The Issue Whether Respondent's license to practice nursing should be disciplined on the grounds that by reason of her use of drugs and alcohol, she is unable to practice nursing with reasonable skill and safety.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: Respondent, Ms. Fischi, a 26-year-old practical nurse, holds License No. 0517521 issued by the Department. Prior to July 29, 1980, she worked as a practical nurse at the Plantation General Hospital, Plantation, Florida. (Testimony of Fischi, Markowitz) On July 29, 1980, she was admitted to the emergency room of Cypress Community Hospital, Pompano Beach, Florida, in a comatose state from a drug and alcohol overdose; she had drunk a pint of vodka and injected herself with a drug known as Talwin. (Testimony of Fischi, Markowitz; P-3) This was the latest incident in a two to three year history of drug and alcohol abuse. She was an alcoholic who began to experiment with drugs which she obtained at Plantation General Hospital. In February, 1980, she was hospitalized for a drug overdose. She had been in and out of drug and alcoholic rehabilitation programs and a participant in Alcoholics Anonymous for over a year. Her abuse of drugs and alcohol rendered her unable to practice nursing with reasonable skill and safety. (P-3) On August 2, 1980, Ms. Fischi was discharged from Cypress Community Hospital with the recommendation that she participate in the Alcoholics Anonymous program. Subsequently, she was admitted to the Coral Ridge Psychiatric Hospital where she continued to receive treatment. When visited by a Department investigator, she candidly admitted to her alcohol and drug abuse but refused to surrender her nursing license stating that she "loved nursing too much." She premised to again participate in Alcoholics Anonymous and vowed to overcome her drug abuse problems. (Testimony of Fischi, Markowitz) She has striven to fulfill her promise. From November 18, 1980, to February 23, 1881, she received rehabilitative treatment as a resident of Bethesda Manor, a halfway home for recovering alcoholics operated by the Catholic Archdiocese of Miami. The Director of Bethesda Manor writes that "During her stay . . . Debbie worked diligently on her treatment tasks, [and] made significant forward movement in implementing behavioral and attitude changes . . . Debbie has maintained ongoing contact with the Bethesda staff and appears to be progressing very satisfactorily in her current modality." (R-2) Since leaving Bethesda, Ms. Fischi has participated in a residential Metro-Dade County alcoholic treatment program at the New Opportunity Home, 777 N.W. 30th Street, Miami. This is a 3/4 way house which offers individual and group therapy. Its counselors write that: "Ms. Fischi attends all therapeutic functions. [She] . . . presently is working on her alcohol and drug addictions and presently seems to be making good progress for herself. I feel her prognosis for recovery is good." (R-1) Ms. Fischi plans to remain at New Opportunity Home for another few months--until approximately August 21, 1981. She believes that by the end of that period, she will be able to fully resume the competent practice of nursing. In the meantime, she plans to continue working at a community blood bank. (Testimony of Fischi) Since July 29, 1980, she has refrained from all use of drugs and alcohol. Given the courage and determination of this woman, it is likely that she can succeed in her struggle to return to the nursing profession. The Department recommends that her license be suspended with provision for reinstatement after four months upon submittal of a health care professional's statement that she is capable of resuming the competent practice of nursing. Ms. Fischi is agreeable to the imposition of this penalty. (Testimony of Fischi, Stipulation of Department and Counsel)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Board of Nursing enter a final order finding Respondent guilty of violating Section 464.018(i)(h), Florida Statutes, and suspending her nursing license with specific provision for reinstatement as described above. DONE and RECOMMENDED this 1st day of May, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 1st day of May, 1981.
The Issue Whether the Respondent, a licensed assisted living facility (ALF), committed the violations alleged in the Administrative Complaint, and, if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing ALFs in Florida. Loving Care is licensed by Petitioner as a 16-bed ALF at 380 Northwest South River Drive, Miami, Florida. Adrian Goett is the principal owner and authorized representative of Loving Care. Adjacent to Loving Care is an independent living facility owned by Mr. Goett and referred to at the formal hearing as 3320 Northwest Seventh Avenue, Miami, Florida (the adjacent facility). The adjacent facility is not licensed as an ALF. A survey of Loving Care in May of 2012 revealed that the facility had 28 residents, which exceeded its licensed capacity by 12 residents. In June and July 2012, four former Loving Care residents moved from that facility to the adjacent facility. A fifth resident moved from Loving Care to an unknown address. Resident 1 was admitted to Loving Care on November 22, 2010, and was discharged from Loving Care on June 4, 2012. Resident 1 moved from Loving Care to the adjacent facility. Resident 2 was admitted to Loving Care on August 18, 2002, and was discharged from Loving Care on June 4, 2012. Resident 2 moved from Loving Care to the adjacent facility. Resident 3 was admitted to Loving Care on July 2, 2010, and was discharged from Loving Care on July 13, 2012. Resident 3 moved from Loving Care to the adjacent facility. Resident 4 was admitted to Loving Care on June 21, 2011, and was discharged from Loving Care on June 4, 2012. Resident 4 moved from Loving Care to the adjacent facility. A Form 1823 (Form 1823) is a health assessment form approved by Petitioner that is completed for each resident of an ALF upon admission and every three years thereafter. The form is also completed if the resident experiences a change of condition. A Form 1823 was completed for Resident 1 on October 25, 2011. That assessment reflected that Resident 1 needed supervision for bathing, dressing, eating, and self-care. The assessment reflected that Resident 1 needed assistance preparing meals, shopping, making telephone calls, handling personal affairs, and taking medication. Resident 1 needed daily oversight in the categories "observing wellbeing," "observing whereabouts," and "reminders for important tasks." A Form 1823 was completed for Resident 2 on June 16, 2011. That assessment reflected that Resident 2 needed supervision and daily reminders for self-care grooming. Resident 2 required supervision with preparing meals, and handling personal and financial affairs. Resident 2 also needed assistance with self-administration of medication. Resident 3 had no records at Loving Care on October 1, 2012, the date of a survey. No records were produced at the formal hearing for Residents 4 and 5. There was no evidence that the respective needs of Resident 1 or 2 changed from the dates of their assessments to the dates of their discharge from Loving Care. After the four former residents of Loving Care moved to the adjacent facility, Loving Care provided those residents cleaning services and food. The adjacent facility charged the former residents rent. There was no evidence that Loving Care or the adjacent facility provided supervision or assistance with the residents’ activities of daily living. There was no evidence as to how those needs were being met. During the survey on October 1, 2012, the surveyors found two locked medication carts in the adjacent facility. The Administrator of Loving Care was summoned to the area and produced a key that unlocked the medication carts. Inside the carts were prescription medicines for Residents 1, 2, and 4. There was no evidence regarding how the medications came to be in the locked medication carts. There was no evidence as to who had keys to the cart, other than Loving Care’s administrator. These medicines were packaged using bingo cards, which is the way medications are typically administered to institutional residents. A bingo card is a sheet, with each dose of medication sealed in a blister package that is punched out when the dose is administered. Mr. Goett testified that all five of the residents cited in the Administrative Complaint lived independently after they were discharged from Loving Care. Mr. Goett denied that the adjacent facility provided any assistance with activities of daily living or any other services to its residents that would require the adjacent facility to become licensed as an ALF.
