES FURNISHED: Louisa Hargrett, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. Patrick McElroy, Esquire Suite 200 - Rutland Bank Building 1499 Gulf to Bay Boulevard Clearwater, Florida 33515 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary Rutledge, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32301