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 Complaint. DONE AND ENTERED this 4th day of April, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2014. COPIES FURNISHED: Adrian Goett Loving Care Retirement Services, Inc. 380 Northwest South River Drive Miami, Florida 33128 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration Mail Stop 1 2727 Mahan Drive Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment as a caregiver with Dynamic Healthcare Providers, Inc. (“Dynamic Healthcare”), a service provider regulated by Respondent. Since Petitioner applied to be a caregiver, a position of special trust, with Dynamic Healthcare, he is required to undergo a Level 2 background screening. The Department of Children and Families (“Department” or “DCF”) conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a history of involvement with law enforcement, as Petitioner admitted in both the paperwork he filed with the Agency and in his testimony at hearing. On September 27, 1994, Petitioner entered a plea of guilty to cocaine possession, a third-degree felony, and to possession of drug paraphernalia, a first-degree misdemeanor. The cocaine possession conviction is a disqualifying offense for employment in a position of trust. He was ordered to pay court fees and costs, and sentenced to 14 days’ confinement in county jail. In the course of that same arrest, Petitioner also was charged with battery on his pregnant girlfriend, a misdemeanor offense, but that charge was later abandoned. In his response to the Exemption Questionnaire, Petitioner explained the incident as follows: A lady whom I was getting high with on a daily basis and shared my residence with[,] we got into an argument. I refused to share my drugs with her that particular day[.] She then became irate and called the police and told them I assaulted her. I was searched by the officer[s.] [T]hey found a crack pipe on my person with residue. I was charged with cocaine possession[.] At the hearing, when asked if he had another prior arrest for domestic violence, Petitioner admitted he had been arrested previously, and charged with domestic violence in a separate incident, regarding a dispute he had with a previous girlfriend. Petitioner also explained his other previous arrests. Concerning his January 22, 1995, arrest for cocaine possession, a third-degree felony, Petitioner explained in his Exemption Questionnaire: While standing on the corner in the Miami Over Town area[,] I was suddenly approached by [a] Miami Dade Police Officer. I was in possession [of] what appeared to be crack cocaine. I was arrested and charged with possession. No action was taken because it was not cocaine. It gave the appearance of an illegal substance. Concerning his March 31, 1995, arrest for cocaine possession, a third-degree felony, Petitioner explained in his Exemption Questionnaire: While traveling south on Biscayne Blvd and NW 69[th] Street[,] I was involved in an accident[.] I had a crack pipe and approximately two crack rocks in the vehicle. A search was conducted by Miami Dade Police, I was subsequently charged with possession and DWLS [;] no action was taken. Concerning his April 24, 1998, arrest for driving while license suspended/habitual offender, a felony, Petitioner explained in the Exemption Questionnaire: I was driving a young lady home who was feeling ill at the time. I was pulled over at a DUI check point on 175st [sic] NW 27th Avenue in Miami Gardens. My license was suspended during that time[.] [C]onsequently; [sic] I was arrested for DWLS and for a bench warrant[.] I really cannot remember what it was for. Eventually; [sic] I got my licenses [sic] reinstated. Concerning his May 29, 2008, arrest for failure to appear [capias] regarding a traffic offense, Petitioner explained in his Exemption Questionnaire: I was pulled over by Miramar police while going to the store. The officer informed me that there was an outstanding bench warrant for failing to appear. The charge was DWLS which was a 22 year old case. The charges [sic] was eventually dropped [;] case was dismissed. Petitioner also was questioned concerning a June 13, 1992, charge of homicide-willful kill with a weapon, which the Agency had originally listed as a disqualifying offense to employment in a position of trust. In an addendum to his Exemption Questionnaire, Petitioner explained: A guy I was hanging out with got into an argument with another individual, [sic] he produced a firearm. Consequently; [sic] he shot the guy in the leg and the guy feel [sic] to the ground. The shooter then pointed the gun at the guy’s head in an attempt to shot [sic] him in the head area. I then grabbed the shooter to stop him from shooting the other guy in the head. We then left the area in the shooter’s car. Metro Dade Police gave chase, the gun was thrown out the car [sic] consequently, the shooter pulled over. We were both taken into custody. The charged [sic] was eventually dropped down to a misdemeanor. The Agency reviewed all of Petitioner’s criminal records and determined that his 1992 charge of homicide-willful kill with a weapon had been reduced to accessory after the fact, a misdemeanor, for which adjudication of guilt was withheld on June 13, 1992. The Agency did not consider this conviction to be a disqualifying offense, but did consider it in the totality of the evidence it reviewed concerning Petitioner’s exemption from disqualification. Mr. Gerry Driscoll, the regional operations manager for the Agency’s Southeast Region, credibly testified that the Agency has a significant responsibility to a vulnerable population, many of whom lack competency, and are unable to communicate to others any negative or improper actions carried out by their caregivers. These individuals are often solely dependent on their caregivers, and are thus susceptible to exploitation. Mr. Driscoll noted that the Agency considers any prior criminal conduct involving violence or aggression with particular care when exercising its authority and discretion to grant exemptions for employment in positions of trust. In his written submission to the Agency, Petitioner did not specifically admit to causing any harm or injury to any victim. However, at the hearing, he admitted that he had caused injury to others with whom he associated during his period of addiction, especially his family, girlfriends, and children. Academically, Petitioner has accomplished a great deal. He has received the following post-secondary school degrees: an associate of arts degree from Miami Dade College (2010), a bachelor degree in Liberal Studies from Barry University (2013), and a masters in Social Work (“MSW”) (2016) from Barry University. He has been a lifetime member of the Delta Epsilon Iota Academic Honor Society since 2013. Petitioner’s résumé demonstrates an uninterrupted work history since 1997, with experience in the fields of social services, mental health, and substance abuse counseling, primarily involving individuals with mental illness and substance addictions. He was most recently employed with Dynamic Healthcare and has been providing substance abuse counseling and support to non-Agency clients with addiction issues. Petitioner submitted letters of reference and recommendations from: his current employer, Samuel E. Kelly, director of Dynamic Healthcare; Justice for Life, a psycho- education provider for the Misdemeanor Drug Court Program in Broward County; Better Way of Miami, Inc., an inpatient facility for drug and alcohol addiction; and Overtown Youth Center and John F. King, Attorney at Law, from 2008. Petitioner submitted additional training certificates that were considered by the Agency, including: The McShin Foundation Leadership Training Institute Peer Addiction Recovery Training; The Broward House HIV/AIDS Continuing Education (2014); HIPAA Basics Training (2013); Aggressive Control Training (2014); and Ethics Training (2014). Mr. Driscoll testified that the Agency also considered the following exemptions previously granted to Petitioner by other agencies: an employment waiver granted by DCF on October 10, 2008, to work with adults in mental health and substance abuse; an exemption from disqualification from employment under section 435.07, Florida Statutes, granted by the Agency for Health Care Administration on January 23, 2015; and another more recent exemption from DCF granted on April 29, 2016. At the hearing, Petitioner admitted he had suffered a “22-year addiction to a controlled substance.” He started drinking alcohol at age ten, and ended with crack cocaine. He received substance abuse counseling from two different providers: Better Way of Miami in 1995-1996, and Spectrum Programs in 2002- 2003. Moreover, he offered credible testimony that he has been clean from this addiction for 20 years and attends regular meetings of Narcotics Anonymous (“N.A.”) or Alcoholics Anonymous (“A.A.”) to this day. Mr. Driscoll’s position was that, despite there being some evidence of rehabilitation submitted with the Application for Exemption, and the subsequent request for hearing, and even the sincere testimony given by Petitioner at hearing concerning his addiction, this did not amount to sufficient evidence for him to recommend an exemption from disqualification. When considering all the evidence in its totality, he testified, the Agency did not conclude Petitioner had met his burden by the standard of clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Petitioner’s Application for Exemption from Disqualification. DONE AND ENTERED this 1st day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2017. COPIES FURNISHED: Curtis A. Jackson 2860 Northwest 187th Street Miami Gardens, Florida 33056-3131 Llamilys Maria Bello, Esquire Agency for Persons with Disabilities 201 West Broward Boulevard, Suite 305 Fort Lauderdale, Florida 33301 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact Based upon the evidence adduced at hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: Respondent and the Mermaid Bar Respondent, whose sole corporate officer and shareholder is Robert Simone, holds alcoholic beverage license number 60-00429, Series 4-COP issued by the Department. The licensed premises is the Mermaid Bar (hereinafter referred to as the "Mermaid"), a bar located in Palm Beach County that, like a handful of others in the County, offers adult entertainment featuring female dancers wearing little or no clothing. Operation and Management of the Mermaid James Galbraith manages the Mermaid pursuant to a verbal agreement that he has with Simone. Simone nonetheless plays an active role in the day-to-day operation of the bar and pays regular visits to the establishment, usually in the daytime during the morning hours, to check on things. Among the managerial responsibilities that Simone has delegated to Galbraith is authority over personnel matters, including the hiring, disciplining and firing of the barmaids and dancers who work at the bar. Galbraith exercised such authority when, with input from Simone, he drafted the following written "[r]ules for conduct of dancers" (hereinafter referred to as the "Rules"): Anyone dancing on stage [is] not allowed to show any pubic area. Anyone doing so will be dismissed. Anyone dancing on floor must wear cover up at all times. All girls are to work a minimum of 4 days. No girls are to solicit for anything (drinks, etc.). No girls are to take phone numbers or give out phone numbers. Private dances are $5.00 or $10.00 contribution. 2/ No bumping or grinding, no letting customers grab breast or pubic area. No touching of customers. You will be called down one time. If you have to be called down twice, you will be dismissed. If you have a problem with a customer, stop dancing and get a bouncer. Do not try to handle it yourself. Each dancer receives a copy of the Rules upon being hired. In addition, a copy is posted in the dancers' dressing room. When he is present at the bar, Galbraith is responsible for monitoring the activities taking place on the premises and maintaining order. He relies on the barmaids to assist him in keeping an eye on the dancers. Prior Disciplinary Action In November of 1992, the Department's predecessor, the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter referred to as "DBR"), served on Respondent a Notice to Show Cause that contained the following allegations: On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: LESSIE MAE STRANGE AKA LESSIE MAE COLLIGAN, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBRAH BACON, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: DEBBIE ANN SEIWELL, while on your licensed premises, did unlawfully commit or engage in lewdness by dancing in a topless state for Special Agent STOOPS and Sgt. HOOPER, rubbing her breasts across the Agent's face and body and forcefully rubbing her crotch area against the Agent's groin, simulating sexual intercourse, in exchange for U.S. Currency, contrary to Section 796.07(3)(a), F.S., within Section 561.29., F.S. On or about August 20, 1992, you, MERMAID BAR, INC., a vendor licensed under the beverage laws of the State of Florida, through you, your agents, servants, employees or entertainers, to wit: BARBARA GENE PORTER, the Manager/Person in Charge, did maintain a place for lewdness, by allowing female dancers to rub their exposed breasts across the faces and bodies of Special Agents STOOPS and Sgt. HOOPER and by allowing the female dancers to forcefully rub their buttocks and crotch areas into the groin areas of Special Agents STOOPS and Sgt. HOOPER, simulating sexual intercourse, a violation of Section 796.07(2)(a), F.S., within Section 561.29, F.S. These activities in which the dancers allegedly engaged with Stoops and Hooper are commonly referred to, in adult entertainment establishments, as "lap dances." On May 28, 1993, Simone signed a consent agreement acknowledging the violations alleged in the Notice to Show Cause and agreeing to pay a fine of $2,000.00 to settle the matter. DBR accepted and signed the agreement on July 6, 1993. The April 7, 1993, Undercover Operation On April 7, 1993, the Department conducted an undercover operation at the Mermaid in which Special Agent Johnnie Wilson participated. While Wilson was at the bar, he observed from his vantage point a female dancer whose stage name was "Kellie," as well as five or six other female dancers, in exchange for money, perform "lap dances" with patrons of the establishment. 3/ Galbraith and a barmaid were on the premises at the time and neither took any action to try to stop "Kellie" and the other dancers from "lap dancing." No arrests were made as a result of this April 7, 1993, undercover operation. The May 6, 1993, Undercover Operation Special Agent Stoops went to the Mermaid the afternoon of May 6, 1993, as part a follow-up undercover operation conducted by the Department. After he had been there for approximately 15 to 20 minutes, he was approached by one of the dancers working at the establishment that afternoon, Lucia Maria Campos. Campos asked Stoops if he wanted a "lap dance." Stoops responded in the affirmative. Campos thereupon removed her top (but not her bottoms) and proceeded to "lap dance" with a fully clothed Stoops. During the "lap dance," Campos rubbed her breasts against Stoops' chest and grinded her groin and buttocks in the area of his crotch in a provocative manner. Stoops paid Campos for the "lap dance." Stoops observed Campos "lap dance" with another patron during his visit to the Mermaid that afternoon. Although Campos performed her "lap dances" openly, in plain view, neither the barmaid on duty nor anyone else on the premises expressed any disapproval of Campos' actions. The May 12, 1993, Undercover Operation On May 12, 1993, at around 10:00 or 11:00 p.m., three detectives from the Palm Beach County Sheriff's Office working undercover, Jeffrey Andrews, Kevin O'Brien and Ted Smith, entered the Mermaid. The purpose of their visit was to determine if any of the dancers working at the establishment were engaging in lewd behavior. After entering the Mermaid, Andrews and O'Brien sat down next to each other at a table in front of the stage on which the dancers performed. Smith took a seat near the bar. While Andrews was seated at the table, Kerren Flores, a dancer who was working at the Mermaid that evening, came up to him and asked him if he wanted a "lap dance" for $10.00. Flores was wearing a bikini top and G-string bottom. After Andrews accepted her offer, she took off her top. Standing approximately two feet in front of Andrews, she began fondling her breasts with her hands and manipulating, and then licking, her nipples. Next, she leaned over and rubbed her bare breasts against the lower portion of Andrews' face. She then turned around, sat down on Andrews' lap and started to simulate sexual intercourse by grinding her buttocks into his groin area. The "lap dance" lasted the length of one song that was being played by the DJ over the bar's sound system. After it was over, Andrews' paid Flores the $10.00 she had requested for the "dance." Another dancer working at the Mermaid that evening was Laura Chapman. While performing on stage, she removed all of her clothing, fondled and licked her bare breasts and suggestively stroked her vaginal area. After finishing her performance on stage and putting back on her bikini top and G-string bottom, Chapman approached Andrews and inquired if he was interested in a "lap dance." Andrews said he was and, at Chapman's request, the two moved to a different table. Chapman then proceeded to remove her bikini top and performed a "lap dance" with Andrews which was virtually identical to the one Flores had performed with him earlier that evening. Andrews paid Chapman the $10.00 she had asked for to perform the "lap dance." Andrews' colleague, O'Brien, was also propositioned during the undercover operation that evening by one of the bar's dancers. Maija Liisa Cardinaux was the dancer who propositioned him. She was also helping serve drinks that evening. Cardinaux walked up to O'Brien and asked him if he wanted to order a drink. At the same time, she inquired if he wanted a "lap dance." O'Brien expressed an interest in the latter. Cardinaux led O'Brien to another area of the bar and had him sit down on a bar stool. After O'Brien was seated, Cardinaux placed her hands on his shoulders and told him to relax. Cardinaux, who was wearing a bikini top and bottom, then took off her top and started to fondle her breasts and lick her nipples while standing in front of O'Brien. Next, she put her arms around O'Brien and pulled his head into her breasts. She then let go of O'Brien, turned around, sat down on his lap and began to vigorously rub her buttocks and groin area against his crotch. These bumping and grinding movements simulating sexual intercourse lasted approximately one to one and a half minutes. Two other dancers working at the Mermaid that evening during the undercover operation, Angela Ratliffe King and Lisa Berling, gave sexually suggestive performances that were patently offensive, that lacked any serious artistic value and that the average person, applying contemporary community 4/ standards, would find, taken as a whole, appealed to prurient interests. King was initially dressed in a black bra and panties. During the first song that she danced to on stage, she took off her top and started to fondle her breasts. She thereupon turned her back to the audience, slapped and rubbed her buttocks, and began to fondle and stroke her vaginal area. During the second song, she removed her panties and exposed her vaginal area to the audience. She then turned around and, with her back to the audience and her legs a little more than shoulder width apart, bent over, put her arms between her legs and started to pull her buttocks apart, further exposing her vaginal area to the audience. Still bent over with her back to the audience, she began to stroke her vaginal area with her fingers as if she was masturbating. Lisa Berling gave a similar performance, except that, unlike King, she was completely nude throughout her performance and, although she started out on the stage, she concluded her performance on the counter of the bar, within an arm's length of where one of the undercover detectives, Ted Smith, was seated, along with other patrons. Galbraith's wife, Ann Galbraith, was tending bar at the time of Berling's performance and she commented to Smith about the performance upon its conclusion. From her vantage point, Ms. Galbraith was able to see most of the public area of the establishment. Her husband was in the back of the establishment near the DJ booth during most of the approximately one and a half hours that Detectives Andrews, O'Brien and Smith were in the Mermaid. At no time during the detectives' undercover operation did Galbraith, his wife, or anyone else that had been hired to work at the Mermaid do anything to discourage or stop the frequent "lap dancing" or the performances of King and Berling, notwithstanding that these activities were in violation of the Rules that Galbraith had given to each dancer and posted in the dancers' dressing room. Arrests were made as a result of the detectives' May 12, 1993, undercover operation. The action taken by the Palm Beach County Sheriff's Office in the instant case is no different than what it has done in similar cases involving other adult entertainment establishments where there is "lap dancing" or similar activity taking place. Respondent's Liability Although Simone may not have been present on the premises during either the April 7, 1993, May 6, 1993, or May 12, 1993, undercover operations, given the persistent and repeated instances of "lap dancing" and other flagrant acts of indecency engaged in by the dancers working at the Mermaid, the inference is made that Simone either fostered, condoned, or negligently overlooked these acts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department enter a final order finding Respondent liable for the violations alleged in the amended Administrative Action and penalizing Respondent therefor by revoking its alcoholic beverage license, license number 60-00429, Series 4-COP. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of January, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1994.
The Issue Whether Respondent should be dismissed from his employment as an instructor at Chipola Junior College for alleged misconduct in office, incompetency, willful neglect of duties, and drunkenness, as set forth in the Complaint Recommending Dismissal, dated July 31, 1981. This proceeding commenced with the issuance of a Complaint Recommending Dismissal by the Interim President of Chipola Junior College alleging that Respondent James T. Sims, an instructor, should he dismissed for misconduct in office, incompetency, willful neglect of duty, and drunkenness. Respondent filed a petition for formal hearing pursuant to Section 120.57(1), Florida Statutes, on August 13, 1981. The matter thereafter was referred to this Division for the appointment of a Hearing Officer. At the hearing, Petitioner presented the testimony of Dr. Richard E. Morley, Interim President of Chipola Junior College; Dean James A. Lewis, Dean of Academic Studies; and Alice J. Story, Chairman of the Division of Natural Science and Mathematics. Respondent testified in his own behalf, and submitted the testimony of Dr. Jack Golden, Director of the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida. Four exhibits were received into evidence. The memorandum brief of Petitioner, and Respondent's memorandum have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in fact or law.
Findings Of Fact Respondent James T. Sims has been an instructor at Chipola Junior College, Marianna, Florida, since 1959. In 1962, he entered into a continuing contract with the Beard of Public Instruction of Jackson County, Florida to continue in the capacity of a teacher at the college. At some undisclosed date, responsibility for the college became vested in a Board of Trustees at which time existing continuing contracts with the county Board of Public Instruction were apparently honored by the Board of Trustees without execution of new contracts. (Testimony of Respondent, Morley, Exhibit 1) Respondent's personnel file reflects that he was the subject of a number of memoranda from his supervisors commencing in 1975, concerning late or non-attendance of faculty meetings, early dismissal of classes, award of high grades to students who did not attend class, and unexcused absences. A "confidential" letter from Joiner Sims, Chairman, Division of Natural Science and Mathematics at the college, to Respondent, dated October 17, 1977, expressed concern over a "serious personal problem" that Respondent had had for several years which Sims had offered to help him solve, but stated that if he were found under the influence of alcohol on campus in the future, he would recommend Respondent's dismissal or return to annual contract. A memorandum from Chairman Joiner Sims to Respondent in March, 1978, recited that Respondent had been absent from classes on two occasions during the semester without advance notification. In September, 1979, President Raymond M. Deming met with Respondent, Dean of Academic Studies James A. Lewis, and Miss Josephine Story, then Chairman of the Division of Natural Science and Mathematics. A memorandum in Respondent's personnel file, dated September 10, 1979, of President Deming, reflects that during this conference Dean Lewis advised Respondent to quit drinking with the assistance of medicine, and that Respondent acknowledged that he liked to drink and had done quite a bit of drinking, but denied doing so on the college campus. The college officials offered to do anything they could to aid Respondent and he expressed appreciation for their consideration. (Testimony of Lewis, Story, Exhibit 1) A further memorandum from Dean Lewis to Miss Story on November 19, 1979, reviewed his concern about complaints from members of the community about Respondent's behavior off campus and his lessened effectiveness as an instructor over the past several months as a result of his "alcoholic problem," such as dismissing class early and absences from his office during office hours. By the memorandum, Dean Lewis requested that Miss Story direct Respondent to meet assigned classes for the full period, observe posted office hours, adhere to college rules, and insure that he understood that an immediate and permanent change in his performance was expected. Accordingly, by memorandum of November 20, 1979 to Respondent, Miss Story reviewed student complaints she had received concerning Respondent's late arrival at classes, assigning problems with little or no explanation, dismissing classes early, and coming to school sometimes smelling of alcohol. Miss Story had frequently failed to find Respondent in his office during office hours and she also noted this in her memorandum. The memorandum therefore directed Respondent specifically to cure the stated deficiencies. The memorandum had been preceded by a conference with Respondent on November 19th at which time Miss Story had reviewed Respondent's shortcomings, offered suggestions for improvement, and told him that if he found it impossible to abide by the conditions she had stated in her memorandum of November 20th, she would recommend that he be given the option of taking a semester's leave of absence to seek professional help. At the conference, Respondent assured her that he would take appropriate action to prevent further complaints. (Testimony of Story, Exhibit 1) Respondent's personnel file reflects that the President of the college Student Government Association wrote to President Deming on November 29, 1979, stating that Respondent had come to class several times unable to properly teach because of his "current problem of alcoholism" which prevented him from doing his job, that it was common knowledge to the students and faculty that he had a severe alcohol problem, and that his reputation would hurt the college greatly. In a letter to Miss Story dated December 12, 1979, Respondent denied the allegations. (Exhibit 1) In a letter dated December 17, 1979, President Deming informed Respondent that his image at the college and in the community should be a subject of great concern and that it may become necessary to request that Respondent submit himself to a physical examination if deemed necessary, and that if he ever came on the campus under the influence of alcohol he would be removed from the classroom and "immediate action would be taken." In another memorandum from Miss Story to Respondent dated June 3, 1980, she noted that although he had made a real effort toward improvement during the spring semester she had observed that several of his summer session classes had been dismissed before the end of the period, and cautioned him about maintaining class schedules. She explained the contents of her memorandum to Respondent in a conference on June 23rd and confirmed this with a memorandum dated June 25, 1980. In a further memorandum dated July 1, 1980, Dean Lewis reviewed past memoranda concerning Respondent that were contained in the latter's personnel file, and noted that "a pattern has developed that appears to be growing progressively worse." (Testimony of Story, Lewis, Exhibit 1) On March 31, 1981, Dean Lewis went to talk with Respondent during scheduled office hours but found that he had dismissed a class early and had not returned to his office. After searching around the campus, Lewis went to Respondent's home and, after no one answered his knocks at the door, went inside fearing that Respondent might be ill. He found Respondent watching television with a drink of some kind in his hand. Respondent told Lewis that he had gone home to take his medicine. Based on this incident, Dean Lewis sent a memorandum to President Deming with a copy to Respondent recommending that Respondent be given the opportunity to take off both 1981 summer sessions and the fall semester to seek professional help "with his problems" and that if he did not elect to do so, that either dismissal or some lesser action be taken against him. President Deming reprimanded Respondent in a letter dated April 10, 1981, wherein he again reviewed Respondent's past actions as reflected in memoranda in his file, restated the requirements that had previously been placed upon him as to his conduct, and stated that even one deviation from any of those directives would result in an immediate suspension and recommendation of dismissal. Respondent, by letter to President Deming, dated April 23rd defended his actions on March 31 by stating that he had been ill and attached copies of prescriptions for medicine issued on March 24 and 26 for throat pain. He claimed that he was only drinking a glass of water when Dean Lewis arrived at his home, and that his only dereliction was in failing to notify anyone that he was leaving the campus. (Testimony of Lewis, Exhibit 1) In another incident that occurred on June 15, 1981, during registration for the summer session, at which time Respondent was supposed to be counselling students, Dean Lewis observed that Respondent could not walk straight and did not appear rational. He appeared to be either sick or under the influence of alcohol, but Lewis could not smell anything on his breath. He felt that Respondent was in no condition to counsel students and carry out his duties. (Testimony of Lewis, Exhibit 1) On July 27, Miss Story recommended to Dean Lewis that Respondent be relieved of his teaching duties, and Lewis recommended to Dr. Morley, the Interim President, that Respondent be removed as a member of the faculty. Interim President Morley thereafter had a conference with Respondent at which he gave him the opportunity to resign or face dismissal action. Respondent declined to resign, and the Complaint Recommending Dismissal was issued by Morley on July 31, 1981. (Testimony of Morley, Lewis, Story, Exhibit 1) Miss Story and Respondent have philosophical differences regarding grading practices. Respondent uniformly gave high grades to his students and Miss Story felt that this was not in keeping with standard college practices. Respondent consistently received satisfactory evaluations of his performance regardless of his deficiencies, and both Dean Lewis and Miss Story justified this as an effort to encourage him to improve his performance. Neither questioned his knowledge of subject matter or teaching ability, but are of the opinion that his cumulative record establishes that his instructional ability has been impaired and he is a detriment to the institution. (Testimony of Lewis, Story, Exhibit 1) Respondent received treatment in the Alcoholism Treatment Program at Capital Medical Center, Tallahassee, Florida, in late August, 1981, for the program period of 28 days. The program involves psychotherapy which assists one suffering from the disease of alcoholism to regain his "self-concept," and learn about the addiction process and the person's own value and belief system. After the inpatient phase, the individual becomes involved in an aftercare program which includes a weekly meeting with counselors at the Medical Center, participation in Alcoholics Anonymous, and regular use of "Antabuse" to prevent lapses from abstention. A year is the normal recovery period. Since his discharge from Capital Medical Center in September, 1981, Respondent has been involved with the aftercare program. He has missed several of the meetings and on at least one occasion failed to take his Antabuse, became intoxicated, and was arrested for driving under the influence of alcohol in Marianna on October 21, 1981. Dr. Jack Golden, the Director of the Alcoholism Treatment Program, finds that it is not unusual for someone in Respondent's situation to not follow up completely with the aftercare treatment, or to experience at least one period of drinking during the first year of recovery. About 95 percent of his cases, including that of Respondent, involve the "denial process" for varying periods in which the individual cannot make sound judgments and refuses to recognize that he has a problem with alcohol. The disease, which has been recognized as treatable, is biological in nature in which the chemical system of a patient reacts differently to the drug of alcohol than does that of normal individuals. In most cases, persons will not seek assistance unless some crisis arises, or they are placed under coercion of some sort. In Respondent's case, the fact that he was being considered for dismissal prompted him to seek assistance. The treatment program has been experiencing about a 90 percent success rate if an individual remains in the program for one year with a six-months follow-up period thereafter. Although public intoxication has been decriminalized and alcoholism primarily placed in the health care system, it does not serve as an excuse for criminal activities. A state policy adopted in 1973 applicable to Career Service employees provides for termination of employment of persons suffering from alcoholism only if they refuse to seek treatment. (Testimony of Golden, Respondent) Respondent conceded at the hearing that he is an alcoholic and that he had committed himself to treatment which has benefited him to the point where he believes he can resume his normal career after successful completion of the treatment program. He admitted that he had dismissed classes early at various times and failed to keep proper office hours. However, he denied that he had ever been under the influence of alcohol while on the college campus and, in fact, had not consumed any alcohol for approximately six (6) months prior to the filing of the instant charges against him. He admitted that there was truth to the various other complaints that had been made against him over the years, but that some had been exaggerated to some extent. He did not take any initiative to reguest a leave of absence to seek treatment during the lengthy period because he was in what had been described as the "denial stage" of alcoholism. He produced a doctor's statement to the effect that he had had episodes of acute syncope, bradycardia, hypertension, cardiac arrhythmia, and fluid retention. The statement reflected that his "intermittent confusion, unstable gait and extreme weakness at times have probably been directly related to his electrolyte imbalance." Respondent also submitted a number of letters from various individuals, including students, attesting to his excellence as a mathematics instructor and to their lack of knowledge as to any problems with alcohol while on campus. (Testimony of Respondent, Exhibit 3, Composite Exhibit 4)
Recommendation That the Board of Trustees of Chipola Junior College dismiss Respondent, James T. Sims, from his employment as an instructor for incompetency and willful neglect of duty pursuant to Rule 6A-14.411(6), Florida Administrative Code. DONE and ENTERED this 29th day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1981. COPIES FURNISHED: Richard Wayne Grant, Esquire 209 North Jefferson Street Post Office Box 209 Marianna, Florida 32446 Philip J. Padovano, Esquire Post Office Box 872 Tallahassee, Florida 32302 John E. Roberts, Esquire Post Office Box 854 Marianna, Florida 32446
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Pure Fresh Enterprises, Inc., held a 2COP alcoholic beverage license number 16- 00843 for its establishment trading as the Ponderosa Pub (Pub) located at 2546 SW 15th Avenue, Fort Lauderdale, Florida. Herbert Fisher is President of the Corporation; Keith Fisher Vice-President and Treasurer, and Marilyn Fisher, Secretary. All licenses were in effect at all times outlined in the Notice to Show Cause. In early January, 1987, during the course of an ongoing investigation of narcotics in bars throughout Broward County, LEI James W. DeLoach, who at the time, along with LEIs Warner and Hurlbert, was acting under cover in furtherance of this investigation, was discussing the availability of narcotics with the manager of a bar next door to the Respondent facility. During the course of that conversation, Mr. DeLoach was advised that narcotics could be purchased at the Pub. As a result of this information, it was decided to include the Ponderosa Pub within the scope of the investigation. Therefore, on January 10, 1987, at approximately 4:30 p.m., Mr. DeLoach, in the undercover disguise of a biker, entered the Pub as a patron. The facility is a very small bar enclosing about 600 square feet of space with an L-shaped bar over which drinks and food are served, approximately 20 bar stools, and a pool table. There are no tables and chairs for patrons. The lighting is somewhat dim, coming primarily from a hanging fixture over the pool table and various lighted advertising signs on the walls behind the bar, but is sufficient to permit sight across the room. There is a restroom for men and women each and various other fixtures and shelving around the outer walls. A bulletin board is on one wall which, at all times pertinent to this investigation, had posted on it a newspaper cartoon of the Statute of Liberty "snorting" cocaine, in addition to various other notices On this first visit, Mr. DeLoach was approached by a patron of the bar, a large 6'6" individual weighing between 300 and 330 pounds, with tattoos on his arms and left cheek, who was known as "Grizzly" or "Bear", who asked DeLoach, accompanied at the time by LEI Hurlburt, if they did "zip." Zip is a street name for amphetamines. When DeLoach responded that they did, Grizzly indicated he was the one to see to get it. This conversation took place just inside the front door near the juke box and was overheard by Hurlburt. Shortly thereafter, DeLoach ordered a small amount of speed (also a street term for methamphetamines) from Grizzly. This conversation was held at the bar which is approximately three to four feet from the juke box. At all times during the conversation leading up to the purchase, a young white female employee, subsequently identified as Patty, was working behind the bar serving beer and food and making change. No other employee appeared to be present. During this first visit, DeLoach was also approached by other patrons. One, an individual identified as Tom, came in to meet with Grizzly. When he came in, Tom had a white powdery substance on both hands and handed a packet of white powder to Grizzly. This transfer was conducted out in the open near the bar with Patty present and no effort was made to conceal it. When DeLoach told Grizzly he would like to purchase a small amount of zip, Grizzly got him a small package of a similar white powder for which DeLoach paid him $20.00. This transfer took place right next to the juke box. The white powder was subsequently analyzed at the Broward County Sheriff's Office laboratory and was determined not to contain any controlled substance. By the same token, no significance is given the report of the white powder on Tom's hands which could have as easily been chalk or talcum from the pool table as anything of a proscribed or sinister nature. DeLoach and Hurlburt came back to the Pub at approximately 6:30 p.m. on January 12, 1987 and again talked with Grizzly at the bar near the juke box. On this occasion, DeLoach said that he liked the stuff he had purchased previously from Grizzly and wanted to buy more. At this point Grizzly agreed and said he could get it representing the substance as amphetamine. A Latin female, subsequently identified as Marie, was on duty behind the bar on that occasion. The conversation between DeLoach and Grizzly was conducted in a normal tone of voice. When Grizzly came back shortly thereafter with the substance, DeLoach gave him $20.00 in exchange for a small plastic bag of white powder. This exchange took place out in the open by the bar with Marie present. After taking possession of the substance, DeLoach pretended to lose it (in reality he placed it in his wallet). At this point, Grizzly and another patron loudly tried to help him find his "shit" (another street name for methamphetamine). At all times, Marie was behind the bar and came ever to see what the commotion was about. On several occasions thereafter, she joked with DeLoach about losing his drugs. On this same date, after the drug "loss", Hurlburt approached Grizzly about buying some drugs and Grizzly, who said he would no longer sell to DeLoach because DeLoach had lost his prior purchase, agreed to sell to Hurlburt. During this discussion, Hurlburt also told Grizzly he wanted to buy some marijuana and Grizzly indicated that substance would cost $35.00 per bag. Consistent with this discussion, Grizzly gave Hurlburt one small marijuana cigarette to "test the quality." Both these conversations and the transfer took place at the bar with no attempt being made to conceal the transaction. Subsequent testing of the substances received by both DeLoach and Hurlburt on January 12, 1987 revealed that the white powder was not a controlled substance but the small sample cigarette contained marijuana. The following day, January 13, 1987, at approximately 4:00 p.m., DeLoach and Hurlburt went back to the Pub and sat at the end of the bar near the juke box as usual. Several patrons were present, including Grizzly, and all talked with him about the various types of drugs on the market. During the conversation, Grizzly spoke on the phone to an individual identified as Mike and in a loud voice, told him to bring the "shit" on down. DeLoach contends that Mrs. Fisher, one of the licensees, was either on the premises during this conversation or came in right after it. As usual, she came in the door and went right to the cash register to check on the sales and count money. According to DeLoach, either Mrs. or Mr. Fisher were present in the facility on a regular basis. DeLoach recognized Mrs. Fisher as the licensee and was able to identify her at the hearing. During this afternoon in question, at one point Grizzly held up a plastic bag of white powder while standing at the bar. When DeLoach approached him, Grizzly indicated he would not sell to DeLoach because if he did, he'd just lose it again. This comment was made in a voice loud enough to be heard by others in the bar. During this conversation, Hurlburt came up and joined in the joking as to who would be able to get the substance. Grizzly finally sold it to DeLoach who put it in his wallet in a match book saying that he'd now know where it was. While this was going on, DeLoach noticed that all other patrons in the bar were watching. Patty was also present during the conversation during which the substance was referred to variously as "shit", "zip", speed", and "crank", all street terms for methamphetamines. A short time later, after the phone call referenced above, an individual subsequently identified as bike showed up at the Pub and gave Hurlburt a Marlborough cigarette pack which, when opened, was found to contain a plastic baggie of what appeared to be marijuana which Hurlburt held up for DeLoach to see. The vegetable substance was subsequently identified as marijuana but the white powder transferred by Grizzly did not contain a controlled substance. At approximately 9:30 p.m. on January 15, 1987, DeLoach again went into the Pub where he again saw Grizzly. He advised Grizzly that he "as leaving town and wanted to double purchase." This conversation took place at the bar in a normal tone of voice with other patrons present. A bartender was on duty but DeLoach cannot remember who it was. Grizzly later made delivery at the bar when he produced a tin container with the substance inside. At the time, he stated he had doubled up the dose and had put in an additional spoonful as a present. This transfer also took place at the bar in a normal tone of voice and DeLoach paid Grizzly $50.00 for the substance. Upon analysis, however, the substance was determined not to contain any controlled substance. After this, DeLoach did not reenter the Pub until approximately 8:00 p.m. on February 3, 1987. On this occasion, he had a conversation with the bartender, Cathy, asking her where Grizzly was. In response, she stated that Grizzly had made up a bad batch of crank which had caused injury to a user and had left. Cathy, of course, denies that this conversation ever took place. DeLoach again returned to the licensed premises on February 4, 1987, at 7:00 p.m. Marie was on duty as bartender at that time. On this occasion, he asked one of the patrons, (Denise) if she could find any drugs. Though she went to other patrons within the bar, she was unable to get anything and DeLoach left at approximately 8:00 p.m. returning at 11 while Marie was still working. No other employee appeared to be on the premises on either occasion. This time, DeLoach had both Warner and Hurlburt with him. Marie approached them and offered to sell them some marijuana that she had. When they agreed, she went behind the bar and came back to give DeLoach a small baggie of suspected marijuana. By this time, it was after midnight and February 5, 1987. No effort was made by Marie to conceal the sale which was done out in the open. When DeLoach asked her how much she wanted for the substance, she indicated $55.00 which was paid by Hurlburt later on in the evening from pooled money gathered from all three agents. This substance was subsequently analyzed and determined to contain marijuana. That same day, Marie told DeLoach that her "old man had eight pounds of marijuana and quaaludes for sale." While this conversation was going on, another patron came up and indicated that the stuff he had bought was good. When the three agents came back to the bar at 6:00 p.m. that evening and asked Marie if she had any marijuana, Marie replied she was unable to get any. DeLoach went back to the Pub with Warner and Hurlburt shortly after 7:00 p.m. on February 7, 1987. Again, Marie was working behind the bar. During the evening, Marie indicated she had gotten the agents a half-ounce of marijuana and directed Agent Warner to go into the ladies room and look under the plastic bag that was in there. As a result of these representations, DeLoach gave Marie $80.00 whereupon Marie went to the cash register, made change, and returned $10.00 to him. In the meantime, Warner had gone into the ladies room and when she returned, she had with her a plastic bag of suspected marijuana which she showed to DeLoach out in public at the bar. This substance, when subsequently analyzed at the crime lab, was determined to contain marijuana. The agents again went to the Pub on February 9, 1987, at approximately 6:00 p.m. at which time Marie, who was again working as bartender/manager, indicated she had 3 "quarters" for sale. DeLoach gave her $35.00 across the bar in front of other patrons whereupon Marie and Warner went to the ladies room where Marie transferred to Warner a plastic baggie containing suspected marijuana. This vegetable matter was subsequently analyzed and determined to in fact be marijuana. On February 10, 1987, DeLoach entered the bar at approximately 4:30 p.m. and found Marie working as manager. He asked her if any drugs were available and when nothing was, he left. When he returned at approximately 6:00 p.m., Patty had replaced Marie as bartender/manager and he asked Patty if anyone had any marijuana for sale. She replied that none was available and "most people used coke." When he asked if he could get some coke, she said she could get some for $40.00. DeLoach gave her some money which she in turn gave to a patron subsequently identified as Pete who then left the bar. After two tries, Pete finally returned stating he could get none and returned the money to DeLoach. All of this activity which did not result in a drug purchase, nonetheless was conducted out in the open and no effort was made to conceal it. On February 11, 1987, when DeLoach entered the facility, Patty was again on duty. DeLoach asked her if she knew where he could get some coke and gave her $40.00 which she again gave to the patron, Pete, who left the area in his truck. After a short while, Patty received a phone call after which she came over to DeLoach and advised him that Pete had said that his source was not at home but that he would try elsewhere. Somewhat later, Pete returned to the bar and advised DeLoach he had two packages in his truck from which DeLoach could take his choice. DeLoach followed Pete out of the bar to the truck parked outside, chose one of the packages, and brought it back into the Pub where he showed it off. At all times, no effort was made by Pete or DeLoach to conceal what was happening and no attempt was made by Patty or anyone else in charge to stop the transaction. When he left that night, DeLoach thanked Patty for putting him in touch with Pete and Patty acknowledged his thanks. The substance which DeLoach purchased from Pete outside the Pub on this date was subsequently laboratory tested and determined to be cocaine. On this same day, while DeLoach was making his purchase from Pete, Warner was also present. Patty was still on duty when Marie arrived with Mrs. Fisher. Marie told Warner she had a quarter ounce of drugs if she wanted it but wanted to wait until after Mrs. Fisher left. A little later, but while Mrs. Fisher was still present, Marie passed a jacket to Warner which she suggested Warner try on in the restroom and that while she was in there, she should look into the pocket to see the two baggies that were there. Instead of going into the restroom with the jacket, Warner took it outside, got one package out of the pocket which she replaced with $40.00, and went back inside where she gave the jacket back to Marie. Mrs. Fisher was still present, however, Warner does not know whether she observed what happened or not. Mrs. Fisher, of course, indicated she did not know what was going on although she acknowledges having been present on the date in question and having brought Marie to work that day. This testimony is offset by that of Officer Hurlburt who was also present at the time the jacket was passed to Warner. Hurlburt indicates that while all this was going on, he had a conversation with Mrs. Fisher and when Warner handed the jacket back to Marie, Mrs. Fisher asked Hurlburt if they had gotten what they were after. Mrs. Fisher denies this conversation as well. Taken together, it is most likely, and is so found, that the truth is somewhere in between both versions. No doubt a conversation did take place between Hurlburt and Mrs. Fisher, but it is most likely that any comment made by her was taken out of context and did not relate to drug purchases. DeLoach went back to the Pub later that same evening and found Marie on duty as the sole employee on the premises. He asked her about quaaludes because she had indicated previously that she expected to get a large quantity of this drug through her boyfriend and was trying to set up buyers for it. While this conversation was taking place, there were patrons present but even so, the conversation was not concealed. Pete was also present and when he approached DeLoach, indicated he was upset because the quality of cocaine he had sold DeLoach previously was not high and he wanted to make it up to him. This conversation as well was carried on in front of patrons and was not concealed. DeLoach went back on February 12, 1987 and found 8 to 10 patrons present. Marie was on duty and again they talked about quaaludes and the conversation turned to marijuana. Marie said she had one bag for sale for $25.00. He gave her the money across the bar and Marie gave a plastic bag of suspected marijuana to Warner back over the bar. Other persons were present, but at no time did Marie exercise any type of caution nor did she try to conceal the delivery. This substance was subsequently analyzed and determined to be marijuana. On February 13, 1987, when DeLoach went back in the Pub at 8:00 p.m., Stacy, the Fisher's daughter, was on duty as bartender/manager. DeLoach had not seen her working there before though she had been in the bar several times previously with Pete. He spoke with her at the bar asking where Pete was because he wanted to buy some more "stuff" from him. In response to this, she merely nodded her head and smiled. Pete arrived later that evening and spoke with DeLoach outside the bar in the parking lot. At this time, Pete took out an aspirin box and pencil saying that was how he took coke while driving and demonstrated. He then offered the pencil to DeLoach who simulated taking some. He also purchased at that time, one half gram of suspected cocaine from Pete outside the bar for $40.00. Laboratory analysis of the substance transferred at that time revealed it was cocaine. After that transaction, Pete went back into the bar and started talking to Stacy who was behind the bar. DeLoach approached Pete and said he'd like to deal with him again because the quality of his stuff was good. While this conversation took place, Stacy was present but said nothing. Marie was on duty in the bar on February 23, 1987 when DeLoach went in at approximately 9:30 p.m. She told DeLoach that she could get an "eight ball" (one-eighth ounce of cocaine) for $150.00 plus $25.00 for her, but that she could not deal at the bar any more. That same night, DeLoach met with another patron, later identified as David, from whom he bought one marijuana cigarette for $10.00. However, prior to the transaction, the conversation regarding the cigarette was open and free. Several days later Marie explained to DeLoach that the owners did not want her dealing drugs out of the bar and that's why she was unable to help him. On February 27, 1987, when DeLoach went to the Pub, Stacy was on duty as bartender. David was there again and handed him a small envelope with suspected marijuana in it for which DeLoach paid $20.00. This transaction took place at the bar where Stacy was working. He does not know where Stacy was actually standing or if she saw it, but no effort was made to conceal the transaction which was made at waist level. Waist level being below the level of the counter, Stacy may not have seen it. Other patrons were present, however, and were looking on. The substance which was transferred was subsequently identified as marijuana. That same evening, Grizzly showed up again at the bar (he had been in jail) stating that he had coke which he was willing to sell. When DeLoach agreed to buy, Grizzly went out to his car and came back to the bar with a bag from which he took a pint-sized container of a white powdery substance. He went into the restroom and came back with a rolled-up $5.00 bill filled with the powder in question. He sat the container on the bar whereupon Stacy took it and placed it with his other belongings (subsequently determined to be his laundry). When Grizzly gave him the $5.00, he also said he'd left something in the restroom for DeLoach who went in and saw a large line of white powder which he brushed off onto the floor. DeLoach paid Grizzly $35.00 for the $5.00 bill and contents and the powder left for him in the men's room. The substance transferred by Grizzly that evening was subsequently tested and determined not to contain any controlled substance. Later that evening, however, about 9:20 p.m., Grizzly again came up to DeLoach and offered to sell him more crack for $20.00. At this time, DeLoach was standing at the bar. Grizzly got the container from the bartender, went to the restroom, and came back with some powder rolled up in a $1.00 bill. Again, Grizzly told DeLoach he'd left him a present on the toilet lid and upon entering the restroom, DeLoach found some white powder where Grizzly had indicated. Grizzly also gave him some material for Warner. After this, Stacy took the jar back from Grizzly and put it back behind the bar. Again, this substance was determined, upon test, not to be a controlled substance. DeLoach went back on February 28, 1987, at 5:30 p.m. with Warner. At this time, Mrs. Fisher and Marie were there. On this occasion, DeLoach purchased a Thai stick outside the bar from an individual subsequently identified as David. When tested, it was revealed to contain marijuana. On March 7, 1987, at 1:00 p.m., when DeLoach went to the Pub, Cathy was on duty. At approximately 4:00 p.m., Grizzly came up and in the presence of Cathy, indicated he needed money and offered to sell DeLoach one gram of crack for $50.00. At the time there were several patrons present who could have heard the conversation though DeLoach does not know whether or not they did. The sale was subsequently consummated when Grizzly out in the open, handed DeLoach the substance rolled up in a $10.00 bill, for which he was paid $50.00. Grizzly also stated to DeLoach there were two lines of crack on the lid of the toilet in the restroom one for him and one for another patron. When DeLoach went into the restroom and looked, they were there and with the bathroom door open, could easily be seen from the pool table. When DeLoach went back into the bar on March 8, 1987, Cathy was serving as bartender/manager. While he was there, a black man came to the door stating he was looking for "Rick", a patron. He said he had blocks of hashish for sale. At this point, Cathy asked him to leave, whereupon the black man went out in front of the establishment. DeLoach followed him out and purchased a block of the substance for $40.00. Other patrons purchased as well. Both DeLoach and the other individuals subsequently showed their purchases around and thereafter, one of the patrons went to a nearby grocery store to purchase some aluminum foil from which Warner fashioned a small pipe in which to smoke the hashish. At this point, Cathy indicated that they should take the substance outside to smoke it, which they did. Though the smoking was going on outside, the talking was done inside. The substance in question here was subsequently tested and determined not to contain hashish. On March 9, 1987, DeLoach talked with Marie about buying an eight-ball for $200.00. This conversation took place in front of other patrons at the bar. During the conversation, DeLoach gave Marie $200.00 in cash over the bar in response to which, Marie told him he'd have to come back later to pick up his purchase. When he left, he told Marie to hold it for him until he came back which he did at 9:00 p.m. When he came in then, Marie told him that Patty had the substance out in her car. DeLoach and Patty went outside, got the cocaine, and brought it back into the bar. Subsequent testing of the substance determined that it was cocaine. Hurlburt also purchased $200.00 worth of cocaine, through Marie, from Bonnie, a patron of the establishment on March 12, 1987. The money for the purchase was counted out on the bar in front of patrons to Marie who gave it to Bonnie who departed. When she same back, she and Marie went into the restroom and Marie came out with a package which she gave to Hurlburt. He placed it on the bar for awhile. The substance contained in it was subsequently tested and identified as cocaine. There can be little doubt that agents made several purchases of marijuana and cocaine in the Ponderosa Pub during the period of the ongoing investigation from Marie and Patty. There is also no doubt that purchases were made from patrons Patty and Grizzly and well as possible other patrons and that Marie, Cathy, and Patty were well aware that drug activity was going on even beyond that in which they were involved. Cathy started work at the Ponderosa Pub on February 9, 1987 after being hired by Mrs. Fisher. She had previously been a patron of the establishment. Her hours were usually on Saturdays, Sundays, and Mondays from 10:00 a.m. (opening hour) to 6:00 p.m. when she was relieved by Marie. Her last day as an employee was when the premises was raided by the police. Cathy recognizes Hurlburt and DeLoach as patrons. When she was hired, Mrs. Fisher told her there were to be no drugs at all inside the bar and warned her to be careful about patrons' ages and not to serve underage individuals. She was instructed that if she saw anyone with drugs or heard of anyone with them she was to ask that individual to leave and if refused, was to call the police. On one occasion, in February, 1987, she did eject a black male from the premises for attempting to sell drugs to two customers. Cathy knew Grizzly as an occasional patron who did not come in frequently. The agents, however, were, according to her, heavy drinkers who would drink between three and four beers an hour. They were very friendly and never caused any trouble. She did not ever see then, as they described, take their beer bottles outside or to the restroom and does not believe that would happen as that would be illegal. The lighting in the club was dim, though she was generally able to see satisfactorily. Cathy recalls seeing DeLoach and another patron named Dick do something with aluminum foil on one occasion which she believed to be Sunday, March 8, 1987. When a female patron, subsequently identified as Warner asked to smoke marijuana in the bar, Cathy told them to go outside to do it. She did not eject them from the bar at this time nor did she report the incident to the police. However, she did report it to Mr. Fisher the next morning but none of the individuals were thereafter barred from the bar. She denies ever having seen or ever having heard of any other drug transactions in the premises. None of the agents can actually state with certainty that either Mr. or Mrs. Fisher ever observed any individual or specific drug transaction. DeLoach indicates that between January 10 and March 12, 1987, he saw Mr. Fisher on the premises three or four times. He never saw him sell or receive drugs or in any way participate in drug activity nor does he recall even talking with Mr. Fisher. Mrs. Fisher was present in the bar on at least one occasion when a drug transaction took place, however, he cannot say for sure that she observed the transaction or knew of it. In fact, Warner told DeLoach that Marie had told her, as was indicated above, that no sales would take place while Mrs. Fisher was there and to wait until she left. It was supposedly during that conversation that Marie stated the owners did not want her dealing drugs in the bar anymore. In substance, then, DeLoach does not know whether either owner knew of drug activity nor does he believe either owner ever saw drug activity. He never got drugs from either one or from Stacy and he, as a law enforcement official, knew of no complaints ever having been filed against this licensed establishment for drug activity. Agent Warner never got any drugs from either licensee at any time. There was some drug activity in the bar while Stacy was there, but Warner does not know if Stacy knew about it nor can she be sure that Mr. or Mrs. Fisher ever heard any of the drug conversations in which she was involved. Hurlburt has seen Mr. Fisher in the bar about six or eight times and claims he had a discussion with him on one occasion regarding the pros and cons of narcotics. Neither Fisher ever indicated they condoned the sale of narcotics on their property and, aside from the one statement Mrs. Fisher allegedly made to him asking if he had gotten what he wanted when Marie sold to Warner through the jacket subterfuge, a statement denied by Mrs. Fisher, Hurlburt does not recall her ever making any other statement to him to indicate she knew of or condoned the sale or use of narcotics on her property. While he contends he heard DeLoach state to Stacy that he wanted to deal with Peter because he had good stuff, he doesn't know if Stacy heard this and she did not acknowledge it. The three agents disguised as bikers were observed in the Ponderosa Pub by Mr. Sipes, a longtime patron of the establishment and himself a motorcycle rider, between three and six times. He has been in hearing range of then on several occasions and never heard them either talking of drugs or dealing in drugs nor did he ever see them deal drugs with Marie. During the period of time he has been a patron, which goes back many years, he had seen Marie, Patty, and Stacy, along with the other female bartenders formerly employed there, and has never seen Stacy engaged in any type of activity with drugs or law enforcement investigators. Over the years, he has heard of and seen the Fishers eject patrons, usually for bad language or too much alcohol. The facility is a nice place patronized by regulars, not normally by transients. The music is loud but there is no wildness. While it is possible that on the days he was there, drugs were on the premises, he knew nothing of them. A former bar maid, Ms. Mitchell, worked at the Ponderosa Pub for approximately six months steady during early 1985 and off and on for a year and a half thereafter up until January, 1987. While she was a full time employee, she worked eight hour shifts five days a week. When she was hired by Mrs. Fisher, she was told what her responsibilities were and was given a list of duties. She was verbally instructed on other things such as the fact that there were to be no drugs in the bar and how she was to handle drunks and other offenders. Though there were no signs on the wall that drugs were not permitted, a sign was up indicating that the owner could refuse service to anyone. She was not aware of nor did she ever witness any drug activity in the bar nor has she ever heard any conversations regarding drug sales there. Marie and Patty, both of whom worked for the licensee as bartenders, have both been fired and Marie is under criminal charges as a result of her activity. Both were hired by Mrs. Fisher. Prior to hiring them, she asked for references and in fact knew both individuals from their having worked for her previously. At a different prior employment, both were subjected to polygraphic examination and apparently passed them. Mr. and Mrs. Fisher contend they were both satisfied at the time of hiring that there would be no difficulty with them due to drug involvement. Mr. Fisher was not present in the bar, he claims, on any of the dates set out in the Notice to Show Cause nor did he hear any of the drug conversations. He knew the law enforcement investigators as patrons only and denied having talked with them. He is in the bar every day. He goes in to open up and clean up to get ready for the business day. He also closes the bar every evening and spends between five and six hours a day at the establishment as a result of his various trips there. The bar is approximately 600 square feet in size. Only Mr. and Mrs. Fisher have keys and the bartenders have to wait for them to arrive to get in. Mr. Fisher is, personally, very much opposed to drugs and does not condone them on his premises. The cartoon in question was brought in by a patron about three or four years ago and though he did not agree with the sentiments expressed, he let it go up. Mrs. Fisher took it down once but, upon request of the patrons, allowed it to go up again. Mr. Fisher contends he did not listen in on any of his patrons' conversations and consequently did not know if drug conversations were taking place. While behind the bar, the combination of the cooler noise, the fan noise, and the juke box noise, makes it impossible to hear conversations being carried on on the patrons' side of the counter. As to his rules and regulations, none were printed. He felt that verbal instructions given directly to the employee was more effective. He never felt it necessary to hire an off-duty policeman to patrol for drugs because the bar was a family establishment and he did not believe there was a drug problem. Mr. Fisher was aware of the fact that Grizzly had been asked to leave the bar previously because of an untoward comment made to Mrs. Fisher. He appeared to be a biker type individual and Mr. Fisher's instructions to his bartenders were to slow service to the bikers to discourage their patronage. This did not appear to be followed here as none of the agents, disguised as bikers, gave any indication they felt unwelcome. Fisher claims he had no knowledge of either Marie's or Patty's drug sales. He contends that his main concern was to keep the bar clean of drugs. He knew that some of his patrons were drug users but he could not control what they did outside the bar. It is clear that his minimal efforts is this direction were insufficient and inadequate. Stacy denies ever having heard any discussion in her presence about the sale of cocaine. She recognized DeLoach as a patron and did not know that he was an LEI. She denies any conversation with him about getting more stuff from Peter Ridge (Pete) as well as any of the actions attributed to her by DeLoach. She contends she never heard any conversations in the bar about the sale, delivery, or use of cocaine or any drugs by the LEIs or by any other patrons nor did she ever see any drug activity at any time. If she had seen any she would have ejected the offender, she contends. She is aware that her finance, Peter Ridge, has been arrested for cocaine activity but she knew nothing of it and was not present when this activity was alleged to have taken place. In fact, she contends, he is not a drug user either of marijuana or cocaine. She denies that any of the incidents that are alleged to have taken place in her presence on either February 13, 20, or 27 ever happened. She denies that the agents could have disposed of their beverages as they claimed by spilling them on the floor, outside, or in the restroom because it is illegal to take open containers either off the premises or into the restroom and she never saw any wet spots on the floor. Her categorical denials are too pat and smack more of form than of substance, and she, though a law student, is not, herself, a credible witness. As Stacy denies ever having heard or observed any of the activity indicated to have happened in her presence, so does Mrs. Fisher deny any conversations with Agent Warner or Hurlburt. She contends she has never dealt in drugs; she contends she was never present when drug deals took place allegedly in her presence; and she contends she never heard any conversations about drugs in the bar. She has a written list of duties, prices, and emergency procedures which is given to each employee upon hiring. The rules and policies to be followed governing the maintenance of law and order within the establishment are only verbal, however. While it is obvious that drugs were sold on and around the premises, Mrs. Fisher denies having known about it or that it happened when she was there. She has had experience with both Marie and Patty and knew nothing about either which would lead her to believe that they would deal in drugs. She did not believe it was necessary to hire an off-duty policeman to patrol and admits there were no signs on the premises cautioning against drug abuse; there were no training programs for employees prepared by DABT regarding drug abuse; and there were no manuals or other materials available for employees to read. Taken together, it becomes clear that while the Fishers themselves were not involved in the sale or transfer of narcotics, they cannot reasonably contend that they had no knowledge of what was going on. In a facility as small as this facility is, to accept that they knew nothing about what was happening would require a selective disbelief of the testimony of the three LEIs. It is not reasonable to do this to believe that the sales from Patty, from Grizzly, from Peter, and the others took place, and yet disbelieve that the agents made these purchases in front of Mrs. Fisher or Stacy. While they may not have known what was going on, and it cannot be said for certain that they did, it can be said for certain that they, as well as Mr. Fisher, failed to take those reasonable steps available to insure that their personnel did not engage in drug activity or to insure that others did not do so in their facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's 2COP alcoholic beverage license #16-00843 for the premises located at 2546 Southwest 15th Avenue, Broward County, Florida, known as the Ponderosa Pub, be revoked. RECOMMENDED this 30th day of June, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 30th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1602 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. As to Petitioner 1. & 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4.-21. Accepted in substance and incorporated herein. The Respondent did not deny the transfers as testified to by the agents took place. In issue here is the questions of the Respondent's knowledge or lack thereof of the fact that the transactions were being made in the facility and what they did, or failed to do to correct or prevent the situation. Accepted and incorporated herein. Rejected as not proven. Petitioner stipulated that Respondent may not have known of the transactions taking place within the facility. Accepted as to the last sentence relating to Respondent's failure to take affirmative action to forestall the possibility of drug sales on the licensed premises. Accepted and incorporated herein. As to Respondent Respondent's counsel failed to number the Findings of fact submitted. To facilitate resolution, they are hereby referred to numbers given chronologically as they appear in the document. Accepted. Rejected. Rejected. Accepted. Accepted. First sentence accepted. Second sentence rejected. Accepted. Rejected as a conclusion of law and not a Finding of Fact. Accepted. Accepted. Accepted. Accepted. Accepted as indicative that Respondent initially briefed employees orally as to its drug policy. Rejected as to repeated reminders. Rejected. Accepted. Rejected as to first sentence. Second sentence rejected as a conclusion of law, not a Finding of Fact. Accepted as to Respondent's fostering or condoning drug activity. Rejected as to their negligently overlooking it. COPIES FURNISHED: Daniel Bosanko, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32399-1000 W. Douglas Moody, Jr. Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Harry Gulkin, Esquire Las Olas Isles Building, Suite 300 Fort Lauderdale, Florida 33301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether the license of Respondent Judith M. H. Bandlow Gioia, R.N. #26105- 2 should be suspended or revoked, or whether Respondent should be put on probation or otherwise disciplined.
Findings Of Fact During the period of time from March 1, 1978 through March 13, 1978, while employed as a Registered Nurse at Wuesthoff Memorial Hospital, Cocoa, Florida, Respondent converted to her own use on numerous occasions, a controlled narcotic drug, to wit: Demerol (meperidine) and injected herself with said narcotic on a daily basis. Respondent altered the narcotic control record in order to hide the taking of said drugs noted in the foregoing paragraph and, in some instances, failed to chart the narcotic on the patient's medication sheet or nurses notes. On or about March 13, 1978, on being confronted with the facts stated in the foregoing paragraphs 2 and 3 by the Director of Nurses, Nelda C. Mitchell, R.N., Respondent admitted her guilt and at that time gave Ms. Mitchell four ampules of Demerol 100 mg. which she had in her uniform pocket. Respondent was thereupon discharged from her position on March 13, 1978. The Petitioner, State Board of Nursing, filed an administrative complaint against Respondent on March 27, 1978 charging Respondent with unprofessional conduct and with engaging in the possession of controlled substances contrary to Chapter 464 Florida Statutes. Respondent was notified that unless she requested an administrative hearing the Board would either place the license of Respondent on probation or suspend or revoke her license as a Registered Nurse. Petitioner requested an administrative hearing. Respondent at the hearing admitted allegations one to four (4) of the administrative complaint and conceded such conduct was in violation of Section 464.21(1)(b) and 464.21(1)(d) The Respondent through her attorney, and personally, testified that she requested the hearing, not to refute the allegations of the complaint but to mitigate the action pending by the State Board of Nursing. A deposition entered into evidence by Respondent, without objection from the Petitioner, was taken on behalf of the Respondent. The witness was Cynthia H. Clowes, the therapist of Respondent when she was admitted to the Palm Beach Institute on March 16, 1978. Ms. Clowes stated that if the Respondent were to undergo therapy by a person qualified in giving therapy in addiction that at the end of two years, more or less, Respondent would be ready to be exposed to access to drugs. She did not recommend that Respondent be exposed to drugs at the time of the deposition on August 7, 1978. Ms. Clowes recommended that Respondent regularly attend Alcoholics Anonymous meetings. It was Ms. Clowes' opinion that Respondent Gioia had the capability to resume her duties as a nurse on a part-time, but not a full-time basis. The parties agreed that Michelle E. Vollard, Out-patient Therapist Substance Abuse Services, Brevard County Mental Health Center, Inc. would submit a statement to the Hearing Officer subsequent to the hearing. The letter was received December 1, 1978 in the office of the Hearing Officer and was signed by Michelle Vollard, Out-patient Therapist Substance Abuse Services and Rene S. Turla, M.D., Team Psychiatrist. The statement recommends that Ms. Gioia continue individual counselling for a period of at least a year and recommended that her access to narcotic drugs be limited, if not totally eliminated, while she is undergoing therapy. It was recommended that the Respondent attend an alcoholic orientation (education group), and an ongoing alcohol group. The Hearing Officer further finds: Subsequent to her discharge from Wuesthoff Memorial Hospital Respondent voluntarily placed herself in the Palm Beach Institute for a period of six weeks. The purpose was to seek treatment for an apparent addiction to Demerol and to alcoholic substances. After leaving the Palm Beach Institute as an impatient she returned on several occasions to consult with her therapist as an outpatient. She has attended meetings of Alcoholics Anonymous in Brevard County and has sought aid of the Brevard County Mental Health Center. Respondent is at present under stress and may take narcotic drugs without a prescrip- tion, and may also drink alcoholic beverages to excess. She should continue treatment to control alcohol consumption. Respondent should have no access to drugs prescribed for patients.
Recommendation Suspend the license of Respondent for a period of no less than two years. DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard A. Gescheidt, Esquire Amdur Building - Suite 2-D 40 Southeast First Avenue Boca Raton, Florida 33432 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. Investigation & Licensing Coordinator State Board of Nursing 6501 Arlington Expressway Building B. Jacksonville, Florida 32211
